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 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R1-25 Union and VETERANS ADMINISTRATION MEDICAL CENTER BROCKTON, MASSACHUSETTS Agency Case No. 0-NG-1120 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)(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 time. 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 employment. 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 was procured for an authorized purpose -- feeding patients -- as opposed to involving an outlay of appropriated funds for the purpose of feeding employees. Given this difference, we conclude that the Comptroller General's decision is not applicable to this case. Additionally, we note that the Comptroller General has not interpreted 5 U.S.C. Section 5536 as an absolute prohibition on agency subsidization of food for employees. See, for example, 53 Comp. Gen. 71 (1973), in which a situation "involving danger to human life and the destruction of Federal property" justified government purchase of employees' meals at headquarters. Also in some circumstances, the Comptroller General has permitted the expenditure of agency funds to subsidize operation of an employees' cafeteria. Unpublished Decision of the Comptroller General, B-169141, November 17, 1970. We do not conclude that a proposal which is limited to addressing the disposition of brewed coffee which otherwise would be thrown away amounts to seeking compensation which is prohibited under 5 U.S.C. Section 5536. Because we do not view this issue as governed by that statutory provision, we reject the Agency's contention that the proposal concerns a matter which is specifically provided for by Federal statute. V. Conclusion Because the record does not demonstrate that the proposal concerns a matter which is a condition of employment, we conclude that the Agency has no duty to bargain over it. VI. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., August 19, 1986. /s/ Jerry L. Calhoun Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) 5 U.S.C. Section 5536 provides as follows: Section 5536. Extra pay for extra services prohibited An employee or a member of a uniformed service whose pay or allowance is fixed by statute or regulation may not receive additional pay or allowance for the disbursement of public money or for any other service or duty, unless specifically authorized by law and the appropriation therefor specifically states that it is for the additional pay or allowance. (2) The parties to a case are responsible for creating the record upon which we will resolve negotiability disputes. National Association of Federal Employees, Local 7 and U.S. Army Corps of Engineers, Portland District, 19 FLRA No. 18, n. 4 (1985); National Federation of Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir. 1982). A party failing to assume this burden acts at its peril.