23:0858(105)CA - Army, Fort Greely, AK and Army, 172d Infantry Brigade (Alaska), Fort Richardson, AK and Army HQ, Army Forces Command, Fort McPherson, GA and Army, The Pentagon, Washington, DC and AFGE Local 1949 -- 1986 FLRAdec CA
[ v23 p858 ]
23:0858(105)CA
The decision of the Authority follows:
23 FLRA No. 105
DEPARTMENT OF THE ARMY
FORT GREELY, ALASKA
and
DEPARTMENT OF THE ARMY
172d INFANTRY BRIGADE (ALASKA)
FORT RICHARDSON, ALASKA
and
DEPARTMENT OF THE ARMY
HEADQUARTERS, U.S. ARMY FORCES COMMAND
FORT McPHERSON, GEORGIA
and
DEPARTMENT OF THE ARMY
THE PENTAGON, WASHINGTON, D.C.
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 1949, AFL-CIO
Charging Party
Case No. 9-CA-1204
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
on a stipulation of facts by the parties, who have agreed that no
material issue of fact exists. The Respondents and the General Counsel
have filed briefs for the Authority's consideration.
The second amended complaint alleges that the Respondents, Department
of the Army, Fort Greely, Alaska (Ft. Greely); Department of the Army,
172d Infantry Brigade (Alaska), Fort Richardson, Alaska (Brigade);
Department of the Army, Headquarters, U.S. Army ForcesCommand, Fort
McPherson, Georgia (FORSCOM); and Department of the Army, Washington,
D.C. (Headquarters), violated section 7116(a)(1) and (5) of the Federal
Service Labor-Management Relations Statute (the Statute) when commissary
and post exchange privileges were unilaterally terminated effective
September 1, 1981, for Ft. Greely civilian employees not residing on the
installation, without providing the American Federation of Government
Employees, Local 1949, AFL-CIO (the Union) with notice and an
opportunity to bargain over the change in working conditions.
II. Background
The record indicates that Respondent's Ft. Greely, Brigade, and
FORSCOM, respectively, report upward in the Army chain of command to
Respondent Headquarters. The Union is the exclusive representative of a
bargaining unit which includes all general schedule (GS) and wage grade
(WG) employees at Fort Greely. The Union and Respondent Brigade have
been parties to a collective bargaining agreement covering the
bargaining unit at all times material herein.
Bargaining unit civilian employees at Ft. Greely have not resided on
the installation since the early 1970's. Both GS and WG employees had
received exchange privileges since the mid-1950's, and GS employees have
had commissary privileges since December 1975. As the Commander of Ft.
Greely stated in a letter to Respondent Brigade in November 1979
requesting a continuation of commissary and exchange privileges for
civilian employees at Ft. Greely:
On-Post privileges have been a historical part of the For6t
Greely civilian workforce relationship. In the past, tenant and
garrison supervisors have routinely used the availability of
privileges to encourage local and out-of-state civilians to accept
employment at this geographically isolated location. We have
always experienced extreme difficulty filling our authorized
civilian positions and loss of privileges would have significant
impact on present and future hiring and morale. The granting of
civilian privileges at Fort Greely is one of the few incentives
available to the Command to reduce the cultural-economic shock for
career employees moving into the Delta Junction-Fort Greely area.
By letter dated November 7, 1980, Respondent Ft. Greely again wrote
to Respondent Brigade regarding the continuation of commissary and
exchange privileges for civilian employees at Ft. Greely. The letter
indicated that the basic reasons for granting such priviledges still
existed, but that there had been improvements in those areas. Ft.
Greely recommended that the civilian privileges should be continued on
an interim basis, and that Brigade should undertake a comprehensive
study of the need to continue authorizing such privileges. Respondent
Brigade's response indicated that a study of civilian commissary and
exchange privileges at Ft. Greely would be undertaken, and that such
privileges would be extended through June 30, 1981. Brigade conducted
the study during April and May 1981. The Union was not notified,
consulted or given an opportunity to negotiate about any aspect of this
study.
By letter dated June 6, 1981, Brigade directed Ft. Greely to withdraw
commissary and post exchange privileges from all civilian employees at
Ft. Greely on September 1, 1981, based upon the results of its study.
Brigade's labor relations specialist gave a copy of the June 6 letter to
the Union's president on June 17, indicating that the decision to
withdraw privileges was nonnegotiable but that management would
negotiate "impact and implementation."
On August 3, 1981, the Union sent Brigade a request to bargain over
the withdrawal of civilian privileges at Ft. Greely, stating that its
position regarding the privileges was to maintain the status quo. In
its response, Brigade agreed to negotiate over the impact and procedures
regarding the withdrawal of privileges. On August 26, the Union met
with representatives of Brigade and Ft. Greely to negotiate concerning
the withdrawal of civilian privileges. The Union sought to retain the
privileges; Ft. Greely stated that, based on higher level guidance from
Respondent's FORSCOM and Headquarters, the decision to withdraw the
privileges was nonnegotiable and that the privileges would be withdrawn
on September 1, 1981. By letter to the Union dated August 28, 1981, Ft.
Greely confirmed management's oral statements of August 26 that the
decision to withdraw privileges was nonnegotiable. Specifically, the
letter stated that Army regulations (AR 60-20 and 30-199) precluded
negotiations over the substance of the decision to discontinue
commissary and exchange privileges, and also that the Union had
inordinately delayed its request to negotiate. The letter also
reiterated that the privileges would be withdrawn on September 1. The
privileges were in fact withdrawn on that date.
III. Positions of the Parties
A. The Respondents
1. Commissary store privileges
The Respondents contend that Department of Defense (DOD) Directive
1330.17 (1978) -- which sets forth policies for the extension of
commissary store privileges -- provides that such privileges will not be
extended to civilian employees of the military services who do not
reside within the military installations; that deviations from this
requirement are permitted only in cases of emergency and only until the
emergency is terminated; that while civilian employees at Ft. Greely
had received commissary privileges from 1975 to 1981 even though they
did not reside on the installation, such action was taken with
Headquarters approval; and that the decision to extend commissary
privileges to these employees was reviewed by Headquarters on an annual
basis.
2. Exchange privileges
The Respondents contend that there were no restrictions on granting
exchange privileges to civilian employees prior to July 8, 1980, when
DOD Directive 1330.9 -- which sets forth policies for the extension of
exchange privileges -- was promulgated, and that Respondent Brigade
therefore acted within its discretion in affording such privileges to
civilian employees at Ft. Greely since the 1950s at Ft. Greely's
request. However, the Respondents assert that DOD Directive 1330.9
superseded Army regulations (AR 60-20) which had authorized local
commanders to grant exchange privileges to civilian employees when
determined to be in the best interest of their command's mission;
removed the authority of Brigade and Ft. Greely to grant such
privileges; and limited their discretion solely to requesting
deviations through channels to Headquarters where necessary to alleviate
personal hardships. Since Brigade concluded on the basis of its study
that no personal hardships existed at Ft. Greely which would justify a
continued deviation, the Respondents assert that the privileges were
properly withdrawn.
3. The duty to bargain over the withdrawal of privileges
The Respondents further contend that the duty to bargain does not
extend to matters which are the subject of a regulation issued by an
agency (DOD) or a primary national subdivision (Headquarters) unless the
Authority has determined under section 7117(b) of the Statute that no
compelling need exists for the regulation or unless exclusive
recognition exists at the agency or primary national subdivision level.
Since neither exception applies here, the Respondents argue that there
was no duty to bargain concerning the decision to withdraw commissary
and exchange privileges but only a duty to bargain over the impact and
implementation of that decision -- an offer which the Union rejected.
B. The General Counsel
The General Counsel contends that Brigade and Ft. Greely were acting
as agents of FORSCOM and Headquarters when Brigade ordered the
withdrawal of commissary and exchange privileges from civilian employees
at Ft. Greely and Ft. Greely implemented that order. The General
Counsel maintains that these actions resulted in a unilateral change in
conditions of employment without negotiating with the Union concerning
the decision to make the change and therefore violated section
7116(a)(1) and (5) of the Statute. The General Counsel argues that
commissary and exchange privileges are conditions of employment under
section 7103(a)(14) of the Statute and past practice; that DOD
regulations do not preclude negotiations at the local level concerning
such matters; and that even if a conflict exists between DOD's
regulations and the Union's proposal to continue the practice concerning
commissary and exchange privileges, the Respondents failed to
demonstrate a compelling need for the regulations.
The General Counsel further contends that a status quo ante remedy is
appropriate to cure the Respondents' unlawful conduct in this case since
management failed and refused to meet the statutory duty to bargain over
the decision to change negotiable conditions of employment. As
requested by the General Counsel, the remedy would require restoration
of the privileges to unit employees at Ft. Greely and their
reimbursement for any monetary losses suffered as a result of the
unilateral revocation of commissary and exchange privileges.
IV. Analysis
A. The Withdrawal of Commissary and Exchange Privileges
from Uni Employees at Ft. Greely Affected their
Conditions of Employment under Section 7103(a)(14) of
the Statute
The Respondents concede, and we find, that the withdrawal of
commissary and exchange privileges from the unit employees at Ft. Greely
affected their conditions 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 matter involves a condition of employment of
bargaining unit employees: (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.
Applying the Antilles analysis to the matters at issue in this case,
it is clear that the first consideration is satisfied. The Union sought
negotiations on the decision to withdraw existing privileges from
employees it represents in a unit of exclusive recognition.
With respect to the second consideration, we conclude that the
General Counsel established a direct connection between the practice of
granting commissary and exchange privileges to unit employees at Ft.
Greely and their work situation or employment relationship. The
stipulated record in this case shows, as in Department of the Air Force,
Eielson Air Force Base, Alaska, 23 FLRA No. 83 (1986), which also
involved the withdrawal of similar privileges from civilian employees in
Alaska, that the privileges had been continued for a long period of time
as part of the Ft. Greely civilian workforce relationship; were
routinely used to encourage civilians to accept employment at that
geographically isolated location; and constituted one of the few
incentives to ease the extreme difficulty in filling authorized civilian
positions and to improve morale. On this basis, we conclude that the
matter of withdrawing commissary and exchange privileges from unit
employees at Ft. Greely concerns conditions of employment under section
7103(a)(14) of the Statute. See also Department of the Army, Dugway
Proving Ground, Dugway, Utah, 23 FLRA No. 80 (1986); U.S. Department of
Justice, U.S. Immigration and Naturalization Service, 14 FLRA 578
(1984).
B. Respondent Brigade Had a Duty to Bargain with the Union
Concerning the Decision to Withdraw the Privileges
It is well-established that an agency has a duty under the Statute to
negotiate with an exclusive representative of an appropriate unit of its
employees at the level of exclusive recognition concerning conditions of
employment affecting them, except as provided otherwise by Federal law,
Government-wide rule or regulation, or agency regulations for which a
compelling need exists. Headquarters, Defense Logistics Agency,
Washington, D.C., 22 FLRA No. 93 (1986); Defense Contract
Administration Services Region, Boston, Massachusetts, 15 FLRA 750
(1984). Since there is neither a bargaining relationship between the
Union and either Respondents Headquarters or FORSCOM nor evidence that
either Headquarters or FORSCOM interfered with the fulfillment of the
bargaining obligation between the Respondent Brigade and the Union, we
conclude that the complaint must be dismissed as to Respondents
Headquarters and FORSCOM. See Boston District Recruiting Command,
Boston, Massachusetts, 15 FLRA 720 (1984).
Since we have concluded that the withdrawal of commissary and
exchange privileges from unit employees at Ft. Greely concerns
conditions of employment, it follows that Respondent Brigade had a duty
to bargain over its decision to do so except as provided by Federal law,
Government-wide rule or regulation, or agency regulations for which a
compelling need exists. There is no contention that the Union's
proposal to maintain the privileges in question is inconsistent with any
Federal law or Government-wide regulation.
With respect to internal agency regulations issued at the DOD or
Headquarters level, the Respondents contend essentially that such
regulations have not delegated control over the subject matter to
management officials at the level of bargaining but have retained such
authority at higher levels of the agency. As we have previously held,
however, an agency may not foreclose bargaining on an otherwise
negotiable matter because authority has not been delegated to the level
of exclusive recognition. See, for example, the Antilles case cited
above and Overseas Education Association, Inc. and Department of
Defense, Office of Dependents Schools, 22 FLRA No. 34 (1986) (Union
Proposal 5), petition for review filed, Overseas Education Association
v. FLRA, No. 86-11491 (D.C. Cir. Sept. 3, 1986). Under section
7114(b)92) of the Statute, an agency is obligated to provide
representatives at the level of bargaining who are authorized to
negotiate and enter into agreements on all matters within the scope of
bargaining, and this statutory obligation cannot be obviated by an
agency's internal regulations. See the Eielson case cited above and
American Federation of Government Employees, AFL-CIO, Local 1409 and
U.S. Army Adjutant General Publications Center, Baltimore, Maryland, 18
FLRA No. 68 (1985).
The Respondents' argument that there was no duty to bargain over
commissary and exchange privileges because such matters are the subject
of internal agency regulations and the Authority has not determined
under section 7117(b) of the Statute that no compelling need exists for
those regulations is also misplaced. As we recently held under almost
identical circumstances in Eielson, this argument is inapposite when the
basis of the agency's argument concerns the delegation of authority
rather than compelling need within the meaning of section 7117. Even
assuming that the argument were relevant, the Respondents' position is
inconsistent with established Authority precedent. In Defense Logistics
Agency (Cameron Station, Virginia), 12 FLRA 412 (1983), affirmed sub
nom. Defense Logistics Agency v. FLRA, 754 F.2d 1003 (D.C. Cir. 1985),
the Authority held that compelling need determinations may appropriately
be decided in an unfair labor practice proceeding. We reaffirmed this
conclusion with further reasoning in Aberdeen Proving Ground, Department
of the Army, 21 FLRA No. 100 (1986), petition for review filed, Aberdeen
Proving Ground, Department of the Army v. FLRA, No. 86-2577 (4th Cir.
June 26, 1986). But see United States Army Engineer Center v. FLRA, 762
F.2d 409 (4th Cir. 1985), reversing U.S. Army Engineer Center and Fort
Belvoir, 13 FLRA 707 (1984).
C. Respondent Brigade Failed to Fulfill Its Duty to
Bargain
It is undisputed that Respondent Brigade directed Ft. Greely to
withdraw commissary and exchange privileges from unit employees at Ft.
Greely and that such privileges were withdrawn on September 1, 1981.
While Respondent Brigade gave the Union prior notice of its decision to
withdraw the privileges in question, it consistently rejected the
Union's request to negotiate over that decision. Although Ft. Greely
also refused to negotiate on the basis that it lacked authority, and
actually implemented the withdrawal of privileges, we conclude that Ft.
Greely was acting in a representative capacity for Respondent Brigade
and that Ft. Greely's conduct is attributable to Respondent Brigade.
See Boston District Recruiting Command, Boston, Massachusetts, 15 FLRA
720, 724 (1984). Accordingly, we shall dismiss the complaint as to
Respondent Ft. Greely but conclude that Respondent Brigade violated
section 7116(a)(1) and (5) of the Statute by unilaterally changing
negotiable conditions of employment as alleged in the complaint.
V. Remedy
The Authority has previously determined that where management has
made a unilateral change in a negotiable term and condition of
employment, effectuation of the purposes and policies of the Statute
requires imposition of status quo ante remedies, absent special
circumstances, in order not to render meaningless the mutual obligation
to negotiate. Veterans Administration, West Los Angeles Medical Center,
Los Angeles, California, 23 FLRA No. 37 (1986) (n.3 and accompanying
text). As the Respondents have neither alleged nor established that
special circumstances exist so as to negate the immposition of such a
remedy in this case, we conclude that a status quo ante remedy is
warranted. Accordingly, Respondent Brigade shall be ordered to
reinstate the commissary and exchange privileges for civilian employees
at Ft. Greely which existed prior to their withdrawal on September 1,
1981.
This remedy is consistent with our remedial order in Eielson, which
involved virtually identical circumstances. While the General Counsel
did not request a "make whole" remedy in Eielson as requested here, we
conclude that such a "make whole" order requiring Respondent Brigade to
reimburse unit employees at Ft. Greely for monetary losses they may have
suffered as a result of the withdrawal of privileges is speculative in
nature and therefore inappropriate. Accordingly, since it would not
effectuate the purposes and policies of the Statute, the requested "make
whole" order is denied.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
hereby ordered that the Department of the Army, 172d Infantry Brigade
(Alaska), Fort Richardson, Alaska shall:
1. Cease and desist from:
(a) Unilaterally changing established conditions of employment at Ft.
Greely by terminating the commissary and exchange privileges for
civilian employees not residing on the installation.
(b) In any like or related manner interfering with, restraining, or
coercing unit employees in the exercise of their rights assured by the
Statute.
2. Take the following affirmative action:
(a) Reinstate the commissary and exchange privileges for those
civilian employees at Ft. Greely not residing on the installation which
existed immediately prior to September 1981.
(b) Notify and, upon request, negotiate with the American Federation
of Government Employees, Local 1949, AFL-CIO, the exclusive
representative of the employees at Ft. Greely, concerning any proposed
change in commissary and exchange privileges or any other proposed
change in their established conditions of employment.
(c) Post at Ft. Greely 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 Brigade Commander and shall be
posted and maintained for 60 consecutive days thereafter, in conspicuous
places, including bulletin boards and other places at each office where
notices to employees are customarily posted. Reasonable steps shall be
taken to insure that such Notices are not altered, defaced, or covered
by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region IX, Federal Labor
Relations Authority, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply.
IT IS FURTHER ORDERED that the complaint in Case No. 9-CA-1204,
insofar as it alleges a violation of section 7116(a)(1) and (5) of the
Statute by Respondent Department of the Army Headquarters, U.S. Army
Forces Command, Fort McPherson, Georgia, and Department of the Army, The
Pentagon, Washington, D.C., be, and it hereby is, dismissed.
Issued, Washington, D.C., October 31, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
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 unilaterally change established conditions of employment
at Ft. Greely by terminating the commissary and exchange privileges for
civilian employees not residing on the installation.
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 commissary and exchange privileges for those
civilian employees at Ft. Greely not residing on the installation which
existed immediately prior to September 1981.
WE WILL notify and, upon request, negotiate with the American
Federation of Government Employees, Local 1949, AFL-CIO, the exclusive
representative of the employees at Ft. Greely, concerning any proposed
change in commissary and exchange privileges or any other proposed
change in their established conditions of employment.
(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 for Region IX, Federal Labor Relations Authority, whose address
is: 901 Market Street, Suite 220, San Francisco, CA 94103-9991, and
whose telephone number is: (415) 995-5000.