22:0235(23)NG - Antilles Consolidated Education Association and Antilles Consolidated School System -- 1986 FLRAdec NG



[ v22 p235 ]
22:0235(23)NG
The decision of the Authority follows:


 22 FLRA No. 23
 
 ANTILLES CONSOLIDATED
 EDUCATION ASSOCIATION
 Union
 
 and
 
 ANTILLES CONSOLIDATED
 SCHOOL SYSTEM
 Agency
 
                                            Case No. 0-NG-784
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         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), concerning the
 negotiability of one five-part Union proposal.
 
                            II.  Union Proposal
 
                     Article 36. BASE/POST PRIVILEGES
 
          1.  All unit employees will be granted the use of the following
       base/post facilities:
 
          A.  Base/Post Exchanges at the site to which the employee is
       assigned.
 
          B.  All retail food outlets operated by the Navy Exchange,
       AAFES, or coast Guard Exchange at the site to which the employee
       is assigned, or
 
          C.  Access to the nearest exchange system and its retail food
       outlets in any case in which an employee is assigned to a site at
       which the facilities described in subsection A and B are not
       operated.
 
          D.  Base/post/station/fort special services recreation and
       morale support facilities at the site to which the employee is
       assigned.
 
          E.  Hospital facilities on a paid basis.
 
                        A.  Position of the Parties
 
    The Agency asserts that the proposal is nonnegotiable for four
 reasons:  (1) it does not concern matters affecting working conditions
 of bargaining unit employees, within the meaning of section 7103(a)(14)
 of the Statute;  (2) the Agency is without authority to bargain over the
 proposed benefits;  (3) bargaining on the proposal is barred by
 regulations for which a compelling need exists;  (4) negotiation on
 parts D and E of the proposal is foreclosed by applicable law.
 
    The Union did not provide any arguments in its petition for review
 supporting the negotiability of the proposal, nor did it file a reply
 brief.
 
    We will examine the Agency's contentions, in turn.
 
                               B.  Analysis
 
    1.  Conditions of Employment of Bargaining Unit Employees
 
    Under the statutory scheme established by sections 7103(a)(12), 7106,
 7114 and 7117 a matter proposed to be bargained which is consistent with
 Federal law, including the Statute, Government-wide regulations or
 agency regulations is, nonetheless, outside the duty to bargain unless
 such matter directly affects the conditions of employment of bargaining
 unit employees.  The term "conditions of employment" is defined in
 section 7103(a)(14) as "personnel policies, practices, and matters
 whether established by rule, regulation, or otherwise, affecting working
 conditions . . . ."
 
    In deciding whether a proposal involves a condition of employment of
 bargaining unit employees the Authority considers two basic factors:
 
          (1) Whether the matter proposed 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.
 
    For example, as to the first factor, the question of whether the
 proposal pertains to bargaining unit employees, a proposal which is
 principally focused on nonbargaining unit positions or employees does
 not directly affect the work situation or employment relationship of
 bargaining unit employees.  See National Federation of Federal
 Employees, Local 1451 and Naval Training Center, Orlando, Florida, 3
 FLRA 88 (1980) aff'd sub nom. National Federation of Federal Employees
 v. FLRA, 652 F.2d 191 (D.C. Cir. 1981) (Proposal requiring management to
 designate a particular number of representatives to negotiations was
 held to be outside the duty to bargain).  But, a proposal which is
 principally focused on bargaining unit position or employees and which
 is otherwise consistent with applicable laws and regulations is not
 rendered nonnegotiable merely because it also would have some impact on
 employees outside the bargaining unit.  See Association of Civilian
 Technicians, Pennsylvania State Council and Pennsylvania Army and Air
 National Guard, 14 FLRA 38 (1982) (Union proposal 1 defining the
 competitive area for reduction-in-force as coextensive with the
 bargaining unit was held to be within the duty to bargain even though it
 had an impact on nonbargaining unit employees).
 
    Part 1 of the Appendix to this decision references other Authority
 decisions concerning the nature and extent of the affect of a proposal
 on bargaining unit employees.
 
    As to the second factor, relating to the effect of a proposal on
 working conditions, the question is whether the record establishes that
 there is a direct connection between the proposal and the work situation
 or employment relationship of bargaining unit employees.  For example, a
 proposal concerning off-duty hour activities of employees was found to
 be outside the duty to bargain where no such connection was established.
  See International Association of Fire Fighters, AFL-CIO, CLC, Local
 F-116 and Department of the Air Force, Vandenberg Air Force Base,
 California, 7 FLRA 123 (1981) (Proposal to permit employees to utilize
 on-base recreational facilities during off-duty hours found not to
 concern personnel policies, practices, or matters affecting working
 conditions of bargaining unit employees).
 
    On the other hand, a proposal concerning off-duty hour activities of
 employees was held to affect working conditions of bargaining unit
 employees where the requisite connection was established.  National
 Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army
 Garrison, Yongsan, Korea, 4 FLRA 139 (1980) (Proposal to revise the
 agency's "ration control" policy was found to concern standards of
 health and decency which were conditions of employment under agency
 regulations).
 
    Part 2 of the Appendix to this decision references other Authority
 decisions concerning the nature and effect of a proposal on bargaining
 unit employees' working conditions.
 
    Applying the first factor to the disputed proposal we find that the
 proposal expressly pertains only to bargaining unit employees.  No claim
 is made that the proposal has any impact on nonbargaining unit
 employees.  However, we must also assess the nature and effect of the
 proposal on bargaining unit employees' working conditions under the
 second factor.  Here the Agency argues without contravention that access
 to the retail, recreational and medical facilities denoted in the
 proposal would occur primarily during the employees' non-duty hours.
 Further, the Union has provided no evidence, whatever, and the record
 does not otherwise establish that access to the facilities in question
 is in any manner related to the work situation or employment
 relationship or is otherwise linked to the employees' assignments within
 the school system in Puerto Rico.  As a result we find the disputed
 proposal is to the same effect as the proposal permitting employees to
 use on-base recreational facilities during off-duty hours found outside
 the agency's obligation to bargain in Vandenberg Air Force Base, 7 FLRA
 123 (1981).  Thus, the disputed proposal also does not directly affect
 working conditions of bargaining unit employees and is outside the
 Agency's obligation to bargain.
 
    2.  Matters within the Agency's Authority to Bargain
 
    It is well established that the duty of an agency under the Statute
 is to negotiate with an exclusive representative of an appropriate unit
 of its employees concerning conditions of employment affecting them to
 the extent of its discretion, the is, except as provided otherwise by
 Federal law including the Statute, or by Government-wide rule or
 regulation or by an agency regulation for which a compelling need
 exists.  For example, see National Treasury Employees Union and
 Department of the Treasury, Bureau of the Public Debt, , FLRA 769
 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 691
 F.2d 553 (D.C. Cir. 1982).
 
    It is also well established that an agency may not foreclose
 bargaining on an otherwise negotiable matter by delegating authority as
 to that matter only to an organizational level within the agency
 different from the organizational level of recognition.  Rather, under
 section 7114(b)(2) of the Statute, an agency is obligated to provide
 representatives who are empowered to negotiate and enter into agreement
 on all matters within the statutorily prescribed scope of negotiations.
 American Federation of Government Employees, AFL-CIO, Local 3525 and
 United States Department of Justice, Board of Immigration Appeals, 10
 FLRA 61 (1982) (Union Proposal 1).  Thus, the Agency's claim that the
 Superintendent of the Department of Navy Antilles School System is
 without authority to bargain on access to Navy retail, recreational or
 medical facilities because such facilities are in separate chains of
 command within the Department of Navy from the school system cannot be
 sustained.  See American Federation of Government Employees, AFL-CIO,
 Local 1409 and U.S. Adjutant General Publications Center, Baltimore,
 Maryland, 18 FLRA NO. 68 (1985).  Similarly, the Agency's argument that
 the Superintendent is without authority to bargain on access to Army
 facilities which are under the jurisdiction of a separate subdivision of
 DOD also cannot be sustained.  See Defense Contract Administration
 Services Region, Boston, Massachusetts, 15 FLRA 750 (1984).
 
    As to Coast Guard facilities, there is nothing in the record in this
 case which indicates that the Agency lacks the discretion to at least
 request the Department of Transportation to extend access to such Coast
 Guard facilities to Antilles School System employees.  Thus, the Agency
 is obligated to bargain on access to Coast Guard facilities to this
 extent.  See American Federation of State, County and Municipal
 Employees, AFL-CIO and Library of Congress, Washington, D.C., 7 FLRA 578
 (1982) (Union Proposals XI-XVI), enf'd sub nom. Library of Congress v.
 FLRA, 699 F.2d 1280 (D.C. Cir. 1983).
 
    3.  Compelling Need
 
    The Agency has argued that a compelling need exists for certain of
 its regulations to bar civilian employee access to the retail and
 recreational facilities in Puerto Rico.  We note, however, an apparent
 inconsistency between this argument and DOD Directive 1400.6 which could
 be interpreted to permit access to such facilities by the employees in
 Puerto Rico.  Neither party in this case addressed this specific
 question or otherwise discussed the effect of DOD Directive 1400.6 on
 civilian employees in Puerto Rico.  Therefore, we consider it
 inappropriate, based on the record in this case, to pass on the
 compelling need issue raised by the Agency.
 
    4.  Consistency with law of Parts D and E of the Proposal
 
                        a.  Part D of the Proposal
 
    According to the record this part of the proposal would permit the
 Antilles School System employees to patronize on-post retail liquor
 stores.  While the Agency's claims that Puerto Rico law precludes the
 sale of Commonwealth tax-free alcoholic beverages to these civilian
 employees we find such claim unsupported in the record.  That is, the
 DOD regulations, which were included in the record by the Agency,
 specifically permit patronage of on-post retail liquor stores by other
 categories of persons, such as dependents of military personnel, who,
 like the civilian employees in this case, are not expressly listed as
 exempt under the Puerto Rico Statute.  See Puerto Rico Laws Annotated
 tit. 13 Section 6019 (1976).  Thus, we do not find that the Agency has
 established that Part D of the proposal is inconsistent with law.
 
                        b.  Part E of the Proposal
 
    Part E of the proposal would permit employees to use the local Navy
 hospital on a paid basis.  However, under 24 U.S.C. Section 34 Federal
 Employees located outside the continental limits of the United States
 and in Alaska may receive medical care at a naval hospital only "where
 facilities are not otherwise available in reasonably accessible and
 appropriate non-Federal hospitals." Also, under 24 U.S.C. Section 35,
 such employees may be hospitalized in a naval hospital "only for acute
 medical and surgical conditions . . . . " Since Part E of the proposal
 contains no limitations on access to the local naval hospital, it is
 inconsistent with the express statutory provisions governing such
 access.
 
                              C.  Conclusion
 
    The Authority finds, for the reasons set forth in the preceding
 analysis, that the entire proposal in this case concerns matters which
 are not conditions of employment of bargaining unite employees.
 Consequently, it is not within the duty to bargain although the Agency
 could negotiate on the proposal if it chose to do so, except for Part E.
 
    Further, the Authority concludes that as Part E of the proposal is
 inconsistent with Federal law, it is outside the scope of the duty to
 bargain pursuant to section 7117(a)(1) of the Statute.
 
                                III.  Order
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulatio