[ v23 p578 ]
23:0578(80)CA
The decision of the Authority follows:
23 FLRA No. 80
DEPARTMENT OF THE ARMY
DUGWAY PROVING GROUND
DUGWAY, UTAH
Respondent
and
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-62
Charging Party
Case No. 7-CA-50559
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority based on the
Regional Director's "Order Transferring Case to the Authority" in
accordance with section 2429.1(a) of the Authority's Rules and
Regulations. The complaint alleged that the Respondent refused to
bargain over a change in the established practice with regard to the
assignment of government-owned, on-post, non-housekeeping quarters to
"geographical bachelors" in violation of section 7116(a)(1) and (5) of
the Federal Service Labor-Management Relations Statute (the Statute).
II. Background
The National Association of Government Employees, Local R14-62,
(Charging Party), is the exclusive representative of the Respondent's
professional employees. It represents approximately 75 of the
Respondent's 747 civilian employees.
The Respondent, Dugway Proving Ground (DPG), is a remote installation
located approximately 45 miles from the nearest community, Tooele, Utah,
where limited housing is available. To reach this community requires
more than an hour commute over a mountain pass which is either
impassable or extremely hazardous during winter storms. DPG is 80 miles
from Salt Lake City, Utah, where a wide variety of housing is available.
There is no housing other than government housing at DPG. Due to this
remote location and the lack of locally-available housing, 250 family
quarters were constructed, and it was required that certain of those
quarters be provided to civilian employees. Other quarters were
constructed for the use of transient and permanent civilian and military
personnel.
Civilian employees at DPG fall into three categories for assignment
of government housing: (1) married civilians with families who are
eligible for family quarters; (2) "bona fide bachelors" (i.e.,
unmarried civilian employees) who are provided non-housekeeping quarters
if available; and (3) "geographical bachelors" (i.e., civilian
employees with dependents who are eligible for family quarters and may
or may not be on the waiting list for such quarters, and who live on DPG
but maintain and commute on weekends to and from a primary residence
outside DPG). The third group and the practice that developed regarding
their housing is the subject of the present case.
On May 9, 1975, DPG issued DPG Regulation 210-7, establishing
priorities for assignment of non-housekeeping quarters (private room
quarters where housekeeping services are not provided) to military and
civilian personnel. Since at least the issuance of that regulation,
geographical bachelors have been provided, upon request, with, at a
minimum, the single occupancy non-housekeeping quarters, thereby
permitting such employees to reside on DPG during the workweek and
commute to their primary residence outside DPG on weekends. Since 1980
these employees have been permitted to work a Monday through Thursday
schedule (10 hours per day).
The initial assignment to non-housekeeping quarters is made by DPG on
an "as available" basis. Under DPG Regulation 210-7, bona fide
bachelors have a higher priority for assignment of non-housekeeping
quarters than geographical bachelors. However, once assigned to such
quarters, the geographical bachelors were not required to vacate the
quarters when new bona fide bachelor employees arrived at the base.
This practice initially developed during a period when DPG had excess
non-housekeeping quarters. This excess no longer existed by January,
1985.
On May 20, 1985, the Commanding Officer informed the three unions
with bargaining unit employees at DPG, including the Charging Party,
that it might be necessary to evict some of the geographical bachelors
in order to provide space for the bona fide bachelors. At that time
there were 48 geographical bachelors, 10 of whom are part of the
Charging Party's bargaining unit. The Commanding Officer followed this
up with a letter to the geographical bachelors evicting them from the
non-housekeeping quarters. This action resulted in the filing of an
unfair labor practice charge that was withdrawn after the Commanding
Officer offered to suspend the eviction action pending review of the
matter by an ad hoc committee and to include union representatives on
the committee. The parties stipulated that the Charging Party's
membership on the committee did not constitute a waiver of its right to
bargain over the proposed change in quarters policy, and that collective
bargaining, as defined by the Statute, did not occur at the meeting.
A majority of the Ad Hoc committee recommended that dual occupancy
dormitory rooms in another building be offered to the geographical
bachelors which would permit their relocation from the single occupancy,
non-housekeeping quarters and use of those quarters by bona fide
bachelors. The Charging Party filed a Minority Opinion with the
Commanding Officer suggesting alternate methods of handling the problem.
The Commanding Officer essentially adopted the majority's
recommendations.
The Commanding Officer informed the Charging Party of his decision to
evict the geographical bachelors on August 5, 1985. On August 6, 1985,
the Charging Party requested to bargain over the Commanding Officer's
decision and submitted an initial proposal to maintain the status quo.
On the same date, the Commanding Officer issued letters to all the
geographical bachelors, including those represented by the Charging
Party. The letter required geographical bachelors to vacate their
quarters and offered dormitory rooms at a higher cost. On the next day,
August 7, 1985, DPG responded to the Charging Party's request to
bargain, stating, "It is the position of this agency that we have
negotiated this issue in question in accordance with applicable statutes
to the limits of our authority. We will have to request a determination
on the negotiability of the regulation through our chain of command to
Headquarters, Department of Army." /1/ No further discussion took place
between the parties. The geographical bachelors were evicted on or
about August 23, 1985.
Of 847 Department of Army civilian employees, 437 occupy DPG family
housing, bachelor officer quarters, or dormitories. Over 400 employees
commute on a daily basis. As stipulated by the parties, the relative
isolation of DPG and the lack of available housing has resulted in a
significant impact on civilian employee recruitment and retention and
has placed DPG at a competitive disadvantage with Tooele Army Depot
where limited facilities are available. Therefore, the possible
availability of housing at DPG is used as a recruitment inducement.
III. Positions of the Parties
The Respondent argues that offering surplus quarters to geographical
bachelors was never considered a condition of employment. The Respondent
noted the Authority's finding in United States Department of Justice,
United States Immigration and Naturalization Service, 14 FLRA 578
(1984), that the assignment of government-owned housing, in the
circumstances of that case, was a condition of employment. However, the
Respondent contends that none of the criteria applied by the Authority
in that case were applicable to the geographical bachelors at DPG. The
Respondent notes that DPG has never been declared a hardship station and
that none of the employees are assigned to serve there as in the cited
case. The Respondent also claims that while there is no housing other
than government-owned in the immediate area, there must be adequate
housing in the commuting area because the majority of the DPG employees
commute to work. The Respondent also argues that it cannot be fairly
said that the housing at DPG was constructed for the benefit and use of
civilian employees because military personnel would have priority if the
mission required an increase in their numbers. Finally, the Respondent
alleges that while the Commanding Officer exercised his discretion in
making the quarters available to geographical bachelors, he was not
delegated the responsibility to make assignments under regulation as in
United States Department of Justice, United States Immigration and
Naturalization Service.
The General Counsel contends that a past practice of assigning
geographical bachelors in the unit to non-housekeeping quarters existed,
and that this practice is a condition of employment. The General
Counsel notes that since 1975 these geographical bachelors have been
provided with quarters during their normal workweek, and that they have
not been required to vacate these quarters when employees with higher
priority arrived at the facility. The General Counsel notes that the
Respondent acknowledged this practice in its regulatory scheme and has
consistently followed it for the ten year period preceding the change on
August 23, 1985.
The General Counsel argues further that the practice is a matter
affecting conditions of employment because it was integrally involved
with the employment of unit employees. The General Counsel claims that
it meets the test applied by the Authority in previous cases for the
following reasons: DPG is a remote location; the assignment of housing
is directly related to the facility's recruitment and retention program;
and, the policy was a direct outcome of the Commander's local
discretion.
Therefore, the General Counsel contends that the unilateral change in
the policy, which is both an established practice and a condition of
employment, violated section 7116(a)(1) and (5) of the Statute.
Finally, the General Counsel submits that a status quo ante order with
backpay to make whole employees who were required to reside in higher
cost quarters and/or commute on a daily basis as a consequence of the
Respondent's unlawful conduct is the only appropriate remedy.
IV. Analysis
A. Was there an Established Past Practice of Assigning
Government-Owned, On-Post, Non-Housekeeping Quarters to
Geographical Bachelors?
Since 1975, as set forth in the Respondent's regulations (DPG 210-7),
the priority for assignment of non-housekeeping quarters has included
geographical bachelors, and the record reflects that geographical
bachelors resided in these quarters until their eviction on August 23,
1985. The Authority concludes, based on the facts set out above, which
are not disputed by the Respondent, that the assignment of
non-housekeeping quarters to the category of employees referred to as
geographical bachelors constituted an established practice at DPG.
B. Is the Past Practice of Assigning Government-Owned
On-Post, Non-Housekeeping Quarters to Geographical
Bachelors a Condition of Employment?
The Authority concludes for the reasons set forth below that the
assignment of non-housekeeping quarters to geographic bachelors is a
condition of employment within the meaning of section 7103(a)(14) of the
Statute. In our recent decision, Antilles Consolidated Education
Association and Antilles Consolidated School System, 22 FLRA No. 23
(1986), we described two basic considerations in deciding whether a
particular proposal involved a condition of employment: (1) whether the
matter proposed to be bargained pertains to bargaining unit employees;
and (2) the nature and extent of the effect of the matter proposed to be
bargained on working conditions of those employees. As to the second
consideration, there must be a direct connection between the proposal
and the work situation or employment relationship of bargaining unit
employees.
As to the first consideration, in this case it is undisputed that the
practice of assigning non-housekeeping quarters to geographical
bachelors involved bargaining unit employees. Moreover, any bargaining
unit employee meeting the definition of geographical bachelor was
eligible. Therefore, the established past practice pertains to
bargaining unit employees.
With respect to the second consideration, we conclude that the
General Counsel has established a direct connection between the practice
of assigning non-housekeeping quarters to geographical bachelors and
their work situation or employment relationship. The parties stipulated
that government housing was constructed with the proviso that a portion
be set aside for civilian use because of the remote location of DPG.
The relative isolation and lack of available housing resulted in a
significant impact on civilian employee recruitment and retention, and
the potential availability of housing was used as a recruitment
inducement. Further, there was a financial benefit to residing in
on-post housing because those employees had reduced daily commuting
costs. Moreover, there is a connection between hours of work and
geographical bachelors' assignment to the housing because the
geographical bachelors were permitted to work a four day week (ten hours
per day) which increased the amount of time spent with their families.
In sum, the practice of assigning non-housekeeping quarters to
geographical bachelors pertains to bargaining unit employees and has a
direct effect on the working conditions of those employees. The
practice constitutes a condition of employment of bargaining unit
employees.
V. Conclusion
Having concluded that the practice of assigning government-owned,
on-post, non-housekeeping quarters to geographical bachelors is a
condition of employment, the Authority finds that Respondent's failure
to bargain upon request with the Charging Party over its change
constitutes a failure to bargain in good faith in violation of section
7116(a)(1) and (5) of the Statute.
VI. Remedy
As noted above, the General Counsel requested, in addition to a cease
and desist order, both status quo ante relief and a make whole order to
reimburse those unit employees unlawfully affected by the eviction. We
conclude that status quo ante relief, limited to reinstitution of the
practice of assigning single occupancy, non-housekeeping quarters to
geographical bachelors, as supplemented by an order requiring the
parties to negotiate and give retroactive effect to any agreement
reached, will best effectuate the purposes and policies of the Statute.
/2/
In carrying out its statutory functions, the Authority has wide
discretion to fashion remedies under section 7105(g)(3) and section
7118(a)(7) of the Statute. /3/ In this case, the General Counsel
requests a status quo ante remedy that would require the eviction of any
bona fide bachelor who replaced an evicted geographical bachelor. Such
a requirement would have an obvious disruptive effect on the agency's
operations as well as on the employees involved, Further, the Respondent
offered all of the evicted geographical bachelors alternative housing at
DPG so none were actually foreclosed from continuing on the same work
schedule. In view of these facts, we conclude that displacement of any
bona fide bachelor residing in the disputed quarters is unwarranted.
While not ordering eviction of the bona fide bachelors to make room
for geographical bachelors, we view as appropriate that affected
employees be made whole for increased expenses resulting from the
Respondent's improper action. In our view, a determination of these
expenses can best be made by ordering the Respondent, upon request, to
negotiate with the Union with respect to the change in conditions of
employment involved in this case. Thereafter, Respondent shall make
whole affected employees for their increased expenses suffered as a
result of their eviction, consistent with applicable law and taking into
account the agreement resulting from the negotiations we are ordering,
applied retroactive to the date of the eviction.
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, it is ordered that the Department of
the Army, Dugway Proving Ground, Dugway, Utah, shall:
1. Cease and desist from:
(a) Refusing to negotiate with the National Association of Government
Employees, Local R14-62, the exclusive representative of certain of its
employees, concerning a change in the practice of assigning
government-owned, on-post, non-housekeeping quarters to geographical
bachelors in the bargaining unit.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Reinstate the past practice of assigning government-owned,
on-post, single occupancy, non-housekeeping quarters to geographical
bachelors.
(b) Make available to the evicted bargaining unit geographical
bachelors any equivalent vacant non-housekeeping quarters.
(c) Negotiate, upon request, over the change in conditions of
employment which resulted in the unlawful eviction of bargaining unit
geographical bachelors, and make them whole for their increased expenses
suffered as a result of their eviction, consistent with applicable law
and taking into account the agreement resulting from the negotiations
the Authority is ordering, applied retroactive to the date of the
eviction.
(d) Negotiate in good faith, upon request, over any proposed change
in the practice of assigning government-owned, on-post, non-housekeeping
quarters to geographical bachelors in the bargaining unit represented
exclusively by the National Association of Government Employees, Local
R14-62.
(e) Post at Dugway Proving Ground, Dugway, Utah, in all facilities
where bargaining unit employees are located, copies of the attached
notice on forms to be furnished by the Federal Labor Relations
Authority. Upon receipt of such forms, they shall be signed by the
Commanding Officer, or a designee, and shall be posted and maintained
for 60 consecutive days thereafter in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that such
notices are not altered, defaced, or covered by any other material.
(f) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region VII, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with it.
Issued, Washington, D.C., October 14, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Respondent was referring to Army Regulation (AR) 210-11,
Billeting Operations, which provided for quarters assignment priorities.
For purposes of this case, the Respondent is not asserting that a
compelling need exists for this regjlation. Also, as noted previously,
Respondent stipulated that (1) the Charging Party's membership on the Ad
Hoc committee did not waive any right to bargain over the changes, and
(2) collective bargaining did not occur at the committee meetings.
(2) Reinstitution of the practice shall include making available to
the evicted unit geographical bachelors any vacant equivalent quarters.
(3) See, for example, the discussion in footnote 4 of Veterans
Administration, Washington, D.C. and Veterans Administration Medical
Center and Regional Office Center, Fargo, North Dakota, 22 FLRA No. 64
(1986).
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT refuse to negotiate with the National Association of
Government Employees, Local R14-62, the exclusive representative of
certain of our employees, concerning a change in the practice of
assigning government-owned, on-post, non-housekeeping quarters to
geographical bachelors in the bargaining unit.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL REINSTATE the past practice of assigning government-owned,
on-post, single occupancy, non-housekeeping quarters to geographical
bachelors.
WE WILL make available to the evicted bargaining unit geographical
bachelors any equivalent vacant non-housekeeping quarters.
WE WILL negotiate, upon request, over the change in conditions of
employment which resulted in the unlawful eviction of bargaining unit
geographical bachelors and, make them whole for their increased expenses
suffered as a result of their eviction, consistent with applicable law
and taking into account the agreement resulting from the negotiations
the Authority is ordering, applied retroactive to the date of the
eviction.
WE WILL negotiate in good faith, upon request, over any proposed
change in the practice of assigning government-owned, on-post,
non-housekeeping quarters to geographical bachelors in the bargaining
unit represented exclusively by the National Association of Government
Employees, Local R14-62.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region VII, whose address is: 535 16th Street, Suite 310,
Denver, Colorado 80202 and whose telephone number is: (303) 837-5224.