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27:0011(2)NG
The decision of the Authority follows:
27 FLRA No. 2
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1622
Union
and
DEPARTMENT OF THE ARMY
FORT GEORGE G. MEADE
Agency
Case No. 0-NG-974
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of a single proposal. Based on the following reasons we
find the proposal is negotiable. /1/
II. Proposal
Article 43: Eating Areas
Section 2. The Employer agrees that there will not be a
"surcharge" added to the cost of meals in the KACH dining
facility.
III. Background
The disputed proposal concerns prices at an appropriated fund dining
facility operated by the Agency at Kirk Army Community Hospital (KACH)
located at Fort George G. Meade. Employees are permitted to use this
mess although the facility was established and funded to provide
patients and duty enlisted personnel with the daily ration to which they
are entitled under 10 U.S.C. section 4561. Civilians and military
officers authorized to use a military mess in specified circumstances
are permitted to do so on a reimbursable basis.
Under 37 U.S.C. section 1011 and implementing regulations, the Agency
may establish two rates -- a "food rate" which is derived from food
costs and a "surcharge" which includes the cost of operating expenses
incurred in preparing and serving the meals. The Agency has discretion
to determine which rate will be charged those required to pay for meals.
In this case, when the Department of the Army proposed adding a
surcharge to the food rates being paid by employees, the Union submitted
and disputed proposal in negotiations with commanders of KACH and Fort
George G. Meade.
IV. Positions of the Parties
The Agency argues that the proposal is nonnegotiable for the
following reasons.
1) It does not concern conditions of employment. In this regard, the
Agency argues that incidental use of military facilities by bargaining
unit employees is not a condition of employment.
2) It would extend to employees outside the bargaining unit.
3) It is inconsistent with Federal statute -- 37 U.S.C. section
1011(a). Also, the Agency asserts that the statute's requirements
specifically provide that the Secretary of Defense must impose a
surcharge in military messes and that the surcharge must be part of a
standard rate structure for the Department of Defense.
4) It is inconsistent with agency regulations for which a compelling
need exists.
The Union contends that the proposal is negotiable and offers the
following counter arguments.
1) The availability of meals for civilian employees at the KACH
dining facility constitutes an established working condition and fringe
benefit for bargaining unit employees. In support, the Union adds that
there are compensating benefits to the Agency from employees' use of
such facilities which are similar to the benefits an agency receives by
making child care available.
2) The proposal is not inconsistent with Federal statute because the
Secretary of Defense has authority to exempt certain individuals from
paying a surcharge for meals under 37 U.S.C. section 1011(a).
V. Analysis
The proposal in this case is to the same effect as the proposal found
negotiable in National Federation of Federal Employees, Local 1153 and
U.S. Army, Seventh Signal Command and Fort Ritchie, Maryland, 26 FLRA
No. 61 (1987) (Chairman Calhoun, dissenting). The proposal in Fort
Ritchie permitted civilian employees who were authorized to patronize a
military mess to do so without being required to pay a surcharge for
their meals. The agency in that case argued that the proposal was
nonnegotiable because it included individuals outside the bargaining
unit, did not concern a condition of employment, and was inconsistent
with a Federal statute and agency rules and regulations for which a
compelling need existed.
In Fort Ritchie, the Authority found that the military mess in
question was the only dining facility at the work site and employee
access to commercial facilities was hampered by distance and a
time-consuming security process necessary to enter and exit the
installation. In those circumstances, we held that access to the
military mess and the prices to be charged employees for food service
were matters affecting employee working conditions. We also found that
the union's intent in making the proposal and the proposal's language
limited it to bargaining unit employees. Thus, we rejected the agency's
argument that the proposal was nonnegotiable because it would include
individuals outside the bargaining unit. Additionally, we rejected the
agency's arguments that the proposal was inconsistent with statute and
that it conflicted with agency rules and regulations for which a
compelling need existed. We concluded that the language of 37 U.S.C.
section 1011(a) gives the Secretary of Defense discretion to exmpt
certain personnel from paying the surcharge at military messes as long
as the rates, overall, cover food costs and operating expenses. We also
rejected as hypothetical the agency's claim that bargaining on
surcharges would prevent it from meeting the mandate to cover food and
operating costs if it were required to negotiate on similar proposals
throughout the Department of Defense. We stated that such concerns
should be raised at the bargaining table or before the Federal Services
Impasses Panel. Finally, because the agency's compelling need
contentions were essentially reiterations of previous statutory
arguments, we rejected these claims.
In this case, the Agency raises the same arguments regarding the
nonnegotiability of this proposal that were asserted in Fort Ritchie.
With regard to the Agency's argument that the proposal is applicable to
nonbargaining unit employees and other personnel, we find, as we did in
Fort Ritchie, that the Union intends the proposal to preserve
established working conditions for bargaining unit employees. Thus, we
reject the Agency's argument that the proposal includes individuals and
groups other than employees and is therefore nonnegotiable.
Regarding the Agency's contention that the proposal does not concern
a condition of employment, the Authority has held that employee food
services and related prices are working conditions. See American
Federation of Government Employees, AFL-CIO, Local 32 and Office of
Personnel Management, Washington, D.C., 8 FLRA 409, 412 (1982). See
also American Federation of Government Employees, Social Security Local
3231, AFL-CIO and Department of Health and Human Services, Social
Security Administration, 16 FLRA 47 (1984) (Proposal 1) (proposal
requiring the agency to provide space for employees to prepare and eat
their lunches concerned a matter affecting conditions of employment);
Library of Congress and Congressional Research Employees Association, 15
FLRA 589, 590 (1984) (unilateral adoption of a requirement that
employees pay for use of microwave ovens to heat their lunches where
access to such equipment had been free of charge constituted a change in
an established condition of employment concerning which the agency was
obligated to bargain).
The Agency acknowledges that employee food services and prices
concern working conditions. Further, the Agency admits that employees
have been authorized to use the KACH dining facility. However, the
Agency claims such incidental use of this military mess does not concern
a condition of employment. Statement of Position at 3. We disagree.
We find that by granting employees access to the KACH dining facility,
the Agency has changed the character of that facility from a military
mess to a dining facility that meets employee needs as well. In other
words, the Agency's action has created an employee cafeteria. Since
food services and prices to be charged in an employee cafeteria are
conditions of employment, we conclude that the price of food charged
employees in the KACH dining facility is a working condition. Finally,
in circumstances such as are present here, that is, where the Agency has
altered the character of a military mess by authorizing its use as an
employee cafeteria, it is unnecessary to rely on the factors set out in
Fort Ritchie to establish that use of a dining facility is a working
condition.
The Agency in this case, like the agency in Fort Ritchie, argues that
the matter proposed to be bargained is specifically provided for by 37
U.S.C. section 1011(a) which requires the Secretary of Defense to
establish rates which are sufficient to cover food costs and operating
expenses. Permitting employees to obtain meals at the food rate,
according to the Agency, would prevent the Department from fulfilling
this statutory mandate. In addition, like the agency in Fort Ritchie,
the Agency in this case asserts that compelling need exists as defined
in section 2424.11(a) and (c) of the Authority's regulations.
Specifically, as to criterion (a) the Agency claims that if negotiations
were required in bargaining units throughout the Department of Defense,
the impact of the proposal would make it impossible for the Agency to
meet its responsibility to feed military personnel without a substantial
loss in revenue. As to criterion (c), the Agency argues that 37 U.S.C.
section 1011(a) effectively mandates employees using the mess at KACH to
pay surcharges.
We rejected these same arguments in Fort Ritchie and, for the reasons
more fully explained in that case, we reject them here. Thus, we
conclude that the Agency has not established that the matter is
specifically provided for, or inconsistent with, statute and that the
proposal conflicts with Agency regulations for which a compelling need
exists.
VI. Conclusion
The proposal concerns a condition of employment and is limited to
bargaining unit employees. It is not inconsistent with either Federal
statute or an Agency regulation for which a compelling need has been
established. Consequently, it is within the duty to bargain.
VII. Order
The Agency must upon request, or as otherwise agreed to by the
parties, negotiate concerning the proposal. /2/
Issued, Washington, D.C., May 7, 1087.
/s/ Henry B. Frazier III
Henry B. Frazier III, Member
/s/ Jean McKee
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun
I agree that the proposal in this case is to the same effect as the
proposal in National Federation of Federal Employees, Local 1153 and
U.S. Army, Seventh Signal Command and Fort Ritchie, Fort Ritchie,
Maryland, 26 FLRA No. 61 (1987). Therefore, for the reasons stated in
my separate opinion in that case, I do not join the majority here. As
in Fort Ritchie, however, I agree that the proposal concerns the working
conditions of bargaining unit employees.
Issued, Washington, D.C., May 7, 1987.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Chairman Calhoun dissents for the reasons stated in his separate
opinion.
(2) In finding that this proposal is negotiable, we make no judgment
as to its merits.