25:0832(68)NG - NAGE Local R5-177 and R5-82 and Navy -- 1987 FLRAdec NG



[ v25 p832 ]
25:0832(68)NG
The decision of the Authority follows:


 25 FLRA No. 68
 
 NATIONAL ASSOCIATION OF GOVERNMENT 
 EMPLOYEES, LOCAL R5-177 AND R5-82
 Union
 
 and
 
 DEPARTMENT OF THE NAVY
 Agency
 
                                            Case No. 0-NG-1127
 
              DECISION AND ORDER ON NEGOTIABILITY ISSUES /1/
 
                         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).  The appeal concerns
 the negotiability of the following proposal which seeks to provide life
 and health insurance for part-time, nonappropriated fund (NAF)
 employees.  We find the proposal negotiable.
 
                           Group Insurance Plan
 
          Section 1.  All regular employees working a regular schedule of
       at least 25 hours per week will be eligible for participation in
       the Insurance Program.
 
          Section 2.  It is the responsibility of the Employer to assure
       that the benefits are fully explained to each eligible employee.
 
          Section 3.  An Insurance Booklet will be distributed to each
       eligible employee immediately after hiring.
 
          Section 4.  All regular employees working a regular schedule of
       at least 25 hours per week will have the option to participate in
       the Exchange Insurance Plan or the NAGE Health Benefit Plan.  The
       Employer will pay the same amount for an employee toward the NAGE
       Health Benefit Plan as they would had the employee selected the
       Exchange Insurance Plan.
 
                       II.  Positions of the Parties
 
    The Agency contends that an insurance and health benefits program is
 not a condition of employment.  It argues that Congress intended to
 exclude such benefits from the definition of conditions of employment in
 the Statute.  It also argues that excluding certain NAF employees from
 enjoying some benefits is necessary to maintain a financially viable NAF
 system.  Derivatively, it claims that requiring negotiations over the
 proposal would not be interpreting the Statute in a manner consistent
 with the requirement of an effective and efficient government.
 
    The Union contends that the proposal involves conditions of
 employment.
 
                       III.  Conclusion and Analysis
 
    We find that the proposal is within the duty to bargain.
 
    In American Federation of Government Employees, AFL-CIO, Local 1897
 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA
 No. 41 (1986), appeal docketed sub nom. Department of the Air Force,
 Eglin Air Force Base, Florida v. FLRA, No. 87-3037 (11th Cir. Feb. 2,
 1987), we held that nothing in the Statute, or its legislative history,
 bars negotiation of proposals relating to pay and fringe benefits
 insofar as:  (1) the matters proposed are not specifically provided for
 by law and are within the discretion of the agency, and (2) the
 proposals are not otherwise inconsistent with law, Government-wide rule
 or regulation or an agency regulation for which a compelling need
 exists.  Based on that analytical framework, we held that the proposal
 in that case, which required the agency to pay up to 75 percent of the
 premium cost of health insurance for NAF employees, was within the duty
 to bargain.
 
    In American Federation of Government Employees, AFL-CIO, Local 997
 and Department of the Air Force, Maxwell Air Force Base, Alabama, 24
 FLRA No. 51 (1986), we held that a proposal requiring an employer to
 absorb 75 percent of the cost of life insurance, accidental death and
 dismemberment (AD&D) insurance, as well as health insurance, was within
 the duty to bargain.  We found that life insurance and AD&D insurance
 for NAF employees, like health insurance benefits, are matters not
 governed by Federal statute but by agency regulation.  Thus, we
 concluded, for the same reasons expressed in Eglin Air Force Base, that
 the proposal concerned a condition of employment.
 
    The present case, like Maxwell Air Force Base, involves life
 insurance and health insurance for NAF employees, which are matters not
 governed by law but by agency regulation.  The Agency acknowledges that
 life insurance and health benefits for NAF employees have never been
 provided pursuant to a Federal statute.  Agency brief at 6.
 
    The proposal in this case is not materially different from the one in
 Maxwell Air Force Base.  It too addresses employer contributions for
 life insurance and health insurance.  In addition, the proposal
 specifies which NAF employees will be eligible to participate in the
 Agency's insurance program and gives those employees the option of
 selecting the NAGE Health Benefit Plan or the Agency's insurance plan.
 The Agency makes no arguments based on this distinction that would
 warrant our reaching a different disposition than we reached in Maxwell
 Air Force Base, nor are there any apparent reasons for doing so.  In
 view of these materially identical circumstances, we conclude, for the
 same reasons expressed in Maxwell Air Force Base and Eglin Air Force
 Base, that the proposal concerns a condition of employment which is
 negotiable since it has not been shown to be inconsistent with
 applicable law and regulation.
 
    The Agency's claim that the proposal is inconsistent with a
 financially viable NAF system and with an effective, efficient
 government is unsupported in the record.  It provides no basis for
 finding the proposal nonnegotiable.
 
                                IV.  Order
 
    The Agency must bargain, upon request or as otherwise agreed to by
 the parties, over the proposal.  /2/
 
    Issued, Washington, D.C., February 20, 1987.
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Chairman Calhoun dissents for the reasons stated in his separate
 opinion.
 
    (2) In finding this proposal to be within the duty to bargain, the
 Authority makes no judgment as to its merits.
 
 
                  Dissenting Opinion of Chairman Calhoun
 
    I agree with the majority that the proposal in this case is not
 materially different from the one in dispute in American Federation of
 Government Employees, AFL-CIO, Local 997 and Department of the Air
 Force, Maxwell Air Force Base, Alabama, 24 FLRA No. 51 (1986).
 Therefore, for the reasons expressed in my dissenting opinions in
 Maxwell Air Force Base and American Federation of Government Employees,
 AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force
 Base, Florida, 24 FLRA No. 41 (198