38:0589(54)NG - - NAGE Local R1-134 and Navy, Naval Underwater Systems Center, Newport, RI - - 1990 FLRAdec NG - - v38 p589


[ v38 p589 ]
38:0589(54)NG
The decision of the Authority follows:


38 FLRA No. 54

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-134

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVAL UNDERWATER SYSTEMS CENTER

NEWPORT, RHODE ISLAND

(Agency)

0-NG-1738

DECISION AND ORDER

November 30, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of four proposals submitted by the Union during impact and implementation bargaining over the Agency's decision to establish a cafeteria. The Agency filed a statement of position (Statement) in response to the Union's petition for review (Petition). The Union did not file a response to the Agency's Statement.

Proposal 1 requires that renovation, modification and fabrication of a structure or space for use as a cafeteria be delayed pending completion of negotiations. Proposal 2 concerns the quality of food services and the overall monetary contribution to the welfare and recreation of unit employees. Proposal 3 concerns the level of monetary contributions to the food services board derived from the vending machines operations. Proposal 4 concerns the level of monetary contributions to the food services board derived from the mobile food service.

We conclude that Proposal 1 and Proposal 2, insofar as it concerns the quality of food services, concern the conditions of employment of unit employees and, therefore, the proposals are negotiable. Proposal 2, to the extent that it relates to contractor contributions, and Proposals 3 and 4 do not concern unit employees' conditions of employment and, therefore, the proposals are nonnegotiable.

II. The Proposals

Proposal 1

R1-134 proposes that renovation, modification, and fabrication of a structure or space identified for use as a cafeteria be delayed pending completion of negotiations.

Proposal 2

R1-134 proposes that past practices in regard to the quality of food services, and the level of morale supported by the overall contribution to the welfare and recreation traditionally enjoyed by unit members, should not be negatively impacted.

Proposal 3

R1-134 proposes that the past practice regarding the level of contributions to the Newport Food Services Board derived from vending machine operations remain unchanged.

Proposal 4

R1-134 proposes that the past practice regarding the level of contributions to the Newport Food Services Board derived from the current mobile food service not be negatively impacted by the planned replacement mobile food service.

III. Positions of the Parties

A. Union

In its petition for review, the Union contends that the Agency "is presently in the process of implementing sweeping changes in the form of hiring a new contractor for cafeteria and mobile food services that, as a condition of their employment, will return no portion of profit to [the Agency's] Morale, Welfare and Recreation [Boards]." Petition at 1. The Union asserts that it is the Agency's "unilateral termination of this past practice without compelling need that is the driving force behind [the Union's proposals]." Id.

The Union states that "[c]urrently, and for the last 20 years at the very least, contractors providing food services at the [Agency] in the form of mobile (truck), cafeteria, or vending machines have, as a condition of their employment, returned a portion (not to exceed 6 percent) of their profit to the Food Service/Morale, Welfare and Recreation Boards." Id. According to the Union, "[t]his practice . . . enrich[es] the working conditions in the form of subsidizing sports and sports equipment, travel, social events, personal improvement, discount buying, etc." Id.

B. Agency

The Agency contends that statements made by the Union in its petition concerning the food services require "correction and clarification." Statement at 2. According to the Agency, management's decision to establish a cafeteria "triggered the negotiability dispute." Id. at 2. The Agency states that "[c]afeteria food services are not currently being provided, nor have they been provided for the last 20 years on a continuing basis." Id. (emphasis in original). The Agency further states that "[m]obile truck services . . . currently" provide food services, and that management's decision to establish a cafeteria does not mean that this service "will be discontinued, or for that matter, altered." Id. The Agency also states that the operation of the vending machines is not involved in the establishment of the cafeteria.

The Agency contends that Proposal 1 "concerns the renovation, modification, or fabrication of an empty building which is not a work area nor in any way connected with the work situation of the unit employees." Id. at 3. The Agency states that Proposals 2, 3 and 4 "deal with maintaining the current level of contractor monetary contributions to the welfare and recreation and/or the [Agency's] Food Services Board." Id. In interpreting the Union's intent in offering the proposals, the Agency notes the Union's reference to contractors' conditions of employment in the Union's description of the food services. The Agency states that it does not believe that the Union is seeking to negotiate over the conditions of employment of outside contractors. Rather, the Agency believes the Union is seeking to bargain over "the contractors['] contributions to the various welfare, recreation, morale or food boards as a condition of employment of bargaining unit employees." Id.

The Agency contends that the proposals are nonnegotiable because they do not concern conditions of employment of unit employees within the meaning of section 7103(a)(14) of the Statute. The Agency notes that, as a basis for the Union's contention that the proposals concern employees' conditions of employment, the Union states that the contractors' contributions are "used by the various boards to subsidize sports and sports equipment, travel, social events, personal improvement, discount buying, etc." Id. at 4. The Agency claims that proposals which relate to employees' non-work activities while in a non-duty status are outside the duty to bargain because they do not concern matters which are conditions of employment. The Agency argues that the "Union's attempt to link the practice of subsidizing sports and sports equipment, travel, social events, personal improvement, discount buying, etc., directly to the work situation or employment relationship by stating the practice enriches the working conditions is ludicrous." Id. at 5 (emphasis in original). According to the Agency, "[n]othing in the Union's submissions establishes a record of direct connection between the proposals and the work situation or employment of unit employees" as required by the Authority's decision in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986) (Antilles). Id. at 4.

The Agency asserts that even if the Authority applies the analytical framework set forth in Antilles and determines that the proposals concern unit employees' conditions of employment, the Agency "maintains that the proposals necessarily concern conditions of employment of non-bargaining unit employees and those of members of other bargaining units and, consequently, are outside the duty to bargain." Id. at 5 (emphasis in original). The Agency notes the Authority's decision in American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 FLRA 335 (1988) (Office of Personnel Management), enforced sub nom. United States Office of Personnel Management v. FLRA, 905 F.2d 430 (D.C. Cir. 1990), where the Authority set forth a test for determining questions involving the duty to bargain over proposals concerning conditions of employment of unit employees which also affect employees or positions outside the unit. The Agency states that "[a]ssuming, for the sake of argument, that the standard adopted by the Authority in Office of Personnel Management is appropriate when applied to proposals affecting employees outside of the bargaining unit generally, . . . a different standard must be applied when the proposals at issue would have the effect of determining conditions of employment in other bargaining units." Id. at 6 (emphasis in original). The Agency cites Service Employees' International Union, AFL-CIO, Local 556 and Department of the Army, Office of the Adjutant General, Hale Koa Hotel, Honolulu, Hawaii, 9 FLRA 687 (1982), and contends that the Authority should apply the rationale in that case and find the proposals nonnegotiable because the proposals determine the conditions of employment of employees in other bargaining units.

The Agency also asserts that even if the Authority's application of the "vitally affects" test set forth in Office of Personnel Management results in a finding that the instant proposals are negotiable, the test "is erroneous and should be reconsidered" because it is based on an "erroneous reading of private sector precedent." Id. at 8 and 11. Additionally, the Agency asserts that even if this test is found to be appropriate, the instant proposals "must be found nonnegotiable" because the proposals do not satisfy this test. Id. at 11.

IV. Analysis and Conclusions

For the following reasons, we conclude that Proposal 1 and Proposal 2, insofar as it concerns the quality of food services, are negotiable. We conclude that Proposal 2, to the extent that it relates to contractor contributions, and Proposals 3 and 4 are nonnegotiable.

A. Conditions of Employment

The term "conditions of employment" is defined in section 7103(a)(14) of the Statute as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions[.]" In deciding whether a matter involves a condition of employment of bargaining unit employees, the Authority considers whether the record establishes that there is a direct connection between the matter and the work situation or employment relationship of bargaining unit employees. Antilles, 22 FLRA at 237.

In American Federation of Government Employees, Local 2761, AFL-CIO v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989) (AFGE, Local 2761), the United States Court of Appeals for the District of Columbia Circuit reviewed the Authority's application of the Antilles test. The court noted that under Antilles, "the Authority inquires into the extent and nature of the effect of the practice on working conditions." AFGE, Local 2761, 866 F.2d at 1445. In determining whether the matter there in issue was a condition of employment, the court examined whether there was a "link" or "nexus" between that matter and the worker's employment. Id. at 1447, 1449. The court found that where a matter has a "direct effect on the work relationship[,]" it concerns a condition of employment. Id. at 1449.

We find, consistent with the court's application of the Antilles test in AFGE, Local 2761, that the question presented in this case is whether the record establishes that the matters addressed by the proposals directly affect the employment relationship of unit employees. We find that the proposals, to the extent that they concern negotiations on the establishment of a cafeteria and on the quality of food services (Proposals 1 and 2), directly affect the employment relationship of unit employees. Further, Proposal 2, in part, concerns contributions to the welfare and recreation of unit members and Proposals 3 and 4 concern contributions to the food services board that are derived from the mobile food service or vending machines operations. Because the contributions addressed in these proposals subsidize sports and sports equipment, travel, social events, personal improvement and discount buying, we find, based on the evidence in this case, that Proposal 2, in part, and Proposals 3 and 4 do not concern matters which directly effect the work relationship of unit employees.

Matters pertaining to the provision of food services to employees at their place of work concern the conditions of employment of these employees. See, for example, American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA 409, 412 (1982) (Authority held that employee food services and related prices are working conditions); Department of the Treasury, Internal Revenue Service (Washington, D.C.); and Internal Revenue Service Hartford District (Hartford, Connecticut), 27 FLRA 322, 325 (1986) (lunchroom conveniences found to be a condition of employment); American Federation of Government Employees, Social Security Local 3231, AFL-CIO and Department of Health and Human Services, Social Security Administration, 16 FLRA 47 (1984) (Proposal 1) (proposal requiring the agency to provide space for employees to prepare and eat their lunches concerned a matter affecting conditions of employment); Library of Congress and Congressional Research Employees Association, 15 FLRA 589, 590 (1984) (unilateral adoption of a requirement that employees pay for use of microwave ovens to heat their lunches where access to such equipment had been free of charge constituted a change in an established condition of employment which the agency was obligated to bargain); American Federation of Government Employees, AFL-CIO, Local 51 and Department of the Treasury, Bureau of the Mint, U.S. Assay Office, San Francisco, California, 9 FLRA 809 (1982) (proposal requiring agency to cooperate in the continuing effort to establish and maintain equity in prices and quality of services at snack bar concerned conditions of employment of unit employees).

On the other hand, the Authority has held that matters concerning non-work activities of employees while in a non-duty status do not constitute conditions of employment within the meaning of section 7103(a)(14) of the Statute. See, for example, Antilles (proposal requiring access to agency's retail, recreational and medical facilities by unit employees did not directly affect the working conditions of unit employees); Maritime/Metal Trades Council and Panama Canal Commission, 18 FLRA 326 (1985) (Proposal 3) (proposal intended to provide unit employees with the use of the agency's launch for recreational purposes on weekends did not concern a condition of employment); International Organization of Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA 508, 517-18 (1983) (proposal concerning the acquisition of licenses for personal activities of employees, for example, boats and airplanes, did not concern conditions of employment); International Association of Fire Fighters, AFL-CIO, Local F-116 and Department of the Air Force, Vandenberg Air Force Base, California, 7 FLRA 123 (1981) (proposal providing off-duty employees and dependents use of agency property for recreational purposes, for example, hunting and fishing, did not concern conditions of employment).

Consistent with the Authority's decisions finding food service matters to be conditions of employment, we find that to the extent that Proposal 1 concerns the establishment of a cafeteria and Proposal 2 concerns the quality of food services, the proposals directly effect the work relationship of unit employees. We conclude that, consistent with Antilles, to this extent the proposals concern unit employees' conditions of employment. Also, to the extent that Proposal 1 requires that cafeteria construction be delayed pending negotiations, we conclude that the proposal concerns a negotiable procedure. We note that proposals requiring an agency to maintain the status quo during bargaining or pending the resolution of a negotiability appeal are negotiable procedures under section 7106(b)(2) of the Statute. See, for example, National Association of Government Employees, Local R1-109 and Veterans Administration, Veterans Administration Medical Center, Newington, Connecticut, 37 FLRA 448, 456 (1990); National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 395-97 (1990). See also, U.S. Department of the Army, Aviation Systems Command, St. Louis, Missouri and National Federation of Federal Employees, Local 405, 36 FLRA 418 (1990) (Aviation Systems Command, St. Louis, Missouri) (requirement that agency delay construction of a fitness center, determined to directly affect the conditions of employment of unit employees, was found to be within the agency's duty to bargain).

However, to the extent that Proposals 2, 3 and 4 concern contractor contributions to provide sports and sporting equipment, travel, social events, personal improvement, and discount buying, we find that those matters are not conditions of employment within the meaning of section 7103(a)(14) of the Statute. The Union states only that contractor contributions to the various boards have enriched unit employees working conditions in the form of subsidies for sports and sports equipment, travel, social events, personal improvement, and discount buying. Petition at 1. The Union has provided no evidence and the record does not otherwise establish that the subjects in question are in any manner related to the employment relationship or are otherwise linked to employees' work requirements. For example, there are no details as to whether unit employees are engaged in occupations which require physical strength and stamina nor are there any details which indicate that the items listed are connected with any Agency physical fitness or mental health program. Compare Aviation Systems Command, St. Louis, Missouri, 36 FLRA 418. The parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). A party failing to meet its burden acts at its peril.

Further, we note that Proposals 2, 3 and 4, as they concern sports and sporting equipment, travel, social events, personal improvement, and discount buying, are distinguishable from the matters involved in AFGE, Local 2761, where the court found that the record demonstrated that post exchange privileges and an annual picnic directly affected unit employees' work relationship.

Specifically, as to the exchange privileges, the court found that: (1) the Army used access to the post exchange to induce employees to work at the facility; (2) the use of the post exchange was important to unit employees in view of their feeling of isolation with respect to their ability to obtain safe food products for their children and this isolation had a direct effect on the employees' employment relationship; and (3) the Army had a longstanding past practice of granting exchange privileges to employees. The court noted that "[w]hile any one of these factors alone might not be determinative, taken together they support[ed] the conclusion" that exchange privileges at the facility were a condition of employment. AFGE, Local 2761, 866 F.2d at 1448.

With respect to the annual picnic, the court found that the picnic: (1) was to occur on the employer's premises; (2) involved an adjustment in the hours that the employees were to spend working at their jobs; (3) was paid for by the agency; and (4) was used by management as an opportunity to present employee awards and otherwise foster a productive work relationship between employees and management. In view of these factors, the court found that the agency "itself . . . created an explicit nexus between the picnic and employment at the facility." AFGE, Local 2761, 866 F.2d at 1449. The court found, therefore, that the picnic was a condition of employment. Thus, the record in AFGE, Local 2761, unlike the record in this case, established that the subjects in question directly affected or were linked to the employment relationship or work requirements of unit employees.

Moreover, even if access to the recreational and other facilities described by the Union were a condition of employment, the proposals do not concern employees' access to these facilities. Rather, the proposals address only the funding provided to the various boards by contractors. It has not been shown, nor is it apparent to us, that the funding for these facilities is related to the employment relationship or linked to employees' work requirements.

Consequently, we find to the extent that the proposals concern subsidies for sports and sports equipment, travel, social events, personal improvement, and discount buying, they concern non-work, non-duty time activities. Therefore, consistent with the Authority precedent cited above, we conclude that the proposals do not directly affect the work relationship of bargaining unit employees. Accordingly, to the extent that the subjects involved do not concern unit employees' conditions of employment, the proposals are outside the Agency's duty to bargain.

B. Application of the "Vitally Affects" Test

As we have found the proposals, to the extent discussed above, to concern conditions of employment, we next address the Agency's contentions concerning the effect of the proposals on nonunit employees and on the validity and application of the "vitally affects test." The Agency asserts that even if the proposals are found to concern conditions of employment under the Antilles test, the proposals are still outside the duty to bargain because the proposals affect conditions of employment of non-bargaining unit employees and those of members of other bargaining units.

The Agency asserts that Office of Personnel Management should be reconsidered because the "vitally affects" test set forth therein is based on an "erroneous reading of private sector precedent." Statement at 8. In Office of Personnel Management, the Authority concluded that a proposal concerning the conditions of employment of bargaining unit employees, which also affects employees or positions outside the bargaining unit, is negotiable under the Statute if it (1) vitally affects the working conditions of unit employees and (2) is consistent with applicable law and regulations. The Authority additionally stated that the proposal's effect on nonunit employees or positions is not a factor in making the negotiability determination and that prior decisions inconsistent with the described approach would no longer be followed. Id. at 338.

In American Federation of Government Employees, Council of Marine Corps Locals (C-240) and Department of the Navy, U.S. Marine Corps, 35 FLRA 1023 (1990) (Proposal 2) (U.S. Marine Corps), we considered a proposal that prescribed the competitive area for a reduction in force. The agency claimed the proposal was nonnegotiable because it directly: (1) affected employees outside the bargaining unit; and (2) determined the conditions of employment of employees in other bargaining units represented by other unions. We applied the "vitally affects" test set forth in Office of Personnel Management and concluded "that the fact that some of the nonunit employees may be in bargaining units represented by other unions does not affect our analysis of the