44:0162(16)CA - - VA Medical Center, Veterans Canteen Service, Lexington, KY and NAGE Local R5-184 - - 1992 FLRAdec CA - - v44 p162
[ v44 p162 ]
The decision of the Authority follows:
44 FLRA No. 16
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF VETERANS AFFAIRS
VETERANS ADMINISTRATION MEDICAL CENTER
VETERANS CANTEEN SERVICE
NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES
February 28, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally instituting changes in the working conditions of unit employees when it raised the prices charged to those employees for food served in its cafeteria without providing notice to the Union and affording it the opportunity to bargain concerning the changes. The Respondent filed exceptions to the Administrative Law Judge's decision and the General Counsel filed an opposition to the Respondent's exceptions.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing. We affirm those rulings. Upon consideration of the Judge's decision and the entire record, we adopt, for reasons set forth more fully below, the Judge's findings, conclusions and recommended Order.(1)
The Respondent contends that the Secretary of the Department of Veterans Affairs (VA), the head of the Respondent Agency, has exclusive statutory authority to establish prices for goods or services provided by the Veterans' Canteen Service (VCS) in the Respondent's canteens, including its cafeterias, and that, therefore, it had no obligation under section 7114(a)(1) to bargain with the Union over the changes in cafeteria prices that affected the unit employees. We disagree with this contention, as did the Judge.
When an agency claims that a matter is not negotiable because it possesses statutory authority to take certain actions concerning that matter, the Authority examines whether the authority granted to the agency is exclusive and unfettered or whether the agency may lawfully exercise its authority through collective bargaining. Thus, where law or applicable regulation vest an agency with unfettered discretion over a matter, the agency's discretion will not be subject to negotiation. See, for example, Illinois National Guard v. FLRA, 854 F.2d 1396, 1402 (D.C. Cir. 1988) (Illinois National Guard) (National Guard Technician Act, which allows the agency head to prescribe the hours of duty for technicians notwithstanding any other provision of law, commits decisions regarding technicians' work schedules to the agency head's unfettered discretion); Colorado Nurses Association v. FLRA, 851 F.2d 1486 (D.C. Cir. 1988) (Colorado Nurses) (because 38 U.S.C. §§ 4108 grants the Veterans Administration unfettered discretion to prescribe the working conditions of the employees in the Department of Medicine and Surgery, the agency was not obligated to bargain over the union's proposals); Police Association of the District of Columbia and Department of the Interior, National Park Service, U.S. Park Police, 18 FLRA 348 (1985) (Park Police) (statute provided exclusive procedure for minor disciplinary actions for bargaining unit members and, therefore, proposal that permitted appeals of disciplinary actions through the negotiated grievance procedure was nonnegotiable).
In contrast, the Authority has consistently held that matters concerning conditions of employment over which an agency has discretion are negotiable if the agency's discretion is not exclusive and the matters to be negotiated are not otherwise inconsistent with law or applicable rule or regulation. See, for example, U.S. Department of Defense, Office of Dependents Schools and Overseas Education Association, 40 FLRA 425, 441-43 (1991) and cases cited therein; National Treasury Employees Union and Family Support Administration, Department of Health and Human Services, 30 FLRA 677, 682 (1987) (Family Support Administration) (where statute authorized the head of the agency "to establish or provide for the establishment of appropriate fees and charges" the Authority found that the "statute leaves the [a]gency with discretion to determine the appropriate fees").
In this case, the Respondent argues that the statute establishing the VCS (2) grants exclusive discretion to the Secretary of the Department of Veterans Affairs to establish prices in its canteens and cafeterias because it states:
The Secretary shall--
. . . . . . .
(7) fix the prices of merchandise and services in canteens so as to carry out the purposes of this chapter;
38 U.S.C. § 7802.
We find nothing in the statute establishing the VCS or its legislative history that prohibits the Respondent from setting those prices through negotiation with the Union. Rather, the statute simply grants the Secretary of the Agency the discretion to fix the prices. Under established Authority law, that discretion may be exercised through negotiations. Family Support Administration, 30 FLRA at 682. Significantly, the statute contains no language excluding or limiting the application of other laws. Compare Colorado Nurses, 851 F.2d at 1490-91 (where amendment to statute stated that "[n]otwithstanding any other provision of law, no provision of title 5 or any other law pertaining to the civil service system which is inconsistent with any provision of [the applicable statute] shall be considered to supersede, override, or otherwise modify such provision of this subchapter[,]" court held that the agency's authority to determine conditions of employment was not subject to bargaining under the Statute); New Jersey Air National Guard v. FLRA, 677 F.2d 276, 283 (3d Cir. 1982) (New Jersey Air National Guard) (where statute contains the language "notwithstanding any other provision of law . . . . [T]he preemptive language is powerful evidence that Congress did not intend any other, more general, legislation, whenever enacted, to qualify the authority of the [agency head] as set out in the [statute]"); Park Police, 18 FLRA at 354-56 (where statute provides that it takes effect notwithstanding any other law, the appeals procedures of that statute constitute an exception to the negotiated grievance procedures mandated by the Statute). We consider the absence of such preemptive language in this case to be a strong indication that Congress did not intend the Secretary of the VA to have unfettered discretion to set prices.
The Respondent also claims that the exclusive authority of the Secretary of the VA derives from 38 U.S.C.A. § 7808, which is entitled "Service to be independent unit" and which states:
It is the purpose of this chapter that, under control and supervision of the Secretary, the [VCS] shall function as an independent unit in the [VA] and shall have exclusive control over all its activities including sales, procurement and supply, finance, including disbursements, and personnel management, except as otherwise provided in this chapter.
As we read this provision and its legislative history, its purpose was to ensure that the VCS would be operated as an independent entity within the VA, and not to dictate how the Secretary of the VA would exercise its delegated discretion regarding those operations. Thus, in the "Explanatory Statements" contained in both the Senate and House reports accompanying the original legislation, this provision is described as declaring
the purpose of the act to be that the [VCS] shall function as an independent unit within the [VA] and have exclusive control over all of its operations. The [VA] now operates 107 hospitals and homes at each of which there is need for canteen service. When the current hospital program is complete the number will be substantially increased. The [VCS] as a whole is to function as a unit and each sales store and service outlet will be an integral part thereof. Since the [VCS] is to function as a unit and its operations are of a commercial nature, it is considered essential that it have maximum direct control over its activities.
S. Rep. No. 1701, 79th Cong., 2d Sess. 5 (1946); H.R. Rep. No. 2432, 79th Cong., 2d Sess (1946).
In view of the wording of 38 U.S.C.A. § 7808, read in its entirety, and the explanatory material in the legislative history, we are not persuaded that the requirement that the VCS have "maximum direct control over its activities" is meant in any way to limit the scope of the discretion granted the Secretary of the VA by 38 U.S.C.A. § 7802(7). Indeed, we note that although 38 U.S.C.A. § 7808 also grants the VCS "exclusive control" over "personnel management," the VCS is expressly included in section 7103(a)(3) of the Statute as an agency covered by the Statute. We view this express coverage under the Statute as indicating that Congress intended that the VCS have bargaining obligations with regard to matters of significant interest to its employees. See New Jersey Air National Guard, 677 F.2d at 283 (in determining which statute controls, "we are guided by the language of the statutes themselves, the legislative history underlying each Act, and the apparent or inferable purposes that each Act reflects."). The Authority has consistently held that the pricing of food in a cafeteria used by employees is a mandatory subject of bargaining. See National Association of Government Employees, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 43 FLRA No. 106, slip op. at 14-15 (1992) and cases cited therein. Accordingly, we agree with the Judge that the Respondent was obligated to bargain over the pricing of food in its cafeteria.
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, the Department of Veterans Affairs, Veterans Administration Medical Center, Veterans Canteen Service, Lexington, Kentucky, shall:
1. Cease and desist from:
(a) Unilaterally instituting changes in working conditions by raising the prices charged to bargaining unit employees for food served by the Leestown Road cafeteria without providing notice to the National Association of Government Employees, Local R5-184, 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 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 R5-184, the exclusive representative of certain of its employees, in advance of any intended changes in the working conditions of bargaining unit employees concerning the raising of food prices for bargaining unit employees at its employee cafeterias and, upon request, negotiate with the exclusive representative concerning such proposed changes.
(b) Rescind the price increases initiated on May 3, 1990, and collected thereafter from bargaining unit employees at the Leestown Road cafeteria.
(c) Post at its Leestown Road cafeteria 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 Director of the Medical Center 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, Atlanta Region, 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.
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 raising the prices charged to bargaining unit employees for food served by the Leestown Road cafeteria without providing notice to the National Association of Government Employees, Local R5-184, 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 employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL, notify the National Association of Government Employees, Local R5-184, the exclusive representative of certain of our employees, in advance of any intended changes in the working conditions of bargaining unit employees concerning the raising of food prices charged to bargaining unit employees at our employee cafeteria and, upon request, negotiate with the exclusive representative concerning such proposed changes.
WE WILL rescind the price increases initiated on May 3, 1990 and collected thereafter for meals to bargaining unit employees at the Leestown Road cafeteria.
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 of the Federal Labor Relations Authority, Atlanta Region, whose address is: 1371 Peachtree Street, N.E., Atlanta, Georgia, and whose telephone number is: (404) 347-2324.
(If blank, the decision does not have footnotes.)
1. We note that no exceptions were taken to the Judge's failure to order reimbursement to the