23:0578(80)CA - Army, Dugway Proving Ground, Dugway, UT and NAGE Local R14-62 -- 1986 FLRAdec CA



[ v23 p578 ]
23:0578(80)CA
The decision of the Authority follows:


 23 FLRA No. 80
 
 DEPARTMENT OF THE ARMY 
 DUGWAY PROVING GROUND 
 DUGWAY, UTAH
 Respondent
 
 and
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, LOCAL R14-62
 Charging Party
 
                                            Case No. 7-CA-50559
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority based on the
 Regional Director's "Order Transferring Case to the Authority" in
 accordance with section 2429.1(a) of the Authority's Rules and
 Regulations.  The complaint alleged that the Respondent refused to
 bargain over a change in the established practice with regard to the
 assignment of government-owned, on-post, non-housekeeping quarters to
 "geographical bachelors" in violation of section 7116(a)(1) and (5) of
 the Federal Service Labor-Management Relations Statute (the Statute).
 
                              II.  Background
 
    The National Association of Government Employees, Local R14-62,
 (Charging Party), is the exclusive representative of the Respondent's
 professional employees.  It represents approximately 75 of the
 Respondent's 747 civilian employees.
 
    The Respondent, Dugway Proving Ground (DPG), is a remote installation
 located approximately 45 miles from the nearest community, Tooele, Utah,
 where limited housing is available.  To reach this community requires
 more than an hour commute over a mountain pass which is either
 impassable or extremely hazardous during winter storms.  DPG is 80 miles
 from Salt Lake City, Utah, where a wide variety of housing is available.
  There is no housing other than government housing at DPG.  Due to this
 remote location and the lack of locally-available housing, 250 family
 quarters were constructed, and it was required that certain of those
 quarters be provided to civilian employees.  Other quarters were
 constructed for the use of transient and permanent civilian and military
 personnel.
 
    Civilian employees at DPG fall into three categories for assignment
 of government housing:  (1) married civilians with families who are
 eligible for family quarters;  (2) "bona fide bachelors" (i.e.,
 unmarried civilian employees) who are provided non-housekeeping quarters
 if available;  and (3) "geographical bachelors" (i.e., civilian
 employees with dependents who are eligible for family quarters and may
 or may not be on the waiting list for such quarters, and who live on DPG
 but maintain and commute on weekends to and from a primary residence
 outside DPG).  The third group and the practice that developed regarding
 their housing is the subject of the present case.
 
    On May 9, 1975, DPG issued DPG Regulation 210-7, establishing
 priorities for assignment of non-housekeeping quarters (private room
 quarters where housekeeping services are not provided) to military and
 civilian personnel.  Since at least the issuance of that regulation,
 geographical bachelors have been provided, upon request, with, at a
 minimum, the single occupancy non-housekeeping quarters, thereby
 permitting such employees to reside on DPG during the workweek and
 commute to their primary residence outside DPG on weekends.  Since 1980
 these employees have been permitted to work a Monday through Thursday
 schedule (10 hours per day).
 
    The initial assignment to non-housekeeping quarters is made by DPG on
 an "as available" basis.  Under DPG Regulation 210-7, bona fide
 bachelors have a higher priority for assignment of non-housekeeping
 quarters than geographical bachelors.  However, once assigned to such
 quarters, the geographical bachelors were not required to vacate the
 quarters when new bona fide bachelor employees arrived at the base.
 This practice initially developed during a period when DPG had excess
 non-housekeeping quarters.  This excess no longer existed by January,
 1985.
 
    On May 20, 1985, the Commanding Officer informed the three unions
 with bargaining unit employees at DPG, including the Charging Party,
 that it might be necessary to evict some of the geographical bachelors
 in order to provide space for the bona fide bachelors.  At that time
 there were 48 geographical bachelors, 10 of whom are part of the
 Charging Party's bargaining unit.  The Commanding Officer followed this
 up with a letter to the geographical bachelors evicting them from the
 non-housekeeping quarters.  This action resulted in the filing of an
 unfair labor practice charge that was withdrawn after the Commanding
 Officer offered to suspend the eviction action pending review of the
 matter by an ad hoc committee and to include union representatives on
 the committee.  The parties stipulated that the Charging Party's
 membership on the committee did not constitute a waiver of its right to
 bargain over the proposed change in quarters policy, and that collective
 bargaining, as defined by the Statute, did not occur at the meeting.
 
    A majority of the Ad Hoc committee recommended that dual occupancy
 dormitory rooms in another building be offered to the geographical
 bachelors which would permit their relocation from the single occupancy,
 non-housekeeping quarters and use of those quarters by bona fide
 bachelors.  The Charging Party filed a Minority Opinion with the
 Commanding Officer suggesting alternate methods of handling the problem.
  The Commanding Officer essentially adopted the majority's
 recommendations.
 
    The Commanding Officer informed the Charging Party of his decision to
 evict the geographical bachelors on August 5, 1985.  On August 6, 1985,
 the Charging Party requested to bargain over the Commanding Officer's
 decision and submitted an initial proposal to maintain the status quo.
 On the same date, the Commanding Officer issued letters to all the
 geographical bachelors, including those represented by the Charging
 Party.  The letter required geographical bachelors to vacate their
 quarters and offered dormitory rooms at a higher cost.  On the next day,
 August 7, 1985, DPG responded to the Charging Party's request to
 bargain, stating, "It is the position of this agency that we have
 negotiated this issue in question in accordance with applicable statutes
 to the limits of our authority.  We will have to request a determination
 on the negotiability of the regulation through our chain of command to
 Headquarters, Department of Army." /1/ No further discussion took place
 between the parties.  The geographical bachelors were evicted on or
 about August 23, 1985.
 
    Of 847 Department of Army civilian employees, 437 occupy DPG family
 housing, bachelor officer quarters, or dormitories.  Over 400 employees
 commute on a daily basis.  As stipulated by the parties, the relative
 isolation of DPG and the lack of available housing has resulted in a
 significant impact on civilian employee recruitment and retention and
 has placed DPG at a competitive disadvantage with Tooele Army Depot
 where limited facilities are available.  Therefore, the possible
 availability of housing at DPG is used as a recruitment inducement.
 
                      III.  Positions of the Parties
 
    The Respondent argues that offering surplus quarters to geographical
 bachelors was never considered a condition of employment. The Respondent
 noted the Authority's finding in United States Department of Justice,
 United States Immigration and Naturalization Service, 14 FLRA 578
 (1984), that the assignment of government-owned housing, in the
 circumstances of that case, was a condition of employment.  However, the
 Respondent contends that none of the criteria applied by the Authority
 in that case were applicable to the geographical bachelors at DPG.  The
 Respondent notes that DPG has never been declared a hardship station and
 that none of the employees are assigned to serve there as in the cited
 case.  The Respondent also claims that while there is no housing other
 than government-owned in the immediate area, there must be adequate
 housing in the commuting area because the majority of the DPG employees
 commute to work.  The Respondent also argues that it cannot be fairly
 said that the housing at DPG was constructed for the benefit and use of
 civilian employees because military personnel would have priority if the
 mission required an increase in their numbers.  Finally, the Respondent
 alleges that while the Commanding Officer exercised his discretion in
 making the quarters available to geographical bachelors, he was not
 delegated the responsibility to make assignments under regulation as in
 United States Department of Justice, United States Immigration and
 Naturalization Service.
 
    The General Counsel contends that a past practice of assigning
 geographical bachelors in the unit to non-housekeeping quarters existed,
 and that this practice is a condition of employment.  The General
 Counsel notes that since 1975 these geographical bachelors have been
 provided with quarters during their normal workweek, and that they have
 not been required to vacate these quarters when employees with higher
 priority arrived at the facility.  The General Counsel notes that the
 Respondent acknowledged this practice in its regulatory scheme and has
 consistently followed it for the ten year period preceding the change on
 August 23, 1985.
 
    The General Counsel argues further that the practice is a matter
 affecting conditions of employment because it was integrally involved
 with the employment of unit employees.  The General Counsel claims that
 it meets the test applied by the Authority in previous cases for the
 following reasons:  DPG is a remote location;  the assignment of housing
 is directly related to the facility's recruitment and retention program;
  and, the policy was a direct outcome of the Commander's local
 discretion.
 
    Therefore, the General Counsel contends that the unilateral change in
 the policy, which is both an established practice and a condition of
 employment, violated section 7116(a)(1) and (5) of the Statute.
 Finally, the General Counsel submits that a status quo ante order with
 backpay to make whole employees who were required to reside in higher
 cost quarters and/or commute on a daily basis as a consequence of the
 Respondent's unlawful conduct is the only appropriate remedy.
 
                               IV.  Analysis
 
          A.  Was there an Established Past Practice of Assigning
 
                Government-Owned, On-Post, Non-Housekeeping Quarters to
 
                Geographical Bachelors?
 
    Since 1975, as set forth in the Respondent's regulations (DPG 210-7),
 the priority for assignment of non-housekeeping quarters has included
 geographical bachelors, and the record reflects that geographical
 bachelors resided in these quarters until their eviction on August 23,
 1985.  The Authority concludes, based on the facts set out above, which
 are not disputed by the Respondent, that the assignment of
 non-housekeeping quarters to the category of employees referred to as
 geographical bachelors constituted an established practice at DPG.
 
          B.  Is the Past Practice of Assigning Government-Owned
 
                On-Post, Non-Housekeeping Quarters to Geographical
 
                Bachelors a Condition of Employment?
 
    The Authority concludes for the reasons set forth below that the
 assignment of non-housekeeping quarters to geographic bachelors is a
 condition of employment within the meaning of section 7103(a)(14) of the
 Statute.  In our recent decision, Antilles Consolidated Education
 Association and Antilles Consolidated School System, 22 FLRA No. 23
 (1986), we described two basic considerations in deciding whether a
 particular proposal involved a condition of employment:  (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.  As to the second
 consideration, there must be a direct connection between the proposal
 and the work situation or employment relationship of bargaining unit
 employees.
 
    As to the first consideration, in this case it is undisputed that the
 practice of assigning non-housekeeping quarters to geographical
 bachelors involved bargaining unit employees.  Moreover, any bargaining
 unit employee meeting the definition of geographical bachelor was
 eligible.  Therefore, the established past practice pertains to
 bargaining unit employees.
 
    With respect to the second consideration, we conclude that the
 General Counsel has established a direct connection between the practice
 of assigning non-housekeeping quarters to geographical bachelors and
 their work situation or employment relationship.  The parties stipulated
 that government housing was constructed with the proviso that a portion
 be set aside for civilian use because of the remote location of DPG.
 The relative isolation and lack of available housing resulted in a
 significant impact on civilian employee recruitment and retention, and
 the potential availability of housing was used as a recruitment
 inducement.  Further, there was a financial benefit to residing in
 on-post housing because those employees had reduced daily commuting
 costs.  Moreover, there is a connection between hours of work and
 geographical bachelors' assignment to the housing because the
 geographical bachelors were permitted to work a four day week (ten hours
 per day) which increased the amount of time spent with their families.
 
    In sum, the practice of assigning non-housekeeping quarters to
 geographical bachelors pertains to bargaining unit employees and has a
 direct effect on the working conditions of those employees.  The
 practice constitutes a condition of employment of bargaining unit
 employees.
 
                              V.  Conclusion
 
    Having concluded that the practice of assigning government-owned,
 on-post, non-housekeeping quarters to geographical bachelors is a
 condition of employment, the Authority finds that Respondent's failure
 to bargain upon request with the Charging Party over its change
 constitutes a failure to bargain in good faith in violation of section
 7116(a)(1) and (5) of the Statute.
 
                                VI.  Remedy
 
    As noted above, the General Counsel requested, in addition to a cease
 and desist order, both status quo ante relief and a make whole order to
 reimburse those unit employees unlawfully affected by the eviction.  We
 conclude that status quo ante relief, limited to reinstitution of the
 practice of assigning single occupancy, non-housekeeping quarters to
 geographical bachelors, as supplemented by an order requiring the
 parties to negotiate and give retroactive effect to any agreement
 reached, will best effectuate the purposes and policies of the Statute.
 /2/
 
    In carrying out its statutory functions, the Authority has wide
 discretion to fashion remedies under section 7105(g)(3) and section
 7118(a)(7) of the Statute.  /3/ In this case, the General Counsel
 requests a status quo ante remedy that would require the eviction of any
 bona fide bachelor who replaced an evicted geographical bachelor.  Such
 a requirement would have an obvious disruptive effect on the agency's
 operations as well as on the employees involved, Further, the Respondent
 offered all of the evicted geographical bachelors alternative housing at
 DPG so none were actually foreclosed from continuing on the same work
 schedule.  In view of these facts, we conclude that displacement of any
 bona fide bachelor residing in the disputed quarters is unwarranted.
 
    While not ordering eviction of the bona fide bachelors to make room
 for geographical bachelors, we view as appropriate that affected
 employees be made whole for increased expenses resulting from the
 Respondent's improper action.  In our view, a determination of these
 expenses can best be made by ordering the Respondent, upon request, to
 negotiate with the Union with respect to the change in conditions of
 employment involved in this case.  Thereafter, Respondent shall make
 whole affected employees for their increased expenses suffered as a
 result of their eviction, consistent with applicable law and taking into
 account the agreement resulting from the negotiations we are ordering,
 applied retroactive to the date of the eviction.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, it is ordered that the Department of
 the Army, Dugway Proving Ground, Dugway, Utah, shall:
 
    1.  Cease and desist from:
 
    (a) Refusing to negotiate with the National Association of Government
 Employees, Local R14-62, the exclusive representative of certain of its
 employees, concerning a change in the practice of assigning
 government-owned, on-post, non-housekeeping quarters to geographical
 bachelors in the bargaining unit.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing its employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action in order to effectuate the
 purposes and policies of the Statute:
 
    (a) Reinstate the past practice of assigning government-owned,
 on-post, single occupancy, non-housekeeping quarters to geographical
 bachelors.
 
    (b) Make available to the evicted bargaining unit geographical
 bachelors any equivalent vacant non-housekeeping quarters.
 
    (c) Negotiate, upon request, over the change in conditions of
 employment which resulted in the unlawful eviction of bargaining unit
 geographical bachelors, and make them whole for their increased expenses
 suffered as a result of their eviction, consistent with applicable law
 and taking into account the agreement resulting from the negotiations
 the Authority is ordering, applied retroactive to the date of the
 eviction.
 
    (d) Negotiate in good faith, upon request, over any proposed change
 in the practice of assigning government-owned, on-post, non-housekeeping
 quarters to geographical bachelors in the bargaining unit represented
 exclusively by the National Association of Government Employees, Local
 R14-62.
 
    (e) Post at Dugway Proving Ground, Dugway, Utah, in all facilities
 where bargaining unit employees are located, copies of the attached
 notice on forms to be furnished by the Federal Labor Relations
 Authority.  Upon receipt of such forms, they shall be signed by the
 Commanding Officer, or a designee, and shall be posted and maintained
 for 60 consecutive days thereafter in conspicuous places, including all
 bulletin boards and other places where notices to employees are
 customarily posted.  Reasonable steps shall be taken to ensure that such
 notices are not altered, defaced, or covered by any other material.
 
    (f) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region VII, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply with it.
 
    Issued, Washington, D.C., October 14, 1986.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
    (1) The Respondent was referring to Army Regulation (AR) 210-11,
 Billeting Operations, which provided for quarters assignment priorities.
  For purposes of this case, the Respondent is not asserting that a
 compelling need exists for this regjlation.  Also, as noted previously,
 Respondent stipulated that (1) the Charging Party's membership on the Ad
 Hoc committee did not waive any right to bargain over the changes, and
 (2) collective bargaining did not occur at the committee meetings.
 
    (2) Reinstitution of the practice shall include making available to
 the evicted unit geographical bachelors any vacant equivalent quarters.
 
    (3) See, for example, the discussion in footnote 4 of Veterans
 Administration, Washington, D.C. and Veterans Administration Medical
 Center and Regional Office Center, Fargo, North Dakota, 22 FLRA No. 64
 (1986).
 
 
 
 
                                 APPENDIX
 
                          NOTICE TO ALL EMPLOYEES
 
  PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 RELATIONS
 AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
 OF TITLE
 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS
 WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT refuse to negotiate with the National Association of
 Government Employees, Local R14-62, the exclusive representative of
 certain of our employees, concerning a change in the practice of
 assigning government-owned, on-post, non-housekeeping quarters to
 geographical bachelors in the bargaining unit.
 
    WE WILL NOT in any like or related manner interfere with, restrain,
 or coerce our employees in the exercise of their rights assured by the
 Statute.
 
    WE WILL REINSTATE the past practice of assigning government-owned,
 on-post, single occupancy, non-housekeeping quarters to geographical
 bachelors.
 
    WE WILL make available to the evicted bargaining unit geographical
 bachelors any equivalent vacant non-housekeeping quarters.
 
    WE WILL negotiate, upon request, over the change in conditions of
 employment which resulted in the unlawful eviction of bargaining unit
 geographical bachelors and, make them whole for their increased expenses
 suffered as a result of their eviction, consistent with applicable law
 and taking into account the agreement resulting from the negotiations
 the Authority is ordering, applied retroactive