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47 FLRA No. 58

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF VETERANS AFFAIRS

U.S. DEPARTMENT OF VETERANS AFFAIRS MEDICAL CENTER

VETERANS CANTEEN SERVICE

NEWINGTON, CONNECTICUT

(Respondent)

and

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-109, SEIU, AFL-CIO

(Charging Party/Union)

BN-CA-20451

_____

DECISION AND ORDER

May 19, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1 of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The General Counsel and the Respondent filed briefs with the Authority.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by increasing the price of food items in the Canteen Service at the Activity without giving the Union, which is the agent for the exclusive representative of the Respondent's employees, notice and the opportunity to negotiate over the substance or the impact and implementation of the change.

For the following reasons, we find that the Respondent violated the Statute as alleged in the complaint.

II. Facts

Respondent Canteen Service operates a facility at the Veterans Affairs Medical Center, Newington, Connecticut, and the Union is the agent of the exclusive representative for a unit of employees at that facility. On January 2, 1992, the Respondent increased the price of its food items. This was done without giving notice to the Union or the opportunity to negotiate over the decision or the impact and implementation of the change. Unit employees buy goods and food items at the Canteen Service.

The purpose of the Veterans' Canteen Service is addressed at 38 U.S.C. § 7801, which states, in relevant part:

The Veterans' Canteen Service . . . is . . . created for the primary purpose of making available to veterans of the Armed Forces who are hospitalized or domiciled in hospitals and homes of the Department at reasonable prices, articles of merchandise and services essential to their comfort and well-being.

The operation of the Service is further addressed at 38 U.S.C. § 7803, which states in relevant part:

Service at such canteens may also be furnished to personnel of the Department . . . and to relatives and other persons while visiting any of the persons named in this subsection; however, service to any person not hospitalized, domiciled, or residing at the hospital or home shall be limited to the sale of merchandise or services for consumption or use on the premises.

III. Positions of the Parties

The Respondent asserts that "the single issue [in this case] is whether or not the pricing of food items in the cafeteria . . . is 'a condition of employment.'" Respondent's brief at 3. The Respondent states further, however, that under section 7117(a)(1) of the Statute, an agency's duty to bargain over conditions of employment extends only to matters not inconsistent with law, government-wide rule or regulation and that here the Respondent has no duty to bargain because the matter is provided for by statute.⁽¹⁾

In its argument, the Respondent concedes that the Authority "has held that there is nothing in the [S]tatute that prohibits the Agency from setting prices through negotiations." Id., citing Department of Veterans Affairs, Veterans Administration Medical Center, Veterans Canteen Service, Lexington, Kentucky, 44 FLRA 162 (1992) (Department of Veterans Affairs, Lexington), petition for review filed, No. 92-1184 (D.C. Cir. April 24, 1992). However, the Respondent makes various arguments in support of its position that Department of Veterans Affairs, Lexington was wrongly decided and requests that the Authority reconsider the decision.

The General Counsel maintains that the Authority consistently has held that the pricing of food in a cafeteria used by employees is a mandatory subject of bargaining, citing National Association of Government Employees, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 43 FLRA 1331 (1992), and cases cited therein. In particular, the General Counsel notes that the Authority already has rejected the argument in Department of Veterans Affairs, Lexington that the Secretary of the Department of Veterans Affairs has exclusive statutory authority to establish prices for food items provided by the Canteen Service.

Regarding the remedy, the General Counsel requests that in addition to the customary cease and desist order, the Respondent be required to make whole the employees for its unlawful conduct by rescinding the price increases and by further decreasing the price of the food items by the amount of the increase for the same number of days that the unilateral increases were in effect. See Marine Corps Logistics Base, Barstow, California, 46 FLRA 782 (1992), reconsideration denied, 47 FLRA 454 (1993).

IV. Analysis and Conclusions

As conceded by the Respondent, this case is controlled by the Authority's decision in Department of Veterans Affairs, Lexington. The Respondent's position is merely an attempt to relitigate that case.⁽²⁾ Therefore, we conclude that the Respondent has violated the Statute as alleged, and we shall issue a remedial order.

The General Counsel has requested that we order the Respondent to make whole the employees for their losses, as described above. While no such remedy was included in our decision in Department of Veterans Affairs, Lexington, we explicitly noted there that no exceptions were taken to the Judge's failure to order reimbursement to the employees of the additional costs caused by the changes in food prices. Id. at 163 n.1. In contrast, the General Counsel specifically requests such a remedy here, and the Respondent has not addressed that request. Therefore, we shall include such a provision in the order. Marine Corps Logistics Base, Barstow, California.

V. Order

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, U.S. Department of Veterans Affairs, U.S. Department of Veterans Affairs Medical Center, Veterans Canteen Service, Newington, Connecticut, shall:

1. Cease and desist from:

(a) Unilaterally instituting changes in working conditions by raising the prices charged to bargaining unit employees for food items served in its cafeteria at the Veterans Canteen Service, Department of Veterans Affairs Medical Center, Newington, Connecticut without providing notice to the National Association of Government Employees, Local R1-109, SEIU, AFL-CIO, the agent for the exclusive representative of a unit of its employees, and affording it the opportunity to bargain concerning the change.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Notify, the National Association of Government Employees, Local R1-109, SEIU, AFL-CIO, the agent of the exclusive representative of a unit of its employees, in advance, of any intended changes in the working conditions of bargaining unit employees concerning the raising of food prices for bargaining unit employees at its cafeteria at the Veterans Canteen Service, Department of Veterans Affairs Medical Center, Newington, Connecticut, and upon request bargain with the Union over the decision and the impact and implementation to make any such changes.

(b) Rescind the price increases initiated on January 2, 1992 and collected thereafter from employees at the Veterans Affairs Medical Center, Newington, Connecticut.

(c) Effect a further decrease in the price of items that were subjected to price increases by the amount of the illegal increases, for the same number of days that the unilateral increases were in effect.

(d) Post at its facilities 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 Commanding Officer and shall be posted and maintained for 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 insure that such Notices are not altered, defaced, or covered by any other material.

(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Boston Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally institute changes in working conditions of our employees by raising the prices charged to bargaining unit employees for food items served by us in our cafeteria at the Veterans Canteen Service, Department of Veterans Affairs Medical Center, Newington, Connecticut without providing notice to the National Association of Government Employees, Local R1-109, SEIU, AFL-CIO, the agent for the exclusive representative of a unit of our employees, and affording it the opportunity to bargain concerning the change.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL notify, the National Association of Government Employees, Local R1-109, SEIU, AFL-CIO, the agent of the exclusive representative of a unit of our employees, in advance, of any intended changes in the working conditions of bargaining unit employees concerning the raising of food prices for bargaining unit employees at our cafeteria at the Veterans Canteen Service, Department of Veterans Affairs Medical Center, Newington, Connecticut, and upon request bargain with the Union over the decision and the impact and implementation to make any such changes.

WE WILL rescind the price increases initiated on January 2, 1992 and collected thereafter from employees at the Veterans Affairs Medical Center, Newington, Connecticut.

WE WILL effect a further decrease in the price of items subjected to price increases by the amount of the illegal increase, for the same number of days that the unilateral increases were in effect.

_______________________________
(Activity)

Dated: ____________________ By:_______________________________

(Signature) (Title)

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, Boston Regional Office, whose address is: 99 Summer Street, Suite 1500, Boston, MA 02110-1200, and whose telephone number is: (617) 424-5730.

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

1. 38 U.S.C. § 7802 (7) provides, "the Secretary [of the Department of Veterans Affairs] shall fix the prices of merchandise and services in canteens so as to carry out the purposes of this chapter."

2. In its brief, the Respondent cited the dismissal of a complaint by the General Counsel on this issue. The Authority is not bound by prosecutorial decisions made in the processing of cases not before it. See Social Security Administration, Baltimore, Maryland and Social Security Administration, Area II, Boston Region, Boston, Massachusetts, 39 FLRA 650, 655 (1991).

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