31:1013(83)CA - Air Force, Scott AFB, IL and NAGE Local R7-23, SEIU -- 1988 FLRAdec CA



[ v31 p1013 ]
31:1013(83)CA
The decision of the Authority follows:


31 FLRA No. 83

DEPARTMENT OF THE AIR FORCE,
SCOTT AIR FORCE BASE, ILLINOIS

     Respondent

     and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R7-23, SEIU, AFL-CIO

     Charging Party

Case No. 5-CA-60238

DECISION AND ORDER

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Respondent to the attached decision of the Administrative Law Judge.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by initiating the collection of a meal surcharge from bargaining unit employees in the Respondent's medical center dining facility without providing the Charging Party (the Union) with prior notice and an opportunity to bargain concerning the substance and/or impact and implementation of the collection of the surcharge. The Judge concluded that the Respondent's conduct violated the Statute as alleged.

For the reasons stated in our separate opinions, we conclude that the Respondent committed the unfair labor practice alleged in the complaint.

II. Background

The dispute concerns the rates charged for food at the dining facility of the medical center at Scott Air Force Base. The facility is an appropriated fund dining facility of the Department of Defense (DOD). The facility exists for the primary purpose of feeding patients (active duty [PAGE] military, retired military, and their dependents) and enlisted military personnel assigned to the medical center who are entitled to a daily ration or subsistence. Military officers and civilian employees are not entitled to a daily ration. When they are authorized to use an appropriated fund dining facility, they are charged for the food obtained from the facility. The rates charged are established under regulations issued pursuant to 37 U.S.C. 1011, which provides as follows:

1011. Mess operation: reimbursement of expenses

(a) The Secretary of Defense shall, by regulation, establish rates for meals sold at messes to officers, civilians, or enlisted members entitled to a per diem transportation allowance determined under section 404(d)(2) of this title. Such rates shall be established at a level sufficient to provide reimbursement of operating expenses and food costs to the appropriations concerned, but members of the uniformed services and civilians in a travel status receiving a per diem allowance in lieu of subsistence shall be charged at a rate of not less than $2.50 per day. (b) For the purposes of this section, payment for meals at the rates established under this section may be made in cash or, in the case of enlisted members or civilian employees, by deduction from pay. Members of organized nonprofit youth groups sponsored at either the national or local level, when extended the privilege of visiting a military installation or when residing at a military installation pursuant to an agreement in effect on June 30, 1986, and permitted to eat in the general mess by the commanding officer of the installation, shall pay the commuted ration cost of such meal or meals. (c) Spouses and dependent children of enlisted members in pay grades E-1, E-2, E-3, and E-4 may not be charged for meals sold at messes in excess of a level sufficient to cover food costs.

The rates established are two-tiered: (1) a basic food charge which covers the costs of food and (2) a surcharge which covers operating expenses. Based on provisions of law and regulation, some military officers and civilian employees who are authorized to use appropriated fund dining [ v31 p2 ] facilities are exempted from paying surcharges and are charged only basic food charges. For example, personnel on official duty and not on per diem are exempt from surcharges when an assignment necessitates eating in an appropriated fund dining facility. DOD sets the food charges and surcharges and specifies who is exempt from surcharges in DOD Manual 1338.10-M. The Department of the Air Force implements the charges and exemptions applicable to medical center appropriated fund dining facilities in Air Force Regulation (AFR) 168-7.

III. Facts

The Union is the exclusive representative of certain of the Respondent's employees, including employees of the Respondent's medical center. The Respondent and the Union are parties to a collective bargaining agreement.

From February 1980 to December 1982, all civilian employees of the medical center, except food service workers and other employees who were exempt, paid a food charge and a surcharge for food obtained from the dining facility. Beginning January 1, 1983, and continuing until March 16, 1986, bargaining unit employees assigned to the center paid only the basic food charge. The employees were not required to pay a meal surcharge.

On February 18, 1986, the Department of the Air Force issued a new version of AFR 168-7. The new regulation incorporated changes to DOD Manual 1338.10-M which restricted the personnel who are exempt from paying the meal surcharge. As a result of the new version of AFR 168-7, the Respondent initiated the collection of the surcharge from bargaining unit employees assigned to the medical center. The collection of the surcharge was initiated on March 17, 1986, without advance notice to the Union.

IV. Administrative Law Judge's Decision

The Judge found that the price of meals charged to bargaining unit employees in the appropriated fund dining facility concerns a condition of employment. Therefore, the Judge found that the Respondent had a duty to provide notice of and bargain with the Union over any change in the meal prices. The Judge also found that since 1983, the Respondent had not collected the surcharge from unit employees. The Judge concluded that charging bargaining unit employees only the basic food charge had become an established condition of employment through past practice. [ v31 p3 ]

The Judge rejected the Respondent's argument that the established practice was to charge whatever prices were directed by the Department of the Air Force. He also ruled that there was a duty to bargain on the decision to reinstitute the surcharge because the Respondent failed to establish that there was a compelling need for the regulations requiring the surcharge. Accordingly, the Judge concluded that the Respondent violated the Statute. He recommended that the Respondent be ordered to rescind the collection of the surcharge and afford the Union an opportunity to bargain concerning the substance and/or impact and implementation of the change in the collection of the surcharge.

V. Respondent's Exceptions

The Respondent contends that the Judge erred by failing to find a past practice of following Department of the Air Force directives. The Respondent also contends that compelling need determinations can not be resolved in an unfair labor practice proceeding.

Alternatively, the Respondent argues that a compelling need exists for DOD Manual 1338.10-M. However, the Respondent does not make specific compelling need arguments. The Respondent disagrees with the Authority's two prior decisions concerning surcharges, National Federation of Federal Employees, Local 1153 and U.S. Army, Seventh Signal Command and Fort Ritchie, Maryland, 26 FLRA 505 (1987) (Chairman Calhoun, dissenting) (Ft. Ritchie) and American Federation of Government Employees, AFL - CIO, Local 1622 and Department of the Army, Fort George G. Meade, 27 FLRA 11 (1987) (Chairman Calhoun, dissenting) (Ft. Meade). The Respondent argues that both cases should be overruled here.

VI. Analysis

A. Conditions of Employment and the Practice of the Parties

We agree with the Judge that the meal prices charged bargaining unit employees in the medical center's appropriated fund dining facility concern their conditions of employment. In Ft. Meade, 27 FLRA 11, 14, the Authority, with Chairman Calhoun concurring, held that when bargaining unit employees are granted access to a military appropriated fund dining facility, the price of the food charged the employees affects their working conditions and concerns [ v31 p 4 ] their conditions of employment. We find no reason in this case to depart from the holding on this point in Ft. Meade.

We also agree with the Judge's conclusion that the past practice of the parties was to charge bargaining unit employees only the basic food charge. Accordingly, we adopt the Judge's finding that charging bargaining unit employees only the basic food charge and not the surcharge was an established condition of employment as to which the Respondent had a duty to provide notice of and to bargain with the Union over any change.

B. Compelling Need

1. Whether compelling need determinations can be made as part of an unfair labor practice case

The view of the Authority consistently has been that allowing the resolution of compelling need issues in an unfair labor practice proceeding where the issue was raised as a defense to the unfair labor practice charge is supported by the Statute, its legislative history, and public policy. For example, Defense Logistics Agency (Cameron Station, Virginia), 12 FLRA 412 (1983); U.S. Army Engineer Center and Fort Belvoir, 13 FLRA 707 (1984); Aberdeen Proving Ground, Department of the Army, 21 FLRA 814 (1986).

Defense Logistics Agency, 12 FLRA 412, was affirmed by the U.S. Court of Appeals for the D.C. Circuit in Defense Logistics Agency v. FLRA, 754 F.2d 1002 (D.C. Cir. 1985). Both U.S. Army Engineer Center, 13 FLRA 707, and Aberdeen Proving Ground, 21 FLRA 814, were reversed by the U.S. Court of Appeals for the Fourth Circuit. U.S. Army Engineer Center v. FLRA, 762 F.2d 409 (4th Cir. 1985) ; Aberdeen Proving Ground, Department of the Army v. FLRA, No. 86-2577 (4th Cir. Jan. 28, 1987) (unreported summary reversal). Certiorari was granted by the U.S. Supreme Court on this issue in Aberdeen Proving Ground, 108 S. Ct. 64 (1987), and oral argument was recently held.

While the issue is pending before the U.S. Supreme Court, we will adhere to the Authority's position that compelling need determinations can be resolved in the context of an unfair labor practice proceeding. Furthermore, apart from this consideration, we note that in both Ft. Ritchie and Ft. Meade, the issue of whether there is a compelling need for DOD Manual 1338.10-M with respect [ v31 p 5 ] to meal surcharges was determined in accordance with section 2424.11 of the Authority's regulations in proceedings brought under section 7117(c) of the Statute.

2. Whether the Respondent established a compelling need for agency regulations

For the reasons set forth in our separate opinions, we conclude that DOD Manual 1338.10-M and AFR 168-7 do not bar negotiations over the Respondent's decision to collect the meal surchage from unit employees.

VII. Conclusion

Accordingly, we conclude that the Respondent violated section 7116 (a) (1) and (5) of the Statute when it reinstituted the collection from bargaining unit employees of a meal surcharge without providing the Union with prior notice and an opportunity to bargain over the change in such condition of employment.

VIII. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we order that the Department of the Air Force, Scott Air Force Base, Illinois, shall:

1. Cease and Desist from:

(a) Unilaterally instituting changes in working conditions by initiating the collection of a surcharge from bargaining unit employees for meals served by the medical center dining facility without providing notice to the National Association of Government Employees, Local R7-23, SEIU, AFL - CIO, the exclusive representative of certain of its employees, and affording it the opportunity to bargain concerning the change.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of rights assured by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Notify the National Association of Government Employees, Local R-7, SEIU, AFL - CIO, the exclusive representative of certain of its employees, in advance of any intended changes in the working conditions of bargaining [ v31 p6 ] unit employees concerning the initiation of surcharges for bargaining unit employees at the medical center dining facility and, upon request, negotiate with the exclusive representative concerning such proposed changes.

(b) Rescind the surcharge initiated on March 17, 1986, and collected thereafter for meals to bargaining unit employees at the medical center dining facility.

(c) Post at its Scott Air Force Base, Illinois, medical center dining facility 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 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.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region V, Federal Labor Relations Authority, Chicago, Illinois, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

Issued, Washington, D.C., March 25, 1988.

Jerry L. Calhoun,        Chairman

Jean McKee,                Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v31 p7 ]

SEPARATE OPINION OF CHAIRMAN CALHOUN

I am writing separately because contrary to Member McKee, I have held that proposals to exempt civilian employees from the payment of the meal surcharge at military appropriated fund dining facilities conflict with 37 U.S.C. 1011 and with DOD Manual 1338.10-M, a regulation for which I found a compelling need under section 2424.11(a) and (c) of our Regulations. In Ft. Ritchie, 26 FLRA at 513-14, I concluded that Congress had expressed a clear intention that appropriated funds not be used to provide meals to civilians. I noted that under section 1011(a), rates paid by civilians who purchase meals in an appropriated fund dining facility "shall be established at a level sufficient to provide reimbursement of operating expenses and food costs to the appropriations concerned." I found that the discretion of the Secretary of Defense was not subject to bargaining and concluded that the Union's proposal contravened the intent of Congress and was contrary to law.

I also found that the Union's proposal was inconsistent with DOD Manual 1338.10-M and implementing regulations of the Department of the Army. I concluded that the regulations were mandated by section 1011 and constituted a comprehensive world-wide scheme to assure recoupment of food costs and operating expenses. I found under the criterion of section 2424.11(a) that this scheme was essential to accomplish the Agency's mission. I also found under the criterion of section 2424.11(c) that the regulations are essentially nondiscretionary in nature in view of section 1011(a).

I reaffirmed these views in Ft. Meade, 27 FLRA at 17, and I reaffirm them today. Moreover, I believe recent court decisions support and reinforce my views on the Secretary's discretion and the compelling need standard to be applied in this fact situation.

I believe that the discretion granted the Secretary of Defense by section 1011 is to the same effect as the discretion granted the Department of the Navy by 5 U.S.C. 5348 in setting the pay rates for civilian mariners employed by the Military Sealift Command. In my dissenting opinion in National Maritime Union of America AFL - CIO and Department of the Navy, Military Sealift Command, 25 FLRA 105 (1987), I found that the administrative discretion granted to the Department of the Navy under section 5348 to set pay consistent with the public interest in accordance with the prevailing rates in the maritime industry was not bargainable. [ v31 p8 ]

In Department of the Navy, Military Sealift Command v. FLRA, Nos. 87-3179, 87-3276 (3d Cir. Jan. 12, 1988), the U.S. Court of Appeals for the Third Circuit reversed the Authority's decision. The court held that the Authority's decision was inconsistent with Congressional intent because it deprived the Navy of the discretion given by Congress. Id. at 18. In the view of the court, subjecting that discretion to collective bargaining would frustrate the Congressional scheme. Id. at 19-20, 28. Accord Department of the Treasury, Bureau of Engraving and Printing v. FLRA, No. 87-1192 (D.C. Cir. Feb. 16, 1988), reversing International Brotherhood of Electrical workers Local 121 and Department of the Treasury, 25 FLRA 1082 (1987) (court adopted the reasoning of the U.S. Court of Appeals for the Third Circuit in reversing the Authority's decision that a proposal concerning the setting of pay rates of electricians under a similar statutory provision was negotiable).

I believe that the Authority's decisions in Ft. Ritchie and Ft. Meade frustrate the Congressional mandate of section 1011 that the Secretary of Defense establish food rates at a level sufficient to reimburse both food costs and operating expenses. I believe the Authority's decisions ignore the intent of Congress by depriving the Secretary of the discretion essential to carry out the Congressional mandate.

These decisions are in contrast to the decision in National Treasury Employees Union and Family Support Administration, Department of Health and Human Services, 30 FLRA 677 (1987) (Proposals 3), which involved a proposal for the provision of day care services at no cost to the employees. Under the relevant statute, the agency may establish day care services and the charges for such services, but no appropriated funds may be used for such services. We found the proposal to be negotiable because the statute left the agency with discretion to determine the appropriate fees. In my view, Congressional intent was not frustrated if the agency was required to bargain to the extent of its discretion to charge employees different amounts or to charge some employees and not others. I view section 1011 quite differently. Substantial funds are appropriated by Congress for military dining facilities world-wide and these funds are prohibited from being used to provide meals to civilians. moreover, Congress has mandated that the Secretary of Defense establish fees sufficient to reimburse both food and operating costs. Unlike Family Support Administration, Congress has not merely left the Secretary of Defense with discretion to determine appropriate [ v31 p9 ] fees if meals are provided civilians at military appropriated fund dining facilities.

I also believe that my conclusions in Ft. Ritchie and Ft. Meade that there was a compelling need for DOD Manual 1338.10-M are supported by the decision in Department of Defense Dependent Schools, Fort Bragg, North Carolina v. FLRA, No. 87-8061 (4th Cir. Feb. 3, 1988) denying enforcement of American Federation of Government Employees, AFL - CIO, Local 1770 and U.S. Department of Defense Dependent Schools, Fort Bragg, North Carolina, 25 FLRA 1132 (1987). I dissented from the Authority's decision in DODDS, Ft. Bragg, which found that a salary proposal for certain school employees was negotiable. The Authority determined that the salaries were within the duty to bargain under 20 U.S.C. 241, pertaining to dependent schools, and that there was no compelling need for an agency regulation implementing section 241 by prescribing salary comparability with state public schools. The Authority concluded that there was no compelling need for the regulation because it did not reflect the nondiscretionary implementation of a mandate of Congress under the criterion of section 2424.11(c).

The court denied enforcement of the Authority's decision and held that the decision was contrary to section 241 and to the agency regulation for which there was a compelling need under section 2424.11(c). The court concluded that the regulation implemented the mandates of section 241 by prescribing salary schedules in order to achieve the requirements of Congress that the agency provide an education comparable both in quality and cost to state public schools. Slip op. at 11. In the view of the court:

Perhaps one could conceive of a less rigid way to ensure comparability and cost parity. Nevertheless, the regulations defining a compelling need do not require the school to use the least restrictive means of satisfying its congressional mandate. Tested by (section) 2424.11(c), the Army regulation is supported by a compelling need.

Id.

The majority position of the Authority on meal prices at military appropriated fund dining facilities is that proposals regarding meal surcharges are negotiable. As a member of the then majority, and consistent with this precedent, Member McKee finds that when the Respondent [ v31 p10 ] reinstituted the collection of the meal surcharge, the Respondent violated the Statute by not providing the Union with prior notice of the change and affording it an opportunity to bargain concerning the substance and the impact and implementation of the change.

There is currently a vacancy in the membership of the Authority. Until that vacancy is filled, the issuance of decisions requires agreement between Member McKee and me. I believe that it is vital to the parties that the Authority avoid impasse today. I am compelled to place these considerations before my personal adherence to a result my previous dissents and my reasoning in this case would dictate. See Public Service Commission v. Federal Power Commission, 543 F.2d 757, 777-78 (D.C. Cir. 1974).

Accordingly, in order to provide a disposition to this case, and consistent with the existing precedent of the Authority, especially in light of the fact that the Government did not appeal the Authority's decisions in either Ft. Ritchie or Ft. Meade, I join Member McKee in the Order in section VIII. of the Authority's decision. See Opinion of Justice Rutledge concurring in the result in Screws v. U.S., 325 U.S. 91, 113-34 (1945). If this action were not necessary to resolve this matter, I would find that the Respondent only violated section 7116(a)(1) and (5) of the Statute by not providing the Union with prior notice of the change in the collection of the meal surcharge and affording it an opportunity to bargain concerning the impact and implementation of the change.

Issued, Washington, D.C., March 25,1988.

Jerry L. Calhoun,        Chairman

FEDERAL LABOR RELATIONS AUTHORITY

[ v31 p11 ]

SEPARATE OPINION OF MEMBER McKEE

Chairman Calhoun and I differ over whether the Agency was obliged to bargain concerning the substance of its decision to reimpose a surcharge on the cost of food furnished to unit employees at its appropriate fund dining facilities. Our disagreement stems from differing interpretations of the legislative intent in enacting the applicable law, 37 U.S.C. 1101, and from our separate views on whether related Department of Defense (DOD) and Agency regulations requiring the surcharge on civilian employee food purchases are supported by a compelling need.

In my view, the holdings in Ft. Ritchie and Ft. Meade are dispositive of this dispute, the Respondent having failed to persuade me otherwise. In both of those cases, the Authority, with Chairman Calhoun dissenting, found negotiable proposals permitting authorized employees to patronize military appropriated fund dining facilities without paying a meal surcharge. In reaching that conclusion, the Authority examined the impact of applicable law, DOD, and agency regulations on the proposals. I note that the same agency was involved in those cases.

In the cited cases, the Authority determined that the rate to be charged to civilian employees at appropriated fund dining facilities was not a matter specifically provided for by Federal law. That is, the proposals were not excluded from the definition of "conditions of employment" by section 7103(a) (14)(C) of the Statute. The Authority noted particularly that, while requiring that the rates for food and service be set at a level which would recoup food and operating costs, the applicable statute, 37 U.S.C. 1011(a), leaves to the Secretary of Defense the discretion to set the specific rates, and does not require that the rates charged be uniform for all personnel authorized to use the facilities.

The Authority also rejected the agency's argument that finding the disputed proposals to be negotiable would frustrate the objective of 37 U.S.C. 1011. The agency argued that if similar proposals were offered by a large number of exclusive representatives within DOD, the statutory requirement that food and operating costs be recovered could not be fulfilled. But the Authority found that reasoning to be speculative, based on the assumptions that comparable proposals would be agreed to by management and that the resultant revenue losses could not be recovered in other ways. The Authority also observed that such arguments [ v31 p12 ] addressed the merits of the proposals, not their consistency with Federal law.

Although the Respondent in this case did not specifically assert any compelling need arguments, I consider it appropriate to reiterate and reaffirm the Authority's findings on that matter in Ft. Ritchie and Ft. Meade. In those cases the agency contended that its regulations and those of DOD met the compelling need criteria found at section 2424.11(a) and (c) of our Rules and Regulations. As to criterion (a), the agency argued that feeding its military personnel was essential to its basic mission of providing a military force. Therefore, controlling food costs was essential to effective and efficient accomplishment of its assigned mission. The agency's position was much the same as that purporting to show that the proposals were inconsistent with Federal law. If the proposals, it contended, were held to be negotiable, there would be a widespread offering of like proposals, resulting in huge and unavoidable losses. The Authority again rejected that argument, noting that such a hypothesis did not provide grounds for a compelling need finding. Additionally, the Authority found no demonstration by the agency that the disputed regulations were essential, rather than helpful and desirable, in accomplishing that aspect of its mission relating to feeding military personnel.

The agency's argument that the regulations met criterion (c) was a reassertion of its view that the underlying provision of law required employees using the dining facilities to pay the designated surcharge. Because of its finding that 37 U.S.C. 1011 did not mandate the imposition of any specified surcharge on all civilian employees, the Authority held that the regulations, requiring that a particular surcharge be collected from civilian employees generally, were not supported by a compelling need under criterion (c) because they did not implement a legislative mandate and, consequently, did not bar negotiations over the disputed proposals.

Therefore, for the reasons set forth in Ft. Ritchie and Ft. Meade, and restated here, I conclude that permitting a group of civilian employees to purchase food from a military appropriated fund dining facility without paying a meal surcharge is not inconsistent with 37 U.S.C. 1011. I also affirm the Judge's finding, which is consistent with the holdings in Ft. Ritchie and Ft. Meade, that no compelling need has been established for DOD Manual 1338.10-M and AFR [ v31 p13 ] 168-7, which implements the Manual for agency appropriated fund medical dining facilities. The regulations, therefore, do not relieve the agency of its obligation to negotiate over its decision to reimpose a surcharge on the price of meals charged to unit employees.

Issued, Washington, D.C., March 25, 1988.

Jean McKee,                Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v31 p14 ]

                    NOTICE TO ALL EMPLOYEES
     AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
             AND TO EFFECTUATE THE POLICIES OF THE
      FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
                 WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally institute changes in working conditions by initiating the collection of a surcharge from bargaining unit employees for meals served by the medical center dining facility without providing notice to the National Association of Government Employees, Local R7-23, SEIU, AFL - CIO, the exclusive representative of certain of our employees, and affording it the opportunity to bargain over the change.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of rights assured them by the Federal Service Labor - Management Relations Statute.

WE WILL notify the National Association of Government Employees, Local R-7, SEIU, AFL - CIO, the exclusive representative of certain of our employees, in advance of any intended changes in the working conditions of bargaining unit employees concerning the initiation of surcharges for bargaining unit employees at the medical center dining facility and, upon request, negotiate with the exclusive representative concerning such proposed changes.

WE WILL rescind the surcharge initiated on March 17, 1986, and collected thereafter for meals to bargaining unit employees at the medical center food service facility.

                               ____________________________
                                      (Activity)

Dated: ___________________ By: ____________________________
                                 (Signature)  (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region V, Federal Labor Relations Authority, whose address is: 175 West Jackson Blvd., Suite 1359-A, Chicago, Illinois 60604 and whose telephone number is: (312) 353-6306. [PAGE]

DEPARTMENT OF THE AIR FORCE
SCOTT AIR FORCE BASE, ILLINOIS

     Respondent

     and

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R7-23, SEIU, AFL-CIO

     Charging Party

Case No. 5-CA-60238

Lt. Col. Robert E. Sutemeier and
Mr. James Otzelberger
        For the Respondent

Mr. Carl L. Denton
        For the Charging Party

Sandra LeBold and
Rick Hampton, Esqs. (on Brief)
        For the General Counsel

Before: ELI NASH, JR.
        Administrative Law Judge

DECISION

Statement of the Case

This is a proceeding under the Federal Service Labor - Management Relations Statute, 92 Stat. 1191, 5 U.S.C. Section 7101, et seq. (herein called the Statute). It was instituted by the Regional Director of Region V based upon an unfair labor practice charge filed on April 25, 1986 by the National Association of Government Employees, Local R7-23, SEIU, AFL - CIO (herein called the Union), against the Department of the Air Force, Scott Air Force Base, Illinois (herein called the Respondent). The Complaint alleged, in essence, that Respondent violated section 7116(a)(1) and (5) of the Statute by initiating the collection of a surcharge [PAGE] From Bargaining unit employees in Respondent's Medical Center dining facility for meals served in the dining facility with-out providing advance notice and an opportunity to bargain concerning the substance and/or impact and implementation of the collection of the surcharge.

Respondent's Answer denied the commission of any unfair labor practices. It also asserted several affirmative defenses which are considered herein.

A hearing was held before the undersigned at Scott Air Force Base, Illinois at which the parties were represented by counsel and afforded full opportunity to adduce evidence and to call, examine, and cross-examine witnesses and to argue orally. Timely briefs were filed by the Respondent and the General Counsel and have been duly considered.

Upon consideration of the entire record in this case, including my observation of the witnesses and their demeanor, I make the following findings of fact, conclusions of law, and recommendation.

Findings of Fact

1. The Union, at all times material herein has been the exclusive representative of certain of Respondent's employees. Respondent and the Union also, at all times material herein, have been parties to a collective bargaining agreement.

2. The pertinent parts of the above-noted collective bargaining agreement are as follows:

Article III, Section 1: It is agreed and understood that matters appropriate for consultation or negotiation between the parties are personnel policies, practices and procedures related to working conditions which are within the discretion of the Employer, including but not limited to such matters as safety, training, labor-management cooperation, employee services, methods of adjusting grievances or appeals, granting of leave, promotion plans, demotion practices, application of pay practices, reduction-in-force practices and hours of work.

Section 2: The issuance, continuance, revision, or cancellation of rules and [ v31 p2 ] regulations governing matters not specifically covered by this Agreement are acknowledged functions of the Employer. However, in issuing, revising, or canceling rules and regulations relating to personnel policy, procedures, practices and matters of working conditions, the Employer will give due regard and consideration to the obligations imposed by this Agreement and the provisions of PL 95-454. The Employer agrees to negotiate with the union before implementing any changes of the rules and regulations referred to in this section.

Section 4: New or revised higher head-quarters regulations, directives and written policies that affect personnel policies, practices and matters affecting working conditions to bargaining unit employees will be provided the Union when they are received by the base Civilian Personnel Office. The Central Civilian Personnel Office will also provide the (U)nion a copy of new or revised base regulations, pamphlets or newsletters which address matters affecting the working conditions of unit employees.

3. In the past, notification of proposed changes in working conditions have been covered by Article VI, Section 1 of the Agreement which provides that: "...the Civilian Personnel Office will notify the Acting Chief Executive regarding matters of proposed changes to personnel policies, practices, or procedures affecting the working conditions of unit employees." Carl Denton, Union President, is the official designated to receive such notice.

4. Prior to March 1986, the charges to bargaining unit employees assigned to the Medical Center for eating lunch or dinner in the Medical Center dining facility was $1.45 and the charge for breakfast was $.70. Employees were required to pay only a Basic Food Charge for meals in the Medical Center dining facility, but were not required to pay a surcharge.

5. Of the approximate 165 bargaining unit civilian employees at the Medical Center, represented by the Union, 30 are food service workers who are exempt from paying the surcharge. Of the remaining 135, none are otherwise excepted under AFR 168-7, 18 February 1986, Rates For Hospitalization, [ v31 p3 ] Outpatient Treatment, and Subsistence In Air Force Medical Facilities, (herein called AFR 168-7) from paying the surcharge. Additionally, of those 135 employees, only seven are required to physically remain in the hospital during their entire tour of duty and that is only when they work the night shift. The hospital dining facility would only be open then for a few minutes near the end of their shift. All other civilian employees receive 45 minute lunch breaks and are free to leave the hospital for meals.

6. 10 U.S.C. 9561 provides that enlisted members, of the Air Force are entitled to be issued a daily ration. 1 Pursuant to this charge, the Department of Defense (herein called DOD) maintains appropriated fund dining facilities throughout the military services. The instant Medical Center dining facility is one such appropriated fund dining facility. The primary function of that messing facility of course is to feed patients (active duty military, retired military, and their dependents) and those enlisted personnel assigned to the Medical Center who are entitled to subsistence.

7. Officers of the military services and civilian employees are not entitled to a daily ration and, therefore, may only be authorized to eat in an appropriated fund facility on a reimbursable basis. This policy has been recognized and approved by the Congress over a lengthy period of time. Respondent represents Section 625 of the General Appropriations Act for 1951 provides as follows:

No appropriation contained in this chapter shall be available for expenses of operation of messes (other than organized messes which are financed principally from non-appropriated funds) at which meals are sold to officers or civilians except under regulations approved by the Secretary of Defense, which shall (except under unusual or extraordinary circumstances) establish rates for such meals sufficient to provide reimbursement of operating expenses and food costs to [ v31 p4 ] the appropriations concerned: Provided, that, for the purposes of this section, payments for meals at the rates established hereunder may be made in cash or by deductions from the pay of civilian employees.

Act of September 6, 1950, Pub. L. No. 81-759, 1950, U.S. Code Cong. and Ad. News (64 Stat.) 675, 817. This provision, with minor changes, has allegedly been included in all Defense Appropriation Acts through 1980. 2

8. In 1980, essentially similar language was enacted as permanent legislation in the Defense Officer Personnel Management Act, Public Law 96-513, Title VI, Section 413, 94 Stat. 2906, codified at 37 U.S.C. 1011(a). That section states:

(a) The secretary of Defense shall, by regulation, establish rates for meals sold at messes to officers, civilians, or enlisted members entitled to a per diem transportation allowance determined under section 404(d)(2) of this title. Such rates shall be established at a level sufficient to provide reimbursement of operating expenses and food costs to the appropriations concerned, but members of the uniformed services and civilians in a travel status receiving a per diem allowance in lieu of subsistence shall be charged at a rate of not less than $2.50 per day.

9. The DOD discharges its statutory responsibilities listed above through the Department of Defense Manual 1338.10-M, entitled Manual for the Department of Defense Food Service Program (herein called the Manual). The Manual is binding and mandatory on all of the military services. [ v31 p5 ]

The current edition of the Manual was published in November 1978. Since that time, it has been updated through the use of Official Changes. 3 Chapter VII of the Manual deals with the financial aspects of the DOD Food Service Program, including food charges, surcharges and exemptions from surcharges. The responsibility for Chapter VII is under the Assistant Secretary of Defense (Comptroller) (herein called ASD(C)).

10. The Air Force implements the financial provisions of the Manual, as applicable to Medical Center Dining Facilities, through AFR 168-7. There are two editions of this regulation which Respondent contends are material to the issues of this case, one dated October 24, 1979 and the current edition dated February 18, 1986. This regulation is written by the Office of the Air Force Surgeon General. Surcharge exemptions are discussed in paragraphs 3 and 5, respectively, of the two regulations.

11. Since October of 1981, only civilian employees actually assigned to the Respondent's Medical Center have been allowed to patronize the dining facility. AFR 168-4, Chapter 11, para. 11-18c. as read by Respondent, restricts patronage to such employees at the discretion of the Hospital Commander. If there is ample space and the staff is adequate, the Commander may allow civilian employees of the Medical Center access to the dining facility.

12. Payment for meals at Respondent's Medical Center dining facility is, and has been at all times material herein, made in the following manner:

(a) During meal hours, all patrons must pass by a cashier before proceeding to the food line.

(b) The cashier identifies diners into two basic categories: (1) enlisted personnel allowed to subsist, i.e., entitled to a ration, at government expense; and (2) persons (officers, civilians, others, etc.) paying cash for meals. [ v31 p 6 ]

(c) Enlisted personnel present a Meal Card, sign their name, and proceed through the line.

(d) All others pay cash, which includes a basic food charge plus a surcharge, unless they are exempted. They must also sign the Cash Meal Log.

13. Food charges and surcharges for all the Services are set by DOD in Chapter VII of the Manual and the Appendix thereto, The Air Force implements these charges through AFR 168-7. 4 There is allegedly no discretion by any of the Services, or at a local installation, as to the amount of either the basic food charge or the surcharge.

14. A surcharge is:

A charge established to comply with statutory requirements to recover operating expenses in appropriated fund food service activities from officer and civilian personnel authorized meals on a reimbursable basis and from all officers, civilians, and enlisted personnel when authorized the subsistence per diem allowance.

While the food charge covers the basic cost of the food, the surcharge covers overhead, supplies, labor and all of the other costs to prepare meals for those not entitled to a ration. Historically food charge and surcharge rates generally change once or twice a year. DOD changes the charges based on an increase or decrease in food costs and/or an increase in military pay and subsistence. 5

15. At Respondent's Medical Center dining facility, the food charge and surcharge rate increases (or decreases) would be received by message from the Office of the Air Force Surgeon General. According to Respondent, the dining [ v31 p7 ] facility would then implement those changes immediately and without notification or negotiation with the Union. Notwithstanding the above, there is no evidence of any changes in price at Respondent's facility since 1983.

16. Heretofore, when Respondent's dining facility Hospital Commanders have determined that space and staff within the dining facility was adequate, civilian hospital employees have been allowed to patronize the dining facility. Between February 1980 and December of 1982, all civilian hospital employees, unless otherwise exempt, who chose to eat in the dining facility, paid a food charge plus a surcharge. 6

17. Sometime around January 1, 1983, DOD eliminated the "two-tier" surcharge in favor of a single surcharge system whereby anyone required to pay a surcharge would pay the same amount. 7 This change also established new rates for food charges and surcharges and slightly modified certain exemptions from the surcharge. The changes were incorporated into "Change 6" of the Manual. 8 Chapter VII provided for exemption from the surcharge (for personnel on official duty) "when an assignment necessitates eating in an appropriated fund food service activity."

18. The Air Force implemented DOD "Change 6" to the Manual by way of a Surgeon General message to the field dated December 30, 1982. Paragraph 2 of that message interpreted the "assignment necessitates" exemption "to include civilian and officer members of the medical staff for meals served during their tour of duty." The message also advised Hospital Commanders not to charge civilians and officers on the medical staff any surcharge until further notice. Respondent complied with the message and ceased collection [ v31 p8 ] of the surcharge on January 1, 1983. DOD and specifically ASD(C), had no notice of this message, nor did they coordinate on it. Respondent alleged in its brief that the Air Force's action in ceasing collection of the surcharge at the time was improper, and its interpretation of the "assignment necessitates" clause was both erroneous and overly broad. 9

19. On or about January 26, 1984, the Air Force Surgeon General's Office issued another message pertaining to surcharge exemptions. It noted that even the Air Force would not support automatic exemption of the surcharge for all civilian and officer members of the medical staff under the "assignment necessitates" clause, because such an interpretation would "create an inequity for other officers and civilian employees on base who are required to pay the surcharge when using a government dining facility." The message further advised that it would be proper, under the "assignment necessitates" clause of the Manual, to "exempt from the surcharge those hospital personnel and volunteers whose duties involve direct patient care support." The message does not mention any illegality attached to not collecting the surcharge. Respondent interpreted "direct patient care support" to include all officer and civilian personnel of the hospital. Accordingly, it continued to excuse payment of the surcharge. Apparently neither the message nor the Respondent's interpretation was in compliance with the Manual and its policy for hospital personnel exemptions.

20. Sometime in late 1983 or early 1984, ASD(C) received a request from the Army to examine surcharge collections inasmuch as it appeared to the Army that the Services had divergent policies on the payment of surcharges by hospital personnel for meals consumed in medical treatment dining facilities. ASD(C) requested the DOD Inspector General to look into the situation. The DOD/IG Report, dated January 15, 19B5, showed that the Services did, in fact, have differing policies and procedures concerning meal surcharge exemptions for officer and civilian personnel assigned to medical treatment facilities. The Report recommended that ASD(C) revise Chapter VII of the Manual to "specify who is [ v31 p9 ] exempt from paying the surcharge ... by identifying the duty assignments that necessitate personnel to remain in their duty areas and take meals in such facilities." Based on that Report, ASD(C) organized a "working group," including members from each of the staffs of the Service Surgeon Generals, to study the matter. In May of 1986, a new change to Chapter VII of the Manual was issued. Specifically, in paragraph C.3., the change stated that "(E)xemptions are to be applied strictly and consistently. Other exemptions are not permitted, unless approved by the ASD(C)." In explaining the "assignment necessitates" exemption for hospital personnel, the change provided:

(h) When no other feeding facility is available and the nature of the individual Is duty assignment, as a matter of mission essentiality, requires his or her immediate availability thereby precluding the individual from eating except in the appropriated fund dining facility. For medical facilities, this specifically refers to the Medical Officer(s) of the Day (MOD) and Administrative Officer(s) of the Day (AOD).

21. Based on the Manual Change, the Air Force issued a new version of AFR 168-7, dated February 18, 1986. 10 Paragraph 5.h.(10) of the new Air Force Regulation restates the Manual policy as contained in para. C.3.(h).

22. In early March 1986, Joan Lucher, a bargaining unit employee assigned to Respondent Medical Center, discovered that the dining facility was soon to start collecting a surcharge for meals from civilian employees assigned to the Medical Center. Lucher first learned of the collection of this surcharge on Thursday prior to its implementation, somewhat by accident, when she happened to be in the Medical Center accounting office as a fellow employee said, she had just received a telephone call from a Colonel Johnson stating that the price of one meal was to be raised from $1.45 to $3.60. That same afternoon, Lucher's supervisor, Captain [ v31 p10 ] Jacoboski, also mentioned that a surcharge for the meal was to be made and that the price was going up to $3.60 on the following Monday.

23. On Monday, as stated, Respondent initiated the collection of the surcharge from bargaining unit employees assigned to the Medical Center. It is uncontroverted that Respondent provided no advance notice of this change to the Union.

On the following Tuesday, Lucher informed the Union President, Carl Denton, about the surcharge. Denton told Lucher that he did not know anything about the change, but that he would look into it.

24. Denton proceeded to the call Respondent's Civilian Personnel Office (hereinafter called CPO) and advised them of what had transpired. Denton followed the telephone call with a hand-delivered letter dated March 21, 1986 to Mr. R. F. Stevenson, Civilian Personnel Officer. In that letter Denton charged Respondent with violating the Statute by changing the price of meals for bargaining unit employees entitled to eat at the Medical Center dining facility effective on or about March 17, 1986. As a remedy, Denton requested that Respondent reinstate the status quo and refund employees the difference in prices paid. He requested negotiation over the substance, implementation and impact of any proposal to raise the price of meals or change in policy relative to the price of food for bargaining unit employees.

25. On April 4, 1986, Denton received a response to his letter from James Otzelberger, Acting Chief, Personnel Management Section, Civilian Personnel Branch, who informed Denton that, "Attachment 1, received by the Medical Center on March 13, 1986, reflects the applicable regulation, AFR 168-7, which generated the price changes. Normally, price changes are implemented upon receipt of a message or regulatory guideline as evidenced by HQ USAF/SG HC message 2619002 Dec 85 (atch 2), which authorized reduced prices". Otzelberger further stated, "While we are not willing to reinstate the status quo nor refund any difference in prices paid by bargaining unit employees, we are willing to meet and discuss with you any impact and implementation proposals you may have."

26. On April 21, 1986, Denton hand-delivered Union proposals to Respondent concerning the change. Sometime later, Denton met with Otzelberger and Loren Donoho, Cook Foreman, to discuss the Union's proposals. Otzelberger told [ v31 p 11 ] Denton that a Union proposal concerning "...employees be allowed to continue eating in the Medical Center at the old price structure pending the outcome of negotiations" was completely out of the question. The only reason that Otzelberger gave for this position was that his "hands were tied" by the AFR 168-7. Denton then asked Otzelberger to declare this substantive proposal non-negotiable. Otzelberger said he was not prepared to declare it non-negotiable. Neither Otzelberger nor Mr. Donoho claimed at that time AFR 168-7 was a regulation for which there was a compelling need and neither made any arguments in support of such a compelling need.

27. There are five dining facilities on Respondent's grounds other than the Medical Center facility open to civilian employees. Further, there are several commercial eating establishments within a 10-minute drive from the base, and numerous restaurants within a 15-minute drive.

Issue

The issue is whether the Respondent violated section 7116(a)(1) and (5) of the Statute by changing a condition of employment, by initiating collection of a surcharge at the Medical Center dining facility, without affording the Union notice and an opportunity to bargain concerning the substance and/or impact and implementation of that change.

Discussion and Conclusions

Initially, Respondent argues that collection of the surcharge added to the cost of the food served to bargaining unit employees in the appropriated fund dining facility, to reimburse the government for operating expenses, does not concern a condition of employment, therefore, Respondent had no duty to provide notice to and bargain with the Union.

With regard to this position, and others raised by Respondent concerning the surcharge not being a condition of employment, Authority decisions indicate otherwise. See for example, American Federation of Government Employees, AFL - CIO, Local 2670 and Army and Air Force Exchange Service, Keesler Air Force Base Exchange, Mississippi, and American Federation of Government Employees, AFL - CIO, Local 1504 and Departments of the Army and Air Force, Army and Air Force Exchange Service, Northwest Area Exchange, Ft. Lewis, Washington, 10 FLRA No. 19, 10 FLRA 71 (1982). In that case, the Authority found Union proposals which increased the value of the free meals provided to employees within the duty to [ v31 p12 ] bargain. Such a finding clearly indicates that it considers that a duty to negotiate exists with respect to the value of meals served even where providing such meals would result in increased costs to the agency. In short, such meals and their costs have not been spared from bargaining. Similarly, in Veterans Administration Medical Center, Bath, New York and Veterans Administration, Washington, D.C., 12 FLRA No. 107, 12 FLRA 552, 568 the Authority found that the elimination of a free meal to certain employees was violative of the Statute. Furthermore, the Authority in that case found that the Union had a right to bargain not only on the impact and implementation of the change, but that it had a right to bargain fully on the subject. Faced with these cases, it becomes clear that the Authority considers meals, meal prices and their availability, as are the subject of this matter, to be a condition of employment requiring bargaining. 11 [ v31 p13 ] Consequently, Respondent's arguments that a condition of employment has not been established must be rejected.

Respondent also contends that no condition of employment has been established by past practice in this case. Clearly, however, bargaining unit employees while on duty had not been required to pay a surcharge for meals at the Medical Center dining facility for over three years. The elimination of that indirect meal subsidy by requiring payment is a change in what employees were required to pay for such meals in the past. Furthermore, employees who do not pay the surcharge are not allowed to "brown bag" or bring their own lunch into a facility which had previously been used by them not only to purchase meals, but to sit and comfortably eat those meals. Thus, aside from the price increase for meals, another condition of employment exists since bargaining unit employees who chose not to pay the surcharge are not allowed to use the dining facility and are now required to seek other places to eat their meals while at work.

Respondent argues that there was no past practice other than to receive Air Force direction, either by message or regulation, and then implement locally without notice or negotiation with the Union. According to Respondent, not paying the surcharge was illegal, and once the illegality was noticed it was stopped. 12 This argument not only does not establish that not paying the surcharge was illegal, but it misses the point. If anything, it establishes that Respondent eliminated the surcharge in 1983 without notice or bargaining. However, to reinstitute the charge some three years later, once it is established practice relied on by Medical Center employees and established as a practice of both supplying cheaper meals and allowing use of the dining facility, it can be discontinued only by notice and bargaining. Respondent's argument therefore, does not meet the requirements of establishing a contrary past practice as Respondent argues, nor does it relieve Respondent of the obligation to provide advance notice and the opportunity to bargain over this substantively negotiable subject.

Respondent also asserts that even if the collection of the surcharge is deemed to be a condition of employment, it [ v31 p14 ] had no duty to bargain about the decision to discontinue it because such bargaining would be inconsistent with agency and primary national subdivision regulations for which there is a compelling need. The regulations referred to by Respondent are the Manual and AFR 168-7.

The Authority has held that processing of a "compelling need" allegation as part of a unilateral change unfair labor practice case in which such an allegation of non-negotiability arises as an affirmative defense is appropriate. See Aberdeen Proving Ground, Department of the Army, 21 FLRA No. 100 21 FLRA 814 (1986). However, Respondent bears the burden of establishing any such compelling need defense in accordance with established criteria.

Section 2424.11 of the Authority's regulations provide that there is a compelling need for an agency or primary national regulation if one or more of the following illustrative criteria is met:

(a) The rule or regulation is essential, as distinguished from helpful or desirable, to the accomplishment of the mission or the execution of functions of the agency or primary national subdivision in a manner which is consistent with the requirements of an effective and efficient government.

(b) The rule or regulation is necessary to insure the maintenance of basic merit principles.

(c) The rule or regulation implements a mandate to the agency or primary national subdivision under law or other outside authority, which implementation is essentially nondiscretionary in nature.

Respondent maintains that the regulations in question meet (a) and (c) of the Authority's listed criteria and that a compelling need exists under section 7117(a)(2) of the Statute.

Thus, it contends that the mission of the DOD is the defense of the United States and that the Air Force plays a vital role within the overall DOD mission. In order to accomplish that mission, DOD and the Department of the Air Force must be able to field a military force properly [ v31 p15 ] trained, equipped, and supported. Inherent in this task is the need to feed the military personnel who make up the system that the DOD has established to feed its people. Respondent does not seriously contend that it could not accomplish its national defense mission at all if it could not impose the surcharge in question; however, that fact alone, does not dispose of the compelling need question. The Authority's criterion provides that there is a compelling need for an agency regulation if it is essential to the accomplishment of the agency's mission in a manner consistent with the requirements of an efficient and effective Government. Respondent therefore is asserting that DOD cannot efficiently and effectively accomplish its mission if it cannot regulate the recovery of substantial costs for which the Congress has expressly declined to appropriate funds. Those cost according to Respondent are far from de minimis. 13 In fiscal year 1985 alone, $18,000,000.00 in surcharges were collected by the Services, including almost [ v31 p16 ] $13,000,000.00 by the Air Force. Since no surcharges were collected by Respondent during the preceding three years it is difficult to see how the potentially small surcharge collected from its dining facility prior to bargaining would be significant or preclude it from acting efficiently or effectively.

Respondent contends that if DOD could not promulgate regulations which allow it to recover these large sums from dining facility patrons, it would be forced to make up this loss from funds appropriated for other purposes. This it says would violate the law. Furthermore, Respondent maintains, even if that were not the case, such a situation could hardly be viewed as efficient and effective accomplishment of DOD or the Air Force's mission, nor would such a construction of the law be consistent with the requirement of 5 U.S.C. 7101(b) that the Statute be interpreted in a manner consistent with an effective and efficient Government. Consequently, the first of the Authority's compelling need criteria, according to Respondent, is satisfied by the regulations at issue. AFR 168-7 however, in attachment 3 provides for splitting surcharges for meals evenly between 3400 Medical facility dining halls, apparently anticipating different surcharges in different facilities. In any event, the record does not demonstrate any substantial costs commanding Respondent to implement the surcharge prior to meeting its bargaining obligation with the Union.

While Respondent asserts that AFR 168-7 is essential to the accomplishment of the mission or the execution of functions of the Department of the Air Force or DOD in a manner which was consistent with the requirements of an effective and efficient government it fails, in my opinion, to meet its burden of demonstrating that the regulations are essential as distinguished from helpful or desirable. Lexington Blue Grass, Army Depot, Lexington, Kentucky, 24 FLRA No. 6, 24 FLRA 50 (1986); International Federation of Professional and Technical Engineers, Local 12, 24 FLRA No. 24, FLRA 178 (1986); Department of the Interior, Washington, D.C., 25 FLRA No. 6, 25 FLRA 91 (1987); Respondent's evidence concerning compelling need must, therefore, be examined. Respondent's witness Gary W. Amlin testified that if local unions could bargain over the applicability of the surcharge or the amount of the surcharge "If they did, the only thing I could think of, you would have some people at one location paying different prices than people at other locations. So there would be some possible unfairness or difference in rates, certainly, when you go from location to location, if you could do that". It is [ v31 p17 ] again noted that the regulation itself implicitly acknowledges that this could happen and provides for a splitting of the surcharge among some 3400 facilities.

Although Respondent specifically identifies the relevancy of this testimony as part of its compelling need defense, it failed to establish any nexus between this testimony and any criteria of compelling need. In fact, Amlin also testified that the "real issue" was that the surcharge was mandated by law for people not specifically exempted, not that the Air Force or DOD needed the money. Further, Amlin admitted, in fact, that the $13,000,000.00, the amount reportedly collected by the Air Force in surcharges in its dining facilities for FY 85, was not going to make or break DOD and that as evidenced over the previous three years, Respondent had no difficulty and indeed could operate very successfully without the surcharge being collected at Respondent's facility.

Respondent, in my view, failed to demonstrate, and Amlin's testimony has precluded it from arguing, that any exemption covering bargaining unit employees assigned to the Medical Center by AFR 168-7 is essential to the accomplishment of the mission or the execution of the function of the Air Force or DOD in a manner which is consistent with the requirements of an effective and efficient government. Further, Amlin's testimony restricts Respondent's basis for a compelling need argument to the contention that AFR 168-7 implemented a mandate of the Air Force or DOD under law or other outside authority with respect to the exemption of bargaining unit employees assigned to the Medical Center from paying the surcharge, which implementation was essentially nondiscretionary in nature.

AFR 168-7 does not appear to implement a mandate of the Air Force or DOD under law or outside authority with respect to the exemption of bargaining unit employees assigned to the Medical Center from paying the surcharge. Besides that implementation of the suggested mandate upon which Respondent bases its defense appears to be discretionary in nature. Amlin testified that DOD mandated that a surcharge be collected from civilian employees and officers to eat in appropriated fund facilities because it is required by law that they do so. He also specifically identified the sources of this mandate under law as the appropriations bills of DOD which he claims prohibit DOD from using appropriated money to provide food service to other than enlisted members of the military departments, except in unusual or special situations and 37 U.S.C. 1011. Specifically [ v31 p18 ] Amlin identified the language of 37 U.S.C. 1011 upon which he relied as follows: "Such rates shall be established at a level sufficient to provide reimbursement of operating expenses and food costs to the appropriations concerned..." as the source of this mandate under law.

The elimination of the exemption for bargaining unit employees assigned to the Medical Center was based not on any exemption contained in AFR 168-7, but rather, the language of the manual, as conveyed by the "message" of December 1982 and January 1984. Therefore, a past practice of not paying a surcharge existed independently of AFR 168-7, on the basis of the Manual, which was unchanged at the time Respondent implemented the instant surcharge. Subsequent changes in the Manual are thus, irrelevant to this case. The coexistence of the past practice with AFR 168-7 clearly shows the discretionary nature of the mandate of the Secretary of Defense and, in turn, of the Air Force. Thus, while the requirements for payment of surcharges was clearly on the books, its payment was suspended for at least three years. In all the circumstances, it must be concluded that Respondent has not met its burden of demonstrating that its regulations concerning levying of surcharges for meals served in Medical Center dining facilities were essential as distinguished from helpful or desirable, to effectively and efficiently accomplish its mission and, thus has not established under the requirements set forth in section 2424.11(a) of the Rules and Regulations that a compelling need exists.

Respondent's argument that the regulations at issue were promulgated to satisfy the mandate of 37 U.S.C. 1011(a) that the Secretary of Defense establish rates for meals sold at messes to officers, civilians, or enlisted members entitled to a per diem allowance at a level sufficient to provide reimbursement of operating expenses and food costs to the appropriations concerned also must be rejected. Clearly, the law allows the Secretary of Defense some limited discretion as to how to establish rates or surcharges. According to Respondent, however, it allows him no discretion at all not to establish them. Consequently, to the extent that the regulations at issue merely establish rates as required by the law, they are a nondiscretionay implementation of a statutory mandate. Under this theory, while it might be argued that the Secretary has discretion to make exceptions to the rate structure, it was not established on the record that any basis existed for doing so in this case. According to Respondent, the specific regulatory provisions with which any substantive proposals [ v31 p19 ] would be inconsistent, constitute an essentially nondiscretionary implementation of a statutory mandate, and accordingly does satisfy the last of the Authority's "compelling need" criteria. Respondent's argument, however, does not demonstrate that the regulations meet the compelling need criteria of section 2424.11 (c) of the Authority's Rules. In fact, it demonstrates to the contrary, that there is, as already noted, some discretion in collection of charges such as the surcharge.

Regarding 37 U.S.C. 1011, which was introduced into evidence by the General Counsel, the specific language cited by Amlin conveys discretionary authority upon the Secretary of Defense to establish the mix under which these dining facilities are reimbursed operating expenses and food costs. In any event, 37 U.S.C. 1011 was effective September 16, 1981, but the authority to prescribe regulations under this section became effective earlier on December 12, 1980 (See note under 37 U.S.C. 1011). Surely, it did not take DOD six years to recognize this mandate. Rather, it appears to be a discretionary mandate which has been fulfilled through a variety of surcharge and meal rate schemes since its enactment. The Manual exemptions for personnel on official duty when an assignment necessitates eating in an appropriated fund food service facility, which was in effect at the time Respondent changed the past practice is so broad as to reflect the discretion of the Secretary of Defense in fulfilling this mandate. AFR 168-7 apparently represents an effort to fulfill this mandate in another, more restrictive fashion. In fact, the surcharge appears to be a discretionary implementation of a discretionary mandate in a manner which was not specifically required by the Manual at the time of its implementation. Again, it appears that Respondent failed in establishing a compelling need defense in accordance with established criteria.

In this case Respondent had a duty to provide notice and the opportunity to bargain prior to implementing the March 17, 1986 change in the past practice of exempting bargaining unit employees assigned to the Medical Center from payment of the surcharge. Although Respondent may be required to comply with Air Force regulations, it must fulfill its bargaining obligation when such compliance requires a change in established conditions of employment of bargaining unit employees. Since, there was no evidence presented at the hearing that Respondent was directed to implement the change in this past practice prior to fulfilling its bargaining obligation it is clear that the [ v31 p20 ] responsibility for the change is its own. There is no evidence that higher level management is responsible for Respondent's action herein. Consequently, there is no prima facie showing that either DOD or the Air Force was responsible for Respondent's action. United States Department of Defense, United States Department of the Navy, Washington, D.C., 28 FLRA No. 112 (1987); United States Department of Defense, Department of the Air Force and Department of the Air Force, Carswell Air Force Base, 28 FLRA No. 117 (1987).

With respect to the appropriations bills, if Respondent intended to base a compelling need defense on these documents, the documents themselves would certainly have provided the best evidence of their contents. 14 Thus, on the face of Amlin's testimony, it is impossible to determine whether any of the unusual or special circumstances raised by his testimony are applicable or even whether any "mandate" exists. Finally, it appears that Amlin may have changed his own testimony by identifying, on cross-examination, specific language of 37 U.S.C. 1011 as the source of this mandate. In any event, it is clear that Respondent did not meet its burden of establishing that the requirements set forth in section 2424.11 of the Authority's Rules and Regulations that a compelling need exists.

Accordingly, it is found that Respondent violated section 7116(a)(1) and (5) of the Statute by changing a condition of employment, by initiating collection of a surcharge at the Medical Center dining facility, without affording the Union notice and an opportunity to bargain concerning the substance and/or impact and implementation of the change.

In agreement with the General Counsel, it is found in addition to the posting requirements that a status quo ante remedy requiring Respondent to rescind the change in past practice and to bargain with the Union concerning the substance and impact and implementation of the change is appropriate.

Accordingly, it is recommended that the Authority adopt the following: [ v31 p 21 ]

ORDER

Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Federal Service Labor - Management Relations Statute, it is hereby ordered that the Department of the Air Force, Scott Air Force Base, Illinois, shall:

1. Cease and desist from:

(a) Unilaterally instituting changes in working conditions by initiating the collection of a surcharge from bargaining unit employees for meals served by the Medical Center dining facility without providing notice to the National Association of Government Employees, Local R7-23, SEIU, AFL - CIO, the exclusive representative of certain of its employees, and affording it the opportunity to bargain concerning the substance and/or impact and implementation of the change.

(b) In any like or related manner interfering with, restraining or coercing its employees in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor - Management Relations Statute:

(a) Notify the National Association of Government Employees, Local R7-23, SEIU, AFL - CIO, in advance of any intended changes in the working conditions of bargaining unit employees concerning the initiation of surcharges for bargaining unit employees at the Medical Center dining facility and upon request, negotiate with the exclusive representative concerning such proposed changes.

(b) Rescind the surcharge initiated on March 21, 1986 and collected thereafter for meals to bargaining unit employees at the Medical Center food service facility. [ v31 p22 ]

(c) Post at its Scott Air Force Base, Illinois, Medical Center dining facility 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, 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 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 II, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

ELI NASH, JR.
Administrative Law Judge

Dated: September 29, 1987
       Washington, D.C.

[ v31 p23 ]

                  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 STATUTE
            WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally institute changes in working conditions by initiating the collection of a surcharge from bargaining unit employees for meals served by the Medical Center dining facility without providing notice to the National Association of Government Employees, Local R7-23, SEIU, AFL - CIO, the exclusive representative of certain of its employees, and affording it the opportunity to bargain concerning the substance and/or impact and implementation of the change.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of rights assured by the Federal Service Labor - Management Relations Statute.

WE WILL notify the National Association of Government Employees, Local R7-23, SEIU, AFL - CIO, in advance of any intended changes in the working conditions of bargaining unit employees concerning the initiation of surcharges for bargaining unit employees at the Medical Center dining facility and upon request, negotiate with the exclusive representative concerning such proposed changes.

WE WILL, rescind the surcharge initiated on March 21, 1986 and collected thereafter for meals to bargaining unit employees at the Medical Center dining facility.

                               ____________________________
                                   (Agency or Activity)

Dated: ___________________ By: ____________________________
                                       (Signature)

[PAGE]

This Notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced or covered by any other material.

If employees have any questions concerning this Notice or compliance with any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Region V, whose address is: 175 W. Jackson Boulevard, Suite A-1359, Chicago, IL 60604, and whose telephone number is: (312) 353-6306. [ v31 p2 ]

FOOTNOTES

Footnote 1 The same requirement is levied on the other military services under separate statutory provision. See e.g. 10 U.S.C. 4561 (Army) and 6081 (Navy). "Ration" is a term used since colonial times which means "the allowance of food for the subsistence of one person for one day."

Footnote 2 According to Respondent, these Appropriation Acts, which were not offered as evidence at the hearing are as follows: Act of August 1, 1953, Pub. L. 83-179, 1953 U.S. Code Cong. and Ad. News 377, 392; Act of July 13, 1955, Pub. L. 84-157, 1955 U.S. Code Cong. and Ad. News 332, 345-346; Act of August 2, 1957, Pub. L. 85-117, 1957 U.S. Code Cong. and Ad. News 328, 339; Act of August 18, 1959, Pub. L. 86-166, 1959 U.S. Code Cong. and Ad. News 401, 412-413; etc.

Footnote 3 The Official Changes include: Change 1, 24 October 1979; Change 2, 30 June 1980; Change 3, 22 October 1980; Change 4, 14 January 1981; Change 5, 23 July 1981; Change 6, 6 April 1983; Change 7, 22 February 1984; Change 8, 24 April 1984; Change 9, 23 January 1985; Change 10, 1 March 1985. An "eleventh" change was issued on 27 May 1986.

Footnote 4 As an example, a civilian employee at Respondent's Medical Center dining facility would pay $3.60 to eat lunch or dinner at the facility. This amount includes $1.45 (basic food charge) and $12.15 (surcharge).

Footnote 5 Members of uniformed services receive basic pay, a basic allowance for subsistence (unless receiving rations), and an allowance for quarters (unless occupying government quarters). See 37 U.S.C. 402 and 1009.

Footnote 6 Food service workers, as previously noted, have always been exempt from the surcharge because their work schedules (during meal hours) prohibit absences during the normal operation of other messing facilities in and around the installation.

Footnote 7 The change from the dual to a single surcharge eliminated a special rate of surcharge for military members and civilians in a travel status receiving per diem.

Footnote 8 Although "Change 6" is dated April 6, 1983, the changes within it were made effective January 1, 1983.

Footnote 9 "Assignment necessitates" or job necessity within the hospital context, means an employee, military or civilian, whose duties require him or her to physically remain in the hospital for periods of time in which meals would normally be served and eaten. E.g., Medical Officer of the day.

Footnote 10 According to Respondent, normally a Service implementing regulation would follow a change to the Manual. Apparently here, the Air Force, as a member of the "working group" described above, knew what the new language would be, and simply published its regulation before the Manual Change was released.

Footnote 11 In several recent cases the Authority has dealt directly with the question of deciding whether a matter affects conditions of employment within the meaning of section 7103(a)(14) of the Statute. See Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23, 22 FLRA 235 (1986); Department of Defense, Department of the Army, Fort Buchanan, San Juan, Puerto Rico, 24 FLRA No. 96, 24 FLRA 971 (1986); Department of the Army, Dugway Proving Ground, Dugway, Utah and National Association of Government Employees, Local R14-62, 23 FLRA No. 80, 23 FLRA 578 (1986); Department of the Air Force Eielson Air Force Base, Alaska and American Federation of Government Employees, Local 1836, AFL-CIO, 23 FLRA No. 83, 3 FLRA 605 (1986); 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, George and Department of the Army, The Pentagon, Washington, D.C. and American Federation of Government Employees, Local 1949, AFL-CIO, 23 FLRA 105, 23 FLRA 58 (1986). In the above cases, the Authority described the basic considerations for determining whether a matter involves conditions of employment as (1) whether the matter proposed to be bargained pertains bargaining unit employees; and (2) the nature and extent of the effect of the matter proposed on working conditions of those employees. Here both considerations appear to nave been met since the Union is seeking to negotiate concerning employees it represents and an established practice existed for several years of allowing employees, as part of their employment, to obtain meals without a surcharge being added to their cost.

Footnote 12 A duty to bargain about the termination of an illegal past practice nonetheless extends to "impact and implementation" bargaining which may occur after unilateral termination of the unlawful practice. Since illegality was not established Dept. of the Interior and AFGE, Local 3457, 9 FLRA 543 (1982) cited by Respondent is inapposite.

Footnote 13 Respondent does not, but the General Counsel does, make an argument based on Department of Health and Human Services, Social Security Administration, Region V, Chicago 19 FLRA No. 101, 19 FLRA 827 (1985) that the total impact or reasonably foreseeable impact of the change herein is more than de minimis. Since the hearing in this matter the Authority decided Department of Health and Human Services, Social Security Administration, 24 FLRA No. 42, 24 FLRA 403 1986 where it reassessed and modified its standard used to determine whether or not a particular agency action has more than a de minimis impact on conditions of employment. Under the new standard the Authority has decided to place principal emphasis on such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment of bargaining unit employees. The Authority will also take equitable considerations into account in balancing the various interests involved. Because Respondent does not raise the issue it does not appear necessary to address the General Counsel's de minimis argument. However, assuming arguendo that it were necessary, if called upon to decide the issue, I would find the impact or foreseeable impact to be more than de minimis. Applying the above factors to the instant case, and noting that Respondent made no real argument that the impact or foreseeable impact was no more than de minimis, but, argues only that the recovery of costs of certain meals is far from de minimis, it is found that there was an obligation on Respondent's part to bargain with the Union herein.

Footnote 14 Respo