22:0235(23)NG - Antilles Consolidated Education Association and Antilles Consolidated School System -- 1986 FLRAdec NG
[ v22 p235 ]
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 Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., June 24, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY APPENDIX Part 1 The following cases involve examples of proposals found outside the duty to bargain because of the impact on individuals or positions outside the bargaining unit. National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO and U.S. Department of Labor, Washington, D.C., 3 FLRA 290 (1980) (Proposal I establishing the method management will use in filling supervisory and management positions found not to affect working conditions of bargaining unit employees). American Federation of Government Employees, National Council of EEOC Locals NO. 216, AFL-CIO and Equal Employment Opportunity Commission, Washington, D.C., 3 FLRA 504 (1980) (Proposal relating to the assessment and training of supervisors found not to affect working conditions of bargaining unit employees). National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522 (1981) (Proposal VI requiring management to notify individuals who telephone the agency for tax information that such calls are subject to monitoring found not to affect working conditions of bargaining unit employees). National Association of Government Employees, Local R7-23 and Headquarters, 375th Air Base Group, Scott Air Force Base, Illinois, 7 FLRA 710 (1982) (Proposal concerning discipline of management officials and supervisors found not to affect working conditions of bargaining unit employees). American Federation of Government Employees, AFL-CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004 (1982) (The portion of Proposal 5 which required management to prosecute private citizens who file false reports found not to affect working conditions of bargaining unit employees). Association of Civilian Technicians, State of New York, Division of Military and Naval Affairs, Albany, New York, 11 FLRA 475 (1983) (Proposal 2 concerning procedures for filling military positions found not to affect the working conditions of bargaining unit employees). American Federation of Government Employees, AFL-CIO, Local 2302 and U.S. Army Armor Center and Fort Knox, Fort Knox, Kentucky, 19 FLRA NO. 95 (1985) (Proposal 4 prescribing the content of certain management records relating to employees, the manner in which such records are maintained and restrictions on management access to such records found not to affect working conditions of bargaining unit employees). Part 2 A. The following cases involve examples of proposals found outside the duty to bargain because of the absence of a direct affect on bargaining unit employees' working conditions. National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981) (Proposal IV permitting employee allotments from pay for "Political Action Fund" to be used in "political efforts to improve working conditions" found to affect working conditions in only a remote and speculative manner). National Federation of Federal Employees, Council of Consolidated Social Security Administration Locals and Social Security Administration, 13 FLRA 422 (1983) (Proposals 3 and 4 requiring management to utilize recycled paper products and to provide the Union with such recycled paper products upon request found not to directly affect bargaining unit employees' working conditions as there was no demonstration in the record of any such effect). Maritime Metal Trades Council and Panama Canal Commission, 17 FLRA 890 (1985) (Proposals 1 and 2 permitting employees to cash personal checks at the agency's treasury found not to directly affect working conditions of bargaining unit employees). B. The following cases involve examples of proposals found to directly affect working conditions of bargaining unit employees. American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980) (Union Proposal 1), enf'd as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982) (A proposal to establish a union operated day care facility on agency property was found to directly affect bargaining unit employees by enhancing an individual's ability to accept employment or to continue employment with the agency and to promote workforce stability and prevent tardiness and absenteeism). National Treasury Employees Union and Internal Revenue Service, 3 FLRA 693 (1980) (Union Proposal I establishing criteria for approval of outside employment was found to directly affect working conditions of unit employees because agency regulations which set forth policies governing outside employment were determinative of employee eligibility for certain positions and even prescribed whether employees could continue to be employed). Planners, Estimators and Progressmen Association, Local NO. 8 and Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 13 FLRA 455 (1983) (A proposal to permit bargaining unit employees to record their time and attendance manually instead of mechanically through use of a time clock found to directly concern working conditions of such employees). United States Department of Justice, United States Immigration and Naturalization Service and American Federation of Government Employees, AFL-CIO, Local 2509, 14 FLRA 578 (1984) (Assignment of Government-owned housing to employees was found to directly affect working conditions of bargaining unit employees in circumstances where there was a lack of adequate housing in the geographic area and the Government-owned housing in question was constructed for the benefit and use of employees stationed at the hardship location). American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Headquarters, XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 17 FLRA 752 (1985) (Proposal 4 requiring the agency to provide lockers or other secure areas for employees' personal items during working hours found to directly affect working conditions of unit employees).