43:0830(68)NG - - AFGE Local 2614 and Navy, Antilles Consolidated School System - - 1991 FLRAdec NG - - v43 p830
[ v43 p830 ]
The decision of the Authority follows:
43 FLRA No. 68
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
ANTILLES CONSOLIDATED SCHOOL SYSTEM
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
December 30, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and involves the negotiability of one proposal concerning exchange privileges.
For the following reasons, we find that the proposal is negotiable.
PX (Ie [sic] post exchange) privileges shall be granted to bargaining unit employees at Roosevelt Roads and Ramey school pursuant to DoD directive 1330.9 as they apply to Puerto Rico.
III. Positions of the Parties
The Agency asserts that the proposal is nonnegotiable because it does not concern the conditions of employment of bargaining unit employees. According to the Agency, the exchanges could only be used by employees during their nonduty hours. The Agency argues that, in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986) (Antilles), the Authority concluded that a proposal granting exchange privileges to unit employees did not concern conditions of employment because it was undisputed that access to the exchanges would occur during the employees' nonduty hours and there was no evidence in the record that access to the exchanges was in any manner related to the work situation of unit employees.
The Agency acknowledges that in several cases the Authority has found that exchange privileges for unit employees do concern matters affecting conditions of employment; however, the Agency contends that the Authority's conclusions were based on the particular circumstances of each case. The Agency cites Department of the Air Force, Eielson Air Force Base, Alaska, 23 FLRA 605 (1986) (Eielson); Department of the Army, Fort Greely, Alaska, 23 FLRA 858 (1986) (Greely); and U.S. Department of the Army, Fort Buchanan, San Juan, Puerto Rico, 37 FLRA 919 (1990) (Buchanan). The Agency notes that in those cases the following factors were found to support the conclusion that exchange privileges were matters affecting conditions of employment: (1) unit employees had previously been allowed to use the exchanges; (2) access to the exchanges was used by the agencies to recruit employees at geographically remote locations and to maintain an adequate standard of living; (3) travel to commercial facilities was difficult.
The Agency claims that none of the factors that existed in Eielson, Greely, and Buchanan exist at the Roosevelt Roads and Ramey schools. According to the Agency, exchange privileges at the Roosevelt Roads and Ramey schools are not necessary "to maintain adequate living standards" or "because of a lack of reasonably convenient substitute facilities." Agency Statement of Position at 3. The Agency notes that there are "private sector shopping alternatives (e.g. shopping centers) near the employees['] homes and schools." Id. The Agency disputes the Union's claim that employees must sometimes purchase school supplies and that it would be more convenient to purchase those supplies on the base. The Agency states that employees are not required to purchase such supplies because those materials are provided by the school. The Agency also states that, because commissary privileges are not part of the proposal, the Union's statement that employees cannot use the commissary "is not an issue." Id.
According to the Union, the base at Roosevelt Roads "is the largest (in territory) naval station in the world." Petition for Review at 1-2. The Union states that unit employees, who are teachers' aides, "must sometimes purchase supplies needed for the performance of their duties" and that "the only place to make these purchases on base" is at the exchange. Id. at 2. The Union also states that employees cannot purchase supplies on the base because they do not have exchange privileges and, therefore, must travel off base to obtain necessary supplies.
Moreover, the Union notes, unit employees are "denied the variety of nutritional foodstuffs available at the commissary for their lunch." Id. The Union also notes that unit employees "can eat lunch at the school cafeteria only if there is food left over after the students have lunched." Id. (emphasis in original). In addition, according to the Union, because employees only have a half-hour for lunch, there is not enough time for them to drive off the base to eat and return to school. The Union states that there are "no snack bars or other food facilities at the schools." Id.
For these reasons, the Union concludes that the proposal concerns matters related to the unit employees' conditions of employment.
IV. Analysis and Conclusions
The issue in this case is whether the proposal granting exchange privileges to unit employees concerns a matter affecting the conditions of employment of unit employees. For the following reasons, we find that the proposal concerns a matter affecting the conditions of employment of unit employees.
In determining whether a matter involves a condition of employment of unit employees, we consider whether: (1) the matter pertains to bargaining unit employees; and (2) the record establishes that there is a direct connection between the matter and the work situation or employment relationship of bargaining unit employees. See Antilles, 22 FLRA at 237 (1986). As to the first factor, there is no dispute between the parties concerning whether the proposal applies to bargaining unit employees. Consequently, in the absence of any evidence in the record to the contrary, we find that the subject matter of the proposal pertains to unit employees.
As to the second factor--whether the record establishes that there is a direct connection between the subject matter of the proposal and the work situation or employment relationship of unit employees--we conclude that the record supports the finding that there is a direct connection between access to the base exchange and the work situation of unit employees. Specifically, we note that, 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 second part of the Antilles test and stated that, under Antilles, "the Authority inquires into the nature and extent of the practice on working conditions." AFGE, Local 2761, 866 F.2d at 1445. In determining whether the matter at issue in that case was a condition of employment, the court examined whether there was a "link" or "nexus" between that matter and employees' employment. Id. at 1447, 1449. The court concluded that where a matter has "a direct effect on the work relationship[,]" it concerns a condition of employment. Id. at 1449. See also United States Department of the Air Force, Griffiss Air Force Base, Rome, New York v. FLRA, No. 90-1561 (D.C. Cir. Dec. 10, 1991) (Griffiss Air Force Base v. FLRA).
We find, based on the record in this case, that there is a direct connection between exchange privileges and the work situation of the unit employees in this case. In particular, the Union claims that unit employees are not allowed access to the commissary. The Union also claims that unit employees are not allowed to purchase food in the school lunchroom unless there is food remaining after the students have eaten and that there are no snack bars or other food facilities at the schools. Finally, the Union claims that it is impossible for unit employees to drive off the base, eat lunch, and return to the school within the half hour lunch period.
The Agency does not dispute the Union's claims. In particular, we find that the Agency misinterprets the Union's statement as to unit employees' lack of access to the commissary. The context of the Union's argument suggests that the Union is not seeking commissary privileges, but rather is demonstrating the absence of facilities where unit employees could obtain food products during their lunch period. We find, therefore, that the record supports the conclusion that unit employees have limited facilities and opportunities for purchasing food during their lunch period.
Moreover, nothing in the record indicates that food products would not be available at the post exchange or that the exchange is not easily reachable by unit employees from the schools where they work. We note, in this connection, that the post exchange involved in Buchanan included a small grocery store. See AFGE, Local 2761, 866 F.2d at 1445. Consequently, we conclude, based on the record, that unit employees would be able to obtain food at the post exchange during their lunch periods if they had access to the post exchange.
Given the limited nature of the lunch facilities available to unit employees, their limited lunch period, and given the availability of food products at the post exchange, we also conclude that the subject of exchange privileges for unit employees is a matter that has a direct effect on, and a direct connection with, the work situation of those employees. See Griffiss Air Force Base v. FLRA, No. 90-1561 (D.C. Cir. Dec. 10, 1991), slip op. at 9 (direct connection between a subject matter and the work situation or employment relationship of unit employees must be established by evidence in the record). We also conclude, based on the record, that this case is distinguishable from Antilles because access to the post exchange would occur while the unit employees are working on the base and because there is a direct connection between exchange privileges and the work situation of unit employees.
We note in this connection that, insofar as the half hour limitation on the lunch period of unit employees is concerned, the situation of the unit employees in this case is analogous to the situation of the employees in Eielson. In that case, the Authority noted, as a basis for finding that exchange privileges constituted a condition of employment, that although commercial facilities were available in a neighboring community, the use of those facilities would require a difficult and dangerous round trip during winter months. Similarly, in this case, the record indicates that commercial food facilities off the base are of limited use to employees during their half hour lunch period. Consequently, we reject the Agency's claim that none of the factors that the Authority relied on in Eielson, Greely, or Buchanan to find that exchange privileges constituted a condition of employment are present in this case.
Moreover, we note that the Authority has consistently held that matters pertaining to the provision of food services to unit employees at their place of employment concern the conditions of employment of unit employees. See Department of the Treasury, Internal Revenue Service (Washington, D.C.); and Internal Revenue Service Hartford District (Hartford, Connecticut), 27 FLRA 322, 324-25 (1987) (matters pertaining to break room conveniences, including the availability of snack foods, held to concern conditions of employment). See also National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems, 38 FLRA 589, 594-95 (1990) and the cases cited therein. We find that, in the circumstances of this case, the matter of exchange privileges is not substantively different from bargaining over, for example, the provision of snack foods.
Consequently, based on the foregoing findings, we conclude that the subject matter of the proposal is a matter pertaining to t