47:0454(37)CA - - Marine Corps Logistics Base, Barstow, CA and AFGE, Local 1482 - - 1993 FLRAdec CA - - v47 p454



[ v47 p454 ]
47:0454(37)CA
The decision of the Authority follows:


47 FLRA No. 37

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

MARINE CORPS LOGISTICS BASE

BARSTOW, CALIFORNIA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1482, AFL-CIO

(Charging Party)

98-CA-10236

98-CA-10490

(46 FLRA 782 (1992))

_____

ORDER DENYING REQUEST FOR RECONSIDERATION

April 20, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Respondent's request for reconsideration of our decision in 46 FLRA 782 (1992). The General Counsel filed an opposition to the request.

For the following reasons, we conclude that the Respondent has failed to establish that extraordinary circumstances exist warranting reconsideration of our decision. Accordingly, we will deny the Respondent's request for reconsideration.

II. The Decision in 46 FLRA 782

In 46 FLRA 782, the consolidated complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing the conditions of employment of unit employees. We found that the Respondent violated the Statute by increasing the price of soft drinks in Base vending machines from 50 cents to 55 cents per can without first notifying the Union and providing it with an opportunity to negotiate over the substance and the impact and implementation of the change and by refusing to bargain with the Union over a proposal concerning catering truck and vending machine prices. The Respondent argued that negotiations over catering truck and vending machine beverage item prices were barred by 5 U.S.C. § 5536 and Comptroller General decisions interpreting that provision. We disagreed and noted that matters pertaining to food services and related prices for bargaining unit employees are within the mandatory scope of bargaining. We also noted that, in considering other proposals regarding food service for employees, the Comptroller General has not interpreted 5 U.S.C. § 5536 as an absolute prohibition on agency subsidization of food for employees.

As a remedy, we ordered the Respondent, among other things, to cease implementing unilateral changes in the employees' working conditions without affording the Union the opportunity to negotiate. We also ordered the Respondent to rescind the price increase for canned beverages in Base vending machines and to decrease the price of canned beverages to 45 cents per can for the same number of days that the unilateral increase in price was in effect.

III. The Respondent's Request for Reconsideration

In support of its request for reconsideration, the Respondent asserts that: (1) the Authority's remedial order is improper and overly broad; and (2) the Authority's decision is inconsistent with 5 U.S.C. § 5536 and decisions of the Comptroller General dealing with that provision.

With respect to its first argument, the Respondent contends that the Authority's decision failed to address certain issues raised by the Respondent. In particular, the Respondent asserts that the Authority's order: (1) applies to all vending machines at the Marine Corps Logistics Base, Barstow, California, including machines that are used exclusively by nonunit employees; and (2) has the effect of requiring the Respondent's Morale, Welfare, and Recreation Activity (MWR), a nonappropriated fund activity which has no bargaining relationship with the Union, "to subsidize the wages of an appropriated fund entity, the Marine Base, a separate employer which employs the [Union's] unit employees." Request for Reconsideration at 5.

In support of its second argument, the Respondent argues that the Authority's decision improperly fails to consider the Respondent's contention that 5 U.S.C. § 5536 prohibits an agency from subsidizing food and beverages for employees and erroneously requires bargaining on a matter excluded from the definition of conditions of employment under section 7103(a)(14)(C) of the Statute. Specifically, the Respondent claims that the decisions of the Comptroller General relied on in the cases cited by the Authority are inapposite because those decisions pertain to an agency subsidizing a food vendor, not to an agency subsidizing bargaining unit employees. The Respondent argues that the MWR, a non-appropriated fund entity, cannot subsidize bargaining unit employees who are paid from appropriated funds.

IV. Position of the General Counsel

The General Counsel contends that no extraordinary circumstances exist requiring the Authority to reconsider its decision in 46 FLRA 782. According to the General Counsel, the Respondent's request is based on mere disagreement with the Authority's decision and is not a sufficient basis on which to grant the request for reconsideration.

Specifically, the General Counsel claims that the "Respondent had ample opportunity at trial as well as in its subsequently filed briefs to assert and establish whether there are food services which are at issue in this case which are not utilized by bargaining unit employees and are therefore not appropriately addressed in this forum." Opposition at 3. The General Counsel asserts that the "Respondent has provided no evidence whatsoever to establish that its own failure to assert this defense in a timely manner is somehow an extraordinary circumstance." Id. at 3-4. Further, with respect to the Respondent's argument that requiring it to bargain over food service prices would result in the MWR subsidizing the wages of appropriated fund employees, the General Counsel contends that the Respondent had ample opportunity to raise its argument earlier but failed to do so and that, in any event, the argument is without merit because nothing in this case concerns the issue of employee wages. Finally, the General Counsel asserts that the Respondent's contention that 5 U.S.C. § 5536 precludes negotiation on the price of food and beverages constitutes mere disagreement with the Authority's holding on this issue.

V. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of extraordinary circumstances to request reconsideration of a decision of the Authority. For the following reasons, we conclude that the Respondent has not established that extraordinary circumstances exist within the meaning of section 2429.17 to warrant reconsideration of our decision in 46 FLRA 782.

A. First Alleged Ground for Reconsideration

We reject the Respondent's allegation that the remedy provided in the Authority's order is improper and overly broad. As relevant here, our remedial order in 46 FLRA 782 directs the Marine Corps Logistics Base, Barstow, California to cease and desist from "[i]mplementing unilateral changes in the working conditions of unit employees by increasing the price of canned beverages in Base vending machines" and to "[r]escind the price increase for canned beverages in Base vending machines effected on March 8, 1991 [and] [e]ffect a further decrease in the price of canned beverages to 45 cents per can for the same number of days that the unilateral increase in price was in effect." Marine Corps Logistics Base, Barstow, California, 46 FLRA 782, 784 (1992). Thus, it is clear that our order was directed at remedying the harm to unit employees caused by the Respondent's unfair labor practices. Accordingly, to the extent that there are vending machines used exclusively by nonunit employees, our order does not apply to such machines and prices for canned beverages in those machines do not have to be changed. If questions arise concerning the applicability of our remedial order to particular vending machines, such questions are appropriate for resolution in compliance proceedings.

We also reject the Respondent's assertion that the Authority's order improperly requires the MWR to subsidize the wages of unit employees. Our order in 46 FLRA 782 addresses the price of canned beverages in vending machines and directs the Respondent to bargain, upon request, with the Union regarding the Union's proposal involving prices for catering truck and vending machine prices on the Base. Nothing in our order requires the subsidization of wages of unit employees. Consequently, the Respondent's assertion in this regard provides no basis warranting reconsideration.

Accordingly, the Respondent's first alleged ground for reconsideration does not support its claim that extraordinary circumstances exist warranting reconsideration of the Authority's decision in 46 FLRA 782.

B. Second Alleged Ground for Reconsideration

Contrary to the Respondent's allegation, we find that the Authority's decision in 46 FLRA 782 addressed the Respondent's arguments regarding 5 U.S.C. § 5536, and that our order is consistent with 5 U.S.C. § 5536 and the Comptroller General's decisions considering that provision. According to the Respondent, any subsidy or reduction in food and beverage prices would amount to compensation prohibited under 5 U.S.C. § 5536 and, therefore, is not a condition of employment under section 7103(a)(14)(C) of the Statute.

In 46 FLRA 782, the Authority considered the Respondent's argument and concluded, based on existing precedent, that negotiation on the cost of food and beverage services provided to unit employees was a condition of employment and was not inconsistent with 5 U.S.C. § 5536. In particular, the Respondent maintains that the Comptroller General's decisions that the Authority relied on in the decisions cited in 46 FLRA 782 pertain to subsidies provided to vendors, rather than subsidies to employees. However, in our view, the Respondent has mischaracterized our decision in 46 FLRA 782. The issue in 46 FLRA 782 was whether the Respondent could negotiate on the use of appropriated funds to pay part of the costs of the food services that the Respondent provided for unit employees. We held that that matter was negotiable, based on Comptroller General decisions which found that 5 U.S.C. § 5536 did not, in every instance, preclude the use of appropriated funds for that purpose. The question of whether those funds could be paid to a vendor was not in dispute either in 46 FLRA 782 or in the Comptroller General decisions relied on in that case. Accordingly, in our view, the Respondent's argument constitutes nothing more than disagreement with the Authority's holding on this issue and does not constitute an extraordinary circumstance warranting reconsideration under section 2429.17 of our Rules and Regulations.

In summary, we find that the Respondent has failed to establish that extraordinary circumstances exist requiring reconsideration of our decision and we will deny the Respondent's request.

VI. Order

The Respondent's request for reconsideration of the Authority's Decision and Order in 46 FLRA