43:1331(106)NG - - NAGE Local R1-144 and Navy, Naval Underwater Systems Center, Newport, RI - - 1992 FLRAdec NG - - v43 p1331



[ v43 p1331 ]
43:1331(106)NG
The decision of the Authority follows:


43 FLRA No. 106

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R1-144

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVAL UNDERWATER SYSTEMS CENTER

NEWPORT, RHODE ISLAND

(Agency)

0-NG-1731

DECISION AND ORDER ON NEGOTIABILITY ISSUES

January 31, 1992

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 seventeen proposals submitted by the Union during impact and implementation bargaining over the Agency's decision to establish a cafeteria.

During the pendency of this appeal, the Authority issued a Decision and Order in National Association of Government Employees, Local R1-134 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 589 (1990) (Naval Underwater Systems Center), which involved the same Agency, labor organization, and cafeteria as are involved in this case.(1) Thereafter, the Authority directed the parties in the instant case to file supplemental briefs addressing the effect, if any, of the decision in Naval Underwater Systems Center on any of the issues pending before the Authority. Both the Agency and the Union filed supplemental briefs, which we have considered.

The proposals presented in this case, which we have numbered sequentially, relate to the following matters. Proposal 1 states that an American flag shall be prominently displayed, which we presume to be at or near the proposed cafeteria. Proposal 2 provides that the cafeteria will have seating capacity for not less than 30 percent of the Agency population. Proposal 3 states that a private dining room will be provided for unit members with no less than 15 percent of total capacity. Proposal 4 provides that "drive through" services will be available during all normal hours. Proposal 5 requires the cafeteria to provide services from 0600 to 1830 hours (6:00 a.m. to 6:30 p.m.), for breakfast, lunch, and supper, and to make snacks available at all times the cafeteria is open. Proposal 6 states that all entrees will be available and sold as a complete meal and a la carte. Proposal 7 provides that a minimum of 10 percent of gross income per month will be remitted to the Welfare and Recreation Board and that none of the monies will be retained for more than 45 days. Proposal 8 states that all furnishings provided by the contractor will become the property of the Welfare and Recreation Board at the end of a ten-year period or when either the contractor or the Agency closes the facility.

Proposal 9 requires that any leftovers served will be priced at 50 percent of the original cost. Proposal 10 states that no frozen, canned or dried products may be used unless fresh products are not available locally and that signs will notify patrons when fresh products are not in use. Proposal 11 provides that second day leftovers will be made available "to the needy" without charge. Proposal 12 states that customers will be provided with chilled water equivalent to "Crystal Spring" in quality and taste. Proposal 13 requires that four microwave ovens will be available for patrons' use. Proposal 14 requires that separate dining tables be designated for contractor personnel. Proposal 15 provides that all furnishings and facilities will be new and unused and not more than five years old from the date of manufacture. Proposal 16 states that no disposable utensils or plates will be used except for take-out service. Proposal 17 requires the parties to agree on a specified location for the cafeteria.

We conclude that Proposals 2, 3, 4, 5, 6, 9, 10, 12, 13, 15, 16 and 17 are negotiable because they concern conditions of employment of bargaining unit employees that are within the scope of mandatory bargaining. Additionally, we find that these proposals do not interfere with management's right to make contracting out determinations under section 7106(a)(2)(B) of the Statute. Proposal 14 is nonnegotiable because it does not vitally affect conditions of employment of bargaining unit employees. Proposals 1, 7, 8 and 11 are nonnegotiable because they do not concern unit employees' conditions of employment.

II. The Proposals

Proposal 1

An American flag shall be prominently displayed.

Proposal 2

Dining accommodation[s] shall provide seating capacity for no less than 30% of NUSC population.

Proposal 3

A private dining room shall be provided for unit members with no less than 15% of total capacity.

Proposal 4

Drive through services shall be available during all normal hours.

Proposal 5

Facilities shall provide service from 0600 to 1830 hours for breakfast, lunch, and supper. Snacks will be available at all times the cafeteria is open.

Proposal 6

All entrees will be available and sold as a complete meal and a la carte.

Proposal 7

A minimum of 10% of gross income shall be remitted to Welfare and Recreation per month and none of the monies shall be retained more than 45 days.

Proposal 8

All furnishings provided by the contractor shall become property of the Welfare and Recreation board at the end of the ten year period or when either party (the operator or NUSC) close the facility.

Proposal 9

If leftovers are served they shall be priced at 50% of original cost.

Proposal 10

No frozen, canned, dried products may be used unless the fresh product is not available locally. Signs shall notify patrons when fresh products are not in use.

Proposal 11

Second day leftovers shall be made available to the needy without charge.

Proposal 12

Customers will be provided with "chilled" water equivalent to Crystal Spring in quality and taste.

Proposal 13

Four (4) microwaves (ovens) shall be provided for patrons use.

Proposal 14

Separate dining tables shall be designated for contractor personnel.

Proposal 15

Any and all furnishings and facilities shall be new and unused and be no older than 5 years from manufacture.

Proposal 16

No disposable utensils or plates shall be used except for take out service.

Proposal 17

We agree that the cafeteria will be located in building 106 as stated in memorandum of 2 June 1989 to D. Lepore from code 0801.

III. Positions of the Parties

A. Agency

The Agency contends that the proposals generally 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 asserts that an employee's decision to use a cafeteria is based purely on personal considerations and "is not attributable to [the employee's] employment." Statement of Position at 4. In support, the Agency cites the Authority's decision in Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA 492, 504-06 (1987), aff'd sub nom. Overseas Education Association v. FLRA, 858 F.2d 769 (D.C. Cir. 1988), in which the Authority found that a proposal to pay for employee moving expenses, under certain circumstances, did not concern a condition of employment because the decision to move was based on purely personal considerations and was not related to the employment relationship. The Agency maintains that the use of a cafeteria is not a "vital concern" of employees because no cafeteria has existed for years and employees have utilized other available food sources. Statement of Position at 4.

The Agency further claims that all the proposals in this case involve "employee activities that are unrelated to assigned work and are conducted while in a non-duty status." Id. As such, the Agency argues that the proposals do not directly affect working conditions of unit employees under the test set forth in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986) (Antilles). The Agency also claims that this case is distinguishable from previous Authority decisions finding that access to various dining facilities and concession privileges concern conditions of employment. According to the Agency, the proposals here do not concern personnel policies, practices or matters affecting working conditions of unit employees and the Union has not established "that a relationship exists between its proposals and unit employees' work situations or employment relationships." Statement of Position at 6.

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 proposals are outside the duty to bargain because they "necessarily concern conditions of employment of non-bargaining unit employees and those of members of other bargaining units . . . ." Id. at 7 (emphasis omitted). The Agency notes, in this regard, 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), enf'd sub nom. United States Office of Personnel Management v. FLRA, 905 F.2d 430 (D.C. Cir. 1990), which set forth the standard for determining the negotiability of proposals that concern conditions of employment of unit employees and also affect employees or positions outside the unit. The Agency states that, assuming that the "vitally affects" standard adopted in Office of Personnel Management is appropriate for proposals affecting employees outside of the bargaining unit, "a different standard must be applied when the proposals at issue would have the effect of determining conditions of employment in other bargaining units." Statement of Position at 8 (emphasis in original). The Agency maintains that it could be placed in an untenable position if it negotiated over proposals that affected employees represented by one union and then refused to bargain over inconsistent proposals offered by another union.

The Agency further argues that in Office of Personnel Management, both the Authority and the court misread private sector precedent. The Agency argues that in First National Maintenance Corp. v. NLRB, 452 U.S. 666 (1981) (First National), the United States Supreme Court found a balancing test to be the appropriate mechanism for the National Labor Relations Board to use in balancing the vital interests of unit employees against other interests when determining whether there is a duty to bargain. Consequently, the Agency states that the "vitally affects" test applied by the Authority is erroneous and should be reconsidered. Instead, the Agency contends that the Authority should apply the rationale in 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 find the proposals nonnegotiable because they determine conditions of employment of employees in other bargaining units.

The Agency also argues that there is a statutory right not to bargain regarding conditions of employment of supervisors, managers, confidential employees, non-bargaining unit employees, and other employees exempted from coverage of the Statute by section 7112. The Agency argues that it must be allowed to reject proposals that affect conditions of employment of such employees and that "[a] contrary interpretation could lead to an identity of interests between managerial employees and bargaining unit employees which would not be in the best interest of effective management." Statement of Position at 15.

Additionally, the Agency contends that even if the vitally affects test were appropriate here, the proposals are nonnegotiable. The Agency argues that this case is distinguishable from Office of Personnel Management because that case concerned the competitive area for a reduction in force and, therefore, involved "a matter obviously of the most compelling interest to any employee." Id. at 16. The Agency states that "[t]he instant proposals . . . pale in comparison." Id.

The Agency also argues that the proposals generally are nonnegotiable because they attempt to dictate the terms and conditions of the contract between the employer and the contractor, and, therefore, interfere with management's right to make contracting out determinations under section 7106(a)(2)(B) of the Statute. As an example, the Agency notes that Proposal 4 would require the contractor to provide drive-through service, as well as regular cafeteria service, resulting in higher costs and the need for a greater number of employees; Proposal 5 would require that three meals, rather than one, be served, resulting in higher costs and requiring additional staff; Proposal 7 would require the contractor to remit a specified sum to the welfare and recreation board, resulting in meal prices that are higher than normal; and Proposals 9 and 11 would set prices charged on leftover food items, directly affecting meal costs and profits.

Finally, the Agency makes the following additional arguments with regard to various proposals. The Agency claims that Proposal 5, which establishes the hours of operation for the cafeteria from 6:00 a.m. to 6:30 p.m. and which requires the cafeteria to serve breakfast, lunch and supper, does not concern the work situation or employment relationship. The Agency states that there are no shift operations at the Agency and that the majority of employees work from 7:30 a.m. to 4:00 p.m. The Agency further states that employees are entitled to one meal break between 11:00 a.m. and 1:00 p.m., and that they are not entitled to any additional meal breaks during the hours of operation proposed by the Union.

The Agency states that Proposal 7, which requires the contractor to remit 10 percent of gross profits to a civilian welfare and recreation board within 45 days of earning such profits, does not concern conditions of employment because the board subsidizes the purchase of sports equipment, sports activities, travel, social events and discount buying, among other things. The Agency argues that these expenditures involve non-work related activities that are conducted in a non-duty status and, as such, do not concern conditions of employment.

The Agency states that Proposal 8 would require the contractor to relinquish ownership of private or government property to the Welfare and Recreation Board after ten years of operation or sooner if either the contractor or Agency closes the facility. The Agency states that this proposal concerns only the contractor and the welfare and recreation board and does not concern the work situation or employment relationship of unit employees. Similarly, the Agency argues that Proposal 11, which would "require the contractor to make undefined leftovers available to the needy without charge[,]" and Proposal 14, which would require the contractor to designate separate dining tables for contractor personnel, do not concern the work situation or employment relationship of unit employees. Id. at 17. Consequently, the Agency argues that these proposals do not concern conditions of employment of bargaining unit employees.

In its supplemental brief, the Agency again asserts "that the Authority's 'vitally [a]ffects' standard is based on an erroneous reading of private sector precedent and should be reconsidered." Agency's Supplemental Brief at 1. The Agency also argues that the Authority should reach the same conclusions as to Proposal 7 and 8 that were reached in Naval Underwater Systems Command, because it claims that in both cases the Union is seeking to have contributions made to the same Welfare and Recreation Board. As to the other proposals involved in this case, the Agency reiterates the contentions it set forth in its statement of position.

B. Union

The Union states that the proposals concern conditions of employment of bargaining unit employees because the proposals address "access to and beneficial use of a cafeteria[.]" Response at 2. The Union also states that the proposals satisfy the test set forth in Antilles.

The Union maintains that, consistent with Authority case law, employee food services and related prices are conditions of employment. In support, the Union relies on 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) and National Federation of Federal Employees, Local 1153 and U.S. Army, Seventh Signal Command and Fort Ritchie, Fort Ritchie, Maryland, 26 FLRA 505 (1987) (Fort Ritchie). The Union argues that, like the situation in Fort Ritchie, in which access to a cafeteria directly affected working conditions of unit employees because, in part, on-base food service was severely restricted, the cafeteria here will be the only one on base. The Union further notes that, at present, food service is available only from canteen trucks or meals brought by employees and that employees who choose to leave the base must pass through security when doing so.

In further support of its contention that the proposals concern conditions of employment of unit employees, the Union makes the following arguments as to particular proposals. The Union asserts that Proposals 2, 3 and 14 concern the seating capacity of the cafeteria and seek to "guarantee that bargaining unit members will not be crowded out of the cafeteria," Response at 3; Proposal 4 provides for a drive-through service to ensure that employees have "access in a more expedient manner," id.; Proposal 5 maintains certain hours of operation to ensure "that all bargaining unit [employees] on regular meal breaks, overtime meal breaks, and unspecified breaks using annual leave time, will be able to use the cafeteria[,]" id.; and Proposal 9, addressing the price of leftovers, is negotiable based on Fort Ritchie, in which the Authority determined that the prices charged for food service were conditions of employment.

The Union also contends, contrary to the Agency, that the proposals are not rendered nonnegotiable because they concern the operation of a food service facility. The Union states that in 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) (Social Security Administration), the Authority found proposals for a snack bar negotiable that included the size of refrigerators, the number of microwaves available and the utensils to be used. The Union argues that Proposals 10, 12, 13, 15 and 16 in this case, relating to the quality of food and water, the number of microwaves available, and the type of furnishings and utensils used, also are negotiable.

The Union maintains that there is no merit to the Agency's claim that the proposals improperly affect management and others outside the bargaining unit. The Union states that in Office of Personnel Management, the Authority determined that it would no longer examine the effect of proposals on non-unit employees. The Union argues that there is no support for the Agency's position that the Authority should balance the rights of unit employees against non-unit employees and that the Agency's reliance on First National is misplaced. The Union also maintains there is no merit to the Agency's contention that the proposals improperly affect more than one bargaining unit. The Union notes in this regard that it represents all the units that may be affected by the proposals and that "the Union can arrange for single bargaining sessions involving all [a]ffected bargaining units so as to ensure a cohesive agreement." Response at 5.

In its supplemental brief, the Union states that, although the cafeteria in this appeal and the appeal in Naval Underwater Systems Center are the same, the proposals are different. The Union reiterates its position that the operation of a cafeteria concerns conditions of employment of unit employees. More specifically as to Proposal 7, which requires the contractor to remit 10 percent of its gross profits to the welfare and recreation board, the Union states that the "Food Services Board and Welfare and Recreation Board . . . are operated under the commander by elected and appointed personnel on official time and for a sanctioned and desired morale improvement and community involvement of the employees." Union's Supplemental Brief at 2. The Union adds that "[t]hus the remission of 10% would be a condition of employment as it would also add to the price of the food and be returned for this stated purpose." Id.

IV. Analysis and Conclusions

For the following reasons, we conclude that Proposals 2, 3, 4, 5, 6, 9, 10, 12, 13, 15, 16 and 17 concern conditions of employment of unit employees that are within the mandatory scope of bargaining. Additionally, we find that these proposals do not interfere with management's right to make contracting out determinations under section 7106(a)(2)(B) of the Statute. We further conclude that Proposal 14 is nonnegotiable because it does not vitally affect conditions of employment of bargaining unit employees and that Proposals 1, 7, 8 and 11 are nonnegotiable because they do not concern conditions of employment of bargaining unit employees.

Before addressing the merits of the proposals, we will discuss the findings and conclusions made in Naval Underwater Systems Command insofar as they pertain to the same contentions that are raised here. We will also discuss the recent decision of the United States Court of Appeals for the District of Columbia Circuit in United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, No. 91-1123 (D.C. Cir. Jan. 14, 1992) (Naval Aviation Depot), to the extent that it bears upon the disposition of this case.(2)

A. The Authority's Decision in Naval Underwater Systems Command

In Naval Underwater Systems Command, we addressed four union proposals relating to the establishment of a cafeteria at the Agency's facility. We found that the proposals concerning negotiations over the establishment of the cafeteria and the quality of food services were negotiable conditions of employment. We also found that the proposals relating to contributions to the welfare and recreation of unit members and to a food services board did not directly affect the work relationship of unit employees and, therefore, were nonnegotiable.

In finding certain of the proposals negotiable, we rejected the Agency's contention that the proposals did not concern conditions of employment of unit employees because there was no direct connection between the proposal and the work situation or employment of unit employees as required by Antilles. We noted that under the Antilles analysis, in order to determine whether a matter involves a condition of employment of bargaining unit employees, the Authority considers whether the record establishes a direct connection between the matter and the work situation or employment relationship of bargaining unit employees. We also noted that in American Federation of Government Employees, Local 2761, AFL-CIO v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989), the United States Court of Appeals for the District of Columbia Circuit reviewed the Authority's application of the Antilles test and found, in sum, that where a matter has a "direct effect on the work relationship[,]" it concerns a condition of employment. Id. at 1449.

Therefore, and consistent with the court's application of the Antilles test and established Authority precedent, we concluded that "[m]atters pertaining to the provision of food services to employees at their place of work concern the conditions of employment of these employees." 38 FLRA at 594. The proposals that related to the establishment of the cafeteria and the quality of food services were held to constitute conditions of employment. However, we found that the proposals addressing only the funding provided to various boards by the contractor for non-work and non-duty time activities were not related to the employment relationship or linked to employees' work requirements. Consequently, those proposals did not directly affect the work relationship of bargaining unit employees and did not concern unit employees' conditions of employment.

With regard to the proposals that were found to concern conditions of employment, we then addressed the Agency's contention that the matters were outside the duty to bargain because they affected conditions of employment of non-bargaining unit employees and those of members of other bargaining units. We rejected the Agency's contention and concluded that under the vitally affects test set forth in Office of Personnel Management and applied 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), the proposals at issue were negotiable. We found that the vitally affects test applied despite a proposal's effect on employees in other bargaining units. In reaching the conclusion that the proposals vitally affected the working conditions of bargaining unit employees, we cited the Supreme Court's decision in Ford Motor Co. v. NLRB, 441 U.S. 488, 498 (1979) (Ford Motor Co.). We took particular note of the Court's view that matters pertaining to the provision of food services for employees during working hours are of great import to the employees and, as such, involve conditions of employment that are within the mutual duty to bargain.

B. The Decision of the Court of Appeals in Naval Aviation Depot

In Naval Aviation Depot, issued during the pendency of this appeal, the Court of Appeals for the District of Columbia Circuit examined the Authority's application of the vitally affects test. The court approved the Authority's adoption of the private sector test but determined that the Authority had misapplied it in various circumstances. Specifically, the court found that the Authority had incorrectly utilized the vitally affects test to examine proposals that affect employees or positions outside the bargaining unit. In the court's view, the vitally affects test is appropriately used "to define the limited circumstances in which subjects not normally seen to be within the compass of mandatory bargaining--e.g., the terms of a relationship between the employer and a third party--may become mandatory subjects due to their effect on bargaining unit employees." Naval Aviation Depot, slip op. at 10. The court added that the test "is not implicated, however, merely because a union proposal, which is otherwise within the scope of mandatory bargaining, would, if accepted, have some impact on persons outside the bargaining unit." Id. at 11 (emphasis in original). The court recognized that most union bargaining demands would have some "extra-unit effects" on non-unit personnel but held that such effects would not alter an employer's duty to bargain over mandatory subjects of bargaining. Id. at n.6.

Of particular significance to the disposition of the proposals at issue here is the court's finding that "proposals that principally relate to the conditions of employment of bargaining unit personnel are within the traditional scope of mandatory bargaining." Id. at 13. As to such proposals, there is no need to apply a vitally affects test. The court cited Ford Motor Co. for the proposition that the vitally affects test is not applicable unless the interests of non-bargaining unit personnel are "'directly implicated'" by a union proposal or, phrased alternatively, when a proposal "purports to regulate the terms and conditions of employment of non-unit employees." Id. In such circumstances, the proposals would fall outside the mandatory scope of bargaining absent a showing that the proposals vitally affected conditions of employment of bargaining unit employees. The court reached the same conclusion as to proposals that purport to regulate the working conditions of non-employees, finding that a union may bargain over "a non-employee matter [that] vitally affects bargaining unit interests . . . ." Id. at 16.

Finally, of importance here is the court's discussion of proposals that involve mandatory subjects of bargaining but concern two or more different bargaining units. The court rejected the view that such proposals would be nonnegotiable simply because they relate to matters of concern of more than one bargaining unit. The court found that such a holding would be "an absurd result[]" because it would unduly narrow the scope of bargaining over mandatory subjects. Id. at 17. Instead, the court held that where a matter concerns a mandatory subject of bargaining affecting more than one bargaining unit, each union may seek to negotiate with respect to the matter for employees within its designated unit.

C. Proposals 2, 3, 4, 5, 6, 9, 10, 12, 13, 15, 16 and 17

The Agency contends that these proposals do not concern conditions of employment and that the Union has not established a relationship between the proposals and unit employees' work situations or employment relationship. The Agency further argues that even if the proposals are found to concern conditions of employment, they are nonnegotiable because they affect non-bargaining unit employees and employees represented in other bargaining units. Finally, the Agency argues that the proposals interfere with management's right to make contracting out determinations under section 7106(a)(2)(B) of the Statute. We disagree with these contentions. We find that the enumerated proposals directly affect conditions of employment of bargaining unit employees and are within the mandatory scope of bargaining. In so finding, we reject the Agency's contention that these proposals interfere with the Agency's right to contract out. As no other basis has been alleged that the proposals are inconsistent with applicable law or regulation, and none is apparent to us, we conclude, for the reasons set forth below, that these proposals are negotiable.

1. The Proposals Directly Affect Conditions of Employment of Bargaining Unit Employees and Involve Mandatory Subjects of Bargaining

Based on the language of Proposals 2, 3, 4, 5, 6, 9, 10, 12, 13, 15, 16 and 17 and the record in this case, it is clear that these proposals pertain to the establishment of a cafeteria and the provision and quality of food services at the employees' place of work. Consequently, as discussed in more depth below, we find, consistent with clear Authority precedent, that these proposals concern the conditions of employment of bargaining unit employees. See Naval Underwater Systems Command. Additionally, based on the court's analysis in Naval Aviation Depot, we conclude that because these are proposals that principally relate to the conditions of employment of bargaining unit personnel, the vitally affects test is not relevant to a determination of their negotiability. See Naval Aviation Depot, slip op. at 11. Accordingly, we conclude that Proposals 2, 3, 4, 5, 6, 9, 10, 12, 13, 15, 16 and 17 are within the mandatory scope of bargaining.

In Naval Aviation Depot, the court referenced and relied on Ford Motor Co. to establish the proposition that a vitally affects test need not be applied when matters involve the relationship between an employer and a bargaining unit and directly implicate no third-party interests. Significantly, Ford Motor Co. involved union bargaining demands over cafeteria and vending machine prices and services. In that decision, the Supreme Court rejected an argument that in-plant food prices and service were too trivial to constitute mandatory subjects of bargaining. Instead, the Court reached the conclusion that "the availability of food during working hours and the conditions under which it is to be consumed are matters of deep concern to workers, and one need not strain to consider them to be among those 'conditions' of employment that should be subject to the mutual duty to bargain." 441 U.S. at 498.

Prior to our decision in Naval Underwater Systems Center, the Authority had addressed a variety of union bargaining demands pertaining to food prices and food services and equipment and had found that such matters constitute negotiable conditions of employment or fall within the mandatory scope of bargaining. See, for example, Department of the Treasury, Internal Revenue Service (Washington, D.C.); and Internal Revenue Service Hartford District (Hartford, Connecticut), 27 FLRA 322 (1987) (Internal Revenue Service) (break room conveniences, including appliances, sink, availability of beverages and snacks); Social Security Administration, 16 FLRA 47 (providing space for storing, preparing and eating meals and furnishing various appliances and utensils); Library of Congress and Congressional Research Employees Association, 15 FLRA 589 (1984) (Library of Congress) (making microwave oven available for employee use); American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA 409 (1982) (AFGE, Local 32) (food services and prices). See also U.S. Department of Labor, Washington, D.C., 38 FLRA 899 (1990) (Department of Labor) (providing bottled water and water coolers). Consistent with prior Authority decisions and Ford Motor Co., we reaffirm the view that, as a general proposition, matters pertaining to the availability and provision of food services for bargaining unit employees are within the mandatory scope of bargaining. Compare National Association of Government Employees, Local R1-25 and Veterans Administration Medical Center, Brockton, Massachusetts, 23 FLRA 266 (1986) (making surplus coffee, originally intended for consumption by hospital patients, available for use by bargaining unit employees found not to concern a condition of their employment because no relationship to the employees' working conditions had been established).

We conclude that Proposals 2, 3, 5, 6, 9, 10, 11, 12, 13, 15, 16 and 17 involve conditions of employment that, consistent with the Federal and private sector precedent cited above, concern matters within the mandatory scope of bargaining. Proposal 2, which relates to seating capacity and Proposal 3, which specifies a private dining room for bargaining unit members, affect the seating accommodations that are available for use by unit employees. As explained by the Union, these proposals are designed to ensure that there is adequate seating so that "bargaining unit members will not be crowded out of the cafeteria[.]"(3) Response at 3. The ready availability of adequate seating for use by bargaining unit employees is a matter that relates to the provision of food services at the employees' place of work. As such, these proposals directly concern unit employees' conditions of employment and are within the mandatory scope of bargaining.

Proposal 4 states that drive-through services will be available during all normal hours. Proposal 5 provides that service in the cafeteria will be available from 6:00 a.m. to 6:30 p.m. for breakfast, lunch and supper, and that the cafeteria will serve snacks at all times it is open. The Union states that Proposal 4 is designed to provide service "in a more expedient manner[.]" Id. The Union explains that Proposal 5 seeks to ensure that unit employees on regular meal breaks, overtime meal breaks and unspecified breaks using annual leave will be able to use the cafeteria. We find that both proposals pertain to the availability of food services. Therefore, they directly affect the employment relationship of unit employees and are within the mandatory scope of bargaining. We find no merit to the Agency's argument that Proposal 5 does not concern the employees' work situation or employment relationship because a majority of employees work from 7:30 a.m. to 4:00 p.m. and are entitled to only one meal break between the hours of 11:00 a.m. and 1:00 p.m. The proposal simply requires that cafeteria services be provided during certain hours. Even assuming that most employees take a meal break during a certain time interval, maintaining hours of operation more extensive than that time interval allows cafeteria services to be available for employee use under a variety of circumstances when employees may be required to work at other than normal hours. For example, the cafeteria would be available for employees who are at work to perform duties on an overtime basis which, we assume, can occur prior to or at the end of their normal workday, and for employees who may be on authorized breaks during the workday.

Proposals 10 and 12 relate to the quality of the food and beverages that are served, and Proposals 6 and 16 relate to the manner in which the meals will be served. These proposals clearly concern the provision and quality of food services that are within the mandatory scope of bargaining. We reach the same conclusion as to Proposals 13 and 15, which relate to the facilities and furnishings that are provided in the cafeteria. The matters encompassed by these proposals relate to subjects that the Authority previously has found to be within the scope of bargaining. See Department of Labor; Internal Revenue Service; Social Security Administration; Library of Congress.

Finally, we find that Proposals 9 and 17 also directly affect conditions of employment of bargaining unit employees and are within the mandatory scope of bargaining. As to Proposal 9, which concerns the price to be charged when leftovers are served, we find that meal prices here constitute a negotiable condition of employment. See Ford Motor Co., 441 U.S. at 498 ("where the employer has chosen, apparently in his own interest, to make available a system of in-plant feeding facilities for his employees, the prices at which food is offered and other aspects of this service may reasonably be considered among those subjects about which management and union must bargain." (footnote omitted)). See also AFGE, Local 32. As to Proposal 17, which relates to the location of the cafeteria, as we stated in Naval Underwater Systems Command, a proposal pertaining to the establishment of a cafeteria directly affects unit employees' conditions of employment and is within the duty to bargain. Clearly, the location of the cafeteria will directly affect unit employees in terms of the proximity of the facility to the employees and their ability to have ready access to food service during the workday.

In finding that these proposals are within the mandatory scope of bargaining, we reject the Agency's assertion that the proposals are nonnegotiable because they impermissibly affect employees outside the Union's bargaining unit or employees represented in other bargaining units. As the court acknowledged in Naval Aviation Depot, most bargaining unit demands have some impact on persons outside a bargaining unit or have some "extra-unit effects[.]" slip op. at 11, n.6. We agree with the court that such extra-unit effects or impact do not remove otherwise negotiable proposals from the mandatory scope of bargaining. Rather, to the extent the proposals here principally relate to the conditions of employment of bargaining unit employees, they are within the mandatory duty to bargain.(4)

2. The Proposals Do Not Interfere with the Agency's Right to Make Contracting Out Determinations

The Agency argues that the proposals attempt to dictate the terms and conditions of the contract between the employer and the contractor. On this basis, the Agency claims that the proposals interfere with its right to make contracting out determinations under section 7106(a)(2)(B) of the Statute. We do not agree.

We have consistently held that an agency is obligated to bargain to the extent that it has discretion to bargain on otherwise negotiable matters. See American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477, et al. and Library of Congress, Washington, D.C., 7 FLRA 578 (1982), enf'd sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983) (Library of Congress). In Library of Congress, the court affirmed the Authority's findings that proposals relating to office design and office environment constituted negotiable conditions of employment even if the agency's bargaining obligation was limited to making recommendations to the entity that was responsible for effecting the changes sought by the proposals. Similarly, in this case, there is nothing to preclude the Agency from seeking to influence the contractor to operate the cafeteria in a manner that is consistent with the proposals. Consequently, there is no basis on which to conclude that the proposals interfere with the Agency's right to make contracting out determinations.

D. Proposal 14

Proposal 14 states that "[s]eparate dining tables shall be designated for contractor personnel." The Union claims that this proposal, along with Proposals 2 and 3, "concern seating capacities which guarantee that bargaining unit members will not be crowded out of the cafeteria[.]" Response at 3. As we stated earlier, in Naval Aviation Depot the court found that the Authority appropriately may apply a vitally affects test when a proposal "purports to regulate the terms and conditions of employment of non-unit employees." slip op. at 13. Based on that portion of the court's analysis, we conclude that we should apply the vitally affects test in our consideration of Proposal 14, and that, upon application of that test, Proposal 14 is nonnegotiable.

The language of Proposal 14 expressly pertains to non-bargaining unit employees because the proposal purports to regulate conditions of employment of contractor personnel by designating the amount of seating available for them in the cafeteria. Therefore, under the formulation of the vitally affects test set forth in Naval Aviation Depot, the proposal is outside the scope of mandatory bargaining unless it vitally affects conditions of employment of employees within the bargaining unit.

In National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 42 FLRA 730, 745-47 (1991), we found that a proposal requiring an agency to drug test employees of a contractor did not vitally affect conditions of employment of unit employees. We noted that the proposal did not require the agency to take any actions with respect to unit employees and that the record failed to demonstrate that drug testing of the contractor's employees would have a significant and material affect on working conditions of unit employees. Similarly, in this case, Proposal 14 would not require the Agency to take any actions with respect to bargaining unit employees. Moreover, there is no showing in the record that providing separate dining tables for contractor personnel has a significant or material affect on bargaining unit employees' conditions of employment. For example, the Union has presented no evidence that unit employees would be unable to consume their meals within their allotted meal periods unless they were assured of adequate seating that could only be accomplished by providing separate tables for contractor personnel. Additionally, while some bargaining unit employees might prefer a choice of seating that excluded contractor personnel, it has not been established that such a seating arrangement in the cafeteria is sufficiently related to unit employees' working conditions. Consequently, because on its face Proposal 14 purports to regulate conditions of employment of employees outside the Union's bargaining unit and does not vitally affect conditions of employment of unit employees, the proposal is nonnegotiable.

We note, however, that, under Naval Aviation Depot, we would have reached a contrary result had the Union chosen to word its proposal differently. That is, if the proposal had been phrased to address directly adequate seating for bargaining unit employees, which appears to have been the Union's intent, we would have analyzed the proposal in the same fashion as Proposals 2 and 3, which also relate to dining and seating accommodations. Under that analysis, we would have concluded that the proposal principally relates to a condition of employment of bargaining unit employees that is within the mandatory scope of bargaining. Although we have applied the D.C. Circuit's formulation of the vitally affects test here, we express concern that inconsistent results may be reached in cases based solely on the particular wording of a proposal regardless of the proposal's underlying intent.

E. Proposals 1, 7, 8 and 11

Proposals 1, 7, 8 and 11 do not directly affect the work relationship of bargaining unit employees. Consequently, they do not concern conditions of employment of bargaining unit employees and are outside the duty to bargain.

Proposals 7 and 8 provide for contractor contributions of money and property, respectively, to a welfare and recreation board. The Union does not dispute the Agency's assertion that this board subsidizes non-work related activities that are conducted in a non-duty status, such as sports, travel, social events and discount buying. The Union states only that the Welfare and Recreation Board is a sanctioned activity that seeks to promote morale improvement and community involvement among employees. The Union adds that "[t]hus the remission of 10% would be a condition of employment as it would also add to the price of the food and be returned for this stated purpose." Union's Supplemental Brief at 2.

We find that Proposals 7 and 8 are similar to the proposals that were found nonnegotiable in Naval Underwater Systems Center. The proposals in that case concerned contractor contributions to a food service board to provide sports and sporting equipment, travel, social events, personal improvement and discount buying. We found that the proposals, which concerned non-work activities of employees while in a non-duty status, did not constitute conditions of employment within the meaning of section 7103(a)(14) of the Statute. We noted particularly the absence of any showing by the union or other indication that funding for such activities was related to the employment relationship or linked to employees' work requirements. We reach the same findings here as to Proposal 7 and 8. Accordingly, and for the reasons more fully set forth in Naval Underwater Systems Center, we find that Proposals 7 and 8 do not concern conditions of employment within the meaning of section 7103(a)(14) of the Statute.

We also find that Proposal 1, concerning the display of the American flag, and Proposal 11, concerning contractor donations "to the needy," do not concern conditions of employment within the meaning of section 7103(a)(14) of the Statute. Like proposals 7 and 8, the Union has provided no evidence that the subjects in question are in any manner related to the employment relationship or are otherwise linked to the employees' work requirements. It is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. See, for example, 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. Naval Underwater Systems Center, 38 FLRA at 596 (1990).

Accordingly, because the record does not establish that Proposals 1, 7, 8 and 11 concern unit employees' conditions of employment, the proposals are nonnegotiable.

V. Order

The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning Proposals 2, 3, 4, 5, 6, 9, 10, 12, 13, 15, 16 and 17.(5) The petition for review as to Proposals 1, 7, 8, 11 and 14, is dismissed.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. While the same labor organization is involved in both cases, different locals representing different bargaining units filed the two negotiability appeals.

2. We will not address the portions of Naval Aviation Depot that have no bearing on the matters before us in this case.

3. Although Proposal 3 and the Union's explanation refer to bargaining unit "members," the record otherwise es