[ v26 p505 ]
26:0505(61)NG
The decision of the Authority follows:
26 FLRA No. 61
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1153
Union
and
U.S. ARMY, SEVENTH
SIGNAL COMMAND
AND FORT RITCHIE,
FORT RITCHIE, MARYLAND
Agency
Case No. 0-NG-1055
DECISION AND ORDER ON NEGOTIABILITY ISSUE /1/
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of a single Union proposal. Based on the following
reasons we find the proposal negotiable. /2/
II. The Proposal
Civilian employees shall not be required to pay a surcharge for
meals at the Site R Dining facility
III. Background
Site R is a "remote" facility subordinate to Fort Ritchie at which
entry and exit are subject to extensive security procedures. At Site R
there is an appropriated fund dining facility (a.k.a. "mess") which
exists for the primary purpose of providing enlisted military personnel
with the "daily ration" to which they are entitled under 10 U.S.C.
Section 4561. Military officers and civilians, when they are permitted
to use that dining facility, are charged for the food obtained there.
The rates charged are established under agency regulations issued
pursuant to 37 U.S.C. Section 1011. /3/ The rates established are
two-tiered: (1) rates are set forth which apply to food costs -- "food
rates"; and (2) rates are set forth which apply to operating expenses
-- "surcharges." Based on provisions of law and agency regulations, some
officers and civilians who are authorized to use messes are exempted
from paying surcharges and are charged only food rates. The proposal in
this case seeks such an exemption from paying surcharges for bargaining
unit employees who are performing official business at Site R.
IV. Positions of the Parties
The Agency contends that the proposal is nonnegotiable for the
following reasons.
1) It would extend to employees outside the bargaining unit.
2) It does not concern conditions of employment. In this
regard, incidental use of military facilities by bargaining unit
employees is not a condition of employment. Also the rates to be
charged civilans using messes is a matter specifically provided
for by Federal statute.
3) It is inconsistent with Federal statute -- 37 U.S.C. Section
1011(a).
4) It is inconsistent with agency regulations for which a
compelling need exists.
The Union contends that the proposal is negotiable and counters the
agency's arguments as follows.
1) The proposal is limited to bargaining unit employees.
2) The proposal does concern conditions of employment.
Availability of food during working hours and prices charged for
that food are conditions of employment. In the circumstances
present in this case, the prices charged are a matter which under
law is within the discretion of the agency.
3) Inasmuch as the Agency has discretion to exempt particular
employees from the surcharges established pursuant to 37 U.S.C.
Section 1011(a), the proposal is not inconsistent with that
provision.
4) The proposal does not conflict with the Agency's
regulations, but is consistent with an exemption allowed by those
regulations.
5) The proposal is an appropriate arrangement for employees
adversely affected by a management decision.
V. Analysis
A. The Proposal Is Limited To Bargaining Unit Employees
In its petition for review and its reply brief the Union has
specifically stated that the proposal is meant to apply only to
bargaining unit employees. This interpretation is compatible with the
language of the proposal and is adopted for purposes of this decision.
Therefore, we reject the Agency's argument that the proposal is
nonnegotiable because it would apply to employees outside of the
bargaining unit.
B. The Proposal Concerns Employee Working Conditions
The Agency does not dispute that employee food service and related
prices are conditions of employment. See, e.g., American Federation of
Government Employees, AFL-CIO, Local 15 and Department of the Treasury,
Bureau of the Mint, U.S. Assay Office, San Francisco, California, 9 FLRA
809 (1982). Rather, its contention that the proposal does not concern a
condition of employment centers on the fact that the food services
involved are established and funded to provide meals to enlisted
military personnel. Moreover, it does not dispute that it has allowed
bargaining unit employees to use the mess involved in this dispute.
In addressing the question of whether employee access to military
facilities and services constitutes a condition of employment, we apply
two basic factors: /4/
(1) Whether the matter 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.
Applying this analysis to this proposal, based on the reasons
expressed in section V(A) above, the first factor is satisfied. Based
on the circumstances involved in this case, we conclude that the second
factor in the test has been met as well.
The Union asserts, and the Agency does not dispute, that the mess
located at Site R is the only restaurant/cafeteria style facility
available at the Site. Moreover, employee access to commercial
facilities outside of the Site is hampered by (1) distance and (2) the
time-consuming security processing involved in entering and exiting the
Site. Based on the record, it appears that availability of food
services, other than the mess, to employees working at Site R is
severely restricted. In view of this we conclude that access to the
mess is a matter affecting the working conditions of employees assigned
to duties at Site R. See Department of the Air Force, Eielson Air Force
Base, Alaska, 23 FLRA No. 83 (1986). It follows that the prices to be
charged them for that food service is related to their working
conditions. See, e.g., U.S. Assay Office, 9 FLRA 809 (1982).
C. The Matter Proposed Is Neither Specifically Provided
For by, Nor Inconsistent with, Statute
The provisions of 37 U.S.C. Sction 1011(a) upon which the Agency
relies simply require the Secretary of Defense to establish rates which
will be charged civilians and military officers, among others, who buy
meals at messes. They require that the rates established be at a level
sufficient to provide reimbursement of operating expenses and food
costs. See note 2, above. The specific rates or rate structures are
not dictated by those provisions but are left to the discretion of the
Secretary of Defense. Further, the provisions do not require that
uniform rates be established for all those required to pay them. In
fact, the regulations implementing these provisions which were issued by
the Department of Defense and Department of The Army /5/ allow for
certain personnel to be exempted from paying the surcharges established
by those regulations for the purpose of covering operating expenses.
DOD 1338-10M, Chapter VII, B-3 and AR 30-1, Chapter 5, 5-2(b). The
personnel for whom exemptions are allowed under those regulations extend
beyond those specifically mandated by 37 U.S.C. Section 1011(b) and (c).
For example, under DOD 1338-10M, chapter VII, B-3 numerous categories
and subcategories of officers and civilians are exempt from surcharges
when not on per diem, including, "Personnel on official duty . . .
(w)hen an assignment necessitates eating in an appropriated fund food
service activity."
Based on the language of 37 U.S.C. Section 1011 and the Agency's
implementing regulations we conclude that the Agency has discretion,
with exceptions not relevant here, to determine the specific rates for
meals at messes, in various circumstances, as long as the rates,
overall, cover food costs and operating expenses. In view of this we
reject the Agency's assertion that payment of the surcharges by the
bargaining unit employees involved in this case is a matter which is
specifically provided for by Federal statute.
We also reject the argument that the proposal is inconsistent with
Federal statute -- 37 U.S.C. Section 1011. In support of this argument,
the Agency contends that if similar proposals were made in behalf of all
members in bargaining units throughout the Department of Defense who buy
meals from messes, the Department would be prevented from fulfilling the
mandate in Section 1011 that the money collected be sufficient to cover
food costs and operating expenses. This argument is only hypothetical.
It is based on the conjecture that exclusive representatives will be
successful in obtaining agreement provisions similar to this proposal on
a widespread basis and, furthermore, if that should occur, that the
Agency could not compensate for the ensuing revenue losses by some
means. In our view such a hypothesis alone does not present a basis for
finding a specific proposal inconsistent with Federal statute. The
Agency, of course has a valid concern over what it hypothesizes to be
the extended effect of this bargaining proposal. A negotiability
dispute, which is concerned only with the consistency of a particular
proposal with applicable law and regulation, is not the forum in which
to address that concern. Under the Statute, the Agency must protect its
interests in relation to the merits of proposals at the bargaining table
or, in the event that a mutually satisfactory agreement as to the
proposal cannot be reached at the bargaining table, before the Federal
Service Impasses Panel.
D. The Proposal Does Not Conflict with Agency Regulations
for Which a Compelling Need Exists
The Agency asserts that the proposal conflicts with Agency
regulations which meet the Authority's criteria for determining
compelling need which are found at section 2424.11(a) and (c) of our
regulations.
As to criterion (a) the Agency argues that feeding its military
personnel is essential to accomplishing its mission of providing a
military force. Controlling the costs involved in feeding those
personnel is essential to its ability to accomplish that mission in an
effective and efficient manner. It attempts to support its contentions
as to the "impact" of the proposal on its ability to feed its military
personnel by relying on the same hypothesis just discussed -- that the
proposal would be imposed on a widespread basis resulting in huge and
unavoidable losses of revenue. Such conjecture does not support a
finding of compelling need. See Federal Employees Metal Trades Council,
AFL-CIO and Department of the Navy, Mare Isalnd Naval Shipyard, Vallejo,
California, 25 FLRA No. 31 (1987). Moreover, the Agency has failed to
demonstrate that its regulatory provisions are essential, as opposed to
helpful and desirable, to the accomplishment of that aspect of its
mission which relates to feeding military personnel. See American
Federation of Government Employees, AFL-CIO, Local 1928 and Department
of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2
FLRA 451 (1980).
As to criterion (c), the Agency's supporting argument is essentially
the same as that discussed and rejected earlier in section V(C) -- that
37 U.S.C. Section 1011(a) effectively mandates employees using the mess
at Site R to pay the designated surcharge. We reject it here for the
same reasons.
We conclude that the Agency has not established that the regulations
on which it relies meet the Authority's compelling need criteria. In
view of this, we find it unnecessary to rule on the Union's contention
that the proposal does not even conflict with the cited regulations.
E. Appropriate Arrangement
The Union asserts that the proposal is negotiable as an appropriate
arrangement for employees adversely affected by a "management decision."
However, it has not identified any management right as producing the
adverse effects, nor has the Agency asserted any management right.
Since section 7106(b)(3) expressly applies only to ameliorating the
adverse effects resulting from the exercise of management rights set out
elsewhere in section 7106, the absence of any record that the proposal
relates to the exercise of a management right renders section 7106(b)(3)
inapplicable. The Union's claim that the proposal constitutes an
"appropriate arrangement" therefore cannot be sustained. See American
Federation of Government Employees, Local 1546 and Department of Army,
Sharpe Army Depot, Lathrop, California, 19 FLRA No. 118 (1985)
(Provision 1), remanded as to other matter sub nom. American Federation
of Government Employees, AFL-CIO, Local 1546 v. FLRA, No. 85-1689 (D.C.
Cir. Nov. 17, 1986).
VI. Summary and Conclusion
The proposal concerns conditions of employment and is limited to
bargaining unit employees. It is not inconsistent with either Federal
statute or an agency regulation for which a compelling need exists.
Consequently, it is within the duty to bargain.
VII. Order
The Agency shall upon request, or as otherwise agreed to by the
parties, negotiate concerning the proposal.
Issued, Washington, D.C., March 31, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun
I agree that the proposal concerns the working conditions of
bargaining-unit employees. However, I conclude that the exemption of
the employees involved from payment of the surcharge for operating
expenses conflicts both with the relevant statute and Department of
Defense and Department of the Army regulations for which there is a
compelling need.
37 U.S.C. Section 1011 was enacted by Congress as part of the Defense
Officer Personnel Management Act of 1980, Pub. L. No. 96-513, a
comprehensive overhaul of the military personnel system. The
legislative history of section 1011 demonstrates that it was intended to
resolve previously-existing inequities between enlisted members and
officers who are assigned to temporary duty. See 1980 U.S. Code Cong. &
Admin. News 6376. Subsection (c) of section 1011, contained in Pub. L.
No. 99-145, 99 Stat. 681 (1985), is to the same effect: it provides a
benefit for the families of certain enlisted members.
Congress expressed a clear intention that appropriated funds not be
used to provide meals to civilians. Subsection (a) requires that rates
paid by civilians who purchase meals in appropriated fund facilities
"shall be established at a level sufficient to provide reimbursement of
operating expenses and food costs to the appropriations concerned(.)"
The regulations at issue in this case were promulgated to meet this
requirement. In appropriating monies for various Governmental
activities, Congress frequently attaches "strings" to the "purse" by
expressing its intent that the appropriation be used or not used in a
certain fashion. This is the case with military appropriations,
including those for mess operations. The Agency asserts, without
contradiction, that at least since 1951 and until passage of section
1011, all Defense Appropriation Acts contained provisions limiting the
use of appropriated funds to providing meals for enlisted personnel
entitled by law to be furnished a daily ration. I believe that the
proposal in this case contravenes the intent of Congress and is contrary
to law.
Further, the proposal is inconsistent with the provisions of AR 30-1
and the DOD Food Service Manual, DOD 1338-10M, in that it would exempt
all civilian employees from payment of the surcharge. These
regulations, which are mandated by section 1011, constitute a
comprehensive world-wide scheme to assure the recoupment of food costs
and operating expenses. As such, they standardize the recovery of the
costs of providing meals for which the Congress has expressly declined
to appropriate funds. This scheme, in my view, is "essential, as
distinguished from helpful or desirable" to accomplish the Agency's
mission under section 2424.11(a) of our regulations. In light of
section 1011(a), the regulations also are "essentially nondiscretionary
in nature" within the meaning of section 2424.11(c). I would,
therefore, find that there is a compelling need for the regulations.
I do not regard this case as another in the line of "pay and fringe
benefit" cases in which I have previously dissented. See, for example,
American Federation of Government Employees, AFL-CIO, Local 1897 and
Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No.
41 (1986), petition for review filed sub. nom. Department of the Air
Force, Eglin Air Force Base, Florida v. FLRA, No. 87-3073 (11th Cir.
February 2, 1987). Rather than being faced with a statutory void as we
are in those cases, this is a situation which Congress has recently
addressed in a specific manner. For these reasons, I dissent.
Issued, Washington, D.C., March 31, 1987.
/s/ Jerry L. Calhoun, Chairman
--------------- FOOTNOTES$ ---------------
(1) Chairman Calhoun dissents for the reasons stated in his separate
opinion
(2) In finding that this proposal is negotiable, we make no judgment
as to its merits.
(3) 37 U.S.C. Section 1011 provides:
Section 1011. Mess operation: reinbursement of expenses
(a) The Secretary of Defense shall, by regulation, establish
rates for meals sold at messes to officers, civilians, or enlisted
members entitled to a per diem transportation allowance determined
under section 404(d)(2) of this title. Such rates shall be
established at a level sufficient to provide reimbursement of
operating expenses and food costs to the appropriations concerned,
but members of the uniformed services and civilians in a travel
status receiving a per diem allowance in lieu of subsistence shall
be charged at a rate of not less than $2.50 per day.
(b) For the purposes of this section, payment for meals at the
rates established under this section may be made in cash or, in
the case of enlisted members or civilian employees, by deduction
from pay. Members of organized nonprofit youth groups sponsored
at either the national or local level, when extended the privilege
of visiting a military installation or when residing at a military
installation pursuant to an agreement in effect on June 30, 1986,
and permitted to eat in the general mess by the commanding officer
of the installation, shall pay the commuted ration cost of such
meal or meals.
(c) Spouses and dependent children of enlisted members in pay
grades E-1, E-3, and E-4 may not be charged for meals sold at
messes in excess of a level sufficient to cover food costs.
(4) Antilles Consolidated Education Association and Antilles
Consolidated School System, 22 FLRA No. 23 (1986).
(5) Manual for the Department of Defense Food Service Program, DOD
1338.10-M, Chapter VII and AR 30-1, Chapter 5.