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

 



[ v04 p139 ]
04:0139(23)NG
The decision of the Authority follows:


 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 LIST:
 
    TV (COLOR OR BLACK & WHITE)
 
    RADIOS OF ALL TYPES
 
    TAPE RECORDERS OR CASSETTES OF ALL TYPES
 
    AMPLIFIERS OF ALL TYPES
 
    RECORD PLAYERS OF ALL TYPES
 
    SPEAKERS OF ALL TYPES
 
    VIDEO RECORDERS OF ALL TYPES
 
    TYPEWRITERS OF ALL TYPES
 
    CAMERAS OF ALL TYPES
 
    CARPETS OF ALL TYPES
 
    CLOTHES WASHERS OR DRYERS OF ALL TYPES
 
    OVENS OR RANGES OF ALL TYPES
 
    REFRIGERATORS OR FREEZERS OF ALL TYPES
 
    VACUUM CLEANERS
 
    FIREARMS
 
    ELECTRIC TOOLS OF ALL TYPES
 
    ORGANS
 
    PIANOS
 
    WATER HEATERS
 
    KITCHEN APPLIANCES OF ALL TYPES
 
    AIR CONDITIONERS
 
    ELECTRIC BLANKETS
 
    GOLF CLUBS OF ALL TYPES
 
    DIAMONDS
 
    WATCHES OF ALL TYPES
 
    TENNIS EQUIPMENT OF ALL TYPES
 
    FLOOR POLISHERS
 
    ELECTRIC IRONS
 
    LAWN MOWERS
 
    DISH SETS OF ALL TYPES
 
    COOKING UTENSILS OF ALL TYPES
 
    2.  THE FOLLOWING LIMITS ON CONSUMABLES:  (TABLE OMITTED)
 
    3.  PURCHASE OF ELECTRIC HAND-HELD BLOW DRYERS WOULD BE UNLIMITED FOR
 EACH EMPLOYEE.
 
    4.  THE PURCHASE OF RECORDS AND PRE-RECORDED TAPES WOULD NOT COUNT
 AGAINST ANY DOLLAR LIMIT.
 
    5.  THE MONTHLY COSMETIC LIMIT FOR EACH EMPLOYEE WOULD BE UNLIMITED.
 
    6.  THE MONTHLY DOLLAR LIMIT FOR EACH EMPLOYEE WOULD BE AS FOLLOWS:
 (TABLE OMITTED)
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
    (A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
 BARGAIN IN GOOD FAITH
 
    SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
 GOVERNMENT-WIDE RULE OR
 
    REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
 REGULATION ONLY IF THE RULE
 
    OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.
 
    THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
 REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
 7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE
 STATUTE"
 
    SEC. 7103.  DEFINITIONS;  APPLICATION
 
    (A) FOR THE PURPOSE OF THIS CHAPTER--
 
   *          *          *          *
 
 
    (12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
 OBLIGATION OF THE
 
    REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
 EMPLOYEES IN AN APPROPRIATE
 
    UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
 BARGAIN IN A GOOD-FAITH
 
    EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
 EMPLOYMENT AFFECTING SUCH
 
    EMPLOYERS . . .
 
   *          *          *          *
 
 
    (14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES
 AND MATTERS, WHETHER
 
    ESTABLISHED HELD BY RULE, REGULATION,
 
    OR OTHERWISE, AFFECTING WORKING CONDITIONS . . .
 
    /2/ SECTION 7106(A) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
 FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
 CHAPTER SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
    (1) TO DETERMINE THE . . . INTERNAL SECURITY PRACTICES OF THE AGENCY
 . . .
 
    /3/ PARAGRAPH III D OF DOD DIRECTIVE 1400.6 STATES AS FOLLOWS:
 
    IN MAKING HIS DETERMINATION OF THE NUMBERS AND TYPES OF UNITED STATES
 CITIZEN CIVILIANS TO
 
    BE RECRUITED FROM THE UNITED STATES FOR EMPLOYMENT IN AN OVERSEAS
 COMMAND, THE COMMANDER WILL
 
    CONSIDER THE ABILITY OF HIS COMMAND TO ASSURE ADEQUATE HOUSING,
 SUBSISTENCE, MEDICAL,
 
    COMMISSARY, EXCHANGE, LAUNDRY, TRANSPORTATION, AND OTHER ESSENTIAL
 FACILITIES AND SERVICES TO
 
    UNITED STATES CIVILIAN EMPLOYEES, WHERE ADEQUATE FACILITIES ARE NOT
 OTHERWISE AVAILABLE TO
 
    SUCH PERSONNEL.  EXCEPT AS MAY BE REQUIRED TO MEET UNEXPECTED
 EMERGENCY CONDITIONS, 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.