22:0235(23)NG - Antilles Consolidated Education Association and Antilles Consolidated School System -- 1986 FLRAdec NG
[ v22 p235 ]
22:0235(23)NG
The decision of the Authority follows:
22 FLRA No. 23
ANTILLES CONSOLIDATED
EDUCATION ASSOCIATION
Union
and
ANTILLES CONSOLIDATED
SCHOOL SYSTEM
Agency
Case No. 0-NG-784
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), concerning the
negotiability of one five-part Union proposal.
II. Union Proposal
Article 36. BASE/POST PRIVILEGES
1. All unit employees will be granted the use of the following
base/post facilities:
A. Base/Post Exchanges at the site to which the employee is
assigned.
B. All retail food outlets operated by the Navy Exchange,
AAFES, or coast Guard Exchange at the site to which the employee
is assigned, or
C. Access to the nearest exchange system and its retail food
outlets in any case in which an employee is assigned to a site at
which the facilities described in subsection A and B are not
operated.
D. Base/post/station/fort special services recreation and
morale support facilities at the site to which the employee is
assigned.
E. Hospital facilities on a paid basis.
A. Position of the Parties
The Agency asserts that the proposal is nonnegotiable for four
reasons: (1) it does not concern matters affecting working conditions
of bargaining unit employees, within the meaning of section 7103(a)(14)
of the Statute; (2) the Agency is without authority to bargain over the
proposed benefits; (3) bargaining on the proposal is barred by
regulations for which a compelling need exists; (4) negotiation on
parts D and E of the proposal is foreclosed by applicable law.
The Union did not provide any arguments in its petition for review
supporting the negotiability of the proposal, nor did it file a reply
brief.
We will examine the Agency's contentions, in turn.
B. Analysis
1. Conditions of Employment of Bargaining Unit Employees
Under the statutory scheme established by sections 7103(a)(12), 7106,
7114 and 7117 a matter proposed to be bargained which is consistent with
Federal law, including the Statute, Government-wide regulations or
agency regulations is, nonetheless, outside the duty to bargain unless
such matter directly affects the conditions of employment of bargaining
unit employees. The term "conditions of employment" is defined in
section 7103(a)(14) as "personnel policies, practices, and matters
whether established by rule, regulation, or otherwise, affecting working
conditions . . . ."
In deciding whether a proposal involves a condition of employment of
bargaining unit employees the Authority considers two basic factors:
(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.
For example, as to the first factor, the question of whether the
proposal pertains to bargaining unit employees, a proposal which is
principally focused on nonbargaining unit positions or employees does
not directly affect the work situation or employment relationship of
bargaining unit employees. See National Federation of Federal
Employees, Local 1451 and Naval Training Center, Orlando, Florida, 3
FLRA 88 (1980) aff'd sub nom. National Federation of Federal Employees
v. FLRA, 652 F.2d 191 (D.C. Cir. 1981) (Proposal requiring management to
designate a particular number of representatives to negotiations was
held to be outside the duty to bargain). But, a proposal which is
principally focused on bargaining unit position or employees and which
is otherwise consistent with applicable laws and regulations is not
rendered nonnegotiable merely because it also would have some impact on
employees outside the bargaining unit. See Association of Civilian
Technicians, Pennsylvania State Council and Pennsylvania Army and Air
National Guard, 14 FLRA 38 (1982) (Union proposal 1 defining the
competitive area for reduction-in-force as coextensive with the
bargaining unit was held to be within the duty to bargain even though it
had an impact on nonbargaining unit employees).
Part 1 of the Appendix to this decision references other Authority
decisions concerning the nature and extent of the affect of a proposal
on bargaining unit employees.
As to the second factor, relating to the effect of a proposal on
working conditions, the question is whether the record establishes that
there is a direct connection between the proposal and the work situation
or employment relationship of bargaining unit employees. For example, a
proposal concerning off-duty hour activities of employees was found to
be outside the duty to bargain where no such connection was established.
See International Association of Fire Fighters, AFL-CIO, CLC, Local
F-116 and Department of the Air Force, Vandenberg Air Force Base,
California, 7 FLRA 123 (1981) (Proposal to permit employees to utilize
on-base recreational facilities during off-duty hours found not to
concern personnel policies, practices, or matters affecting working
conditions of bargaining unit employees).
On the other hand, a proposal concerning off-duty hour activities of
employees was held to affect working conditions of bargaining unit
employees where the requisite connection was established. National
Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army
Garrison, Yongsan, Korea, 4 FLRA 139 (1980) (Proposal to revise the
agency's "ration control" policy was found to concern standards of
health and decency which were conditions of employment under agency
regulations).
Part 2 of the Appendix to this decision references other Authority
decisions concerning the nature and effect of a proposal on bargaining
unit employees' working conditions.
Applying the first factor to the disputed proposal we find that the
proposal expressly pertains only to bargaining unit employees. No claim
is made that the proposal has any impact on nonbargaining unit
employees. However, we must also assess the nature and effect of the
proposal on bargaining unit employees' working conditions under the
second factor. Here the Agency argues without contravention that access
to the retail, recreational and medical facilities denoted in the
proposal would occur primarily during the employees' non-duty hours.
Further, the Union has provided no evidence, whatever, and the record
does not otherwise establish that access to the facilities in question
is in any manner related to the work situation or employment
relationship or is otherwise linked to the employees' assignments within
the school system in Puerto Rico. As a result we find the disputed
proposal is to the same effect as the proposal permitting employees to
use on-base recreational facilities during off-duty hours found outside
the agency's obligation to bargain in Vandenberg Air Force Base, 7 FLRA
123 (1981). Thus, the disputed proposal also does not directly affect
working conditions of bargaining unit employees and is outside the
Agency's obligation to bargain.
2. Matters within the Agency's Authority to Bargain
It is well established that the duty of an agency under the Statute
is to negotiate with an exclusive representative of an appropriate unit
of its employees concerning conditions of employment affecting them to
the extent of its discretion, the is, except as provided otherwise by
Federal law including the Statute, or by Government-wide rule or
regulation or by an agency regulation for which a compelling need
exists. For example, see National Treasury Employees Union and
Department of the Treasury, Bureau of the Public Debt, , FLRA 769
(1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691
F.2d 553 (D.C. Cir. 1982).
It is also well established that an agency may not foreclose
bargaining on an otherwise negotiable matter by delegating authority as
to that matter only to an organizational level within the agency
different from the organizational level of recognition. Rather, under
section 7114(b)(2) of the Statute, an agency is obligated to provide
representatives who are empowered to negotiate and enter into agreement
on all matters within the statutorily prescribed scope of negotiations.
American Federation of Government Employees, AFL-CIO, Local 3525 and
United States Department of Justice, Board of Immigration Appeals, 10
FLRA 61 (1982) (Union Proposal 1). Thus, the Agency's claim that the
Superintendent of the Department of Navy Antilles School System is
without authority to bargain on access to Navy retail, recreational or
medical facilities because such facilities are in separate chains of
command within the Department of Navy from the school system cannot be
sustained. See American Federation of Government Employees, AFL-CIO,
Local 1409 and U.S. Adjutant General Publications Center, Baltimore,
Maryland, 18 FLRA NO. 68 (1985). Similarly, the Agency's argument that
the Superintendent is without authority to bargain on access to Army
facilities which are under the jurisdiction of a separate subdivision of
DOD also cannot be sustained. See Defense Contract Administration
Services Region, Boston, Massachusetts, 15 FLRA 750 (1984).
As to Coast Guard facilities, there is nothing in the record in this
case which indicates that the Agency lacks the discretion to at least
request the Department of Transportation to extend access to such Coast
Guard facilities to Antilles School System employees. Thus, the Agency
is obligated to bargain on access to Coast Guard facilities to this
extent. See American Federation of State, County and Municipal
Employees, AFL-CIO and Library of Congress, Washington, D.C., 7 FLRA 578
(1982) (Union Proposals XI-XVI), enf'd sub nom. Library of Congress v.
FLRA, 699 F.2d 1280 (D.C. Cir. 1983).
3. Compelling Need
The Agency has argued that a compelling need exists for certain of
its regulations to bar civilian employee access to the retail and
recreational facilities in Puerto Rico. We note, however, an apparent
inconsistency between this argument and DOD Directive 1400.6 which could
be interpreted to permit access to such facilities by the employees in
Puerto Rico. Neither party in this case addressed this specific
question or otherwise discussed the effect of DOD Directive 1400.6 on
civilian employees in Puerto Rico. Therefore, we consider it
inappropriate, based on the record in this case, to pass on the
compelling need issue raised by the Agency.
4. Consistency with law of Parts D and E of the Proposal
a. Part D of the Proposal
According to the record this part of the proposal would permit the
Antilles School System employees to patronize on-post retail liquor
stores. While the Agency's claims that Puerto Rico law precludes the
sale of Commonwealth tax-free alcoholic beverages to these civilian
employees we find such claim unsupported in the record. That is, the
DOD regulations, which were included in the record by the Agency,
specifically permit patronage of on-post retail liquor stores by other
categories of persons, such as dependents of military personnel, who,
like the civilian employees in this case, are not expressly listed as
exempt under the Puerto Rico Statute. See Puerto Rico Laws Annotated
tit. 13 Section 6019 (1976). Thus, we do not find that the Agency has
established that Part D of the proposal is inconsistent with law.
b. Part E of the Proposal
Part E of the proposal would permit employees to use the local Navy
hospital on a paid basis. However, under 24 U.S.C. Section 34 Federal
Employees located outside the continental limits of the United States
and in Alaska may receive medical care at a naval hospital only "where
facilities are not otherwise available in reasonably accessible and
appropriate non-Federal hospitals." Also, under 24 U.S.C. Section 35,
such employees may be hospitalized in a naval hospital "only for acute
medical and surgical conditions . . . . " Since Part E of the proposal
contains no limitations on access to the local naval hospital, it is
inconsistent with the express statutory provisions governing such
access.
C. Conclusion
The Authority finds, for the reasons set forth in the preceding
analysis, that the entire proposal in this case concerns matters which
are not conditions of employment of bargaining unite employees.
Consequently, it is not within the duty to bargain although the Agency
could negotiate on the proposal if it chose to do so, except for Part E.
Further, the Authority concludes that as Part E of the proposal is
inconsistent with Federal law, it is outside the scope of the duty to
bargain pursuant to section 7117(a)(1) of the Statute.
III. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review be, and it
hereby is, dismissed.
Issued, Washington, D.C., June 24, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
Part 1
The following cases involve examples of proposals found outside the
duty to bargain because of the impact on individuals or positions
outside the bargaining unit.
National Council of Field Labor Locals, American Federation of
Government Employees, AFL-CIO and U.S. Department of Labor, Washington,
D.C., 3 FLRA 290 (1980) (Proposal I establishing the method management
will use in filling supervisory and management positions found not to
affect working conditions of bargaining unit employees).
American Federation of Government Employees, National Council of EEOC
Locals NO. 216, AFL-CIO and Equal Employment Opportunity Commission,
Washington, D.C., 3 FLRA 504 (1980) (Proposal relating to the assessment
and training of supervisors found not to affect working conditions of
bargaining unit employees).
National Treasury Employees Union and Internal Revenue Service, 6
FLRA 522 (1981) (Proposal VI requiring management to notify individuals
who telephone the agency for tax information that such calls are subject
to monitoring found not to affect working conditions of bargaining unit
employees).
National Association of Government Employees, Local R7-23 and
Headquarters, 375th Air Base Group, Scott Air Force Base, Illinois, 7
FLRA 710 (1982) (Proposal concerning discipline of management officials
and supervisors found not to affect working conditions of bargaining
unit employees).
American Federation of Government Employees, AFL-CIO, Local 2272 and
Department of Justice, U.S. Marshals Service, District of Columbia, 9
FLRA 1004 (1982) (The portion of Proposal 5 which required management to
prosecute private citizens who file false reports found not to affect
working conditions of bargaining unit employees).
Association of Civilian Technicians, State of New York, Division of
Military and Naval Affairs, Albany, New York, 11 FLRA 475 (1983)
(Proposal 2 concerning procedures for filling military positions found
not to affect the working conditions of bargaining unit employees).
American Federation of Government Employees, AFL-CIO, Local 2302 and
U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, 19 FLRA NO.
95 (1985) (Proposal 4 prescribing the content of certain management
records relating to employees, the manner in which such records are
maintained and restrictions on management access to such records found
not to affect working conditions of bargaining unit employees).
Part 2
A. The following cases involve examples of proposals found outside
the duty to bargain because of the absence of a direct affect on
bargaining unit employees' working conditions.
National Association of Air Traffic Specialists and Department of
Transportation, Federal Aviation Administration, 6 FLRA 588 (1981)
(Proposal IV permitting employee allotments from pay for "Political
Action Fund" to be used in "political efforts to improve working
conditions" found to affect working conditions in only a remote and
speculative manner).
National Federation of Federal Employees, Council of Consolidated
Social Security Administration Locals and Social Security
Administration, 13 FLRA 422 (1983) (Proposals 3 and 4 requiring
management to utilize recycled paper products and to provide the Union
with such recycled paper products upon request found not to directly
affect bargaining unit employees' working conditions as there was no
demonstration in the record of any such effect).
Maritime Metal Trades Council and Panama Canal Commission, 17 FLRA
890 (1985) (Proposals 1 and 2 permitting employees to cash personal
checks at the agency's treasury found not to directly affect working
conditions of bargaining unit employees).
B. The following cases involve examples of proposals found to
directly affect working conditions of bargaining unit employees.
American Federation of Government Employees, AFL-CIO and Air Force
Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604
(1980) (Union Proposal 1), enf'd as to other matters sub nom. Department
of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub
nom. AFGE v. FLRA, 455 U.S. 945 (1982) (A proposal to establish a union
operated day care facility on agency property was found to directly
affect bargaining unit employees by enhancing an individual's ability to
accept employment or to continue employment with the agency and to
promote workforce stability and prevent tardiness and absenteeism).
National Treasury Employees Union and Internal Revenue Service, 3
FLRA 693 (1980) (Union Proposal I establishing criteria for approval of
outside employment was found to directly affect working conditions of
unit employees because agency regulations which set forth policies
governing outside employment were determinative of employee eligibility
for certain positions and even prescribed whether employees could
continue to be employed).
Planners, Estimators and Progressmen Association, Local NO. 8 and
Department of the Navy, Charleston Naval Shipyard, Charleston, South
Carolina, 13 FLRA 455 (1983) (A proposal to permit bargaining unit
employees to record their time and attendance manually instead of
mechanically through use of a time clock found to directly concern
working conditions of such employees).
United States Department of Justice, United States Immigration and
Naturalization Service and American Federation of Government Employees,
AFL-CIO, Local 2509, 14 FLRA 578 (1984) (Assignment of Government-owned
housing to employees was found to directly affect working conditions of
bargaining unit employees in circumstances where there was a lack of
adequate housing in the geographic area and the Government-owned housing
in question was constructed for the benefit and use of employees
stationed at the hardship location).
American Federation of Government Employees, AFL-CIO, Local 1770 and
Department of the Army, Headquarters, XVIII Airborne Corps and Fort
Bragg, Fort Bragg, North Carolina, 17 FLRA 752 (1985) (Proposal 4
requiring the agency to provide lockers or other secure areas for
employees' personal items during working hours found to directly affect
working conditions of unit employees).