National Federation of Federal Employees, Local 1363 (Union) and Headquarters, U.S. Army Garrison, Yongsan, Korea (Agency) 

 

 4 FLRA No. 23
 
 NATIONAL FEDERATION OF FEDERAL
 EMPLOYEES, LOCAL 1363
 (Union)
 
 and
 
 HEADQUARTERS, U.S. ARMY GARRISON
 YONGSAN, KOREA
 (Agency)
 
                                            Case No. O-NG-226
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
 
                              UNION PROPOSAL
 
    THE PROPOSAL INVOLVES CERTAIN CHANGES TO UNC/USFK/EA REGULATION 60-1,
 GOVERNING RATION CONTROL WITHIN THE REPUBLIC OF KOREA, AND IS SET FORTH
 IN ITS ENTIRETY IN AN APPENDIX HERETO.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL, CONCERNING CHANGES TO
 THE RATION CONTROL REGULATION, IS OUTSIDE THE SCOPE OF THE DUTY TO
 BARGAIN UNDER SECTION 7117 OF THE STATUTE /1/ OR CONFLICTS WITH RETAINED
 MANAGEMENT RIGHTS UNDER SECTION 7106(A) OF THE STATUTE, /2/ AS ALLEGED
 BY THE AGENCY.
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER THE
 STATUTE AND DOES NOT CONFLICT WITH SECTION 7106(A) OF THE STATUTE.
 ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS, (5 CFR 2424.10), THE AGENCY'S ALLEGATION THAT THE PROPOSAL
 IS OUTSIDE THE DUTY TO BARGAIN IS SET ASIDE.  IN SO DECIDING THAT THE
 SUBJECT PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE AUTHORITY MAKES NO
 JUDGMENT AS TO THE MERITS OF THE PROPOSAL.
 
    REASONS:  THE UNION PROPOSAL ESSENTIALLY SEEKS TO ELIMINATE THE
 MONTHLY DOLLAR AND/OR QUANTITY LIMITS IMPOSED OF BARGAINING UNIT
 EMPLOYEES BY UNC/USFK/EA REGULATION 60-1 REGARDING THE PURCHASE OF
 CERTAIN MERCHANDISE FROM THE COMMISSARY, EXCHANGE AND OTHER FACILITIES
 IN KOREA, AND TO DELETE CERTAIN OTHER MERCHANDISE FROM THE "LETTER OF
 AUTHORIZATION" LIST.  THE AGENCY TAKES THE POSITION THAT THE UNION'S
 PROPOSAL CONCERNING RATION CONTROL DOES NOT INVOLVE "CONDITIONS OF
 EMPLOYMENT" AND THEREFORE IS OUTSIDE THE SCOPE OF BARGAINING UNDER THE
 STATUTE.
 
    IN THE CIRCUMSTANCES OF THE PRESENT CASE, THE AUTHORITY FINDS THE
 MATTER OF RATION CONTROL IS A CONDITION OF EMPLOYMENT WITHIN THE MEANING
 OF SECTION 7103(A)(14) OF THE STATUTE (SUPRA NOTE 1).  SPECIFICALLY, THE
 MATTER OF SUBSISTENCE, COMMISSARY, EXCHANGE AND OTHER ESSENTIAL
 FACILITIES AND SERVICES, WHICH MUST BE FURNISHED TO EMPLOYEES SUCH AS
 THOSE INVOLVED HEREIN, IS COVERED BY DEPARTMENT OF DEFENSE DIRECTIVE
 NUMBER 1400.6, DATED JANUARY 16, 1976, ENTITLED "STATEMENT OF PERSONNEL
 POLICY FOR CIVILIAN PERSONNEL OF THE DEPARTMENT OF DEFENSE IN OVERSEAS
 AREAS." PARAGRAPH III D OF THAT DIRECTIVE /3/ SETS FORTH AGENCY-WIDE
 POLICY REGARDING THE ESSENTIAL FACILITIES AND SERVICES TO BE PROVIDED
 UNITED STATES CIVILIAN EMPLOYEES IN AN OVERSEAS COMMAND AND STATES, IN
 PART, THAT EXCEPT TO MEET UNEXPECTED EMERGENCY CONDITIONS (NOT ALLEGED
 OR SHOWN TO EXIST IN THE INSTANT CASE), "AN OVERSEAS COMMANDER WILL NOT
 REQUEST UNITED STATES CITIZEN PERSONNEL FROM THE UNITED STATES UNLESS
 AND UNTIL HIS COMMAND IS ABLE TO PROVIDE SUCH FACILITIES, TO THE EXTENT
 OF MEETING REASONABLE STANDARDS OF HEALTH AND DECENCY."
 
    ACCORDINGLY, IT IS CONCLUDED THE MATTER OF RATION CONTROL IS A
 CONDITION OF EMPLOYMENT.  IT IS DIRECTLY RELATED TO THE "REASONABLE
 STANDARDS OF HEALTH AND DECENCY" FOR UNIT EMPLOYEES WHICH THE AGENCY
 REQUIRES AS A PRECONDITION TO THEIR EMPLOYMENT IN AN OVERSEAS COMMAND.
 THEREFORE, SUCH MATTER INVOLVES THE PERSONNEL POLICIES, PRACTICES AND
 MATTERS AFFECTING WORKING CONDITIONS OF UNIT EMPLOYEES AND IS WITHIN THE
 SCOPE OF BARGAINING UNDER SECTION 7117 OF THE STATUTE.
 
    THE AGENCY ASSERTS, FURTHER, THAT THE PROPOSAL HEREIN VIOLATES
 MANAGEMENT'S RESERVED RIGHT UNDER SECTION 7106(A)(1) OF THE STATUTE TO
 DETERMINE THE INTERNAL SECURITY PRACTICES OF THE AGENCY.  IN THIS
 REGARD, THE AGENCY ARGUES THE DOLLAR AND QUANTITY LIMITS ON THE PURCHASE
 OF CERTAIN MERCHANDISE CONTAINED IN THE RATION CONTROL REGULATION
 (UNC/USFK/EA REGULATION 60-1) "HELPS CONTROL BLACKMARKETEERING BY
 LIMITING THE AVAILABILITY OF THESE GOODS TO AUTHORIZED PERSONNEL."
 HOWEVER, IN THE AUTHORITY'S VIEW, REGULATION 60-1 DOES NOT CONCERN THE
 INTERNAL SECURITY PRACTICES OF THE AGENCY.  UNLIKE THE REGULATION AT
 ISSUE IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 15
 AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NORTH ATLANTIC
 REGION, 2 FLRA NO. 109, WHICH WAS PART OF THAT AGENCY'S PLAN TO PREVENT
 DISRUPTION, IMPROPER OR UNAUTHORIZED DISCLOSURE OF INFORMATION OR
 PROPERTY DESTRUCTION AT ITS FACILITIES, THE AGENCY HAS NOT ESTABLISHED
 THAT THE REGULATION INVOLVED HEREIN RELATES TO OR CONTAINS A MANAGEMENT
 PLAN FOR SECURING OR SAFEGUARDING ITS PHYSICAL PROPERTY AGAINST INTERNAL
 OR EXTERNAL RISKS, OR IN ANY OTHER MANNER CONCERNS THE INTERNAL SECURITY
 PRACTICES OF THE AGENCY.  SIMILARLY, THE RECORD FAILS TO ESTABLISH, AND
 IT DOES NOT OTHERWISE APPEAR, THE SUBJECT PROPOSAL CONFLICTS WITH OTHER
 RESERVED MANAGEMENT RIGHTS UNDER SECTION 7106(A) OF THE STATUTE.
 ACCORDINGLY, NOTING THAT NO COMPELLING NEED WAS RAISED BY THE AGENCY FOR
 THE REGULATION HEREIN, THE PROPOSAL IS A MATTER WITHIN THE AGENCY'S DUTY
 TO BARGAIN UNDER THE STATUTE, AND THE AGENCY'S ALLEGATION THAT THE
 PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.
 
    IN SO CONCLUDING, THE AUTHORITY SPECIFICALLY REJECTS THE AGENCY'S
 CONTENTION THAT THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN
 UNDER THE STATUTE INASMUCH AS "THE RATION CONTROL REGULATION HAS DIRECT
 APPLICABILITY FAR BEYOND THE BARGAINING UNIT." AS PREVIOUSLY FOUND, THE
 MATTER OF RATION CONTROL DIRECTLY AFFECTS THE WORKING CONDITIONS OF
 BARGAINING UNIT EMPLOYEES AND IS THEREFORE WITHIN THE DUTY TO BARGAIN
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 4, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
                                 APPENDIX
 
           LOCAL 1363 NFFE PROPOSAL REGARDING RATIONING CHANGES
 
    THE FOLLOWING PROPOSAL WOULD APPLY TO EMPLOYEES IN THE EXCLUSIVE
 BARGAINING UNIT(S) REPRESENTED BY LOCAL 1363:
 
    1.  THE FOLLOWING ITEMS BE DELETED (OR NOT APPLIED TO) THE LOA L