10:0071(19)NG - AFGE Local 2670 and Army and Air Force Exchange Service, Keesler AFB Exchange, MS; AFGE Local 1504 and Army and Air Force, Army and Air Force Exchange Service, Northwest Area Exchange, Ft. Lewis, WA -- 1982 FLRAdec NG



[ v10 p71 ]
10:0071(19)NG
The decision of the Authority follows:


 10 FLRA No. 19
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 2670
 Union
 
 and
 
 ARMY AND AIR FORCE EXCHANGE SERVICE,
 KEESLER AIR FORCE BASE EXCHANGE,
 MISSISSIPPI
 Agency
 
                                            Case No. O-NG-366
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 1504
 Union
 
 and
 
 DEPARTMENTS OF THE ARMY AND AIR FORCE,
 ARMY AND AIR FORCE EXCHANGE SERVICE,
 NORTHWEST AREA EXCHANGE, FT. LEWIS,
 WASHINGTON
 Agency
 
                                            Case No. O-NG-409
 
          CONSOLIDATED DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    THE PETITIONS FOR REVIEW IN THESE CASES /1/ COME BEFORE THE AUTHORITY
 PURSUANT TO SECTION 7105(A)(2)(D) AND (E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), AND RAISE ISSUES
 REGARDING THE NEGOTIABILITY OF THE FOLLOWING TWO UNION PROPOSALS.
 
    UPON CAREFUL CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE
 PARTIES' CONTENTIONS, THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
                             UNION PROPOSAL 1
 
    ALL EMPLOYEES ASSIGNED TO FOOD ACTIVITIES WHO WORK FOUR (4) OR MORE
 HOURS PER 24 HOUR
 
    PERIOD WILL BE FURNISHED ONE (1) FREE MEAL NOT TO EXCEED $2.00.  THIS
 AMOUNT WILL BE ADJUSTED
 
    YEARLY TO MATCH THE INCREASE(D) COST OF FOOD.
 
                             UNION PROPOSAL 2
 
    ALL EMPLOYEES ASSIGNED TO FOOD ACTIVITIES WHO WORK FOUR (4) OR MORE
 HOURS PER 24 HOUR
 
    PERIOD WOULD BE FURNISHED ONE (1) FREE MEAL NOT TO EXCEED $3.50.
 
    THE RECORD INDICATES THAT NONAPPROPRIATED FUND INSTRUMENTALITY
 EMPLOYEES ASSIGNED TO FOOD ACTIVITIES ARE ENTITLED, AS A MATTER OF ARMY
 AND AIR FORCE EXCHANGE SERVICE (AAFES) POLICY, TO A FREE MEAL UNDER
 CERTAIN CIRCUMSTANCES, WITH THE RETAIL VALUE NOT TO EXCEED $1.45.  THE
 DISPUTED PROPOSALS ARE CONCERNED WITH INCREASING THE VALUE OF MEALS
 WHICH MAY BE PROVIDED TO THE EMPLOYEES INVOLVED.  THE AAFES SOLELY
 CONTENDS THAT THE PROPOSALS ARE BARRED FROM NEGOTIATION BECAUSE THEY ARE
 INCONSISTENT WITH THE AGENCY'S RIGHT TO DETERMINE ITS BUDGET UNDER
 SECTION 7106(A)(1) OF THE STATUTE AND WITH AN AAFES REGULATION FOR WHICH
 A COMPELLING NEED EXISTS UNDER SECTION 7117(A)(2) OF THE STATUTE AND
 SECTION 2424.11(A) OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    AS TO SECTION 7106(A)(1) /2/ OF THE STATUTE, THE MERE FACT THAT A
 PROPOSAL WOULD RESULT IN INCREASED COSTS TO AN AGENCY WOULD NOT RENDER
 AN OTHERWISE NEGOTIABLE PROPOSAL VIOLATIVE OF THE AGENCY'S RIGHT TO
 DETERMINE ITS BUDGET.  RATHER, THE AUTHORITY HAS DETERMINED THAT A
 PROPOSAL WHICH BY ITS TERMS PRESCRIBES A PARTICULAR PROGRAM OR OPERATION
 TO BE INCLUDED IN AN AGENCY'S BUDGET, OR PRESCRIBES AN AMOUNT TO BE
 ALLOCATED IN A BUDGET FOR A PROGRAM OR OPERATION, WOULD DIRECTLY
 INTERFERE WITH AN AGENCY'S RIGHT TO DETERMINE ITS BUDGET AND HENCE WOULD
 NOT BE NEGOTIABLE.  SIMILARLY, A PROPOSAL WHICH DEMONSTRABLY WOULD
 RESULT IN A SIGNIFICANT AND UNAVOIDABLE INCREASE IN COSTS WHICH WOULD
 NOT BE OFFSET BY COMPENSATING BENEFITS WOULD BE INCONSISTENT WITH THE
 AGENCY'S RIGHT TO DETERMINE ITS BUDGET.  AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO AND AIR FORCE LOGISTICS COMMAND,
 WRIGHT-PATTERSON AIR FORCE BASE, OHIO, 2 FLRA 603, 607-8(1980), ENFORCED
 AS TO OTHER MATTERS SUB NOM. DEPARTMENT OF DEFENSE V. FEDERAL LABOR
 RELATIONS AUTHORITY, 659 F.2D 1140 (D.C. CIR. 1981) CERT. DENIED SUB
 NOM.  AFGE V. FLRA, .  . . U.S. . . . , 102 S. CT. 1443(1982).  SEE ALSO
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND
 OFFICE OF PERSONNEL MANAGEMENT, WASHINGTON, D.C., 6 FLRA NO. 76(1981).
 
    THE PROPOSALS HERE IN DISPUTE DO NOT BY THEIR EXPRESS TERMS PRESCRIBE
 A PARTICULAR PROGRAM OR OPERATION TO BE INCLUDED IN THE AGENCY'S BUDGET,
 OR PRESCRIBE THE AMOUNT TO BE ALLOCATED IN THE BUDGET FOR A PARTICULAR
 PROGRAM OR OPERATION.  MOREOVER, THE AAFES HAS NOT MADE A SUBSTANTIAL
 DEMONSTRATION THAT THE PROPOSALS WOULD RESULT IN A SIGNIFICANT AND
 UNAVOIDABLE INCREASE IN COSTS.  CF.  NATIONAL TREASURY EMPLOYEES UNION,
 CHAPTER 6 AND INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, 3 FLRA
 747, 764-66(1980) (AN AGENCY HAD NOT DEMONSTRATED SIGNIFICANT AND
 UNAVOIDABLE INCREASED COSTS BASED UPON THE PERCENTAGE INCREASE IN COSTS
 TO THE AGENCY FOR THE FISCAL YEAR).  FURTHERMORE, IT HAS NOT
 DEMONSTRATED THAT THE INCREASED COSTS WHICH IT CLAIMS WOULD RESULT WOULD
 NOT BE OFFSET BY COMPENSATING BENEFITS.  RATHER, THE AAFES MERELY
 ASSERTS, WITHOUT ATTEMPTING TO SUBSTANTIATE, THAT IMPROVED EMPLOYEE
 PERFORMANCE OR PRODUCTIVITY IS "PROBLEMATICAL AND HIGHLY SPECULATIVE."
 ACCORDINGLY, THE AAFES HAS NOT SUPPORTED ITS CLAIM THAT THE PROPOSALS
 ARE INCONSISTENT WITH SECTION 7106(A)(1).
 
    AS TO THE AAFES'S CONTENTION THAT NEGOTIATION OF THE UNION'S
 PROPOSALS IS BARRED BY AN AAFES REGULATION FOR WHICH A COMPELLING NEED
 EXISTS UNDER SECTION 7117(A)(2), /3/ THE REGULATION RELIED UPON
 (EXCHANGE SERVICE MANUAL, FOOD OPERATIONS 24-4, 7-40(B)), PROVIDES AS
 FOLLOWS:  "THE VALUE OF THE MEAL AUTHORIZED IN CONUS, WILL NOT EXCEED
 $1.45 AT SELL PRICE.  OVERSEAS SYSTEMS MAY REDUCE THE MEAL VALUE AS
 APPROPRIATE." IT IS WELL SETTLED THAT THE COMPELLING NEED PROVISIONS OF
 THE STATUTE ARE MEANT TO INSURE THAT BARGAINING PROPOSALS CONCERNING
 CONDITIONS OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES, WHICH ARE
 OTHERWISE WITHIN THE DUTY TO BARGAIN, ARE BARRED FROM NEGOTIATION DUE TO
 A CONFLICT WITH AGENCY RULES OR REGULATIONS ONLY IF THE AGENCY INVOLVED
 DEMONSTRATES AND JUSTIFIES, UNDER CRITERIA ESTABLISHED BY THE AUTHORITY,
 AN OVERRIDING NEED FOR THE POLICIES REFLECTED IN THE RULES OR
 REGULATIONS TO BE UNIFORMLY APPLIED THROUGHOUT THE AGENCY.  THE
 AUTHORITY'S ILLUSTRATIVE CRITERIA FOR DETERMINING COMPELLING NEED IN
 SECTION 2424.11(A) OF THE RULES AND REGULATIONS REQUIRES THAT AN AGENCY
 CAN ESTABLISH THAT A COMPELLING NEED EXISTS FOR ITS REGULATION ONLY IF
 IT DEMONSTRATES THAT SUCH REGULATION IS "ESSENTIAL AS DISTINGUISHED FROM
 HELPFUL OR DESIRABLE." /4/ AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
 AFL-CIO, LOCAL 3804 AND FEDERAL DEPOSIT INSURANCE CORPORATION, CHICAGO
 REGION, ILLINOIS, 7 FLRA NO.  34(1981) AT 3-4 OF SLIP DECISION, CITING
 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 2875 AND
 DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION,
 NATIONAL MARINE FISHERIES SERVICE, SOUTHEAST FISHERIES CENTER, MIAMI
 LABORATORY, FLORIDA, 5 FLRA NO.  55(1981) (PROPOSAL 4).
 
    IN THE PRESENT CASE, THE AAFES ARGUES THAT ONLY A UNIFORM VALUE FOR
 THE FREE MEAL AUTHORIZED TO ITS EMPLOYEES THROUGHOUT AAFES IS COMPATIBLE
 WITH ITS EXISTING BUDGETARY PRACTICES, FORECASTS, AND CENTRALIZED
 PAYROLL SYSTEM AND, THEREFORE, ITS REGULATION WHICH IT CLAIMS
 ESTABLISHES SUCH UNIFORMITY IS ESSENTIAL, AS OPPOSED TO MERELY
 DESIRABLE, TO PREPARE AND MAINTAIN ACCURATE RECORDS FOR PAYROLL AND TAX
 PURPOSES.  FURTHER, IT CONTENDS THAT THE MAINTENANCE OF ACCURATE RECORDS
 WOULD BE MORE DIFFICULT TO ACHIEVE UNDER THE UNION PROPOSALS.
 
    HOWEVER, THE AAFES HAS NOT SHOWN THAT THE REGULATION ESTABLISHING A
 MAXIMUM RETAIL PRICE OF $1.45 FOR EACH MEAL PROVIDED TO ITS EMPLOYEES
 INVOLVED IS ESSENTIAL TO EXECUTING ITS PAYROLL AND TAX RECORDKEEPING
 FUNCTION EFFICIENTLY AND EFFECTIVELY.  THUS, IT HAS NOT DEMONSTRATED
 THAT THE POLICY REFLECTED IN THE PRESENT REGULATION ASSURES THE
 EFFICIENT, EFFECTIVE CONDUCT OF ITS RECORDKEEPING WITH RESPECT TO
 PAYROLL AND TAXES.  IN THIS REGARD, THE REGULATION EXPRESSLY PROVIDES
 DISCRETION TO OVERSEAS AAFES SYSTEMS TO USE DIFFERENT MAXIMUMS.  THUS,
 THE REGULATION ITSELF TACITLY RECOGNIZES THE LACK OF ESSENTIALITY OF
 PRICE UNIFORMITY.  THE AAFES'S CONTENTION THAT THE PROPOSALS WOULD
 CREATE ADMINISTRATIVE RECORDKEEPING DIFFICULTIES ESSENTIALLY RELATES TO
 THE CLAIMED INCOMPATIBILITY OF THE PROPOSALS AND THE AAFES'S PRACTICES
 IN CONNECTION WITH ITS CENTRALIZED SYSTEMS FOR TAXES AND PAYROLL
 MATTERS.  THE FACT THAT THE POLICY REFLECTED IN THE REGULATION
 FACILITATES THE OPERATION OF A COMPREHENSIVE RECORDKEEPING SYSTEM, FROM
 WHICH DEVIATION MAY BE DIFFICULT, DOES NOT IN ITSELF DEMONSTRATE THAT
 THE REGULATION MEETS THE COMPELLING NEED CRITERIA IN SECTION 2424.11(A)
 OF THE AUTHORITY'S RULES SO AS TO BAR NEGOTIATION OF AN OTHERWISE
 NEGOTIABLE PROPOSAL.  AFGE, LOCAL 2875 AND SOUTHEAST FISHERIES CENTER,
 MIAMI LABORATORY, FLORIDA, 5 FLRA NO.  55.  IN THIS REGARD, IN FAILING
 TO DEMONSTRATE THAT, IN THE ABSENCE OF ITS REGULATIONS, THE AAFES WOULD
 BE UNABLE TO KEEP ACCURATE RECORDS FOR TAX AND PAYROLL PURPOSES, IT MUST
 BE CONCLUDED THAT AAFES HAS NOT MET ITS BURDEN OF SHOWING THAT ITS
 REGULATION IS ESSENTIAL TO THE ACCOMPLISHMENT OF THAT OBJECTIVE.  AFGE,
 LOCAL 3804 AND FDIC, 7 FLRA NO. 34 AT 4.
 
    THE AUTHORITY CONCLUDES, THEREFORE, THAT THE AAFES HAS NOT MET ITS
 BURDEN OF DEMONSTRATING THAT ITS REGULATION IS ESSENTIAL, AS
 DISTINGUISHED FROM HELPFUL OR DESIRABLE, TO THE PREPARATION AND
 MAINTENANCE OF ACCURATE RECORDS AND, THUS, HAS NOT ESTABLISHED UNDER THE
 REQUIREMENTS SET FORTH IN SECTION 2424.11(A) OF THE AUTHORITY'S RULES
 AND REGULATIONS THAT A COMPELLING NEED EXISTS.
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCIES SHALL
 UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
 CONCERNING THE PROPOSALS.  /5/
 
    ISSUED, WASHINGTON, D.C., SEPTEMBER 15, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE AUTHORITY, PURSUANT TO A MOTION BY THE ARMY AND AIR FORCE
 EXCHANGE SERVICE, HAS CONSOLIDATED THESE TWO CASES BECAUSE THE PROPOSALS
 INVOLVED PRESENT THE SAME NEGOTIABILITY QUESTIONS.
 
    /2/ SECTION 7106 OF THE STATUTE PROVIDES IN PERTINENT PART AS
 FOLLOWS:
 
    SEC. 7106.  MANAGEMENT RIGHTS
 
    (A) SUBJECT TO SUBSECTION (B) OF THE SECTION, NOTHING IN THIS CHAPTER
 SHALL AFFECT THE
 
    AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--
 
    (1) TO DETERMINE THE . . . BUDGET . . . OF THE AGENCY(.)
 
    /3/ SECTION 7117(A)(2) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SEC. 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY TO
 CONSULT
 
   .          .          .          .
 
 
    (A)(2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
 INCONSISTENT WITH FEDERAL
 
    LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION,