24:0971(96)CA - DOD, Army, Fort Buchanan, San Juan, PR and AFGE Local 2614 -- 1986 FLRAdec CA
[ v24 p971 ]
24:0971(96)CA
The decision of the Authority follows:
24 FLRA No. 96
DEPARTMENT OF DEFENSE,
DEPARTMENT OF THE ARMY,
FORT BUCHANAN, SAN JUAN,
PUERTO RICO
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, LOCAL 2614
Charging Party
Case No. 42-CA-40232
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority on exceptions
filed by the Respondents to the attached Administrative Law Judge's
Decision. The case concerns whether the Respondents violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute by unilaterally terminating partronage privileges for civilian
employees at the Post Exchange at Fort Buchanan on January 31, 1984.
II. Background
For 18 years prior to January 31, 1984, employees at Ft. Buchanan
enjoyed patronage privileges at Ft. Buchanan's Post Exchange. These
Exchange privileges encompassed (1) a General Store (offering items such
as toiletries, jewelry, clothing, shoes, small appliances, and other
household goods); (2) a Shopette (a small grocery store offering dairy
and poultry products, canned goods, bread, and pet food); and (3) a dry
cleaners, optical shop, watch repair shop, movie theater, and toy store.
Employees at Ft. Buchanan commonly shopped at the Exchange before and
after work. This saved time in comparison to making trips to commercial
facilities. The employees also avoided heavy traffic and parking
problems encountered when shopping in the private sector. The record
also shows that employees believed that prices were lower, and the
quality of goods was higher at the Exchange.
The employees did not lack alternatives to the Exchange in the
surrounding area, in the private sector, before or after the termination
of their Exchange privileges. Ft. Buchanan is within the metropolitan
area of San Juan, Puerto Rico, near residential developments and
commercial facilities. Convenience stores, food stores, and two
shopping centers are located near Ft. Buchanan. A third shopping center
-- Plaza Las Americas, described in hearing testimony as a huge shopping
center comparable to large shopping centers in the States -- is about 20
minutes from Ft. Buchanan by car. Although blue laws prohibit store
operations on Sundays and after 6 p.m. on other days, the testimony
shows that hours of the Exchange and the commercial facilities are about
the same.
In 1982, the Department of Defense (DoD) issued a new regulation, DoD
Dir. 1300.9, which placed new restrictions on the authority of military
commanders to extend Exchange privileges to civilian employees in
Purerto Rico. After the regulation had been implemented within the
Department of Defense and the Department of the Army's chain of command,
Ft. Buchanan advised the Union in November 1983 that employees' Exchange
privileges at Ft. Buchanan would be terminated on January 31, 1984. The
Union requested negotiations on the substance of this decision. Ft.
Buchanan refused to negotiate the substance of the decision, but offered
to negotiate concerning the impact and implementation of the decision.
Ft. Buchannan asserted that it was precluded by the Department of the
Army from negotiating over the decision to terminate the Exchange
privileges. The Department of the Army asserted that negotiations on
the decision were precluded by directions of the Department of Defense.
Ft. Buchanan and the Union exchanged communications on the matter and
met to discuss their positions on January 12, 1984. There were no
negotiations. The Union continued to insist on negotiations on the
substance of the decision. Ft. Buchanan refused, offering negotiations
on impact and implementation. The Exchange privileges were terminated
on January 31, 1984. The Union did not seek negotiations on the impact
and implementation of the decision.
III. Judge's Decision
The Judge found that Ft. Buchanan had not refused to negotiate on the
impact and implementation of the decision, but that it had refused to
negotiate over the decision itself. He found that the substance of the
decision was within the duty to bargain because the Exchange privileges
concerned employees' conditions of employment under section 7103(a)(14)
of the Statute. This was based on his findings that the privileges had
been offered as an inducement to employment in Puerto Rico, and that the
privileges had become a condition of employment by past practice. He
further concluded that negotiations on the decision were not barred by
agency regulations, as no compelling need had been shown for the
regulations under section 7117 of the Statute.
Finding that Ft. Buchanan's refusal to negotiate the decision was
based on orders from the Department of the Army, and that the Department
of the Army had acted as it had on instructions from the Department of
Defense, he concluded that the complaint should be dismissedd as to
Respondents Ft. Buchanan and Department of the Army. However, the Judge
concluded that the Department of Defense had violated section 7116(a)(1)
of the Statute by its actions and recommended that it be ordered to
cease and desist and to take certain affirmative action.
IV. Respondent's Exceptions
The Respondent Department of Defense excepted to the Judge's finding
that no compelling need was shown for withdrawal of exchange privileges
by DoD Directive 1330.9 of May 12, 1982. It excepted first to the
Judge's statement that there was no evidence as to specific compelling
need or reason or justification for the action. Second, Respondent DoD
excepted to the Judge's statement that the congressional oversight
committee had no interest or concern about exchange privileges for
civilian employees in Puerto Rico.
V. Analysis
Subsequent to the Judge's Decision in this case, the Authority issued
Antilles Consolidated Education Association and Antilles Consolidated
School System, 22 FLRA No. 23 (1986) and Department of the Air Force,
Eielson Air Force Base, Alaska, 23 FLRA No. 83 (1986), discussed by the
parties and the Judge as being relevant to the disposition of this case.
As here, Antilles and Eielson concerned whether Exchange privileges or
similar patronage privileges were conditions of employment under section
7103(a)(14). See also Department of the Army, Fort Greely, Alaska, 23
FLRA No. 105 (1986).
In Antilles we explained the two basic factors which determine
whether a matter proposed for negotiations involves a condition of
employment under section 7103(a)(14): (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. In Antilles we determined
that the union's proposals for the creation of privileges at the
agency's retail, recreational, and medical facilities did not concern
conditions of employment under the second factor, because there was no
showing on how the employees' access to these facilities, off the job,
related to their working conditions.
In Eielson, we applied the Antilles factors and determined that the
Exchange privileges, although analogous to the privileges at issue in
Antilles, did concern conditions of employment under section
7103(a)(14). This conclusion was based on a showing that the employees
at the isolated base in Alaska needed the Exchange privileges to
maintain adequate living standards in connection with their employment
there, because of the lack of reasonably conveninet substitutes and the
difficulties and dangers of travel in Alaska in winter months, and the
Exchange privileges had been described as part of the living and working
conditions in Alaska. Our decision in Ft. Greely, Alaska, 23 FLRA No.
105, which followed Eielson and which also concerned Exchange
privileges, was similarly based. 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).
Our analysis of the loss of Exchange privileges in the circumstances
here yields results different from the conclusions in Eielson and Ft.
Greely, Alaska. The employees at Ft. Buchanan lost a convenience when
their Exchange privileges were terminated. However, the record does not
show that the privileges were necessary to enable employees to sustain
adequate living standards. Rather, the circumstances in this case are
analogous to the circumstances in Antilles, where there was no showing
as to how the employees' access to the Exchange facilities related to
their working conditions. Here, the record shows that there is an
abundance of private sector shopping alternatives to the Exchange near
the employees' homes and the base. Uncontradicted testimony suggested a
belief that Exchange prices are lower; however, the record disclosed
that Federal employees in San Juan receive cost of living allowances
which are adjusted for benefits such as Exchange privileges.
The record also suggests increased traffic and parking difficulties
connected with private sector shopping. These problems are common in
large metropolitan areas in the States; we do not consider any
alleviation of such problems by shopping at an Exchange to be of such
consequence as to raise the Exchange privileges to the level of a
condition of employment. The testimony on the comparative quality of
poultry and milk products shows that employees believe that the
Exchange's products are better. However, the record does not establish
that the comparable private sector products create health problems.
Further, based on this record, it has not been shown that Ft. Buchanan's
willingness to negotiate the impact and implementation of the
termination of general Exchange privileges did not include a willingness
to negotiate concerning these particularized concerns.
The Judge's reliance on General Counsel Exhibit 17, in concluding
that the Exchange privileges concern conditions of employment under
section 7103(a)(14), is misplaced. The exhibit shows that certain
employees were promised Exchange privileges in connection with their
employment at Ft. Buchanan. However, this document, dated April 23,
1984, also states that Exchange privileges were not terminated for those
employees who had been offered the privileges as part of their
transportation agreement for employment in Puerto Rico. Therefore, this
document does not support a conclusion that the Exchange privileges were
conditions of employment for the employees whose Exchange privileges
were terminated in January 1984.
The Judge also concluded that the Exchange privileges became
conditions of employment by operation of past practice. In reaching
this conclusion the Judge relied on Authority precedent which is
inapposite. In our view, matters which are not conditions of employment
within the meaning of section 7103(a)(14) do not become conditions of
employment merely by the effect of a past practice. See Veterans
Administration and Veterans Administration Medical Center, Lyons, New
Jersey, 24 FLRA No. 8 (1986).
As explained in Antilles, our approach to conditions of employment
issues -- which we believe is consistent with prior Authority precendent
-- is that a party that desires to negotiate on a matter on the basis
that the matter relates to conditions of employment under section
7103(a)(14) must show that the matter is pertinent to the employees'
working conditions. In this case the General Counsel has not shown that
the employees nonwork, patronage privileges at Ft. Buchanan's Post
Exchange relate to the employees' working conditions so as to justify a
determination that the Exchange privileges concern conditions of
employment under section 7103(a)(14) of the Statute.
Based on our determination that Exchange privileges at Ft. Buchanan
do not concern conditions of employment under section 7103(a)(14) we
conclude that the Respondents were not obligated to negotiate the
decision to terminate the Exchange privileges. National Weather
Service, Silver Spring, Maryland, 21 FLRA No. 63 (1986). Accordingly,
the compelling need issues raised here need not be addressed. /1/
VI. Conclusion
The Exchange privileges at Ft. Buchanan have not been shown to be
conditions of employment under section 7103(a)(14) of the Statute.
Therefore, the refusal to negotiate over the decision to terminate the
privileges did not constitute a violation of the Statute. Moreover,
there was no refusal to negotiate on the impact and implementation of
the decision. Accordingly, the complaint shall be dismissed in its
entirety.
ORDER
The complaint in Case No. 42-CA-40232 is dismissed.
Issued, Washington, D.C., December 31, 1986.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Dissenting Opinion of Chairman Calhoun
In agreement with the Judge, I find that the Exchange privileges
involved conditions of employment of bargaining unit employees and that
the withdrawal of those privileges constituted an unfair labor practice.
I agree with the majority that under the Antilles analysis, the
privileges about which the Union sought to bargain pertained to
bargaining unit employees. I disagree with the majority's conclusion,
however, that the second Antilles consideration is not satisfied. In my
view, there is a direct connection between the privileges and the work
situation and employment relationship of bargaining unit employees.
In Antilles, the Authority found that a proposal to create new
privileges at the agency's retail, recreational, and medical facilities
was nonnegotiable because it did not directly affect working conditions
of bargaining unit employees. Subsequently, in Eielson and Ft. Greely,
we found that similar privileges affected conditions of employment. We
emphasized, among other things, that the privileges in the latter two
cases had been continued over a long period of time and were used as
inducements to accept employment in isolated locations.
I conclude that the circumstances of the privileges in the case now
before us are like those in Eielson and Ft. Greely. As found by the
Judge, the privileges had been enjoyed by bargaining unit employees for
at least 18 years and flowed from their employment. Further, although
Ft. Buchanan is not as isolated as Eielson Air Force Base or Ft. Greely,
the privileges had been contractually offered as an inducement to
employment in Puerto Rico. The fact that the privileges were not
terminated for those employees who accepted the conditions of a
transportation agreement on that basis is not dispostive, in my view,
because the use of the privileges as inducements to employment evidences
the relationship between the privileges and the employment situation.
Dated, Washington, D.C. December 31, 1986.
/s/ Jerry L. Calhoun
Jerry L. Calhoun, Chairman
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case No. 42-CA-40232
DEPARTMENT OF DEFENSE DEPARTMENT OF THE
ARMY FORT BUCHANAN SAN JUAN, PUERTO RICO
Respondents
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2614
Charging Party
Sam Horn, Esquire
For Respondents Department of Defense and Department of the Army
Major Marion E. Winter, JAGC
For Respondent Fort Buchanan
Pamela B. Jackson, Esquire
For the General Counsel
Before: WILLIAM B. DEVANEY
Administrative Law Judge
DECISION
Statement of the Case
This proceeding, under the Federal Service Labor-Management Relations
Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C.
section 7101, et seq. /2/, and the Final Rules and Regulations issued
thereunder, 5 C.F.R. section 2423.1, et seq., concerns principally
whether there was compelling need for the amendment of Department of
Defense Directive 1330.9 on May 12, 1982, which terminated authority to
grant Post Exchange privileges to civilian employees in Puerto Rico,
there being no dispute that the decision to withdraw Exchange privileges
was declared non-negotiable pursuant to section 17(a)(2) of the Statute,
i.e., that the withdrawal of authority to grant Exchange privileges in
Puerto Rico was governed by an agency regulation (DOD Directive 1330.9)
as to which the Authority had not determined that was no compelling
need. This case was initiated by a charge filed on February 21, 1984,
with Region II, where it was designated as Case No. 2-CA-40232 (G.C.
Exh. 1(a)) which named the "U.S. Army -- Headquarters Fort Buchaqnan,
Puerto Rico", and alleged violation of section 16(a)(1) and (5) of the
Statute. By Order dated February 24, 1984, pursuant to section 2429.2
of the Regulations, this case was transferred from Region II of the
Authority to Region IV of the Authority (G.C. Exh. 1(b)). An amended
charge was filed on June 28, 1984, with Region IV, where the case was
now designated as Case No. 42-CA-40232, (G.C. Exh. 1(c)) which named
"The Department of the Army, Department of Defense, Headquarters Fort
Buchanan." The Complaint and Notice of Hearing issued on August 10,
1984, and hearing was scheduled for September 18, 1984. By Order dated
August 14, 1984 (G.C. Exh. 1(e)) the hearing was rescheduled for October
16, 1984, pursuant to which a hearing was duly held on October 16, 1984,
in San Juan, Puerto Rico, before the undersigned.
All parties were represented at the hearing, were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to
introduce evidence bearing on the issues involved, and were afforded
opportunity to present oral argument. At the close of the hearing,
November 16, 1984, was fixed as the date for mailing post-hearing
briefs, which time was subsequently extended, upon timely motion of the
Respondents, to which General Counsel did not object, for good cause
shown, to December 14, 1984. Each Respondent and General Counsel timely
filed and mailed a brief, received on, or before, December 17, 1984,
which have been carefully considered. Upon the basis of the entire
record, including my observation of the witnesses and their demeanor, I
make the following findings and conclusions:
Findings and Discussion
1. The Department of Defense's (DOD) Armed Services Exchange
Regulation (ASER), DOD Directive 1330.9, October 29, 1971, had been
applicable only to the Continental United States (CONUS). Mr. Clare A.
Moelk, Assistant Director for Military Personnel Administration and
Services, Office of the Secretary of Defense, testified that in January,
1978, he received a call from the Senior Staff member for the
Nonappropriated Fund Panel (NAF Panel), now the Moral, Welfare and
Recreation Panel (MWR Panel), " . . . that Congress wished the Exchange
Regulation revised. One of the revisions that they wanted was to make
it worldwide rather than just applicable to CONUS" (Tr. 74 (A)). A
working level committee was set up and the revised Regulation was
completed and transmitted to House Committee on Armed Services (HCAS) on
May 8, 1979 (Tr. 75, Res. Exh. 3, p. 47). The proposed Regulations are
set forth at pp. 48-85 of Respondent Exhibit 3. Section II provided, in
part, as follows:
"AUTHORIZED PATRONS
"2-000 Scope of Section. This section lists the individuals
and organizations entitled to unlimited and limited exchange
privileges, except as may be modified in foreign countries by
treaty or other international agreements; specifies the limited
privileges which are to be extended to classes of personnel not
entitled to unlimited privileges; and sets forth the
identification of authorized patrons.
"Part 1 -- Unlimited Privileges
"2-101 Patrons Entitled to Unlimited Privileges. The following
individuals and organizations are entitled to all exchange
privileges:
. . .
"p. U.S. civilian employees of the Department of Defense and
their dependents stationed outside the CONUS, Alaska, and Hawaii.
. . .
"Part 2 -- Limited Privileges
"2-201 Patrons Entitled to Limited Privileges. The following
classes of persons shall be entitled to limited exchange
privileges as set forth below and as restricted to Section IV,
Part 7 of this Directive. /3/
. . .
2-201.6 Civilian Employees Within the CONUS, Alaska, and Hawaii
not Residing on Military Reservations. Civilian employees working
on but residing off Military reservations shall be entitled to the
privileges of the fountain, snack bar, and restaurant when the
local commanding officer determines that these facilities are not
conveniently available from other sources.
. . ." (Res. Exh. 3, pp. 57-58)
2. Hearings were held by the Panel on Nonappropriated Fund
Activities of the Investigations Subcommittee of the Committee on Armed
Services, House of Representatives on May 31, 1979. The Assistant
Secretary of Defense for Military Personnel Policy, Major General
Stanley M. Umstead, Jr., testified, in part as follows:
"The first substantive change we have made in the proposed
revision is to extend the scope of the ASER to apply worldwide so
as to provide more commonality with the Armed Services Commissary
Store Regulations. /4/ In so doing we have incorporated current
overseas patron eligibility policies regarding Department of
Defense civilian employees and contractor employees and have noted
that patron eligibility in foreign countries is governed by treaty
or other international agreements." (Res. Exh. 3, p. 2)
The NAF Panel inquired, so far as I have noted, only as to two
specific patron coverage questions: /5/ (1) exchange and commissary
employees (exchange employees may purchase (2-201.4 Exchange Employees.
Exchange employees shall be entitled to all privileges of the exchange
system by which they are employed, except for purchase of articles of
uniform and state tax free items. Dependents of this patronage category
are authorized access to exchanges, but are not authorized to make
purchases) but commissary employees cannot (Res. Exh. 3, p. 7); and 2)
foreign military attaches (Res. Exh. 3, pp. 6-8).
Nothing in the Hearing (HASC No. 96-12; Res. Exh. 3) shows any
discussion, justification for, or concern by the NAF Panel, of the
withdrawal of unlimited Exchange privileges for civilian employees in
either Hawaii or Alaska. As Alaska and Hawaii had become states in
1959, notwithstanding that they were outside the definition of CONUS,
their status as states may well have been a controlling reason for
extending DOD's policy to Alaska and Hawaii as later surmised by Colonel
Robert C. Deshler (Res. Exh. 1); but, other than setting forth what it
proposed to do in its Regulation, the record simply does not show any
reason for its actions in this regard beyond, perhaps, maximum,
"commonality . . . with DOD Directive 1330.17 'Armed Services Commissary
Store Regulations' . . . . " (Res. Exh. 3, p. 47) Whether like action
had been taken in the Commissary Regulations and whether justification
had been given with respect to the Commissary Regulations (published May
4, 1978) was not shown.
Nevertheless, there were hearings on the proposed Regulations for
Exchanges in 1979 and by letter dated June 28, 1979, the Honorable
Melvin Price, Chairman of HASC, advised Captain Richard J. Fleeson,
Acting Deputy Assistant Secretary of Defense, as follows:
"On May 8, 1979, the Department of Defense requested House
Armed Services Committee approval of proposed revisions in the
Department of Defense Armed Services Exchange Regulations. The
Committee has no objection with the exception of the request to
authorize sale of television sets and microwave ovens in military
exchanges.
"The Committee does not feel the sale of these items should be
authorized at this time." (Res. Exh. 5).
3. Mr. Moelk testified that when Mr. Daniel's subcommittee (NAF
Panel, now MWR Panel) makes recommendations to the Department of Defense
with respect to patronage, use of the Exchanges, DOD considers such
recommendations a fait accompli (Tr. 79), that,
"The Congress at various times have recommended that 100%
disabled veterans (sic) or persons of that nature be added to the
Exchange patron eligibility (sic) and to my knowledge we have
always acceded to their desires in that regard." (Tr. 79).
4. The proposed Regulation was issued as DOD Directive 1330.9, July
8, 1980 (G.C. Exh. 15).
5. On May 12, 1982, DOD Directive 1330.9 was amended, as pertinent
hereto, to add "Puerto Rico" to Section 2-101 p. and to Sec. 2-201.6.
As amended, these sections now read as follows: /6/
Part 1 -- Unlimited Privileges
"2-101 Patrons Entitled to Unlimited Privileges. The following
individuals and organizations are entitled to all exchange
privileges:
. . .
"p. U.S. civilian employees of the Department of Defense and
their dependents stationed outside the CONUS, Alaska, Hawaii, and
Puerto Rico.
. . . " (G.C. Exh. 14)
Part 2 -- Limited Privileges
"2-201 Patrons Entitled to Limited Privileges. The following
classes of persons shall be entitled to limited exchange
privileges as set forth below and as restricted by section IV,
part 5, of this enclosure.
. . .
2-201.6 Civilian Employees Within the CONUS, Alaska, Hawaii,
and Puerto Rico Not Residing on Military Reservations. Civilian
employees working on but residing off military reservations shall
be entitled to the privileges of the fountain, snack bar, and
restaurant when the local commanding officer determines that these
facilities are not conveniently available from other sources.
. . ." (G.C. Exh. 14).
6. There were no hearings on modification adding Puerto Rico to
section 2-101 p or to section 2-201.6 (Tr. 94); nor does the record
show that Congress in general or the NAF, or MWR, Panel or the HASC in
particular made any recommendation or request to DOD with regard
thereto. The record shows no reason or justification for the 1982
amendment. Indeed, the record does not even show that the NAF, or MWR,
Panel, or HASC, was even informed of the 1982 amendment, although, based
on Mr. Moelk's testimony that he consisently maintains a close
relationship with the Committee, and that there is an understanding with
Congress that every change will be submitted (Tr. 77), I assume that the
Committee was informed of the 1982 amendment of DOD Directive 1330.9. I
further assume that if the Committee were informed it did nothing.
7. For at least eighteen years, civilian employees at Fort Buchanan
had enjoyed Exchange privileges (Tr. 23). The exchange included a
shoppette where employees could buy certain grocery items including milk
and poultry imported from the United States. Milk and poultry imported
from the United States is generally preferred over the same products
originating in Puerto Rico because certain chemicals in both Puerto
Riccan milk and poultry assertedly have a detrimental effect on the
maturation process of children (Tr. 28, 36).
8. In June 1983, Mr. Jose Quinones, President of Local 2614, began
receiving complaints from bargaining unit employees regarding the
failure of Fort Buchanan to renew their exchange passes (G.C. Exh. 2).
Mr. Quinones contacted Mr. Spencer Johnson, Civilian Personnel Liaison
Officer at Fort Buchanan, by letter dated June 22, 1983. Mr. Johnson
instructed the officer in charge of issuing ID cards to renew the ID's
because proper notification had not been given to the Union and informed
Mr. Quinones that the passes would be renewed (Tr. 39, 100).
9. Upon learning of the May 12, 1982 amendment of DOD Directive, the
date not having been shown, a Request for Labor Relations Guidance had
been submitted /7/ to which Mr. W. J. Schrader, Chief, Office of Labor
and Employee Relations, Department of the Army, responded by letter
dated May 26, 1983 (Res. Exh. 2). In his response, Mr. Schrader
instructed Fort Buchanan, since it was without authority to grant
Exchange privileges to civilian employees to " . . . take timely steps
to bring itself into compliance with the DOD Directive." (Res. Exh. 2).
10. On October 26, 1983, Fort Buchanan (Colonel Deshler) submitted a
"Request for Technical Correction of DOD Directive 1330.9" (Res. Exh. 1)
which sought, ". . . deletion of the term 'and Puerto Rico' from
paragraph 2-101, i, p, q, r, and paragraphs 2-201.5 thru 2-201.7." (Res.
Exh. 1). Colonel Deshler obtained approval, pending response to his
Request for Technical Correction, to continue exchange privileges until
January 31, 1984.
11. On Novermber 4, 1983, Mr. Johnson gave Mr. Quinones Colonel
Deshler's letter (to Mr. Quinones) which stated, in part, that:
"The Department of Defense (DOD) Regulation for Exchange
Privileges (PX) has been revised. This regulation now prohibits
local Commanders from extending exchange privileges to civilian
employees in the Continental United States, Hawaii, Alaska, and
Puerto Rico. On 25 May 1983, the Department of the Army (DA)
provided directions regarding compliance with this regulation . .
.
"This headquarters has recently asked the Department of the
Army for relief from this regulation in Puerto Rico. In addition,
I have obtained approval to continue PX privileges until 31
January 1984 to reduce the impact of this change during the
Christmas season.
"It is recognized that the new DOD regulation will adversely
affect our civilian workforce . . . In the event that our request
for relief is not favorably considered, the termination of
exchange privileges on 31 January 1984 will not affect the use of
Post snack facilities . . .
"Please provide us with any comments you may have by 25
November 1983." (G.C. Exh. 3).
Later, on Noverber 4, 1983, a Memorandum to All Employees was issued
and distributed (G.C. Exh. 4).
12. On December 19, 1983, the Union requested negotiations " . . .
over the proposed revocation of PX privileges and/or the impact and
implementation of this proposed revocation." (G.C. Exh. 5); Mr. Johnson
replied by letter dated December 27, 1983 (G.C. Exh. 6); and the
parties met on January 12, 1984. At the meeting on January 12, Fort
Buchanan informed the Union that the decision to terminate Exchange
privileges was non-negotiable (Tr. 115). Indeed Mr. Quinones stated
that Fort Buchanan will immediately grant all civilian personnel same
Post Exchange privileges as Military Personnel . . . . " (G.C. Exh. 7),
non-negotiable. He testified that,
"Since the beginning they told me that it is not a negotiable
proposal. Since the beginning." (Tr. 44).
Although Fort Buchanan advised the Union on January 12, 1984, that
the decision to terminate Exchange privileges was non-negotiable (see,
Res. Exh. 2, where Mr. Schrader had categorically informed Fort Buchanan
that "The decision to withdraw privileges is nonegotiable."), Fort
Buchanan at that time informed the Union that,
" . . . there is a difference between our authority to
negotiate on substantive areas of the Regulation and . . . the
authority we had to conduct I & I bargaining.
. . .
" . . . obviously we had to, if the Union did not desire to
raise and to have us consider I & I bargaining, of course that was
their choice.
"But we wanted to make that clear and give them every
opportunity to do that." (Tr. 115).
13. By letter dated January 16, 1984 (G.C. Exh. 8), the Union, inter
alia, requested that,
"4. Until all efforts to exclude Puerto Rico from DOD
directive have been made and finalized, union request that PX
cards not be taken away and the use of post convenience store be
authorize(d)" (G.C. Exh. 8).
Mr. Johnson replied by letter dated January 19, 1984, in which he
stated, in part, as follows:
"Telephonically, I was notified . . . that the Post Commander's
request for removal of Puerto Rico . . . has been disapproved.
(Confirmed January 25, 1984. Res. Exh. 1) . . . Accordingly, the
Post Commander has no legal authority to grant any additional
delay in implementation of the Department of Defense Directive."
(Res. Exh. 9).
Mr. Johnson in his letter of January 19, again asked Mr. Quinones to,
" . . . address the adverse affect (sic) on working conditions which can
be alleviated by some other manner of implementation of the DOD
Directive. Management remains available for any additional meetings
that you may desire on this matter." (G.C. Exh. 9).
14. By letter dated January 30, 1984, (G.C. Exh. 11), the Union
again asked that,
" . . . until all efforts to exclude Puerto Rico from DOD
Directive have been made and finalized, PX cards not be taken away
. . . and the use of Post food land store be authorized." (G.C.
Exh. 11).
15. On January 31, Exchange privileges for bargaining unit employees
(about 300 or 400 Tr. 49) were terminated effective close of business
January 31, 1984, except that,
"3. Civilian employees will be allowed to complete PX purchase
transactions (i.e. Rain Checks or lay-a-ways) which were initiated
prior to withdrawal of privileges . . . ." (G.C., Exh. 12).
16. By letter dated January 31, 1984, addressed to Colonel Deshler
(received February 1, 1984 (Tr. 113)), Mr. Quinones acknowledged that,
" . . . We realize that you are and have been trying to help us
in the matter of the PX privileges for some time. As you say in
your last letter dated 19 January 1984, your hand (sic) are tied
because this directive has come from DOD, and you have no further
say in the matter . . . . " (G.C. Exh. 13).
In his letter of January 31, Mr. Quinones requested,
" . . . that we can continue to shop at the Food land Store . .
. . " (G.C. Exh. 13).
17. The Department of the Army has not, since the issuance of DOD
Directive 1330.9 on July 8, 1980, which governs Exchange operations of
the Army, Navy, Air Force, and Marine Corps world-wide, issued separate
implementing regulations.
18. Civilian employees in Puerto Rico, both before and after January
31, 1984, receive a cost of living allowance (Tr. 111, 112, 115).
Conclusions
There is no dispute that Respondent Fort Buchanan refused to bargain
with respect to the decision to terminate Exchange privileges for
civilian employees and refused to bargain on the Union's proposal that
civilian employees be granted the same Exchange privileges as military
personnel. /8/ Nor is there any question that Respondent Department of
the Army directed Respondent Fort Buchanan to bring itself into
compliance with DOD Directive 1330.9 (May 12, 1982); that Respondent
Department of the Army declared the decision to withdraw Exchange
privileges non-negotiable; or that Respondent Fort Buchanan refused to
negotiate on the withdrawal of Exchange privileges because of orders of
higher authority. The Authority has repeatedly held that a separate
violation of the duty to bargain can not be held against a subordiante
activity based solely upon the subordinate activity's ministerial action
in implementing the directives from higher level management. Department
of the Interior, Water and Power Resources Service, Grand Coulee
Project, Grand Coulee, Washington, 9 FLRA 385 (1982); Department of
Health & Human Services, Social Security Administration, Region VI, and
Department of Health and Human Services, Social Security Administration,
Galveston, Texas, District, 10 FLRA No. 9, 10 FLRA 26 (1982); Defense
Logistics Agency, et al., 12 FLRA No. 86, 12 FLRA 412 (1983); National
Treasury Employees Union and National Treasury Employees Union, Chapter
121, 16 FLRA No. 102, 16 FLRA 717 (1984). Accordingly, the Complaint
against Respondent Fort Buchanan is hereby dismissed.
The privilege of purchasing at the Exchange flowed from employment
and was a significant and valued benefit of their employment. The
privilege of buying a wide range of items, including clothing, shoes,
small applicances, furniture, toys, milk, eggs, poultry, magazines, etc.
(Tr. 23-29), of high quality at reduced prices, while not a direct form
of compensation, is certainly an adjunct to compensation and directly
affects the work situation and employment relationship of bargaining
unit employees. Indeed, DOD conceded that Exchange privileges had been
contractually offered as an inducement for employment in Puerto Rico
(G.C. Exh. 17). I conclude, therefore, that Exchange privileges
constitute a condition of employment within the meaning of sections 2(2)
and 3(a) (14) of the Statute. National Treasury Employees Union, 3 FLRA
No. 112, 3 FLRA 692 (1980); (outside employment); American Federation
of Government Employees, AFL-CIO, 2 FLRA No. 77, 2 FLRA 604, 606 (1980)
(daycare centers), enf'd as to other matters sub non. Department of
Defense v. Federal Labor Relations Authority, 659 F. 2d 1140 (D.C. Cir.
1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982);
National Federation of Federal Employees, Local 1363, 4 FLRA No. 23, 4
FLRA 139 (1980) (ration control), enf'd sub nom, Department of Defense,
Department of the Army, and Headquarters, Eighth U.S. Army Garrison,
Yongsan, Korea, V. Federal Labor Relations Authority, 685, F. 2d 641
(D.C. Cir. 1982); Harry Diamond Laboratories, and Department of the
Army and Department of Defense, 15 FLRA No. 43, 15 FLRA 216 (1984) (paid
parking); Boston District Recruiting Command, Boston, Massachusetts, et
al., 15 FLRA No. 142, 15 FLRA 720 (1984) (paid parking); Boston
Contract Administration Services Region, Boston, Massachusetts, et al.,
15 FLRA No. 143, 15 FLRA 750 (1984) (paid parking); Department of the
Air Force, Eielson Air Force Base, Alaska and American Federation of
Government Employees, Local 1836, AFL-CIO, Case No. 9-CA-30009
(OALJ-84-49, March 19, 1984) (exchange privleges for civilian
employees). Moreover, bargaining unit employees had been granted
exchange privileges since 1966 and such privileges, long enjoyed, had
become an established condition of their employment. United States
Department of Justice, United States Immigration and Naturalization
Service, 9 FLRA No. 36, 9 FLRA 253 (1982); Social Security
Administration, Mid-America Service Center, Kansas City, Missouri, 9
FLRA No. 33, 9 FLRA 229 (1982); Department of the Navy, Naval
Underwater Systems Center, Newport Naval Base, 3 FLRA No. 64, 3 FLRA 413
(1980).
Because it was a condition of employment, exchange privileges could
not be terminated without bargaining with the Union, unless such
bargaining was foreclosed by DOD regulations for which there was a
compelling need. As noted above, while Fort Buchanan, with whom the
Union holds exclusive bargaining rights, refused to bargain concerning
the termination of Exchange privileges, it did so pursuant to direction
of higher authority, the Department of the Army, which in turn acted
pursuant to controlling direction of higher authority, the Department of
Defense. Both Respondent Department of the Army and Respondent
Department of Defense rely on section 17(a)(2) of the Statute. To
preserve their legal position, it was asserted at the hearing (Tr.
64-67; 126-127) and is asserted in their brief (Post-Hearing Brief of
Respondents Department of Defense and Department of the Army, pp. 3,
5-6), that the duty to bargain under section 17 extends to matters which
are the subject of agency regulation (here DOD Directive 1330.9, May 12,
1982) only if the Authority has previously determined pursuant to
section 17(b) that no compelling need exists for the regulation and
further that compelling need may not be determined in an unfair labor
practice proceeding, inter alia, because section 17(b)(3) provides that
if a hearing is held it " . . . shall not include the General Counsel as
a party." Counsel for Respondents Department of Defense and Department
of the Army recognizes that the Authority has held to the contrary,
where the regulation changes an established condition of employment.
Defense Logistics Agency (Cameron Station, Virginia) et al., 12 FLRA No.
86, 12 FLRA 412 (1983); /9/ U.S. Army Engineer Center and Fort Belvoir
and U.S. Department of the Army, 13 FLRA No. 116, 13 FLRA 707 (1984),
/10/ and that the decisions of the Authority are binding on the
undersigned. Accordingly Respondents Department of Defense and
Department of the Army undertook to prove that a compelling need exists
for DOD Directive 1330.9, May 12, 1982. /11/
Although the record is devoid of any testimony or evidence as to
specific compelling need for the withdrawal of authority to grant
unlimited exchange privileges to civilian employees in Puerto Rico,
indeed the record shows no reason or justification for the action, the
record as developed by Respondents Department of Defense and Department
of the Army advances three bases for compelling need: First, the fact
that DOD Directive 1330.9 applies to all military Exchanges of all
Military Departments, i.e, to the Department of the Army, Navy
(including the Marine Corps), and Air Force. One of the illustrative
criteria for compelling need set forth in the Authority's Rules and
Regulations is:
"(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 C.F.R. section
2424.11(a)).
Issuance by DOD of a regulation applicable to all military
Departments was essential to achievce the uniformity of Exchange
regulations under a single regulation as desired by Congress " . . . in
a manner . . . consistent with the requirements of an effective and
efficient government." This might well constitute compelling need for
DOD's July 8, 1980, Directive (G.C. Exh. 15); but this case concerns
DOD's action of May 12, 1982, not the Directive issued July 8, 1980.
There is language in the parking cases (Harry Diamond Laboratories,
supra; Boston District Recruiting Command, supra; and Boston Contract
Administration Services, supra) which might infer that the mere issuance
of a DOD Directive, or Regulation, applicable to all Military
Departments, alone, constitutes compelling need; but I do not believe
this view was intended by the Authority. To the contrary, the Authority
has stated that,
" . . . where an agency raises compelling need as an
affirmative defense in an unfair labor practice proceeding, it is
required to come forward with affirmative support for that
assertion. In the instant case, the record is devoid of support
for the mere assertion that a compelling need exists for those
portions of AR 690-400 to bar negotiations on the Union's
conflicting proposals." (U.S. Army Engineer Center and Fort
Belvoir and U.S. Department of the Army, supra, 13 FLRA at 711)
(see, also, Defense Logistics Agency (Cameron Station, Virginia),
et al., 12 FLRA at 416).
Although the Authority in U.S. Army Engineer Center considered a
Regulation of the Department of Army and in Defense Logistics Agency
considered a regulation of the Defense Logistics Agency, I conclude that
the mere issuance of a Regulation, even by the Department of Defense
applicable to all Military Departments, does not, standing alone,
constitute compelling need and that the agency must come forward with
affirmative support for that assertion. This is particularly true
where, as here, a change included in a regulation applicable to the
Exchange operations of all military Departments worldwide, affected only
Puerto Rico.
Second, that through Congressional oversight, in particular by HASC,
a mechanism exists for the control of the operation of military
exchanges. This is certainly correct. Another of the illustrative
criteria for compelling need set forth in the Authority's Rules and
Regulations is:
"(c) The rule or regulation implements a mandate to the agency
or primary national subdivision under law or other outside
authority, which implemention is essentially non discretionary in
nature." (5 C.F.R. section 2424.11(c)).
In National Federation of Federal Employees, Local 1669, 13 FLRA No.
37, 13 FLRA 176 (1983), where it was asserted that a compelling need
existed, as they implemented a legal mandate, for National Guard Bureau
(NGB) regulation, Technician Personnel Regulation (TRP) 900 (935.1) and
Air National Guard Regulation (ANGR) 90-1, the Authority stated as
follows:
"In its report accompanying the 'Department of Defense
Appropriation Bill, 1982,' the House Committee on Appropriation
included a directive to the Department of Defense to the effect
that National Guard technicians travel status would occupy
government quarters based on their military grade (footnote
omitted), which directive was agreed upon by the Committee of
Conference. (footnote omitted). By these actions, the Agency was
placed under a mandate from Congress requiring that technicians be
assigned government quarters based on military grade as contrasted
to civilian grade when in travel status. The provisions of TPR
900 (935.1) reflect this non discretionary mandate. Thus, TPR 900
(935.1) meets the criterion for determining compelling need . . .
." (13 FLRA at 177-178).
The Authority decision was affirmed, 745 F. 2d 705 (D.C. Cir. 1984).
The Authority has not defined the boundaries of "outside authority"
nor has it further defined the boundaries of "mandate from Congress."
Indeed in affirming the decision of the Authority, the Court stated, in
part:
" . . . if FLRA had found otherwise it would have required the
Guard to risk defying the instruction in the conference report
through collective bargaining. We cannot say that it was
arbitrary and capricious to find such a provision within the
'compelling need' exception that Congress specifically charged
FLRA with charting. (745 F. 2d at 708).
. . .
"We therefore limit our affirmance to the facts of this case .
. . without further explication by FLRA of its 'outside authority'
standard, however, we would be most reluctant to approve similar
conclusory declarations of 'outside authority.'" (745 F. 2d at
709).
Whether outside authority would include a Committee, such as HASC,
and/or whether mandate of Congress would include matters not made the
subject of legislation, at best is undetermined. If it did, than a
strong argument could be made that DOD's 1980's Directive was pursuant
to a mandate with which implementation was essentially nondiscretionary.
There, HASC had requested that DOD issue a regulation to govern
Exchanges worldwide; DOD submitted the proposed regulation to HASC;
hearings were held; and thereafter HASC stated that it had no
objection, with the exception of the request to authorize sale of
television sets and microwave ovens in military exchanges.
Mr. Moelk testified, it is true, that DOD considered recommendations
of the NAF Panel (now MWR Panel) a fait accompli. Assuming, but not
deciding, that a recommendation of the NAF, or MWR, Panel constituted a
mandate of Congress, an assumption supported by its exercise of
oversight of Exchange operations for many years, nevertheless, action by
DOD in the absence of any recommendation certainly can not be considered
as action taken pursuant to a mandate of Congress. Here, the record is
wholly devoid of any evidence that the NAF, or MWR, Panel or the HASC
had any interest or concern whatever about the utilization of Exchange
privileges by civilian employees in Puerto Rico. To the contrary, DOD's
proposed Directive on which hearings were held in 1979 authorized
exchange privileges for civilian employees everywhere except in the
Continental United States, Alaska, and Hawaii. Accordingly with full
notice of the coverage of DOD Directive 1330.9 as proposed, and as
issued on July 8, 1980, neither the NAF Panel nor the HASC expressed any
concern, made any request or recommendation that such privileges be
withdrawn for civilian employees in Puerto Rico, but, rather, approved
the Directive without reservation as proposed, except for the request to
sell television sets or microwave ovens in military exchanges. Although
Judge Oliver reached a contrary conclusion in Department of the Air
Force, Eielson Air Force Base, Alaska, supra, a compelling argument
certainly can be made that the July 8, 1980, DOD Directive was issued
pursuant to a mandate of Congress. Nevertheless, the only "mandate of
Congress," if there were one, pertained to the July 8, 1980, regulation,
which HASC had requested, had held hearings on the proposed regulation
in 1979, had signified its approval on June 28, 1979, and the regulation
duly issued on July 8, 1980. The fact that there is a mechanism for
Congressional control of military exchanges does not, in my opinion,
mean that there is a "mandate of Congress" for a particular change, here
specifically the May 12, 1982 /12/ change of DOD Directive 1330.9 which
withdrew authority to grant unlimited Exchange privileges to civilian
employees in Puerto Rico, when there is no request by Congress for such
change and no action by Congress, i.e., no hearings, no statement of
approval with, or without, hearings. In such instances, to establish
compelling need more must be shown than that there is a mechanism
through which Congress might have acted, but, as to the May 12, 1982,
change, did not.
Third, that HASC, by silence, approved the May 12, 1982, change.
This, of course, is essentially an extension of the Second ground.
Nothing in the record shows, or even suggests, that Congress had any
interest whatever in the restriction of Exchange privileges for civilian
employees in Puerto Rico. As previously noted, Congressional intent was
wholly to the contrary. Thus, by approving the proposed regulation on
June 28, 1979, which clearly did not withdraw authority to grant
unlimited exchange privileges for civilian employees in Puerto Rico, it
necessary follows that HASC approved the grant of unlimited exchange
privileges for civilian employees outside the Continental United States,
Alaska and Hawaii. Nothing in the record shows that HASC thereafter
sought any change as to Puerto Rico, no hearings were held, and if HASC
was given notice of the change, and I assume for reasons previously
stated that it was given notice, although the record does not
specifically show any notice to HASC of this change, the most that can
be said is that HASC did nothing after notice of the proposed change as
to Puerto Rico. In my opinion, this falls far short of constitution
compelling need because, obviously, DOD did not act pursuant to a
"mandate of Congress."
DOD Directive 1330.9, May 12, 1982 (G.C. Exh. 14) by setting forth in
Section 2-101 Patrons Entitled to Unlimited privileges and by limiting
such privileges to civilian employees,
" . . . outside the CONUS, Alaska, Hawaii, and Puerto Rico"
(G.C. Exh. 14, Section 2-101 p.)
clearly terminated the authority to grant unlimited exchange
privileges to civilian employees in the Continental United States
(CONUS), in Alaska, in Hawaii, and in Puerto Rico. To this extent, I
respectfully diagree with Judge Oliver's statement, in Department of the
Air Force, Eielson Air Force Base, Alaska and American Federation of
Government Employees, Local 1836, AFL-CIO, supra, that,
"With respect to Respondent's reliance upon DOD directive
1330.9 . . . (the July 8, 1980 Directive, here G.C. Exh. 15, which
in Section 2-101 p. authorized unlimited Exchange privileges for
civilian employees, " . . . outside the CONUS, Alaska, and
Hawaii.") nothing in that regulation prohibits negotiations with
the Union regarding the extension of Base Exchange privileges nor
requires that the privileges be withdrawn . . . . " (OALJ-84-49 at
p. 13) (Emphasis supplied).
DOD Directive 1330.9, first as to the Continental United States prior
to 1980, than as to CONUS, Alaska and Hawaii in 1980, and as to CONUS,
Alaska, Hawaii and Puerto Rico in 1982, did prohibit negotiations with
respect to the extension of Exchange privileges to civilian employees in
the CONUS, Alaska, Hawaii and Puerto Rico and did require that Exchange
privileges previously granted in the CONUS, Alaska, Hawaii and Puerto
Rico be withdrawn for the reason that authorization to grant unlimited
Exchange privileges to civilian employees in the CONUS, Alaska, Hawaii
and Puerto Rico was withdrawn. The only exception to deviations
involving patron privileges is that contained in Section 1-102 to the
Secretaries of the Military Departments which provides as follows:
"b. Secretaries of the Military Departments may grant
deviations involving patron privileges. Delegation of this
authority is prohibited. Deviations involving patron privileges
shall be based on alleviating individual hardships." (G.C. Exhs.
14 and 15, Section 1-102 b) (Emphasis supplied).
DOD Directive 1330.9, May 12, 1982, did withdraw authority to grant
unlimited Exchange privileges to civilian employees in Puerto Rico.
Department of the Army implemented DOD Directive 1330.9; declared the
decision to withdraw the authority to grant unlimited Exchange
privileges in Puerto Rico was non-negotiable; and directed Fort
Buchanan to bring itself into compliance by January 31, 1984. If there
were compelling need for the May 12, 1982, amendment of DOD Directive
1330.9 withdrawing the authority to grant unlimited Exchange privileges
in Puerto Rico, there was no violation of the Statute by either the
Department of Defense or the Department of the Army; but, as the record
shows no basis for a finding of compelling need for the May 12, 1982,
amendment, DOD Directive 1330.9, May 12, 1982, may not bar negotiations
with the Union concerning the decision to terminate Exchange privileges
for civilian employees in Puerto Rico. As the Department of the Army, a
subordinate activity of the Department of Defense, implemented the
directive of higher level management, I am constrained to conclude that,
as was true as to Fort Buchanan, a separate violation of the duty to
bargain can not be held as to the Department of the Army. /13/
Accordingly, the Complaint against the Department of the Army is hereby
dismissed.
The Department of Defense by its amendment of DOD Directive 1330.9 on
May 12, 1982 (and/or by its Change No. 3 on October 27, 1980, notice of
which was not communicated to either Fort Buchanan or the Department of
the Army), violated section 16(a)(1) of the Statute and it, by
withdrawing authority to grant Exchange privileges to civilian employees
in Puerto Rico, for which no compelling need was shown, interfered with,
restrained, or coerced employees in the exercise by the employees of
their right to engage in collective bargaining with respect to
conditions of employment through representatives duly chosen by them
under the Statute.
Having found that the Department of Defense violated section 16(a)(1)
of the Statute, it is recommended that the Authority adopt the
following:
ORDER
Pursuant to section 18(a)(7) of the Statute, 5 U.S.C. section
7118(a)(7), and section 2423.29 of the Regulations, 5 C.F.R. section
2423.29, the Authority hereby orders that the Department of Defense
shall:
1. Cease and desist from:
(a) Unilaterally withdrawing authority to grant unlimited
Exchange privileges to civilian employees in Puerto Rico.
(b) In any like to related manner interfering with,
restraining, or coercing its employees in the exercise of their
rights under the Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Withdraw that portion of the May 12, 1982, DOD Directive
1330.9, Section 2-101 p. which added the words "and Puerto Rico"
and forthwith reinstate the provisions of DOD Directive 1330.9,
Section 2-101 p. as issued on July 8, 1980.
(b) Notify the Department of the Army, Fort Buchanan and
American Federation of Government Employees, Local 2614, forthwith
that it has withdrawn Section 2-101 p. of DOD Directive 1330.9
issued on May 12, 1982, and that it has reinstated the provisions
of DOD Directive 1330.9, Section 2-101 p. as issued on July 8,
1980.
(c) Post at the facilities of Fort Buchanan 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 Secretary of Defense, or his designee, and shall be
posted and maintained for a period of 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 said
Notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director of Region IV, Federal Labor
Relations Authority, Suite 501, North Wing, 1776 Peachtree Street,
NW., Atlanta, Georgia 30309, in writing within 30 days from the
date of this Order as to what steps have been taken to comply
herewith.
/s/ William B. Devaney
WILLIAM B. DEVANEY
Administrative Law Judge
Dated: March 15, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) However, noting that our disposition on the compelling need
issues raised here would parallel the discussion of such issues in
Eielson and Ft. Greely, Alaska, we direct the parties' attention to the
discussion of such issues in those cases.
(2) For conveneience of reference, sections of the Statute
hereinafter are, also, referred to without inclusion of the initial "71"
of the Statute reference, e.g., Section 7116(a)(5) will be referred to,
simply, as "section 16(a)(5)."
(3) Part 7 deals with taxes, e.g. civilian employees could not
purchase state tax free tobacco products (4-702) or beverages (4-703).
(4) DOD Directive 1330.17, published May 4, 1978 (Res. Exh. 3, p.
47).
(5) Actually, in a sense, a third: military divorcees (Res. Exh. 3,
p. 8).
(6) Mr. Moelk testified that: "In 1980 then, by Change 3 to the
Regulation, we equated Puerto Rico to the Continental United States,
Alaska and Hawaii and said in effect that DOD Civilians in this area did
not have exchange privileges except for the Snack Bar." (Tr. 91; see,
also, Tr. 92;" With regard to Puerto Rico, that was added on October 27,
1980 when we changed the Regulation and in effect added Puerto Rico"
(Tr. 94)). See G.C. Exh. 17 to like effect. Mr. Moelk appears to be
correct; but the record also shows that the change was made as to
Puerto Rico on May 12, 1982. Note, the references on G.C. Exh. 14 refer
only to 1330.9 July 8, 1980; Colonel Deshler's letter dated October 26,
1983 (Res. Exh. 1) refers only to 1330.9 dated 12 May 1982; and Mr. W.
J. Schrader's response to Request for Labor Relations Guidance (Res.
Exh. 2) specifically states:
"Thus, from May 1982, Fort Buchanan has lacked the authority to
grant exchange privileges to the civilians" (Res. Exh. 2, p. 3).
Moreover, Mr. Johnson testified that he had never heard of Change No.
3 to DOD 1330.9 until Mr. Moelk testified at the hearing. Nor, as
indicated above, does it appear that Change No. 3, if implemented, was
effectively disseminated.
Consequently, on the basis of the record, I assume for all purposes
herein that the amendment of DOD Directive 1330.9 with respect to Puerto
Rico was effective May 12, 1982.
(7) Fort Buchanan's non-compliance with DOD Directive 1330.9 (May 12,
1982) has been noted in an Inspector General's Report (Tr. 131, 132) and
it seems probable that, while the "Request" (Res. Exh. 2) appears in
form to have originated from Fort Buchanan, the "Request" was actually
in response to the Report of the Inspector General (see, Tr. 99, 100).
(8) It is clear, however, that Fort Buchanan recognized its
obligation to bargain on the impact and implementation of the
termination of Exchange privileges; informed the Union; and solicited
proposals from the Union. Whether the Union exercised its right to
bargain on impact and implementation, Respondent Fort Buchanan did not
refuse to bargain in good faith as to the impact and implementation of
the termination of Exchange privileges.
(9) The decision of the Authority, i.e., assertion of jurisdiction to
determine compelling need in an unfair labor practice proceeding, was
affirmed by the United States Court of Appeals for the District of
Columbia in Defense Logistics Agency, et al., v. Federal Labor Relations
Authority, No. 83-2017 (February 15, 1985).
(10) This case has been appealed to the Court of Appeals for the
Fourth Circuit, Docket No. 84-1327 (filed March 30, 1984) and oral
argument was held in 1985; but no decision has been issued.
(11) The issue of compelling need for the same Regulation as it
applies to Puerto Rico is pending before the Authority in a
negotiability proceeding: Antilles Consolidated School Systems,
Roosevelt Roads, Puerto Rico and Antilles Consolidated Education
Association, O-NG-784 (Res. Exh. 2).
(12) As previously noted, if Change No. 3, which purported to have
withdrawn authority to grant unlimited Exchange privileges to civilian
employees in Puerto Rico on October 27, 1980, were implemented, the
implementation of Change No. 3 was flawed by the lack of its
dissemination.
(13) In Department of Health and Human Services, Social Security
Administration, Region VI, and Department of Health and Human Services,
Social Security Administration, Galveston, Texas District, supra, I had
stated that this policy achieves no discernable purpose, 10 FLRA at 42,
n. 7. See, also National Treasury Employees Union and National Treasury
Employees Union, Chapter 121, supra, 16 FLRA at 730-731, as to labor
organizations, (rejected by the Authority, 6 FLRA at 718). I agree with
the statement of the late Judge Kramer in The Adjutant General, State of
Illinois, Illinois Air National Guard, A/SLMR No. 598, 5 A/SLMR 759,
770, n. 22,
"I am reluctant to recommend that the Adjutant General be
ordered to do anything. His office bargained in obvious good
faith and he did nothing wrong except upon direct orders from his
superior. But his innocence and good faith does not change the
fact that the technicians here involved were wronged as a result
of his following orders . . . and full relief requires his
participation in the remedy since he is the other party to the
agreement."
The Assistant Secretary agreed.
Here, Fort Buchanan refused to negotiate, albeit at the direction of
the Department of the Army. The Department of the Army declared the
decision non-negotiable and directed Fort Buchanan to bring itself into
compliance with the DOD Directive, also pursuant to contolling
regulations of higher level of management, the Department of Defense.
The bargaining relationship exists only between the Union and Fort
Buchanan and a full and complete remedy could be afforded only by an
order to bargain. At least where all levels of management are parties,
I again suggest that an appropriate order should run to each party. Not
only would a more complete remedy be possible, but the purpose and
policy of the Statute would be more properly vindicated. To refrain
from finding a violation by subordinate levels of mamagement because
they obeyed the direction of a higher level of management achieves no
discernable purpose except to excuse actual violations on the basis that
subordinates acted in good faith by obeying the orders of their
superiors. The fact remains that both Fort Buchanan and the Department
of the Army violated the Statute, yet neither is ordered to do anything
to remedy their violations.
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 STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally withdraw authority to grant unlimited
Exchange privileges to civilian employees in Puerto Rico.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce employees in the exerise of their rights assured by the
Federal Service Labor-Management Relations Statute.
WE WILL forthwith withdraw the provisions of DOD Directive 1330.9,
Section 2-101 p., May 12, 1982, and will forthwith reinstate the
provisions of DOD Directive 1330.9, Section 2-101 p. as issued on July
8, 1980.
DEPARTMENT OF DEFENSE
Dated: . . . By: . . . (Signature)
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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region IV,
whose address is: Suite 501, North Wing, 1776 Peachtree Street, NW.,
Atlanta, Georgia 02116, and whose telephone number is: (404) 881-2324.