National Federation of Federal Employees, Local 1363 (Union) and Headquarters, U.S. Army Garrison, Yongsan, Korea (Agency)
[ v04 p139 ]
04:0139(23)NG
The decision of the Authority follows:
4 FLRA No. 23
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1363
(Union)
and
HEADQUARTERS, U.S. ARMY GARRISON
YONGSAN, KOREA
(Agency)
Case No. O-NG-226
DECISION ON NEGOTIABILITY ISSUE
THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
UNION PROPOSAL
THE PROPOSAL INVOLVES CERTAIN CHANGES TO UNC/USFK/EA REGULATION 60-1,
GOVERNING RATION CONTROL WITHIN THE REPUBLIC OF KOREA, AND IS SET FORTH
IN ITS ENTIRETY IN AN APPENDIX HERETO.
QUESTION HERE BEFORE THE AUTHORITY
THE QUESTION IS WHETHER THE UNION'S PROPOSAL, CONCERNING CHANGES TO
THE RATION CONTROL REGULATION, IS OUTSIDE THE SCOPE OF THE DUTY TO
BARGAIN UNDER SECTION 7117 OF THE STATUTE /1/ OR CONFLICTS WITH RETAINED
MANAGEMENT RIGHTS UNDER SECTION 7106(A) OF THE STATUTE, /2/ AS ALLEGED
BY THE AGENCY.
OPINION
CONCLUSION: THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER THE
STATUTE AND DOES NOT CONFLICT WITH SECTION 7106(A) OF THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS, (5 CFR 2424.10), THE AGENCY'S ALLEGATION THAT THE PROPOSAL
IS OUTSIDE THE DUTY TO BARGAIN IS SET ASIDE. IN SO DECIDING THAT THE
SUBJECT PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE AUTHORITY MAKES NO
JUDGMENT AS TO THE MERITS OF THE PROPOSAL.
REASONS: THE UNION PROPOSAL ESSENTIALLY SEEKS TO ELIMINATE THE
MONTHLY DOLLAR AND/OR QUANTITY LIMITS IMPOSED OF BARGAINING UNIT
EMPLOYEES BY UNC/USFK/EA REGULATION 60-1 REGARDING THE PURCHASE OF
CERTAIN MERCHANDISE FROM THE COMMISSARY, EXCHANGE AND OTHER FACILITIES
IN KOREA, AND TO DELETE CERTAIN OTHER MERCHANDISE FROM THE "LETTER OF
AUTHORIZATION" LIST. THE AGENCY TAKES THE POSITION THAT THE UNION'S
PROPOSAL CONCERNING RATION CONTROL DOES NOT INVOLVE "CONDITIONS OF
EMPLOYMENT" AND THEREFORE IS OUTSIDE THE SCOPE OF BARGAINING UNDER THE
STATUTE.
IN THE CIRCUMSTANCES OF THE PRESENT CASE, THE AUTHORITY FINDS THE
MATTER OF RATION CONTROL IS A CONDITION OF EMPLOYMENT WITHIN THE MEANING
OF SECTION 7103(A)(14) OF THE STATUTE (SUPRA NOTE 1). SPECIFICALLY, THE
MATTER OF SUBSISTENCE, COMMISSARY, EXCHANGE AND OTHER ESSENTIAL
FACILITIES AND SERVICES, WHICH MUST BE FURNISHED TO EMPLOYEES SUCH AS
THOSE INVOLVED HEREIN, IS COVERED BY DEPARTMENT OF DEFENSE DIRECTIVE
NUMBER 1400.6, DATED JANUARY 16, 1976, ENTITLED "STATEMENT OF PERSONNEL
POLICY FOR CIVILIAN PERSONNEL OF THE DEPARTMENT OF DEFENSE IN OVERSEAS
AREAS." PARAGRAPH III D OF THAT DIRECTIVE /3/ SETS FORTH AGENCY-WIDE
POLICY REGARDING THE ESSENTIAL FACILITIES AND SERVICES TO BE PROVIDED
UNITED STATES CIVILIAN EMPLOYEES IN AN OVERSEAS COMMAND AND STATES, IN
PART, THAT EXCEPT TO MEET UNEXPECTED EMERGENCY CONDITIONS (NOT ALLEGED
OR SHOWN TO EXIST IN THE INSTANT CASE), "AN OVERSEAS COMMANDER WILL NOT
REQUEST UNITED STATES CITIZEN PERSONNEL FROM THE UNITED STATES UNLESS
AND UNTIL HIS COMMAND IS ABLE TO PROVIDE SUCH FACILITIES, TO THE EXTENT
OF MEETING REASONABLE STANDARDS OF HEALTH AND DECENCY."
ACCORDINGLY, IT IS CONCLUDED THE MATTER OF RATION CONTROL IS A
CONDITION OF EMPLOYMENT. IT IS DIRECTLY RELATED TO THE "REASONABLE
STANDARDS OF HEALTH AND DECENCY" FOR UNIT EMPLOYEES WHICH THE AGENCY
REQUIRES AS A PRECONDITION TO THEIR EMPLOYMENT IN AN OVERSEAS COMMAND.
THEREFORE, SUCH MATTER INVOLVES THE PERSONNEL POLICIES, PRACTICES AND
MATTERS AFFECTING WORKING CONDITIONS OF UNIT EMPLOYEES AND IS WITHIN THE
SCOPE OF BARGAINING UNDER SECTION 7117 OF THE STATUTE.
THE AGENCY ASSERTS, FURTHER, THAT THE PROPOSAL HEREIN VIOLATES
MANAGEMENT'S RESERVED RIGHT UNDER SECTION 7106(A)(1) OF THE STATUTE TO
DETERMINE THE INTERNAL SECURITY PRACTICES OF THE AGENCY. IN THIS
REGARD, THE AGENCY ARGUES THE DOLLAR AND QUANTITY LIMITS ON THE PURCHASE
OF CERTAIN MERCHANDISE CONTAINED IN THE RATION CONTROL REGULATION
(UNC/USFK/EA REGULATION 60-1) "HELPS CONTROL BLACKMARKETEERING BY
LIMITING THE AVAILABILITY OF THESE GOODS TO AUTHORIZED PERSONNEL."
HOWEVER, IN THE AUTHORITY'S VIEW, REGULATION 60-1 DOES NOT CONCERN THE
INTERNAL SECURITY PRACTICES OF THE AGENCY. UNLIKE THE REGULATION AT
ISSUE IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 15
AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NORTH ATLANTIC
REGION, 2 FLRA NO. 109, WHICH WAS PART OF THAT AGENCY'S PLAN TO PREVENT
DISRUPTION, IMPROPER OR UNAUTHORIZED DISCLOSURE OF INFORMATION OR
PROPERTY DESTRUCTION AT ITS FACILITIES, THE AGENCY HAS NOT ESTABLISHED
THAT THE REGULATION INVOLVED HEREIN RELATES TO OR CONTAINS A MANAGEMENT
PLAN FOR SECURING OR SAFEGUARDING ITS PHYSICAL PROPERTY AGAINST INTERNAL
OR EXTERNAL RISKS, OR IN ANY OTHER MANNER CONCERNS THE INTERNAL SECURITY
PRACTICES OF THE AGENCY. SIMILARLY, THE RECORD FAILS TO ESTABLISH, AND
IT DOES NOT OTHERWISE APPEAR, THE SUBJECT PROPOSAL CONFLICTS WITH OTHER
RESERVED MANAGEMENT RIGHTS UNDER SECTION 7106(A) OF THE STATUTE.
ACCORDINGLY, NOTING THAT NO COMPELLING NEED WAS RAISED BY THE AGENCY FOR
THE REGULATION HEREIN, THE PROPOSAL IS A MATTER WITHIN THE AGENCY'S DUTY
TO BARGAIN UNDER THE STATUTE, AND THE AGENCY'S ALLEGATION THAT THE
PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.
IN SO CONCLUDING, THE AUTHORITY SPECIFICALLY REJECTS THE AGENCY'S
CONTENTION THAT THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN
UNDER THE STATUTE INASMUCH AS "THE RATION CONTROL REGULATION HAS DIRECT
APPLICABILITY FAR BEYOND THE BARGAINING UNIT." AS PREVIOUSLY FOUND, THE
MATTER OF RATION CONTROL DIRECTLY AFFECTS THE WORKING CONDITIONS OF
BARGAINING UNIT EMPLOYEES AND IS THEREFORE WITHIN THE DUTY TO BARGAIN
ISSUED, WASHINGTON, D.C., SEPTEMBER 4, 1980
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
LOCAL 1363 NFFE PROPOSAL REGARDING RATIONING CHANGES
THE FOLLOWING PROPOSAL WOULD APPLY TO EMPLOYEES IN THE EXCLUSIVE
BARGAINING UNIT(S) REPRESENTED BY LOCAL 1363:
1. THE FOLLOWING ITEMS BE DELETED (OR NOT APPLIED TO) THE LOA LIST:
TV (COLOR OR BLACK & WHITE)
RADIOS OF ALL TYPES
TAPE RECORDERS OR CASSETTES OF ALL TYPES
AMPLIFIERS OF ALL TYPES
RECORD PLAYERS OF ALL TYPES
SPEAKERS OF ALL TYPES
VIDEO RECORDERS OF ALL TYPES
TYPEWRITERS OF ALL TYPES
CAMERAS OF ALL TYPES
CARPETS OF ALL TYPES
CLOTHES WASHERS OR DRYERS OF ALL TYPES
OVENS OR RANGES OF ALL TYPES
REFRIGERATORS OR FREEZERS OF ALL TYPES
VACUUM CLEANERS
FIREARMS
ELECTRIC TOOLS OF ALL TYPES
ORGANS
PIANOS
WATER HEATERS
KITCHEN APPLIANCES OF ALL TYPES
AIR CONDITIONERS
ELECTRIC BLANKETS
GOLF CLUBS OF ALL TYPES
DIAMONDS
WATCHES OF ALL TYPES
TENNIS EQUIPMENT OF ALL TYPES
FLOOR POLISHERS
ELECTRIC IRONS
LAWN MOWERS
DISH SETS OF ALL TYPES
COOKING UTENSILS OF ALL TYPES
2. THE FOLLOWING LIMITS ON CONSUMABLES: (TABLE OMITTED)
3. PURCHASE OF ELECTRIC HAND-HELD BLOW DRYERS WOULD BE UNLIMITED FOR
EACH EMPLOYEE.
4. THE PURCHASE OF RECORDS AND PRE-RECORDED TAPES WOULD NOT COUNT
AGAINST ANY DOLLAR LIMIT.
5. THE MONTHLY COSMETIC LIMIT FOR EACH EMPLOYEE WOULD BE UNLIMITED.
6. THE MONTHLY DOLLAR LIMIT FOR EACH EMPLOYEE WOULD BE AS FOLLOWS:
(TABLE OMITTED)
--------------- FOOTNOTES$ ---------------
/1/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH
SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR
REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE
OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE
STATUTE"
SEC. 7103. DEFINITIONS; APPLICATION
(A) FOR THE PURPOSE OF THIS CHAPTER--
* * * *
(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE
REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE
UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH
EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH
EMPLOYERS . . .
* * * *
(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES
AND MATTERS, WHETHER
ESTABLISHED HELD BY RULE, REGULATION,
OR OTHERWISE, AFFECTING WORKING CONDITIONS . . .
/2/ SECTION 7106(A) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
(1) TO DETERMINE THE . . . INTERNAL SECURITY PRACTICES OF THE AGENCY
. . .
/3/ PARAGRAPH III D OF DOD DIRECTIVE 1400.6 STATES AS FOLLOWS:
IN MAKING HIS DETERMINATION OF THE NUMBERS AND TYPES OF UNITED STATES
CITIZEN CIVILIANS TO
BE RECRUITED FROM THE UNITED STATES FOR EMPLOYMENT IN AN OVERSEAS
COMMAND, THE COMMANDER WILL
CONSIDER THE ABILITY OF HIS COMMAND TO ASSURE ADEQUATE HOUSING,
SUBSISTENCE, MEDICAL,
COMMISSARY, EXCHANGE, LAUNDRY, TRANSPORTATION, AND OTHER ESSENTIAL
FACILITIES AND SERVICES TO
UNITED STATES CIVILIAN EMPLOYEES, WHERE ADEQUATE FACILITIES ARE NOT
OTHERWISE AVAILABLE TO
SUCH PERSONNEL. EXCEPT AS MAY BE REQUIRED TO MEET UNEXPECTED
EMERGENCY CONDITIONS, AN
OVERSEAS COMMANDER WILL NOT REQUEST UNITED STATES CITIZEN PERSONNEL
FROM THE UNITED STATES
UNLESS AND UNTIL HIS COMMAND IS ABLE TO PROVIDE SUCH FACILITIES, TO
THE EXTENT OF MEETING
REASONABLE STANDARDS OF HEALTH AND DECENCY.