44:0302(26)NG - - IFPTE Local 11 and IAF Local F-48 and Navy, Mare Island Naval Shipyard, Vallejo, CA - - 1992 FLRAdec NG - - v44 p302



[ v44 p302 ]
44:0302(26)NG
The decision of the Authority follows:


44 FLRA No. 26

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

INTERNATIONAL FEDERATION OF PROFESSIONAL

AND TECHNICAL ENGINEERS

LOCAL 11

(Union)

and

U.S. DEPARTMENT OF THE NAVY

MARE ISLAND NAVAL SHIPYARD

VALLEJO, CALIFORNIA

(Agency)

0-NG-1925

INTERNATIONAL ASSOCIATION OF FIREFIGHTERS

LOCAL F-48

(Union)

and

U.S. DEPARTMENT OF THE NAVY

MARE ISLAND NAVAL SHIPYARD

VALLEJO, CALIFORNIA

(Agency)

0-NG-1926

CONSOLIDATED DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 12, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Cases

These cases are before the Authority on negotiability appeals filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). The proposals relate to the operation of a food service facility on the Agency's premises and were submitted by a coalition of labor organizations, which includes the Unions involved herein. After the Agency declared the proposals at issue nonnegotiable, the Unions filed separate petitions for review. The Agency filed identical statements of position in each case. Under these circumstances, we have decided to consolidate the cases for decision.

Proposal 1 requires the Agency to discharge an outstanding utility debt owed to it by the Food Services Operation. Proposal 2 provides that the Agency contribute to the Mare Island Civilian Recreation Association (MICRA) the sum of $1000 per month until the Food Services Board resumes such payments. Proposal 3 requires an audit of the financial records of the Food Services Operation, at Government expense. Proposal 4 states that the Agency pay off a loan balance owed to the Naval Military Personnel Command (NMPC).

We conclude that the proposals are nonnegotiable because they do not concern unit employees' conditions of employment within the meaning of section 7103(a)(14) of the Statute.

II. Background

The Food Services Operation is one of several organizations that provide cafeteria and other food services to civilian employees at the Mare Island Naval Shipyard (Shipyard). The Food Services Operation is a nonappropriated fund instrumentality. As such, the Congress of the United States does not appropriate monies to it for operational purposes. Rather, the Food Services Operation receives monies generated through the sale of food and related items in the cafeteria, vending machines and mobile canteens it operates on the Mare Island installation. By contrast, the Shipyard is funded through monies appropriated by Congress.

The Food Services Operation is fiscally separate and distinct from the Shipyard and maintains custody and control over its nonappropriated monies. The Food Services Operation purchases utility services from the Shipyard, such as steam generated by the Shipyard, as well as other utilities that the Shipyard purchases from public utility companies. The Food Services Operation also provides support in the form of monies to MICRA, which is a separate nonappropriated fund instrumentality. MICRA is employee-operated and provides recreational and leisure activities, such as picnics and Christmas parties, to employees at the Shipyard.

Although the Food Services Operation is fiscally separate and distinct from the Shipyard, the Commander of the Shipyard is responsible for the overall managerial control of the Food Services Operation. Further, the Director of Industrial Relations of the Shipyard, as a representative of the Commander, is responsible for the development and the execution of plans for food service provided by the Food Services Operation. Furthermore, the Food Services Board, an oversight organization composed of representatives of both management and the Unions, is responsible for developing, recommending and executing plans, policies and procedures for civilian food services.

Prior to the events giving rise to these negotiability appeals, the Food Services Operation was managed in-house under the day-to-day direction of an employee who was responsible for the financial solvency of the Food Services Operation, among other matters. At that time, the Food Services Operation developed financial problems and accumulated outstanding bills that it owed to the Shipyard for the use of utilities, as well as debts owed to various other creditors.

The Food Services Operation responded to its financial problems by obtaining a loan from the Naval Military Personnel Command to pay off the debts owed to creditors other than the Shipyard. The National Military Personnel Command is a command under the Chief of Naval Operations that, among other functions, is responsible for military and civilian morale, welfare and recreation programs throughout the Department of the Navy. The loan to the Food Services Operation was made from nonappropriated funds which the Naval Military Personnel Command receives from revenues generated from nonappropriated fund instrumentalities operated throughout the Navy. The Food Services Operation also responded to its financial problems by reducing its monthly contributions to MICRA providing that organization $1000 per month in lieu of a percentage of its monthly profits.

Sometime in 1989, the Food Services Operation contracted out its day-to-day management and the provision of food services to a private company called the Canteen Company. However, the Food Services Operation continues to maintain overall managerial control of its operations.

III. The Proposals

Proposal 1

We propose that Mare Island Naval Shipyard forgive the Food Service utility debt of approximately $130,646.00.

Proposal 2

We propose that Mare Island Naval Shipyard immediately fund the $1,000.00, per month, payment to MICRA until such time as the Food Service Board deems it appropriate to resume these payments.

Proposal 3

We propose a complete and accurate audit of the financial records, past and present, related to the Food Service. We further propose that this be conducted, at government expense, by an independent certified public accountant selected by the Food Service Board.

Proposal 4

We propose that Mare Island Naval Shipyard pay off the remaining NNPC [sic] loan balance of approximately $160,000.00 or remaining debt, whichever is greater.

IV. Positions of the Parties

A. Agency

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 argues, in this regard, 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 notes that the Authority previously has found that the provision of food services to employees at their places of work concerns conditions of employment. The Agency claims, however, that in these cases, the Unions have not established a direct relationship between the proposals and the work situation or employment relationship of bargaining unit employees.

More particularly as to Proposals 1 and 4, the Agency claims that the Unions failed to demonstrate that the discharge of debts owed by the Food Services Operation would lead to improved cafeteria services. The Agency notes that the cafeteria and mobile truck operations have been contracted out to the Canteen Company and the debts that would be discharged are those incurred by the Food Services Operation, and not the present provider of cafeteria services. As to Proposal 2, the Agency claims that the requirement to make monthly contributions to MICRA has the same effect as comparable proposals that were found nonnegotiable 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 I). Finally, as to Proposal 3, the Agency asserts that the Unions failed to establish that the proposed audit is directly connected to the work relationship of unit employees. The Agency notes that the proposal concerns the internal operation of the Food Services Operation and argues that there has been no showing that the audit would affect the food services available to unit employees as provided by the Canteen Company.

The Agency also argues that the proposals violate federal law concerning the expenditure of funds which have been appropriated by Congress to carry out the Agency's mission. In addition, the Agency argues that Proposals 1 and 4 violate the Federal Claims Collection Act of 1966, 31 U.S.C. § 3701, by exceeding the monetary amount of a claim that can be relieved by an agency. The Agency states that it is unaware of any statutory authority that would permit it to relieve the debts incurred by the Food Services Operation. Lastly, the Agency argues that Proposals 1, 2 and 4 interfere with the Agency's right to determine its budget under section 7106(a)(1) of the Statute and conflict with Agency regulations for which a compelling need exists.

B. Unions

In their petitions for review, the Unions state that the proposals are intended to return the Food Services Operation to a financial condition that will allow it to provide the quality and service expected by bargaining unit employees. According to the Unions, the burden placed on the Food Services Operation by the outstanding debts prevents the Food Services Operation from functioning effectively and providing various services that the Food Services Operation had previously offered. The Unions also explain that, as a result of the debts, the Food Services Operation has been unable to provide MICRA with as generous a monetary contribution as had been provided in the past. The Unions claim that, as a consequence, MICRA is no longer a viable organization for employee recreation or services.

The Unions also state that, previously, the cafeteria was incurring losses and was in danger of ceasing operations; that cafeteria services remain essential for employees to comply with the Agency's time limitations on lunch breaks; and that cafeteria services are a necessity for employees who work outside the normal workshift because no suitable restaurant facilities are available. In addition, the Unions assert that if the debt of the Food Services Operation is paid according to the current payment schedule, it will be many years before bargaining unit employees can enjoy a viable cafeteria system. Based on the foregoing arguments, the Unions maintain that the proposals in this case are similar to Proposal 1 in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 29 FLRA 380, 381-385 (1987) (Office of Personnel Management) aff'd as to other matters sub nom. Office of Personnel Management v. FLRA, 864 F.2d 165 (D.C. Cir. 1988), and should also be found negotiable.

In its reply brief in Case No. 0-NG-1926, the International Association of Firefighters, Local F-48, argues that the proposals have a direct impact on unit employees' conditions of employment. The Union states that "[a]t present, employees enjoy no benefit from the operation of food services on the shipyard." Union Response at 1. The Union maintains that the quality of food services is poor, the prices are high, MICRA is unable to provide recreation for employees, and employees are bearing the cost of mismanagement that led to the debts the Union now is seeking to require management to relieve. The Union reiterates the claim that a viable food services operation is essential for employees to comply with the Agency's time limitations for lunch breaks, noting that none of the food service facilities cited by the Agency is within reasonable walking distance. Finally, with respect to the proposed audit, the Union states that there is a concern over the continued operation of food services and that the purpose of the audit is to identify problem areas that can be addressed.

V. Analysis and Conclusions

For the following reasons, we conclude that the proposals are nonnegotiable because they do not concern unit employees' conditions of employment.

In deciding whether a proposal concerns a condition of employment of bargaining unit employees, the Authority has considered whether: (1) the proposal pertains to bargaining unit employees; and (2) the record establishes that there is a direct connection between the proposal and the work situation or employment relationship of bargaining unit employees. Antilles, 22 FLRA at 237. Further, in American Federation of Government Employees, Local 2761 v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989), decision on remand, 35 FLRA 1105 (1990), the United States Court of Appeals for the District of Columbia Circuit examined whether there was a "link" or "nexus" between a proposed matter and the workers' employment for purposes of determining whether the matter concerned a condition of 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.

More recently, in National Association of Government Employees, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport Rhode Island, 43 FLRA 1331 (1992) (Naval Underwater Systems Center II), we reaffirmed the view that, as a general proposition, matters that pertain to the availability and provision of food services for bargaining unit employees at their place of work are within the mandatory scope of bargaining. Id. at 1345-46. We found more specifically, that proposals pertaining to prices of food items, seating accommodations and hours of operation, among other matters, concerned the types of issues that traditionally are within the mandatory scope of bargaining, consistent with Federal and private sector labor relations cases.

In Naval Underwater Systems Center II, we also found, however, that matters that do not have a sufficient nexus to the employment relationship or work situation of unit employees do not constitute conditions of employment of bargaining unit employees and are outside the duty to bargain. As relevant here, we found that proposals addressing contributions of money and property to a welfare and recreation board for non-work and non-duty time activities were not related to the employment relationship or linked to employees' work requirements. Similarly, we found that proposals concerning donations of leftover food and displaying the American flag at or near the cafeteria were not sufficiently related to the employment relationship or otherwise linked to employees' work requirements. Consequently, we concluded that such proposals did not concern unit employees' conditions of employment.

We reach the same conclusions here and find that the proposals in these cases do not directly affect the work relationship of bargaining unit employees. Therefore, they are outside the duty to bargain.

Proposal 1 would require the Agency to discharge an outstanding debt owed by the Food Services Operation to the Agency and Proposal 4 would require the Agency to pay off the balance of a loan owed by the Food Services Operation to the National Military Personnel Command. Proposal 3 would require the Agency to conduct an audit of the financial records of the Food Services Operation at Government expense. The Unions state that these proposals are intended to return the Food Services Operation to a financial condition that will enable it to provide employees with quality services and lower food prices. However, by their wording, these proposals do not address the provision of food services or matters that the Authority traditionally has found to be within the mandatory scope of bargaining. Instead, we find, in agreement with the Agency, that the Unions have not established a direct relationship between these matters and the provision of food services for unit employees.

Although the Unions state that the burden imposed on the Food Services Operation to repay the debts prevents that entity from functioning effectively and providing services that previously had been offered, the Unions provide no evidence of any food-related services that have been curtailed. We note also that a different contractor has been retained to provide cafeteria services and there is no evidence that relieving the debts incurred by the Food Services Operation would affect the services provided by that company. We conclude that the relationship between the proposals in dispute and the employment relationship or work requirements of bargaining unit employees is, at best, remote and speculative. In negotiability matters 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 II, 43 FLRA at 1351.

These proposals are distinguishable from Office of Personnel Management, relied on by the Union. In that case, the Authority found negotiable a proposal that required the agency to take certain actions to maintain cafeteria prices. Although the Authority did not address, as a threshold matter, whether the proposal concerned a condition of employment of bargaining unit employees, as we stated above, matters pertaining to cafeteria prices traditionally are within the mandatory scope of bargaining.

We also find that these proposals are distinguishable from Proposal 1 in National Association of Government Employees, Local R4-26 and Department of the Air Force Langley Air Force Base, Virginia, 40 FLRA 118, 119-123 (1991). In that case, the proposal would have required the agency to reimburse employees for any losses, such as airline tickets or hotel reservations, which result from the cancellation of approved leave by the agency. The Authority found that when management cancels approved leave and requires the employee to report to work, the resultant losses incurred by the employees stem directly from the work relationship even though the original expenditures were made for activities that would have taken place on non-duty time. In contrast, we find that the relationship between the matters proposed here and the employment situation of bargaining unit employees is not apparent from the plain language of the proposals and has not otherwise been established. Accordingly, we find that Proposals 1, 3 and 4 do not concern conditions of employment of bargaining unit employees and are nonnegotiable.

We also find that Proposal 2, concerning Agency contributions to MICRA, does not concern conditions of employment within the meaning of section 7103(a)(14) of the Statute. The Union describes MICRA as an employee-operated organization that provides recreational and leisure activities to employees. Like Proposals 1, 3 and 4, the Union has provided no evidence that the subject in question is in any manner related to the employment relationship or is otherwise linked to the employees' work requirements. The Agency states without contradiction that Proposal 2 would have the same effect as proposals involving employer co