B-206183.OM, JUL 6, 1982

B-206183.OM: Jul 6, 1982

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SINCE HAND TOOLS ARE NOT "PERSONAL FURNISHINGS" BUT ARE ITEMS OF EQUIPMENT NECESSARY TO THE ACCOMPLISHMENT OF THE GOVERNMENT'S MISSION. THERE IS NO PROHIBITION AGAINST EMPLOYEES. HE ASKED IF THERE ARE ANY PROHIBITIONS AGAINST REQUIRING GOVERNMENT-EMPLOYED MECHANICS TO FURNISH HAND TOOLS NEEDED FOR THE REPAIR AND MAINTENANCE OF GOVERNMENT-OWNED VEHICLES. THIS IS NOT SIMPLY A QUESTION OF WHETHER THE AGENCY MAY REFUSE TO PURCHASE TOOLS NECESSARY FOR THE USE OF ITS EMPLOYEES. IT IS ALSO A QUESTION OF WHETHER THE AGENCY MAY REQUIRE ITS EMPLOYEES TO PROVIDE THE NECESSARY TOOLS. WE ARE NOT AWARE OF ANY STATUTES OR REGULATIONS WHICH EXPRESSLY PROHIBIT AN AGENCY FROM REQUIRING ITS EMPLOYEES TO PROVIDE HAND TOOLS OR OTHER EQUIPMENT.

B-206183.OM, JUL 6, 1982

SUBJECT: EMPLOYEE PURCHASE OF HAND TOOLS; NORFOLK NAVAL SHIPYARD VEHICLE MAINTENANCE PROGRAM (B-206183-O.M.) DIGEST: GOVERNMENT MAY NOT REQUIRE PERSONS EMPLOYED AS MECHANICS AT VEHICLE MAINTENANCE FACILITY TO FURNISH THEIR OWN HAND TOOLS, SINCE HAND TOOLS ARE NOT "PERSONAL FURNISHINGS" BUT ARE ITEMS OF EQUIPMENT NECESSARY TO THE ACCOMPLISHMENT OF THE GOVERNMENT'S MISSION. HOWEVER, THERE IS NO PROHIBITION AGAINST EMPLOYEES, EITHER INDIVIDUALLY OR COLLECTIVELY THROUGH UNION AGREEMENT, CONSENTING TO FURNISH THEIR OWN TOOLS. GOVERNMENT- FURNISHED TOOLS MUST BE MAINTAINED AND ACCOUNTED FOR AS GOVERNMENT PROPERTY AND MUST NOT BE MADE AVAILABLE FOR PERSONAL USE.

DIRECTOR, PLRD:

PAUL SPITZ OF YOUR STAFF ORALLY REQUESTED OUR ADVICE IN CONNECTION WITH A REVIEW OF THE CUSTODY AND SAFEGUARDING OF GOVERNMENT TOOLS USED IN THE MOTOR VEHICLE MAINTENANCE PROGRAM AT NORFOLK NAVAL SHIPYARD. SPECIFICALLY, HE ASKED IF THERE ARE ANY PROHIBITIONS AGAINST REQUIRING GOVERNMENT-EMPLOYED MECHANICS TO FURNISH HAND TOOLS NEEDED FOR THE REPAIR AND MAINTENANCE OF GOVERNMENT-OWNED VEHICLES. THIS IS NOT SIMPLY A QUESTION OF WHETHER THE AGENCY MAY REFUSE TO PURCHASE TOOLS NECESSARY FOR THE USE OF ITS EMPLOYEES; IT IS ALSO A QUESTION OF WHETHER THE AGENCY MAY REQUIRE ITS EMPLOYEES TO PROVIDE THE NECESSARY TOOLS.

WE ARE NOT AWARE OF ANY STATUTES OR REGULATIONS WHICH EXPRESSLY PROHIBIT AN AGENCY FROM REQUIRING ITS EMPLOYEES TO PROVIDE HAND TOOLS OR OTHER EQUIPMENT. HOWEVER, WE HAVE RULED AGAINST SIMILAR AGENCY REQUIREMENTS IN A NUMBER OF DECISIONS. FOR EXAMPLE, IN 2 COMP.GEN. 493 (1923), WE HELD THAT CUSTOMS OFFICERS COULD NOT BE REQUIRED TO PROVIDE HANDCUFFS NECESSARY FOR THE PERFORMANCE OF THEIR DUTIES. THERE IT WAS OUR RATIONALE THAT THE HANDCUFFS WERE FOR GENERAL USE IN GOVERNMENT BUSINESS AND WERE NOT PERSONAL FURNISHINGS FOR THE BENEFIT OF THE OFFICERS.

SIMILARLY, IN 5 COMP.GEN. 517 (1926), WE CONCLUDED THAT GOVERNMENT HOSPITAL WORKERS COULD NOT BE REQUIRED TO PURCHASE THEIR OWN HOSPITAL GARB SINCE:

"*** THESE SUPPLIES WERE NOT PRIMARILY FOR THE PERSONAL COMFORT OR PROTECTION OF THE WORKERS BUT FOR THE PROTECTION OF THE PATIENTS; THAT THE WORK COULD NOT BE SATISFACTORILY PERFORMED WITHOUT THEIR USE; AND THAT THEY ARE IN THE NATURE OF HOSPITAL EQUIPMENT RATHER THAN PERSONAL FURNISHINGS AND REMAIN THE PROPERTY OF THE HOSPITAL, BEING RETURNED TO STOCK AT THE EXPIRATION OF THE SERVICE OF THE WORKERS. ***"

THERE IS OF COURSE ONE IMPORTANT DIFFERENCE BETWEEN A MECHANIC'S HAND TOOLS AND THE EQUIPMENT INVOLVED IN THE CITED DECISIONS. THE TYPICAL MECHANIC IS LIKELY TO OWN HIS OWN HAND TOOLS AND MAY WELL PREFER TO USE THEM RATHER THAN GOVERNMENT-FURNISHED TOOLS, WHEREAS IT IS HIGHLY UNLIKELY THAT THE AVERAGE PERSON APPLYING FOR A JOB AS A CUSTOMS OFFICER WILL OWN HIS OWN HANDCUFFS. NEVERTHELESS THE PRINCIPLE INVOLVED IS THE SAME. EXCEPT FOR ITEMS WHICH QUALIFY AS "PERSONAL FURNISHINGS" (FOR EXAMPLE, NORMAL ITEMS OF CLOTHING WHICH EMPLOYEES CAN REASONABLY BE EXPECTED TO FURNISH FOR THEMSELVES), IT IS THE GOVERNMENT'S RESPONSIBILITY TO PROVIDE THE EQUIPMENT, INCLUDING SO CALLED "TOOLS OF THE TRADE," NECESSARY TO ENABLE ITS EMPLOYEES TO DO THEIR JOBS. THUS, THE GOVERNMENT COULD NOT REQUIRE SECRETARIES TO FURNISH THEIR OWN TYPEWRITERS.

WE THINK A MECHANIC'S HAND TOOLS FALL WITHIN THIS CATEGORY. THEY ARE NECESSARY TO SATISFACTORILY ACCOMPLISH THE GOVERNMENT'S WORK. THEY ARE PRIMARILY FOR THE BENEFIT OF THE GOVERNMENT RATHER THAN FOR THE COMFORT, CONVENIENCE, OR PROTECTION OF THE INDIVIDUAL EMPLOYEES. THEREFORE, WE CONCLUDE THAT AN AGENCY MAY NOT REQUIRE PERSONS EMPLOYEED AS MECHANICS IN A VEHICLE MAINTENANCE FACILITY TO PROVIDE THEIR OWN HAND TOOLS. TO HOLD OTHERWISE COULD HAVE THE EFFECT OF DISCRIMINATING AGAINST EMPLOYEES OR PROSPECTIVE EMPLOYEES WHO CANNOT AFFORD TO PURCHASE THEIR OWN TOOLS.

GOVERNMENT-FURNISHED TOOLS, MUST, OF COURSE, REMAIN THE PROPERTY OF THE GOVERNMENT AND BE TREATED AS SUCH. THEY MUST BE STORED IN GOVERNMENT FACILITIES WHEN NOT IN USE AND THEY MUST NOT BE MADE AVAILABLE FOR PERSONAL USE BY THE EMPLOYEES. SEE, E.G., B-200154, FEBRUARY 12, 1981.

WE HAVE BEEN ADVISED INFORMALLY THAT IN SOME AGENCIES, MECHANICS AND OTHER SKILLED LABORERS DO PROVIDE THEIR OWN HAND TOOLS PURSUANT TO AGREEMENTS NEGOTIATED BETWEEN THE AGENCIES AND LABOR UNIONS. THIS DOES NOT ALTER OUR BASIC CONCLUSION, HOWEVER, SINCE THERE IS NO PROHIBITION AGAINST EMPLOYEES, EITHER INDIVIDUALLY OR COLLECTIVELY, THROUGH A UNION AGREEMENT, CONSENTING TO PROVIDE THEIR OWN EQUIPMENT. WE EXPRESS NO OPINION AS TO THE DESIRABILITY OF THIS PRACTICE. WE DO NOTE, HOWEVER, THAT IT COULD EXPOSE THE GOVERNMENT TO LIABILITY UNDER THE MILITARY PERSONNEL AND CIVILIAN EMPLOYEES' CLAIMS ACT OF 1964, 31 U.S.C. SEC. 241, IF, FOR EXAMPLE, AN EMPLOYEE'S TOOLS ARE STOLEN THROUGH NO FAULT OR NEGLIGENCE ON HIS PART. THUS, SINCE AN AGENCY WHICH PERMITS AN EMPLOYEE TO USE HIS OWN TOOLS HAS NO EFFECTIVE CONTROL OVER THE VALUE OF THOSE TOOLS, IT MIGHT BE WELL ADVISED TO CONSIDER INCLUDING APPROPRIATE LIMITATIONS ON ITS LIABILITY IN ITS REGULATIONS IN IMPLEMENTING 31 U.S.C. SEC. 241.