46:0625(61)NG - - Antilles Consolidated Education Association and Antilles Consolidated School System, Fort Buchanan, PR - - 1992 FLRAdec NG - - v46 p625

[ v46 p625 ]
The decision of the Authority follows:

46 FLRA No. 61











November 24, 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 under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It involves the negotiability of one proposal concerning exchange privileges for bargaining unit employees.

For the following reasons, we find that the proposal is negotiable.

II. Preliminary Matters

The Agency contends that the Union's petition for review should be dismissed because it was not filed within the time limits set forth in section 2424.3 of the Authority's Rules and Regulations. The Union states that the Agency's request should be denied. According to the Union, the Agency's allegation of nonnegotiability was sent to a post office location at which the Union's representative of record does not pick up mail. The Union claims that the petition for review was filed as expeditiously as possible after it obtained the written allegation.

We find that the petition was timely filed and, therefore, that it is properly before us. The time limit for filing a petition for review of negotiability issues is 15 days after service on a union of an agency's allegation of nonnegotiability. 5 C.F.R. § 2424.3. The date of service is the date the allegation is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). If the allegation is served by mail, 5 days are added to the 15-day period for filing the petition for review. 5 C.F.R. § 2429.22. The record here indicates that the Union requested the Agency's allegation of nonnegotiability on March 3, 1992, and that the allegation was served (postmarked) on March 19, 1992. The Union's petition for review had to be either postmarked by the U.S. Postal Service or received in person at the Authority's Docket Room no later than April 8, 1992. 5 C.F.R. §§ 2429.22 and 2429.24(a). The Authority's records indicate that the petition was filed (postmarked) on April 7, 1992. Consequently, the petition for review was timely filed and is properly before us for a determination on the merits.

Also as a preliminary matter, we note the Union's contention that it has been unable to effectively argue its position in this case because the Agency has refused its requests for certain information. The Union adds that it filed, but withdrew, an unfair labor practice charge over the Agency's failure to provide requested information. The Union also states that it continues to seek that information. To the extent there appears to be a dispute regarding the furnishing of information, we find that such an issue is not properly before us in this proceeding. Instead, the issue is more appropriate for resolution in other proceedings. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984).

III. Proposal

All unit employees shall be granted access to and use of post exchange or Navy exchange facilities, including the main exchanges and satellite stores (e.g., minimarts, gas stations).

IV. Positions of the Parties

1. Agency

The Agency contends that the proposal is nonnegotiable because it does not concern a condition of employment of bargaining unit employees. More specifically, the Agency claims that, under the test set forth in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986) (Antilles), the proposal does not directly affect working conditions of unit employees.

The Agency also argues that the instant case is distinguishable from American Federation of Government Employees, Local 2614 and U.S. Department of the Navy, Antilles Consolidated School System, 43 FLRA 830 (1991) (Department of the Navy). According to the Agency, the Authority found in that case that the use of exchange privileges by unit employees had a direct effect on their work situation, given the lack of food establishments at which employees could eat lunch. In contrast, the Agency claims that the bargaining unit employees involved here are provided forty minutes for a lunch period and may eat either in the school cafeteria, the exchange cafeteria, or at a commercial restaurant or snack bar on base. The Agency maintains that the employees' conditions in this case are "markedly different" from the conditions in Department of the Navy. Statement of Position at 6.

2. Union

The Union states that various Agency employees, including some bargaining unit employees, have been granted full exchange privileges at various Agency locations. The Union notes that while locally-hired teachers at the Roosevelt Roads Naval Base have access to exchange restaurants and snack bars as well as commercial facilities on base, they are denied access to retail exchange facilities, such as convenience stores and minimarts. Accordingly, in its proposal, the Union seeks "to extend the benefit to this particular segment of the unit, as all other members currently enjoy the benefit." Petition for Review at 3.

The Union contends that the subject matter of the proposal concerns a condition of employment because there is a direct connection between access to exchange facilities and the work situation of locally-hired teachers at Roosevelt Roads. In this regard, the Union states that Roosevelt Roads is located about 40 miles from a major metropolitan area, that the schools are located from 3 to 5 miles within the base gates, and that shopping facilities off the base are limited in number as well as the quality of products sold. The Union further states that teachers at Roosevelt Roads frequently work beyond their normal duty hours for purposes of providing remedial instruction, conferring with parents, attending committee meetings and/or directing extra-curricular activities. The Union adds that teachers may also return to school in the evenings to perform assignments such as attending parent-teacher association meetings, presentations, or other events.

In further support of its assertion that there is a direct connection between access to the exchanges and the employees' work situation, the Union points to an example of a teacher who was scheduled for a meeting 2 hours after the end of her normal work day. Rather than drive 20 miles each way between her home and school, the employee remained at the school. While waiting for the meeting, the employee unexpectedly developed a need for a health-related item. Because she was unable to purchase the item at the exchange facility adjacent to the school, she was forced to drive 5 miles in order to leave the base, purchase the item at the nearest town, and then return to school for the scheduled evening activity.

The Union maintains, contrary to the Agency, that the instant case is consistent with Department of the Navy. The Union concedes that in this case employees have access to exchange snack bars or restaurants, but it asserts that the Authority's decision in Department of the Navy "conferring negotiability of [sic] the issue did not restrict the scope of what kinds of facilities access could be limited to, or how they were to be conditioned." Response at 13.

Finally, the Union contends that by providing other teachers at Roosevelt Roads, such as those classified as Continental United States (CONUS) hires, with access to exchange facilities on base while denying such access to similarly situated locally-hired teachers, the Agency "perpetuate[s] an inequity which relegates Roosevelt Roads local hire teachers to third class status." Id. at 12. The Union asserts that because the Agency has granted access to exchange facilities to other unit employees, including CONUS hires and other, unspecified unit employees, the matter is within the discretion of the Agency. The Union also argues that the Agency's practice of granting access to exchange facilities to those unit employees has ripened into a condition of employment that can be extended to locally-hired teachers at Roosevelt Roads. In this regard, the Union asserts that, for those unit employees who have been granted exchange privileges, the privileges flow from their employment status. The Union adds that if the Agency were to deny or withdraw the exchange privileges from the unit employees who presently enjoy them, such an action would constitute grounds for an unfair labor practice.

V. Analysis and Conclusions

The Agency's sole argument that the proposal is nonnegotiable is based on its view that the proposal does not concern a condition of employment of bargaining unit employees. We disagree with that view. Consequently, we find that the proposal is negotiable.

In determining whether a proposal concerns a condition of employment of bargaining unit employees, the Authority considers 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. As to the first factor, there is no dispute that the proposal applies to bargaining unit employees. In fact, the language of the proposal specifies that it applies to "unit employees." Compare National Association of Government Employees, Local R1-100 and U.S. Department of the Navy, Navy Branch Exchange Store, U.S. Naval Submarine Base, New London, Groton, Connecticut, 46 FLRA No. 48 (1992) (proposal that would have allowed all employees to shop at exchanges found nonnegotiable). As to the second factor, we find, based on the record before us, that there is a direct connection between the exchange privileges sought and the work situation of bargaining unit employees, namely, the locally-hired teachers at Roosevelt Roads.

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. The court noted that, under Antilles, "the Authority inquires into the extent and nature of the effect of the practice on working conditions." AFGE, Local 2761, 866 F.2d at 1445. In determining whether the matter there at issue was a condition of employment, the court examined whether there was a "l