23:0858(105)CA - Army, Fort Greely, AK and Army, 172d Infantry Brigade (Alaska), Fort Richardson, AK and Army HQ, Army Forces Command, Fort McPherson, GA and Army, The Pentagon, Washington, DC and AFGE Local 1949 -- 1986 FLRAdec CA



[ v23 p858 ]
23:0858(105)CA
The decision of the Authority follows:


 23 FLRA No. 105
 
 DEPARTMENT OF THE ARMY 
 FORT GREELY, ALASKA
 
 and
 
 DEPARTMENT OF THE ARMY 
 172d INFANTRY BRIGADE (ALASKA) 
 FORT RICHARDSON, ALASKA
 
 and
 
 DEPARTMENT OF THE ARMY 
 HEADQUARTERS, U.S. ARMY FORCES COMMAND 
 FORT McPHERSON, GEORGIA
 
 and
 
 DEPARTMENT OF THE ARMY 
 THE PENTAGON, WASHINGTON, D.C.
 Respondents
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1949, AFL-CIO
 Charging Party
 
                                            Case No. 9-CA-1204
 
                            DECISION AND ORDER
 
                         I.  Statement of the Case
 
    This unfair labor practice case is before the Authority in accordance
 with section 2429.1(a) of the Authority's Rules and Regulations, based
 on a stipulation of facts by the parties, who have agreed that no
 material issue of fact exists.  The Respondents and the General Counsel
 have filed briefs for the Authority's consideration.
 
    The second amended complaint alleges that the Respondents, Department
 of the Army, Fort Greely, Alaska (Ft. Greely);  Department of the Army,
 172d Infantry Brigade (Alaska), Fort Richardson, Alaska (Brigade);
 Department of the Army, Headquarters, U.S. Army ForcesCommand, Fort
 McPherson, Georgia (FORSCOM);  and Department of the Army, Washington,
 D.C. (Headquarters), violated section 7116(a)(1) and (5) of the Federal
 Service Labor-Management Relations Statute (the Statute) when commissary
 and post exchange privileges were unilaterally terminated effective
 September 1, 1981, for Ft. Greely civilian employees not residing on the
 installation, without providing the American Federation of Government
 Employees, Local 1949, AFL-CIO (the Union) with notice and an
 opportunity to bargain over the change in working conditions.
 
                              II.  Background
 
    The record indicates that Respondent's Ft. Greely, Brigade, and
 FORSCOM, respectively, report upward in the Army chain of command to
 Respondent Headquarters.  The Union is the exclusive representative of a
 bargaining unit which includes all general schedule (GS) and wage grade
 (WG) employees at Fort Greely.  The Union and Respondent Brigade have
 been parties to a collective bargaining agreement covering the
 bargaining unit at all times material herein.
 
    Bargaining unit civilian employees at Ft. Greely have not resided on
 the installation since the early 1970's.  Both GS and WG employees had
 received exchange privileges since the mid-1950's, and GS employees have
 had commissary privileges since December 1975.  As the Commander of Ft.
 Greely stated in a letter to Respondent Brigade in November 1979
 requesting a continuation of commissary and exchange privileges for
 civilian employees at Ft. Greely:
 
          On-Post privileges have been a historical part of the For6t
       Greely civilian workforce relationship.  In the past, tenant and
       garrison supervisors have routinely used the availability of
       privileges to encourage local and out-of-state civilians to accept
       employment at this geographically isolated location.  We have
       always experienced extreme difficulty filling our authorized
       civilian positions and loss of privileges would have significant
       impact on present and future hiring and morale.  The granting of
       civilian privileges at Fort Greely is one of the few incentives
       available to the Command to reduce the cultural-economic shock for
       career employees moving into the Delta Junction-Fort Greely area.
 
    By letter dated November 7, 1980, Respondent Ft. Greely again wrote
 to Respondent Brigade regarding the continuation of commissary and
 exchange privileges for civilian employees at Ft. Greely.  The letter
 indicated that the basic reasons for granting such priviledges still
 existed, but that there had been improvements in those areas.  Ft.
 Greely recommended that the civilian privileges should be continued on
 an interim basis, and that Brigade should undertake a comprehensive
 study of the need to continue authorizing such privileges.  Respondent
 Brigade's response indicated that a study of civilian commissary and
 exchange privileges at Ft. Greely would be undertaken, and that such
 privileges would be extended through June 30, 1981.  Brigade conducted
 the study during April and May 1981.  The Union was not notified,
 consulted or given an opportunity to negotiate about any aspect of this
 study.
 
    By letter dated June 6, 1981, Brigade directed Ft. Greely to withdraw
 commissary and post exchange privileges from all civilian employees at
 Ft. Greely on September 1, 1981, based upon the results of its study.
 Brigade's labor relations specialist gave a copy of the June 6 letter to
 the Union's president on June 17, indicating that the decision to
 withdraw privileges was nonnegotiable but that management would
 negotiate "impact and implementation."
 
    On August 3, 1981, the Union sent Brigade a request to bargain over
 the withdrawal of civilian privileges at Ft. Greely, stating that its
 position regarding the privileges was to maintain the status quo.  In
 its response, Brigade agreed to negotiate over the impact and procedures
 regarding the withdrawal of privileges.  On August 26, the Union met
 with representatives of Brigade and Ft. Greely to negotiate concerning
 the withdrawal of civilian privileges.  The Union sought to retain the
 privileges;  Ft. Greely stated that, based on higher level guidance from
 Respondent's FORSCOM and Headquarters, the decision to withdraw the
 privileges was nonnegotiable and that the privileges would be withdrawn
 on September 1, 1981.  By letter to the Union dated August 28, 1981, Ft.
 Greely confirmed management's oral statements of August 26 that the
 decision to withdraw privileges was nonnegotiable.  Specifically, the
 letter stated that Army regulations (AR 60-20 and 30-199) precluded
 negotiations over the substance of the decision to discontinue
 commissary and exchange privileges, and also that the Union had
 inordinately delayed its request to negotiate.  The letter also
 reiterated that the privileges would be withdrawn on September 1.  The
 privileges were in fact withdrawn on that date.
 
                      III.  Positions of the Parties
 
                            A.  The Respondents
 
                      1.  Commissary store privileges
 
    The Respondents contend that Department of Defense (DOD) Directive
 1330.17 (1978) -- which sets forth policies for the extension of
 commissary store privileges -- provides that such privileges will not be
 extended to civilian employees of the military services who do not
 reside within the military installations;  that deviations from this
 requirement are permitted only in cases of emergency and only until the
 emergency is terminated;  that while civilian employees at Ft. Greely
 had received commissary privileges from 1975 to 1981 even though they
 did not reside on the installation, such action was taken with
 Headquarters approval;  and that the decision to extend commissary
 privileges to these employees was reviewed by Headquarters on an annual
 basis.
 
                          2.  Exchange privileges
 
    The Respondents contend that there were no restrictions on granting
 exchange privileges to civilian employees prior to July 8, 1980, when
 DOD Directive 1330.9 -- which sets forth policies for the extension of
 exchange privileges -- was promulgated, and that Respondent Brigade
 therefore acted within its discretion in affording such privileges to
 civilian employees at Ft. Greely since the 1950s at Ft. Greely's
 request.  However, the Respondents assert that DOD Directive 1330.9
 superseded Army regulations (AR 60-20) which had authorized local
 commanders to grant exchange privileges to civilian employees when
 determined to be in the best interest of their command's mission;
 removed the authority of Brigade and Ft. Greely to grant such
 privileges;  and limited their discretion solely to requesting
 deviations through channels to Headquarters where necessary to alleviate
 personal hardships.  Since Brigade concluded on the basis of its study
 that no personal hardships existed at Ft. Greely which would justify a
 continued deviation, the Respondents assert that the privileges were
 properly withdrawn.
 
         3.  The duty to bargain over the withdrawal of privileges
 
    The Respondents further contend that the duty to bargain does not
 extend to matters which are the subject of a regulation issued by an
 agency (DOD) or a primary national subdivision (Headquarters) unless the
 Authority has determined under section 7117(b) of the Statute that no
 compelling need exists for the regulation or unless exclusive
 recognition exists at the agency or primary national subdivision level.
 Since neither exception applies here, the Respondents argue that there
 was no duty to bargain concerning the decision to withdraw commissary
 and exchange privileges but only a duty to bargain over the impact and
 implementation of that decision -- an offer which the Union rejected.
 
                          B.  The General Counsel
 
    The General Counsel contends that Brigade and Ft. Greely were acting
 as agents of FORSCOM and Headquarters when Brigade ordered the
 withdrawal of commissary and exchange privileges from civilian employees
 at Ft. Greely and Ft. Greely implemented that order.  The General
 Counsel maintains that these actions resulted in a unilateral change in
 conditions of employment without negotiating with the Union concerning
 the decision to make the change and therefore violated section
 7116(a)(1) and (5) of the Statute.  The General Counsel argues that
 commissary and exchange privileges are conditions of employment under
 section 7103(a)(14) of the Statute and past practice;  that DOD
 regulations do not preclude negotiations at the local level concerning
 such matters;  and that even if a conflict exists between DOD's
 regulations and the Union's proposal to continue the practice concerning
 commissary and exchange privileges, the Respondents failed to
 demonstrate a compelling need for the regulations.
 
    The General Counsel further contends that a status quo ante remedy is
 appropriate to cure the Respondents' unlawful conduct in this case since
 management failed and refused to meet the statutory duty to bargain over
 the decision to change negotiable conditions of employment.  As
 requested by the General Counsel, the remedy would require restoration
 of the privileges to unit employees at Ft. Greely and their
 reimbursement for any monetary losses suffered as a result of the
 unilateral revocation of commissary and exchange privileges.
 
                               IV.  Analysis
 
         A.  The Withdrawal of Commissary and Exchange Privileges
 
                from Uni Employees at Ft. Greely Affected their
 
                Conditions of Employment under Section 7103(a)(14) of
 
                the Statute
 
    The Respondents concede, and we find, that the withdrawal of
 commissary and exchange privileges from the unit employees at Ft. Greely
 affected their conditions 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 matter involves a condition of employment of
 bargaining unit employees:  (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.
 
    Applying the Antilles analysis to the matters at issue in this case,
 it is clear that the first consideration is satisfied.  The Union sought
 negotiations on the decision to withdraw existing privileges from
 employees it represents in a unit of exclusive recognition.
 
    With respect to the second consideration, we conclude that the
 General Counsel established a direct connection between the practice of
 granting commissary and exchange privileges to unit employees at Ft.
 Greely and their work situation or employment relationship.  The
 stipulated record in this case shows, as in Department of the Air Force,
 Eielson Air Force Base, Alaska, 23 FLRA No. 83 (1986), which also
 involved the withdrawal of similar privileges from civilian employees in
 Alaska, that the privileges had been continued for a long period of time
 as part of the Ft. Greely civilian workforce relationship;  were
 routinely used to encourage civilians to accept employment at that
 geographically isolated location;  and constituted one of the few
 incentives to ease the extreme difficulty in filling authorized civilian
 positions and to improve morale.  On this basis, we conclude that the
 matter of withdrawing commissary and exchange privileges from unit
 employees at Ft. Greely concerns conditions of employment under section
 7103(a)(14) of the Statute.  See also Department of the Army, Dugway
 Proving Ground, Dugway, Utah, 23 FLRA No. 80 (1986);  U.S. Department of
 Justice, U.S. Immigration and Naturalization Service, 14 FLRA 578
 (1984).
 
        B.  Respondent Brigade Had a Duty to Bargain with the Union
 
                Concerning the Decision to Withdraw the Privileges
 
    It is well-established that an agency has a duty under the Statute to
 negotiate with an exclusive representative of an appropriate unit of its
 employees at the level of exclusive recognition concerning conditions of
 employment affecting them, except as provided otherwise by Federal law,
 Government-wide rule or regulation, or agency regulations for which a
 compelling need exists.  Headquarters, Defense Logistics Agency,
 Washington, D.C., 22 FLRA No. 93 (1986);  Defense Contract
 Administration Services Region, Boston, Massachusetts, 15 FLRA 750
 (1984).  Since there is neither a bargaining relationship between the
 Union and either Respondents Headquarters or FORSCOM nor evidence that
 either Headquarters or FORSCOM interfered with the fulfillment of the
 bargaining obligation between the Respondent Brigade and the Union, we
 conclude that the complaint must be dismissed as to Respondents
 Headquarters and FORSCOM.  See Boston District Recruiting Command,
 Boston, Massachusetts, 15 FLRA 720 (1984).
 
    Since we have concluded that the withdrawal of commissary and
 exchange privileges from unit employees at Ft. Greely concerns
 conditions of employment, it follows that Respondent Brigade had a duty
 to bargain over its decision to do so except as provided by Federal law,
 Government-wide rule or regulation, or agency regulations for which a
 compelling need exists.  There is no contention that the Union's
 proposal to maintain the privileges in question is inconsistent with any
 Federal law or Government-wide regulation.
 
    With respect to internal agency regulations issued at the DOD or
 Headquarters level, the Respondents contend essentially that such
 regulations have not delegated control over the subject matter to
 management officials at the level of bargaining but have retained such
 authority at higher levels of the agency.  As we have previously held,
 however, an agency may not foreclose bargaining on an otherwise
 negotiable matter because authority has not been delegated to the level
 of exclusive recognition.  See, for example, the Antilles case cited
 above and Overseas Education Association, Inc. and Department of
 Defense, Office of Dependents Schools, 22 FLRA No. 34 (1986) (Union
 Proposal 5), petition for review filed, Overseas Education Association
 v. FLRA, No. 86-11491 (D.C. Cir. Sept. 3, 1986).  Under section
 7114(b)92) of the Statute, an agency is obligated to provide
 representatives at the level of bargaining who are authorized to
 negotiate and enter into agreements on all matters within the scope of
 bargaining, and this statutory obligation cannot be obviated by an
 agency's internal regulations.  See the Eielson case cited above and
 American Federation of Government Employees, AFL-CIO, Local 1409 and
 U.S. Army Adjutant General Publications Center, Baltimore, Maryland, 18
 FLRA No. 68 (1985).
 
    The Respondents' argument that there was no duty to bargain over
 commissary and exchange privileges because such matters are the subject
 of internal agency regulations and the Authority has not determined
 under section 7117(b) of the Statute that no compelling need exists for
 those regulations is also misplaced.  As we recently held under almost
 identical circumstances in Eielson, this argument is inapposite when the
 basis of the agency's argument concerns the delegation of authority
 rather than compelling need within the meaning of section 7117.  Even
 assuming that the argument were relevant, the Respondents' position is
 inconsistent with established Authority precedent.  In Defense Logistics
 Agency (Cameron Station, Virginia), 12 FLRA 412 (1983), affirmed sub
 nom. Defense Logistics Agency v. FLRA, 754 F.2d 1003 (D.C. Cir. 1985),
 the Authority held that compelling need determinations may appropriately
 be decided in an unfair labor practice proceeding.  We reaffirmed this
 conclusion with further reasoning in Aberdeen Proving Ground, Department
 of the Army, 21 FLRA No. 100 (1986), petition for review filed, Aberdeen
 Proving Ground, Department of the Army v. FLRA, No. 86-2577 (4th Cir.
 June 26, 1986).  But see United States Army Engineer Center v. FLRA, 762
 F.2d 409 (4th Cir. 1985), reversing U.S. Army Engineer Center and Fort
 Belvoir, 13 FLRA 707 (1984).
 
           C.  Respondent Brigade Failed to Fulfill Its Duty to
 
                Bargain
 
    It is undisputed that Respondent Brigade directed Ft. Greely to
 withdraw commissary and exchange privileges from unit employees at Ft.
 Greely and that such privileges were withdrawn on September 1, 1981.
 While Respondent Brigade gave the Union prior notice of its decision to
 withdraw the privileges in question, it consistently rejected the
 Union's request to negotiate over that decision.  Although Ft. Greely
 also refused to negotiate on the basis that it lacked authority, and
 actually implemented the withdrawal of privileges, we conclude that Ft.
 Greely was acting in a representative capacity for Respondent Brigade
 and that Ft. Greely's conduct is attributable to Respondent Brigade.
 See Boston District Recruiting Command, Boston, Massachusetts, 15 FLRA
 720, 724 (1984).  Accordingly, we shall dismiss the complaint as to
 Respondent Ft. Greely but conclude that Respondent Brigade violated
 section 7116(a)(1) and (5) of the Statute by unilaterally changing
 negotiable conditions of employment as alleged in the complaint.
 
                                V.  Remedy
 
    The Authority has previously determined that where management has
 made a unilateral change in a negotiable term and condition of
 employment, effectuation of the purposes and policies of the Statute
 requires imposition of status quo ante remedies, absent special
 circumstances, in order not to render meaningless the mutual obligation
 to negotiate.  Veterans Administration, West Los Angeles Medical Center,
 Los Angeles, California, 23 FLRA No. 37 (1986) (n.3 and accompanying
 text).  As the Respondents have neither alleged nor established that
 special circumstances exist so as to negate the immposition of such a
 remedy in this case, we conclude that a status quo ante remedy is
 warranted.  Accordingly, Respondent Brigade shall be ordered to
 reinstate the commissary and exchange privileges for civilian employees
 at Ft. Greely which existed prior to their withdrawal on September 1,
 1981.
 
    This remedy is consistent with our remedial order in Eielson, which
 involved virtually identical circumstances.  While the General Counsel
 did not request a "make whole" remedy in Eielson as requested here, we
 conclude that such a "make whole" order requiring Respondent Brigade to
 reimburse unit employees at Ft. Greely for monetary losses they may have
 suffered as a result of the withdrawal of privileges is speculative in
 nature and therefore inappropriate.  Accordingly, since it would not
 effectuate the purposes and policies of the Statute, the requested "make
 whole" order is denied.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, it is
 hereby ordered that the Department of the Army, 172d Infantry Brigade
 (Alaska), Fort Richardson, Alaska shall:
 
    1.  Cease and desist from:
 
    (a) Unilaterally changing established conditions of employment at Ft.
 Greely by terminating the commissary and exchange privileges for
 civilian employees not residing on the installation.
 
    (b) In any like or related manner interfering with, restraining, or
 coercing unit employees in the exercise of their rights assured by the
 Statute.
 
    2.  Take the following affirmative action:
 
    (a) Reinstate the commissary and exchange privileges for those
 civilian employees at Ft. Greely not residing on the installation which
 existed immediately prior to September 1981.
 
    (b) Notify and, upon request, negotiate with the American Federation
 of Government Employees, Local 1949, AFL-CIO, the exclusive
 representative of the employees at Ft. Greely, concerning any proposed
 change in commissary and exchange privileges or any other proposed
 change in their established conditions of employment.
 
    (c) Post at Ft. Greely 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 Brigade Commander and shall be
 posted and maintained for 60 consecutive days thereafter, in conspicuous
 places, including bulletin boards and other places at each office where
 notices to employees are customarily posted.  Reasonable steps shall be
 taken to insure that such Notices are not altered, defaced, or covered
 by any other material.
 
    (d) Pursuant to section 2423.30 of the Authority's Rules and
 Regulations, notify the Regional Director, Region IX, Federal Labor
 Relations Authority, in writing, within 30 days from the date of this
 Order, as to what steps have been taken to comply.
 
    IT IS FURTHER ORDERED that the complaint in Case No. 9-CA-1204,
 insofar as it alleges a violation of section 7116(a)(1) and (5) of the
 Statute by Respondent Department of the Army Headquarters, U.S. Army
 Forces Command, Fort McPherson, Georgia, and D