23:0266(34)NG - NAGE Local R1-25 and VA Medical Center, Brockton, MA -- 1986 FLRAdec NG

[ v23 p266 ]
The decision of the Authority follows:

 23 FLRA No. 34
                                            Case No. 0-NG-1120
                         I.  Statement of the Case
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 concerning the negotiability of one Union proposal.  The Union made the
 proposal in response to Agency action in discontinuing a practice of
 making left-over coffee, which had been provided for consumption by
 patients, available to employees.  When informed of the Agency's plans
 to terminate its practice of allowing employees to drink the surplus
 coffee, the Union proposed that the practice not be discontinued.  Based
 on the following, we find that the Union's proposal is not negotiable.
                           II.  Procedural Issue
    The Agency argues that the petition should be dismissed because a
 copy was not served upon it within 15 days of its allegation of
 nonnegotiability.  This contention is rejected.  Under established
 Authority practice, the Union was allocated time to correct the
 deficiency in its filing and serve the Agency with a copy of the
 petition.  The Union did take the necessary action within the allotted
                      III.  Positions of the Parties
    The Agency argues that what is at issue is the disposal of coffee
 leftover from patients' meals, a matter that is not part of the
 employer-employee relationship and therefore does not involve a
 condition of employment.  The Agency also contends that providing "free
 food" amounts to additional compensation of employees -- something which
 is prohibited by 5 U.S.C. Section 5536.  /1/ As an extension of this
 argument it asserts that, because compensation is specifically provided
 for by Federal statute, the matter does not concern a condition of
    The Union did not file a response to the Agency's statement of
 position.  However, in its petition it argues that there is no
 compelling reason for discontinuing the practice of allowing employees
 to drink left-over coffee which would otherwise be thrown away.
                               IV.  Analysis
            A.  The Record Does Not Establish That the Proposal
                Concerns Conditions of Employment
    In Antilles Consolidated Education Association and Antilles
 Consolidated School System, 22 FLRA No. 23 (1986), the Authority
 identified as one of the factors which it considers in determining
 whether a proposal concerns conditions of employment:
          The nature and extent of the effect of the matter proposed to
       be bargained on working conditions of unit employees.
    In applying the above factor to this case, we find that there is
 insufficient basis for concluding that the matter, in fact, concerns
 working conditions.  The Union has provided no specific information as
 to how the disposal of the coffee is related to the work situation of
 employees or the employment relationship.  /2/ For example, there are no
 details as to whether consumption of the coffee occurred when employees
 were on-duty or off-duty or whether consumption was tied to their status
 as employees as opposed to being a privilege afforded to any member of
 the public present at the facility at the time the surplus coffee was
 available.  Absent the demonstration of a relationship between the
 matter proposed and working conditions, we have no basis for rejecting
 the Agency's contention that the proposal does not concern conditions of
 employment.  Therefore, we find that the proposal is not within the duty
 to bargain.  See National Federation of Federal Employees, Council of
 Consolidated Social Security Administration Locals and Social Security
 Administration, 13 FLRA 422 (1983) (Union Proposals 3 and 4), in which
 the Authority determined that, in the absence of any showing in the
 record that proposals concerning recycling discarded paper products were
 related to unit employees' work situation or employment relationship,
 those proposals did not concern conditions of employment and were
 outside the duty to bargain.
            B.  The Record Does Not Establish That the Proposal
                Conflicts with 5 U.S.C. Section 5536
    The Agency contends that 5 U.S.C. Section 5536 as interpreted by the
 Comptroller General prohibits an agency from providing "free food" to
 employees while they are at their official duty station.  In 42 Comp.
 Gen. 149 (1962), the Comptroller General ruled that appropriated funds
 could not be used to reimburse an agency official for carry-out food he
 had purchased for employees who were unable to leave an office.  The
 Comptroller General denied the claim based on, among other reasons, his
 interpretation that 5 U.S.C. Section 5536 prohibited providing employees
 with compensation -- in that case "free food" -- over and above that
 which was allowed by law.
    In our view, the circumstances involved in this case are
 significantly different from those involved in the Comptroller General
 decision relied upon by the Agency.  In this case, the issue involves
 use of surplus coffee which