Purchase of Cold Weather Clothing, Rock Island District, U.S. Army, B-289683, October 7, 2002

B-289683 Oct 07, 2002 Jump To VIEW DECISION RELATED PAGES GAO CONTACTS Highlights Cold weather clothing is an employee's personal responsibility. Are not available for that purpose. Two of these three statutes are not available to the Army Corps of Engineers for the purchase of cold weather clothing. Unless the Corps determines that providing suitable cold weather clothing is necessary to satisfy the OSHA standards promulgated by the Secretary of Labor. OSHA is also not available. General statements in the Corps' safety manual about clothing employees should wear to protect themselves from cold weather do not constitute a determination by the agency that it is necessary to provide the clothing in order to satisfy OSHA standards. Relying upon the decisions of our Office and contending that such an expenditure was improper. View Decision Purchase of Cold Weather Clothing, Rock Island District, U.S. Army Corps of Engineers., B-289683, October 7, 2002 DIGEST DECISION The financial manager for the Rock Island District of the U.S. Army Corps of Engineers requested an advance decision on the availability of appropriated funds for the purchase of cold weather gear for union employees who work outside in cold weather. The American Federation of Government Employees filed a grievance alleging that the Corps violated its collective bargaining agreement by not providing suitable protective clothing for employees requested to work outdoors in cold weather. The Corps, relying upon the decisions of our Office and contending that such an expenditure was improper, agreed to arbitration by the Federal Mediation and Conciliation Service (FMCS). In August 2001, the arbitrator issued a decision directing the Corps to provide the cold weather gear. The Corps asks whether appropriated funds are available to purchase cold weather gear for district employees who work outdoors year round. Generally it is the responsibility of the employee to report for duty properly clothed to carry out his or her responsibilities. 68 Comp. Gen. 245 (1984). There are three statutes, including the Occupational Safety and Health Act (OSHA), that permit the purchase of wearing apparel. We address each of the statutes in our analysis below. Two of these statutes are clearly not available as authority to the Corps in the circumstances presented here. Only if the Corps determines that it is necessary to provide protective clothing to satisfy OSHA standards would OSHA provide the necessary authority. The Corps has not made that determination. The general statements in the Corps safety manual do not constitute the necessary determination. BACKGROUND The Local 584 bargaining unit representative of the Rock Island District filed a grievance on December 14, 2000, alleging that the Corps had violated Article 21 (Safety) of its negotiated collective bargaining agreement dated April 1, 1997. Article 21 states: "Section 1. The employer shall maintain an occupational safety and health program meeting the requirements of the Occupational Safety and Health Act of 1970 (OSHA); Executive Order 12196; 29 CFR Part 1960, Department of Labor Rules and Regulations; and EM [Engineering Manual] 385-1-1. The employer shall make a reasonable effort to provide that conditions detrimental to health are removed, remedied, or kept to a minimum. The Union shall cooperate to that end and encourage employees to perform work assignments safely and in accordance with the requirements of EM 385-1-1 and OSHA regulations. "Section 11. The Employer will provide suitable protective clothing in accordance with EM 385-1-1." Specifically, the Union claimed that the Corps does not provide suitable protective clothing to employees working outside in the cold weather in violation of both the collective bargaining agreement and OSHA requirements. The Corps denied the grievance, and in January 2001, the Union appealed to the Deputy District Engineer. This too was denied. The matter was submitted to arbitration. In October 2001, the arbitrator found that the Corps had violated the collective bargaining agreement by failing to provide cold weather clothing. Arbitration Award: U.S. Army Engineer District, Rock Island and National Federation of Federal Employees, Local 584. "Article 21, Safety," FMCS Case No. 01-07519 (Oct. 17, 2001) (hereinafter, Arbitration Award). The arbitrator ruled that the Corps should provide suitable cold weather clothing.