10:0071(19)NG - AFGE Local 2670 and Army and Air Force Exchange Service, Keesler AFB Exchange, MS; AFGE Local 1504 and Army and Air Force, Army and Air Force Exchange Service, Northwest Area Exchange, Ft. Lewis, WA -- 1982 FLRAdec NG
[ v10 p71 ]
10:0071(19)NG
The decision of the Authority follows:
10 FLRA No. 19
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 2670
Union
and
ARMY AND AIR FORCE EXCHANGE SERVICE,
KEESLER AIR FORCE BASE EXCHANGE,
MISSISSIPPI
Agency
Case No. O-NG-366
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1504
Union
and
DEPARTMENTS OF THE ARMY AND AIR FORCE,
ARMY AND AIR FORCE EXCHANGE SERVICE,
NORTHWEST AREA EXCHANGE, FT. LEWIS,
WASHINGTON
Agency
Case No. O-NG-409
CONSOLIDATED DECISION AND ORDER ON NEGOTIABILITY ISSUES
THE PETITIONS FOR REVIEW IN THESE CASES /1/ COME BEFORE THE AUTHORITY
PURSUANT TO SECTION 7105(A)(2)(D) AND (E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), AND RAISE ISSUES
REGARDING THE NEGOTIABILITY OF THE FOLLOWING TWO UNION PROPOSALS.
UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
UNION PROPOSAL 1
ALL EMPLOYEES ASSIGNED TO FOOD ACTIVITIES WHO WORK FOUR (4) OR MORE
HOURS PER 24 HOUR
PERIOD WILL BE FURNISHED ONE (1) FREE MEAL NOT TO EXCEED $2.00. THIS
AMOUNT WILL BE ADJUSTED
YEARLY TO MATCH THE INCREASE(D) COST OF FOOD.
UNION PROPOSAL 2
ALL EMPLOYEES ASSIGNED TO FOOD ACTIVITIES WHO WORK FOUR (4) OR MORE
HOURS PER 24 HOUR
PERIOD WOULD BE FURNISHED ONE (1) FREE MEAL NOT TO EXCEED $3.50.
THE RECORD INDICATES THAT NONAPPROPRIATED FUND INSTRUMENTALITY
EMPLOYEES ASSIGNED TO FOOD ACTIVITIES ARE ENTITLED, AS A MATTER OF ARMY
AND AIR FORCE EXCHANGE SERVICE (AAFES) POLICY, TO A FREE MEAL UNDER
CERTAIN CIRCUMSTANCES, WITH THE RETAIL VALUE NOT TO EXCEED $1.45. THE
DISPUTED PROPOSALS ARE CONCERNED WITH INCREASING THE VALUE OF MEALS
WHICH MAY BE PROVIDED TO THE EMPLOYEES INVOLVED. THE AAFES SOLELY
CONTENDS THAT THE PROPOSALS ARE BARRED FROM NEGOTIATION BECAUSE THEY ARE
INCONSISTENT WITH THE AGENCY'S RIGHT TO DETERMINE ITS BUDGET UNDER
SECTION 7106(A)(1) OF THE STATUTE AND WITH AN AAFES REGULATION FOR WHICH
A COMPELLING NEED EXISTS UNDER SECTION 7117(A)(2) OF THE STATUTE AND
SECTION 2424.11(A) OF THE AUTHORITY'S RULES AND REGULATIONS.
AS TO SECTION 7106(A)(1) /2/ OF THE STATUTE, THE MERE FACT THAT A
PROPOSAL WOULD RESULT IN INCREASED COSTS TO AN AGENCY WOULD NOT RENDER
AN OTHERWISE NEGOTIABLE PROPOSAL VIOLATIVE OF THE AGENCY'S RIGHT TO
DETERMINE ITS BUDGET. RATHER, THE AUTHORITY HAS DETERMINED THAT A
PROPOSAL WHICH BY ITS TERMS PRESCRIBES A PARTICULAR PROGRAM OR OPERATION
TO BE INCLUDED IN AN AGENCY'S BUDGET, OR PRESCRIBES AN AMOUNT TO BE
ALLOCATED IN A BUDGET FOR A PROGRAM OR OPERATION, WOULD DIRECTLY
INTERFERE WITH AN AGENCY'S RIGHT TO DETERMINE ITS BUDGET AND HENCE WOULD
NOT BE NEGOTIABLE. SIMILARLY, A PROPOSAL WHICH DEMONSTRABLY WOULD
RESULT IN A SIGNIFICANT AND UNAVOIDABLE INCREASE IN COSTS WHICH WOULD
NOT BE OFFSET BY COMPENSATING BENEFITS WOULD BE INCONSISTENT WITH THE
AGENCY'S RIGHT TO DETERMINE ITS BUDGET. AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 603, 607-8(1980), ENFORCED
AS TO OTHER MATTERS SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR
RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981) CERT. DENIED SUB
NOM. AFGE V. FLRA, . . . U.S. . . . , 102 S. CT. 1443(1982). SEE ALSO
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND
OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 6 FLRA NO. 76(1981).
THE PROPOSALS HERE IN DISPUTE DO NOT BY THEIR EXPRESS TERMS PRESCRIBE
A PARTICULAR PROGRAM OR OPERATION TO BE INCLUDED IN THE AGENCY'S BUDGET,
OR PRESCRIBE THE AMOUNT TO BE ALLOCATED IN THE BUDGET FOR A PARTICULAR
PROGRAM OR OPERATION. MOREOVER, THE AAFES HAS NOT MADE A SUBSTANTIAL
DEMONSTRATION THAT THE PROPOSALS WOULD RESULT IN A SIGNIFICANT AND
UNAVOIDABLE INCREASE IN COSTS. CF. NATIONAL TREASURY EMPLOYEES UNION,
CHAPTER 6 AND INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, 3 FLRA
747, 764-66(1980) (AN AGENCY HAD NOT DEMONSTRATED SIGNIFICANT AND
UNAVOIDABLE INCREASED COSTS BASED UPON THE PERCENTAGE INCREASE IN COSTS
TO THE AGENCY FOR THE FISCAL YEAR). FURTHERMORE, IT HAS NOT
DEMONSTRATED THAT THE INCREASED COSTS WHICH IT CLAIMS WOULD RESULT WOULD
NOT BE OFFSET BY COMPENSATING BENEFITS. RATHER, THE AAFES MERELY
ASSERTS, WITHOUT ATTEMPTING TO SUBSTANTIATE, THAT IMPROVED EMPLOYEE
PERFORMANCE OR PRODUCTIVITY IS "PROBLEMATICAL AND HIGHLY SPECULATIVE."
ACCORDINGLY, THE AAFES HAS NOT SUPPORTED ITS CLAIM THAT THE PROPOSALS
ARE INCONSISTENT WITH SECTION 7106(A)(1).
AS TO THE AAFES'S CONTENTION THAT NEGOTIATION OF THE UNION'S
PROPOSALS IS BARRED BY AN AAFES REGULATION FOR WHICH A COMPELLING NEED
EXISTS UNDER SECTION 7117(A)(2), /3/ THE REGULATION RELIED UPON
(EXCHANGE SERVICE MANUAL, FOOD OPERATIONS 24-4, 7-40(B)), PROVIDES AS
FOLLOWS: "THE VALUE OF THE MEAL AUTHORIZED IN CONUS, WILL NOT EXCEED
$1.45 AT SELL PRICE. OVERSEAS SYSTEMS MAY REDUCE THE MEAL VALUE AS
APPROPRIATE." IT IS WELL SETTLED THAT THE COMPELLING NEED PROVISIONS OF
THE STATUTE ARE MEANT TO INSURE THAT BARGAINING PROPOSALS CONCERNING
CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES, WHICH ARE
OTHERWISE WITHIN THE DUTY TO BARGAIN, ARE BARRED FROM NEGOTIATION DUE TO
A CONFLICT WITH AGENCY RULES OR REGULATIONS ONLY IF THE AGENCY INVOLVED
DEMONSTRATES AND JUSTIFIES, UNDER CRITERIA ESTABLISHED BY THE AUTHORITY,
AN OVERRIDING NEED FOR THE POLICIES REFLECTED IN THE RULES OR
REGULATIONS TO BE UNIFORMLY APPLIED THROUGHOUT THE AGENCY. THE
AUTHORITY'S ILLUSTRATIVE CRITERIA FOR DETERMINING COMPELLING NEED IN
SECTION 2424.11(A) OF THE RULES AND REGULATIONS REQUIRES THAT AN AGENCY
CAN ESTABLISH THAT A COMPELLING NEED EXISTS FOR ITS REGULATION ONLY IF
IT DEMONSTRATES THAT SUCH REGULATION IS "ESSENTIAL AS DISTINGUISHED FROM
HELPFUL OR DESIRABLE." /4/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 3804 AND FEDERAL DEPOSIT INSURANCE CORPORATION, CHICAGO
REGION, ILLINOIS, 7 FLRA NO. 34(1981) AT 3-4 OF SLIP DECISION, CITING
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2875 AND
DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION,
NATIONAL MARINE FISHERIES SERVICE, SOUTHEAST FISHERIES CENTER, MIAMI
LABORATORY, FLORIDA, 5 FLRA NO. 55(1981) (PROPOSAL 4).
IN THE PRESENT CASE, THE AAFES ARGUES THAT ONLY A UNIFORM VALUE FOR
THE FREE MEAL AUTHORIZED TO ITS EMPLOYEES THROUGHOUT AAFES IS COMPATIBLE
WITH ITS EXISTING BUDGETARY PRACTICES, FORECASTS, AND CENTRALIZED
PAYROLL SYSTEM AND, THEREFORE, ITS REGULATION WHICH IT CLAIMS
ESTABLISHES SUCH UNIFORMITY IS ESSENTIAL, AS OPPOSED TO MERELY
DESIRABLE, TO PREPARE AND MAINTAIN ACCURATE RECORDS FOR PAYROLL AND TAX
PURPOSES. FURTHER, IT CONTENDS THAT THE MAINTENANCE OF ACCURATE RECORDS
WOULD BE MORE DIFFICULT TO ACHIEVE UNDER THE UNION PROPOSALS.
HOWEVER, THE AAFES HAS NOT SHOWN THAT THE REGULATION ESTABLISHING A
MAXIMUM RETAIL PRICE OF $1.45 FOR EACH MEAL PROVIDED TO ITS EMPLOYEES
INVOLVED IS ESSENTIAL TO EXECUTING ITS PAYROLL AND TAX RECORDKEEPING
FUNCTION EFFICIENTLY AND EFFECTIVELY. THUS, IT HAS NOT DEMONSTRATED
THAT THE POLICY REFLECTED IN THE PRESENT REGULATION ASSURES THE
EFFICIENT, EFFECTIVE CONDUCT OF ITS RECORDKEEPING WITH RESPECT TO
PAYROLL AND TAXES. IN THIS REGARD, THE REGULATION EXPRESSLY PROVIDES
DISCRETION TO OVERSEAS AAFES SYSTEMS TO USE DIFFERENT MAXIMUMS. THUS,
THE REGULATION ITSELF TACITLY RECOGNIZES THE LACK OF ESSENTIALITY OF
PRICE UNIFORMITY. THE AAFES'S CONTENTION THAT THE PROPOSALS WOULD
CREATE ADMINISTRATIVE RECORDKEEPING DIFFICULTIES ESSENTIALLY RELATES TO
THE CLAIMED INCOMPATIBILITY OF THE PROPOSALS AND THE AAFES'S PRACTICES
IN CONNECTION WITH ITS CENTRALIZED SYSTEMS FOR TAXES AND PAYROLL
MATTERS. THE FACT THAT THE POLICY REFLECTED IN THE REGULATION
FACILITATES THE OPERATION OF A COMPREHENSIVE RECORDKEEPING SYSTEM, FROM
WHICH DEVIATION MAY BE DIFFICULT, DOES NOT IN ITSELF DEMONSTRATE THAT
THE REGULATION MEETS THE COMPELLING NEED CRITERIA IN SECTION 2424.11(A)
OF THE AUTHORITY'S RULES SO AS TO BAR NEGOTIATION OF AN OTHERWISE
NEGOTIABLE PROPOSAL. AFGE, LOCAL 2875 AND SOUTHEAST FISHERIES CENTER,
MIAMI LABORATORY, FLORIDA, 5 FLRA NO. 55. IN THIS REGARD, IN FAILING
TO DEMONSTRATE THAT, IN THE ABSENCE OF ITS REGULATIONS, THE AAFES WOULD
BE UNABLE TO KEEP ACCURATE RECORDS FOR TAX AND PAYROLL PURPOSES, IT MUST
BE CONCLUDED THAT AAFES HAS NOT MET ITS BURDEN OF SHOWING THAT ITS
REGULATION IS ESSENTIAL TO THE ACCOMPLISHMENT OF THAT OBJECTIVE. AFGE,
LOCAL 3804 AND FDIC, 7 FLRA NO. 34 AT 4.
THE AUTHORITY CONCLUDES, THEREFORE, THAT THE AAFES HAS NOT MET ITS
BURDEN OF DEMONSTRATING THAT ITS REGULATION IS ESSENTIAL, AS
DISTINGUISHED FROM HELPFUL OR DESIRABLE, TO THE PREPARATION AND
MAINTENANCE OF ACCURATE RECORDS AND, THUS, HAS NOT ESTABLISHED UNDER THE
REQUIREMENTS SET FORTH IN SECTION 2424.11(A) OF THE AUTHORITY'S RULES
AND REGULATIONS THAT A COMPELLING NEED EXISTS.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCIES SHALL
UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
CONCERNING THE PROPOSALS. /5/
ISSUED, WASHINGTON, D.C., SEPTEMBER 15, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ THE AUTHORITY, PURSUANT TO A MOTION BY THE ARMY AND AIR FORCE
EXCHANGE SERVICE, HAS CONSOLIDATED THESE TWO CASES BECAUSE THE PROPOSALS
INVOLVED PRESENT THE SAME NEGOTIABILITY QUESTIONS.
/2/ SECTION 7106 OF THE STATUTE PROVIDES IN PERTINENT PART AS
FOLLOWS:
SEC. 7106. MANAGEMENT RIGHTS
(A) SUBJECT TO SUBSECTION (B) OF THE SECTION, NOTHING IN THIS CHAPTER
SHALL AFFECT THE
AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
(1) TO DETERMINE THE . . . BUDGET . . . OF THE AGENCY(.)
/3/ SECTION 7117(A)(2) OF THE STATUTE PROVIDES AS FOLLOWS:
SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT
. . . .
(A)(2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
INCONSISTENT WITH FEDERAL
LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
WHICH ARE THE SUBJECT OF ANY
AGENCY RULE OR REGULATION REFERRED TO IN PARAGRAPH (3) OF THIS
SUBSECTION ONLY IF THE
AUTHORITY HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO
COMPELLING NEED (AS
DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS FOR
THE RULE OR REGULATION.
/4/ SECTION 2424.11 OF THE AUTHORITY'S RULES AND REGULATIONS
PROVIDES, AS RELEVANT HEREIN, AS FOLLOWS:
SEC. 2424.11(A) ILLUSTRATIVE CRITERIA.
A COMPELLING NEED EXISTS FOR AN AGENCY RULE OR REGULATION CONCERNING
ANY CONDITION OF EMPLOYMENT WHEN THE AGENCY DEMONSTRATES THAT THE RULE
OR REGULATION MEETS ONE OR MORE OF THE FOLLOWING ILLUSTRATIVE CRITERIA:
(A) THE RULE OR REGULATION IS ESSENTIAL, AS DISTINGUISHED FROM
HELPFUL OR DESIRABLE, TO THE
ACCOMPLISHMENT OF THE MISSION OR THE EXECUTION OF FUNCTIONS OF THE
AGENCY OR PRIMARY NATIONAL
SUBDIVISION IN A MANNER WHICH IS CONSISTENT WITH THE REQUIREMENTS OF
AN EFFECTIVE AND
EFFICIENT GOVERNMENT.
/5/ IN DECIDING THAT THE PROPOSALS ARE WITHIN THE DUTY TO BARGAIN,
THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO THEIR MERITS.