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

   Decision
    
    
Matter of:   Purchase of Cold Weather Clothing, Rock Island District, U.S.
Army Corps of Engineers.
    
File:            B-289683
    
Date:           October 7, 2002
    
DIGEST
    
Without specific statutory authority, cold weather clothing is an
employee's personal responsibility, not the government's, and appropriated
funds, therefore, are not available for that purpose.  Our Office has
identified three statutes including the Occupational Safety and Health Act
of 1970 (OSHA), that permit the use of appropriated funds to purchase
wearing apparel.  In the circumstances presented here, 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.
    
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.  Id.
    
The Financial Manager of the Rock Island District requested an advance
decision on whether appropriated funds are generally available to purchase
cold weather gear, what exceptions apply if appropriated funds are
generally not available for such a purchase, and whether, if there is an
exception where the agency makes a determination to furnish such gear as
protective equipment under the Occupational Safety and Health Act of 1970,
provisions of the Army Corps of Engineers Manual EM 385‑1‑1
constitute such a determination.
    
ANALYSIS
    
At the outset, we should point out the limits of GAO's jurisdiction with
regard to this matter.  Our function is not to decide whether the
arbitrator came to the correct decision or whether these issues are
negotiable.  We are required by 31 U.S.C. S: 3529 to rule on the legality
of expending appropriated funds.   Hence we shall confine our
considerations to the issue of whether appropriated funds are available to
purchase cold weather gear.
    
We generally consider items of clothing such as cold weather gear to be a
personal expense of the employee, and appropriated funds are not generally
available for personal expenses.  B-240271, Oct. 15, 1990.  We stated that
*every employee of the government is required to present himself for duty
properly attired according to the requirements of his position.*   63
Comp. Gen. 245 (1984).
    
Our Office has identified three statutory provisions that explicitly
permit the purchase of items of wearing apparel.  First, under 10 U.S.C.
S: 1593, the Secretary of Defense is authorized to pay an allowance or
provide a uniform to each civilian employee of the Department of Defense
who is required by law or regulation to wear a prescribed uniform while
performing official duties.  The record indicates that apparently some
districts provide uniforms for members of bargaining units.  Arbitration
Award, at 10.  However, the only uniform policy for the relevant employees
in the Rock Island District is that they wear U.S. Army Corps of Engineers
hats.  Id.  These employees are not required by law or regulation to wear
a prescribed uniform other than a hat.  Thus this exception would not
apply.
    
Second, under 5 U.S.C. S: 7903, enacted as part of the Administrative
Expenses Act of 1946, *Appropriations available for the procurement of
supplies and material or equipment are available for the purchase and
maintenance of special clothing and equipment for the protection of
personnel in the performance of their assigned tasks.*  In order for an
item to be authorized by 5 U.S.C. S: 7903, it must satisfy three tests: 
(1) the item must be "special" and not part of the ordinary and usual
furnishings an employee may reasonably be expected to provide for himself;
(2) the item must be for the benefit of the government, that is, essential
to the safe and successful accomplishment of the work, and not solely for
the protection of the employee, and (3) the employee must be engaged in
hazardous duty.  See 32 Comp. Gen. 229 (1952); B-193104, January 9, 1979.
    
We have generally been unwilling to hold that cold weather gear meets
these standards.  B-230820, Apr. 25, 1988.  We view such gear as personal
to the employee.  In rare circumstances, we have recognized an exception. 
For example, in 1984, we applied these standards to allow the procurement
of down-filled parkas for Office of Surface Mining employees working in
Alaska and western high mountain regions.  63 Gen. 245 (1984).  In that
case, however, the employees were assigned to temporary duty in these
regions and could not be expected to own clothing suitable for such
extreme environments.  Id. at 247.  Because the item was not solely for
the benefit of the employee, the expenditure was authorized.
    
In applying the three-part test here, that there is nothing in the record
to indicate that the cold weather gear at issue is *special.*  By contrast
with the situation faced by the Office of Surface Mining employees, the
situation here involves weather that is uncomfortable rather than
intolerable, and the weather encountered on the job is no different from
that encountered by millions in the midwest during their day-to-day
activities.  The only issue is whether the requirement to perform outside
for long periods of time creates a situation different from that where the
employee is only outside for the passage from parking lot to building, or
from building to building, or while attending sporting events.  To the
extent that operators working outside on the locks and dams suffer more
exposure from the cold weather than those who merely encounter the weather
briefly, the District's practices of providing sheltered or heated
enclosures, with the work day punctuated by frequent breaks, appears
adequate to protect the employees.
    
The third statute permitting the purchase of wearing apparels with
appropriated funds is OSHA.  Section 668 of title 29 of the U.S. Code
requires each federal agency to establish and maintain an effective and
comprehensive occupational safety and health program consistent with
standards promulgated by the Secretary of Labor pursuant to the Act.  See,
generally, 51 Comp. Gen. 446 (1972).  Under section 668, protective
clothing may be furnished by the government if the agency determines that
it is necessary under OSHA and its implementing regulations.  57 Comp.
Gen. 379, 382 (1978); B‑187507, Dec. 23, 1976.
    
There is nothing in the record here to indicate that the Corps has
designated cold weather gear as required equipment pursuant to OSHA
regulations.  While the Corps EM 385‑1‑1 (referenced in
section 11 of Article 21 of the collective bargaining agreement)
incorporates American Council of Government and Industrial Hygienists
(ACGIH) standards into the collective bargaining agreement, it does not
designate cold weather gear as required equipment pursuant to OSHA
regulations.  Paragraph 06.J.02 of EM 385-1-1 requires that each
installation develop a site-specific plan for monitoring heat/cold stress
in accordance with ACGIH guidance.  There is no reference in that
paragraph to provide clothing to the employees.  Subsequent paragraphs do
list specific circumstances where the agency will provide wearing
apparel:  (1) paragraph  06.J.06 states that employees who become
*immersed in
water* will be provided a change of clothing and treated for hypothermia;
and (2) paragraph 06.J.07 states that employees *shall be provided* gloves
at certain temperatures.
    
By contrast, paragraph 06.J.10, which deals specifically with *cold
weather clothing requirements,* does not provide that the agency will
supply such clothing.  Rather, those requirements address the individual
employee's obligation to provide and maintain equipment adequate to
protect himself from the environment.
    
There is no determination in the Engineering Manual that specific items of
cold weather gear are required to satisfy OSHA requirements.  The general
statements found in the manual do not constitute a determination for
purposes of OSHA.  See B‑191594, Dec. 20, 1978 (Forest Service
Manual provided authority to local line officers to determine, for their
local job situations, the personal protective equipment and clothing
necessary to satisfy OSHA requirements).
    
CONCLUSION
    
Without specific statutory authority, cold weather clothing is an
employee's personal responsibility, not the government's.  The purchase of
cold weather clothing by the Army Corps of Engineers for employees
required to perform work outside on locks and dams during midwestern
winters is not a proper use of appropriated funds unless the agency
determines that providing suitable cold weather clothing is necessary to
satisfy the standards promulgated by the Secretary of Labor pursuant the
OSHA.  The general language of EM 385-1-1, requiring employees to wear
clothing that protects them from the weather, does not constitute a
determination that the agency must provide that clothing to comply with
OSHA standards.
    
Anthony H. Gamboa
General Counsel