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49 FLRA No. 114

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

SERVICE EMPLOYEES INTERNATIONAL UNION

LOCAL 556

(Union)

and

U.S. DEPARTMENT OF THE NAVY

MARINE CORPS AIR STATION

KANEOHE BAY MORALE, WELFARE AND RECREATION ACTIVITY

KANEOHE BAY, HAWAII

(Agency)

0-NG-2191

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DECISION AND ORDER ON A NEGOTIABILITY ISSUE

June 9, 1994

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal involving shopping privileges at the base exchange. For the following reasons, we find that the proposal is negotiable.

II. Background

The Union is the exclusive representative of a bargaining unit of nonappropriated fund (NAF) instrumentality employees who are employed at the Marine Corps Air Station in Kaneohe Bay, Hawaii. In 1986, the Commandant of the Marine Corps directed the consolidation of the Marine Corps Exchange Service Branch and the Morale Support Division into a single NAF instrumentality, the Morale, Welfare and Recreation (MWR) Support Activity. In establishing this single organization, the Commandant granted exchange shopping privileges to all personnel of the combined organization. Previously, only NAF employees who worked for the exchange system were entitled to exchange shopping privileges.

Subsequently, the Department of Defense (DOD), referencing DOD Directive 1330.9, directed the Marine Corps to limit exchange shopping privileges to those employees of the exchange itself. Under the Directive, employees who had been granted exchange shopping privileges as a result of the consolidation of the Agency's facilities, but who were not employed by the exchange system, could not continue to use this privilege. The Agency notified the Union on April 28, 1993, of this policy change. The proposal in this case resulted from the parties' negotiations over the exchange policy.

III. Proposal

The parties will enter into a memorandum of agreement which will set forth the following terms:

a. All MWR 0910 NAF regular full time, part time and scheduled intermittent employees regardless of hire date are entitled to all purchasing privileges of the exchange system, except for purchase of articles of uniform and State tax-free items.

b. MWR employees' Exchange privileges are limited to the period of employment with the MWR 0910.

c. The dependents of civilian employees are not authorized to make purchases; however, they may accompany the civilian employee if they are signed into the Exchange as guests.

d. The Human Resources Office will issue each new employee of the MWR 0910 a DDForm 2574, unless the employee already possesses an authorized identification card as a military dependent or retired military person.

[Section c. is not in dispute.]

IV. Positions of the Parties

A. Agency

The Agency contends that the proposal is nonnegotiable because it does not pertain to a condition of employment within the meaning of section 7103(a)(14) of the Statute. The Agency asserts that the proposal does not meet the second prong of the test set forth in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986) because there is no direct connection between the proposal and the work situation or employment relationship of bargaining unit employees. According to the Agency, the proposal concerns the right of unit employees to shop at the exchange, and this activity "is conducted during off-duty hours and is clearly unconnected with the work situation of unit employees." Statement of Position at 3. The Agency also cites American Federation of Government Employees, Local 2761, AFL-CIO v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989) and 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) in support of its assertion.

The Agency also contends that this case is distinguishable from American Federation of Government Employees, Local 2614 and U.S. Department of the Navy, Antilles Consolidated School System, 43 FLRA 830 (1991); Department of the Army, Fort Greely, Alaska, 23 FLRA 858 (1986); and Department of the Air Force, Eielson Air Force Base, Alaska, 23 FLRA 605 (1986) on the grounds that, unlike in those cases, in this case there are adequate shopping facilities "within a reasonable commuting distance" from the Agency's facility. Statement of Position at 4. The Agency also contends that "past availability does not make the existence of shopping privileges a condition of employment." Id.

The Agency further asserts that the proposal is nonnegotiable because it directly interferes with the Agency's right to determine its mission under section 7106(a)(1) of the Statute. According to the Agency, one aspect of the mission of the base exchanges is to provide authorized patrons with articles and services necessary for their health, comfort, and convenience and, under DOD Directive 1330.9, paragraphs 2-201.5 through 7, employees covered by the proposal are not authorized to shop at the base exchange. The Agency contends that "[a]ny change in exchange patronage must be authorized by Congress." Id. at 8. Citing a Report of the House Armed Services Committee (HASC), Subcommittee on Nonappropriated Fund Activities dated June 1974 and a letter to the Authority from Congressman Melvin Price dated October 3, 1983, the Agency asserts that the "principal purpose of military exchanges is to provide support to military personnel and their dependents." Id. at 9.⁽¹⁾ The Agency asserts that "[b]y attempting to force the exchange to alter its intended customer base, the . . . proposal interferes with the [A]gency's right to determine the mission of the exchange system." Id.

Finally, the Agency contends that the proposal is nonnegotiable because it conflicts with DOD Directive 1330.9, Section II, an Agency regulation for which a compelling need exists under section 2424.11(a) and (c) of the Authority's Rules and Regulations.⁽²⁾ The Agency claims that DOD Directive 1330.9, Section II is "essential to the accomplishment of the mission of the DOD in a manner consistent with an effective and efficient government . . . ." Id. at 13. Further, the Agency contends that the regulation implements "Congressional mandates" concerning the operation of military exchanges, including determinations as to patron eligibility. Id. at 14.

B. Union

The Union did not file a response to the Agency's statement. In its petition for review, the Union claims that the proposal describes the practice that is currently in effect for all MWR bargaining unit employees. Specifically, the Union contends that section 1a of the proposal is intended to assure that all bargaining unit employees will continue to exercise the purchasing privileges within the exchange system that they now have. According to the Union, section 1b restates the condition currently being practiced and "establishes the period of employment with the Agency as the single condition under which exchange privileges will be permitted." Petition at 2. Finally, the Union asserts that the sole purpose of section 1d is to define the Agency employees who will continue to be eligible to be issued whatever documentation the Agency deems necessary to enable the employees to exercise exchange privileges.

V. Analysis and Conclusions

In American Federation of Government Employees, Local 1786 and U.S. Department of the Navy, Marine Corps Combat Development Command, Marine Corps Base, Quantico, Virginia, 49 FLRA 534 (1994) (Marine Corps, Quantico), we recently addressed a similar proposal, which also arose from negotiations following the DOD order limiting exchange privileges.⁽³⁾ In that case, we concluded that the proposal concerned a matter affecting the conditions of employment of unit employees; that it did not directly interfere with the agency's right to determine its mission under section 7106(a)(1) of the Statute; and that although the proposal conflicted with DOD directive 1330.9, Section II, the agency had not established that a compelling need existed for that agency-wide regulation under section 2424.11(a) and (c) of the Authority's Rules and Regulations.

The arguments made by the Agency in this case are substantially identical to those raised in Marine Corps, Quantico. Indeed, although the language of the two proposals differs, the Agency has put forth no additional arguments specifically tailored to the proposal before us. As the Union claims that the instant proposal is designed to maintain the Agency's current practice regarding exchange privileges for bargaining unit employees, and the Agency has not disputed that claim, we conclude that the two proposals are meant to be identical in effect. Accordingly, based on our disposition of the issues in Marine Corps, Quantico, and for the reasons set forth at length in that decision, we conclude that the proposal in this case is negotiable.

VI. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on the proposal.⁽⁴⁾

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Agency did not include a copy of the HASC report with its Statement.

2. Section 2424.11 provides, in pertinent part, as follows:

§ 2424.11 Illustrative criteria.

A compelling need exists for an agency rule . . . when the agency demonstrates that the rule . . . meets one or more of the following illustrative criteria:

(a) The rule . . . is essential, as distinguished from helpful or desirable, to the accomplishment of the mission or the execution of functions of the agency . . . in a manner which is consistent with the requirements of an effective and efficient government.

. . . .

(c) The rule . . . implements a mandate to the agency . . . under law or other outside authority, which implementation is essentially nondiscretionary in nature.

3. The proposal in that case was as follows:

The past practice [will] be maintained. All employees who are now entitled to exchange shopping privileges [will] continue to receive them.

4. In finding this proposal to be negotiable, we make no judgment as to its merit.

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