49:0534(47)NG - - AFGE, Local 1786 and Navy, Marines Corps Combat Development Command, Marine Corps Base, Quantico, Virginia - - 1994 FLRAdec NG - - v49 p534
[ v49 p534 ]
The decision of the Authority follows:
49 FLRA No. 47
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE NAVY
MARINE CORPS COMBAT DEVELOPMENT COMMAND
MARINE CORPS BASE
DECISION AND ORDER ON A NEGOTIABILITY ISSUE
March 17, 1994
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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal involving shopping privileges at the base exchange. For the following reasons, we find that the proposal is negotiable.
The Union is the exclusive representative of a bargaining unit of approximately 505 nonappropriated fund (NAF) instrumentality employees who are employed at the Marine Corps Base in Quantico, Virginia (the Base). In 1986, the Commandant of the Marine Corps directed the consolidation of the Marine Corps Exchange Service Branch and the Morale Support Division into a single NAF instrumentality, the Morale, Welfare and Recreation (MWR) Support Activity. In establishing this single organization, the Commandant granted all personnel of the combined organization exchange shopping privileges. Previously, only NAF employees who worked for the exchange system were entitled to exchange shopping privileges.
Subsequently, the Department of Defense (DOD), referencing DOD Directive 1330.9, directed the Marine Corps to limit exchange shopping privileges to those employees of the exchange itself. Under the Directive, employees who had been granted exchange shopping privileges as a result of the consolidation of the Agency's facilities, but who were not employed by the exchange system, could not continue to use this privilege. The Marine Corps notified the Union on April 3, 1993, of this policy change. The proposal in this case resulted from the parties' negotiations over the exchange policy.
The past practice [will] be maintained. All employees who are now entitled to exchange shopping privileges [will] continue to receive them.
IV. Positions of the Parties
The Agency contends that the proposal is nonnegotiable because it does not pertain to a condition of employment within the meaning of section 7103(a)(14) of the Statute. The Agency asserts that the proposal does not meet the second prong of the test set forth in Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986) (Antilles I) because there is no direct connection between the proposal and the work situation or employment relationship of bargaining unit employees. According to the Agency, the proposal concerns the right of unit employees to shop at the exchange, and this activity "is conducted during off-duty hours and is clearly unconnected with the work situation of unit employees." Statement of Position (Statement) at 3. The Agency also cites American Federation of Government Employees, Local 2761, AFL-CIO v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989) (AFGE v. FLRA) and International Association of Fire Fighters, AFL-CIO, CLC, Local F-116 and Department of the Air Force, Vandenberg Air Force Base, California, 7 FLRA 123 (1981) (Vandenberg) in support of its assertion.
The Agency also contends that this 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) (Antilles II); Department of the Army, Fort Greely, Alaska, 23 FLRA 858 (1986) (Ft. Greely); and Department of the Air Force, Eielson Air Force Base, Alaska, 23 FLRA 605 (1986) (Eielson) on the grounds that, unlike in those cases, in this case there are adequate shopping facilities within close proximity of the Agency's facility. The Agency also contends that "past availability does not make the existence of shopping privileges a condition of employment." Statement at 4.
The Agency further asserts that the proposal is nonnegotiable because it directly interferes with the Agency's right to determine its mission under section 7106(a)(1) of the Statute. According to the Agency, one aspect of the mission of the base exchanges is to provide authorized patrons with articles and services necessary for their health, comfort, and convenience and, under DOD Directive 1330.9, paragraphs 2-201.5 through 7, employees covered by the proposal are not authorized to shop at the base exchange. The Agency contends that "[a]ny change in exchange patronage must be authorized by Congress." Id. at 7. Citing a Report of the House Armed Services Committee (HASC), Subcommittee on Nonappropriated Fund Activities dated June 1974 and a letter to the Authority from Congressman Melvin Price dated October 3, 1983, the Agency asserts that the "principal purpose of military exchanges is to provide support to military personnel and their dependents." Id. at 8-9.(1) The Agency asserts that "[b]y attempting to force the exchange to alter its intended customer base, the . . . proposal interferes with the [A]gency's right to determine the mission of the exchange system." Id. at 9.
Finally, the Agency contends that the proposal is nonnegotiable because it conflicts with DOD Directive 1330.9, Section II, an Agency regulation for which a compelling need exists under section 2424.11(a) and (c) of the Authority's Rules and Regulations.(2)
The Agency claims that DOD Directive 1330.9, Section II is "essential to the accomplishment of the mission of the DOD in a manner consistent with an effective and efficient government . . . ." Id. at 13. Further, the Agency contends that the regulation implements "Congressional mandates" concerning the operation of military exchanges, including determinations as to patron eligibility. Id. at 14.
Citing Antilles II, Eielson, and Ft. Greely, the Union asserts that the Authority has determined that shopping privileges at a base exchange are a condition of employment under section 7103(a)(14) of the Statute. The Union contends that, as in those cases, the employees in this case have the privilege of shopping at the base exchange by virtue of their employment.
The Union further asserts that the Marine Corps' consistent practice over approximately 6 years of according exchange privileges to NAF employees has converted the matter into a condition of employment. Citing a memorandum dated September 25, 1992, from the Director of the MWR Activity to the Assistant Secretary of Defense, the Union contends that the Marine Corps extended exchange privileges to unit employees because of the unique circumstances brought about by the consolidation of its activities. Specifically, in the Memorandum referenced by the Union, the Director states that "[e]mployee morale was a major, major concern. The uncertainties and insecurities associated with any merger create enormous apprehensions about job security, status, etc., and Marine Corps MWR employees suffered from many of these anxieties." Opposition, Attachment 3 at 2. The Director also states in the Memorandum that "[t]he privilege issue presented a question of equity and fairness and had significant potential for negatively impacting the morale, productivity, cohesion and operability of the newly consolidated NAFI's." Id., Attachment 3 at 3. According to the Union, the Memorandum indicated that the Marine Corps concluded that granting exchange privileges would facilitate the consolidation because it determined that not granting the privileges would have a "'devastatingly deleterious effect on the morale, indeed the professional character and operation of Marine Corps MWR.'" Id. at 17 (quoting Attachment 3 at 3).
Additionally, the Union argues that, without regard to the standard set forth in Antilles I, the exchange privilege involved in this case should be treated as compensation. In the Union's view, the authorization of exchange privileges represents a monetary benefit to employees resulting from their employment.
The Union also contends that the proposal does not directly interfere with the Agency's determination of its mission. The Union argues that the Agency's mission "is unaffected by the proposal since the center of the dispute is whether or not MWR employees at Quantico Marine Base should be 'authorized' patrons or not . . ., not whether or not the exchange should or should not serve authorized patrons." Id. at 27.
Finally, the Union acknowledges that the proposal is inconsistent with DOD Directive 1330.9, but argues that there is not a compelling need for the Directive. Moreover, the Union contends that inasmuch as the Department of the Army raised a similar argument in American Federation of Government Employees and U.S. Department of the Army, Fort Buchanan, San Juan, Puerto Rico, 37 FLRA 914 (1990) (Ft. Buchanan) and Ft. Greely, the Agency should be collaterally estopped from raising the argument in this case. The Union claims that in Ft. Greely the Authority found that the Agency's regulation did not meet the criteria for determining that a compelling need existed for that regulation. The Union also asserts that the Agency's contention that its regulation implements a nondiscretionary intent of Congress is not supported by the record evidence.
V. Analysis and Conclusions
A. Conditions of Employment
For the following reasons, we find that the proposal concerns a matter affecting the conditions of employment of unit employees.
In determining whether a matter involves a condition of employment of unit employees, we consider whether: (1) the matter pertains to bargaining unit employees; and (2) the record establishes that there is a direct connection between the matter and the work situation or employment relationship of bargaining unit employees. See Antilles I, 22 FLRA at 236-37. As to the first factor, there is no dispute between the parties concerning whether the proposal applies to bargaining unit employees. Consequently, in the absence of any evidence in the record to the contrary, we find that the subject matter of the proposal pertains to unit employees.
As to the second factor--whether the record establishes that there is a direct connection between the subject matter of the proposal and the work situation or employment relationship of unit employees--we conclude that the record supports the finding that there is a direct connection between access to the base exchange and the work situation of unit employees. Specifically, we note that, in AFGE v. FLRA, the United States Court of Appeals for the District of Columbia Circuit reviewed the Authority's application of the second part of the Antilles I test and stated that, under Antilles I, "the Authority inquires into the extent and nature of the practice on working conditions." AFGE v. FLRA, 866 F.2d at 1445. In determining whether the matter at issue in that case was a condition of employment, the court examined whether there was a "link" or "nexus" between that matter and employees' employment. Id. at 1447, 1449. The court concluded that where a matter has "a direct effect on the work relationship[,]" it concerns a condition of employment. Id. at 1449. See also United States Department of the Air Force, Griffiss Air Force Base, Rome, New York v. FLRA, 949 F.2d 1169 (D.C. Cir. 1991).
As to whether exchange privileges concern employees' conditions of employment, the Authority found in Ft. Greely, 23 FLRA at 864, that the agency's long-standing practice of granting exchange privileges to unit employees, the isolation of the facility, and the use of exchange privileges as an inducement for recruiting employees and to improve morale showed a direct connection between access to the exchange and the employees' work situation. In Eielson, 23 FLRA at 609-10, the Authority found a connection between exchange privileges and unit employees' conditions of employment based on the agency's long-standing past practice of granting exchange privileges to employees, the isolation of the facility, and the use of exchange privileges as an inducement for recruitment and to stabilize the workforce. See also Antilles Consolidated Education Association and Antilles Consolidated School System, Fort Buchanan, Puerto Rico, 46 FLRA 625 (1992).
Thus, in determining whether exchange privileges are a matter related to employees' conditions of employment, the Authority considers the circumstances of each case and determines whether factors exist that establish a connection between access to a base exchange and employees' work situation. In finding a direct connection between base exchange privileges and employees' work situation, the Authority has considered the significance of such factors as an agency's past practice of affording employees exchange privileges, the use of exchange privileges as an inducement to employment, the isolation of the work facility, and the effect on employee morale. However, the Authority has not held that only these factors may be considered in determining whether exchange privileges are related to employees' work situation. Moreover, the Authority has not found that any one factor is more significant than another in establishing that a nexus exists between access to exchange privileges and unit employees' employment. A finding that there is a connection between exchange privileges and the employment relationship of unit employees also does not depend on the number of those factors present in the circumstances of a case. Rather, the Authority will find that exchange privileges are a matter related to the conditions of employment of unit employees when, on balance, an examination of all the factors present in a case establishes that a direct connection exists between access to a base exchange and the work situation or employment relationship of the unit employees involved. Finally, contrary to the Agency's argument, we agree with the court that "[i]n close cases . . . past practice can be determinative." AFGE v. FLRA, 866 F.2d at 1448.
Turning to the instant case, we find, based on the record, that there is a direct connection between exchange privileges and the work situation of unit employees. Although the Agency's facility is not in an isolated location, we find that there are other factors present that show that access to the base exchange has a direct effect on the work situation of unit employees. Specifically, the record shows that the Marine Corps extended exchange shopping privileges to employees to improve morale and to improve the productivity and effective operation of the MWR activity. We note that, in defense of its practice of allowing exchange privileges for the employees covered by the proposal, the Marine Corps claimed that loss of those privileges would have a "'devastatingly deleterious effect'" not only on the morale of its employees, but on the professional character and operation of the Marine Corps' MWR program itself. Opposition at 17 (Quoting Attachment 3 at 3). The record also shows that this practice existed for 6 years. On balance, we find that the Marine Corps' 6-year practice of granting exchange privileges to unit employees, coupled with the Marine Corps' use of those privileges to enhance "morale, productivity, cohesion and operability of the newly consolidated NAFI," establish that the continued availability of exchange privileges for unit employees has a direct effect on, and a direct connection with, the work situation of those employees. Opposition, Attachment 3 at 3.
We also conclude, based on the record, that this case is distinguishable from the situation presented in Antilles I and Vandenberg. In Antilles I, there was no showing that access to exchange privileges was in any manner related to the work situation or employment relationship of employees or was otherwise linked to their work assignments. Similarly, in Vandenberg, there was nothing in the record to support a finding of a direct relationship between the subject matter of the proposal and the unit employees' work situation or employment relationship. In contrast, the record in this case establishes that there is a direct connection between the work situation or employment relationship of unit employees and access by those employees to the base exchange.
Accordingly, we conclude that the subject matter of the proposal concerns a condition of employment of unit employees.
B. Agency's Right to Determine Its Mission under Section 7106(a)(1) of the Statute
We reject the Agency's contention that the proposal directly interferes with its right to determine its mission under section 7106(a)(1) of the Statute.
According to the Agency, the mission of base exchanges is to serve authorized patrons by providing articles and services necessary for their health, comfort and convenience. Nothing in the proposal prevents the base exchange from appropriately serving authorized patrons or interferes with that mission. Rather, by authorizing Base exchange privileges for unit employees, the proposal simply includes unit employees within the scope of those individuals who are considered authorized patrons of the exchange. We conclude, therefore, that the Agency has not established that the proposal directly interferes with management's right, under section 7106(a)(1) of the Statute, to determine its mission. See, for example, American Federation of Government Employees, National Veterans Administration Council and U.S. Department of Veterans Affairs, Washington, D.C., 40 FLRA 1052, 1065 (1991) (proposal that concerned access to employee outdoor smoking shelters did not directly interfere with the agency's right to determine its mission of developing, maintaining, and operating a national health care delivery system for eligible veterans and the Armed Forces under section 7106(a)(1) of the Statute).
C. Agency Regulation
The Agency claims that the proposal is nonnegotiable under section 7117(a)(2) of the Statute because it is inconsistent with DOD Directive 1330.9, Section II, an Agency regulation for which a compelling need exists under section 2424.11(a) and (c) of the Authority's Rules and Regulations.
We first reject the Union's contention that the Agency should be collaterally estopped from raising this argument because it was addressed in Ft. Buchanan and Ft. Greely. We note, in this connection, that the compelling need argument was not addressed in Ft. Buchanan because the Agency withdrew its allegation of nonnegotiability concerning the matter in dispute and the petition was dismissed. Moreover, because Ft. Greely was an unfair labor practice decision and compelling need issues cannot be decided in unfair labor practice proceedings, the findings in that case cannot be dispositive of the compelling need argument presented in this dispute. See Department of Defense, Department of the Army, Fort Buchanan, San Juan, Puerto Rico, 35 FLRA 1105, 1106 n.1 (1990), decision on remand, 37 FLRA 919 (1990).
Turning to the merits of the Agency's argument, in order to demonstrate that a proposal is nonnegotiable under section 7117(a)(2) because it is barred by an agency regulation for which a compelling need exists, an agency must: "(1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need with reference to the Authority's standards set forth in section 2424.11 of its regulations." American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 466 (1991).
With respect to the first requirement, we find that there is no dispute that DOD Directive 1330.9, Section II is an Agency-wide regulation. With respect to the second requirement, we find that because the proposal would permit employees who are not authorized exchange shopping privileges under DOD Directive 1330.9, Section II to use the Base exchange, the proposal conflicts with that regulation.
However, with respect to the third requirement, we find that the Agency has not established that a compelling need exists for DOD Directive 1330.9, Section II under section 2424.11(a) and (c) of the Authority's Rules and Regulations. To establish a compelling need under section 2424.11(a) of the Authority's regulations, an agency must demonstrate that its regulation is essential, as distinguished from helpful or desirable, to the accomplishment of its mission or execution of its functions in a manner that is consistent with the requirements of an effective and efficient Government. The Agency has not met its burden of establishing that the regulation in question is "essential" to carrying out the mission of the DOD, MWR program at the Base. We find that the exclusion of MWR employees who are not employed by an exchange from the list of individuals authorized exchange privileges is not essential to the accomplishment of the mission of the DOD, MWR program in providing for the MWR of active duty military members.
Although the regulation describes individuals who are authorized such privileges, Section 1-102b. of DOD Directive 1330.9 also provides that "Secretaries of the Military Departments may grant deviations with patron privileges." Because the regulation permits Secretaries to grant deviations from the list of authorized patrons set forth in DOD Directive 1330.9, Section II, we find that the Agency has not demonstrated that limitation of personnel authorized exchange privileges to those prescribed by the regulation is essential to the accomplishment of the mission of the MWR program. See, for example, American Federation of Government Employees, Local 1501 and U.S. Department of the Air Force, Airlift Military Command, McChord Air Force Base, Washington, 38 FLRA 1515, 1522-24 (1991).
We also find that the Agency has not demonstrated that there is a compelling need for its regulation under section 2424.11(c) of the Authority's Rules and Regulations. Section 2424.11(c) provides that a compelling need may be found to exist for an agency regulation that implements a mandate to the agency, under law or other outside authority, which implementation is essentially nondiscretionary in nature. The Agency contends that the regulation implements Congressional mandates regarding who is eligible to use military exchanges. The Agency bases its claim of compelling need for DOD Directive 1330.9, Section II, on a Congressional report and a letter from Congressman Price.
We find that the evidence provided by the Agency does not support its claim. Specifically, the Agency did not provide a copy of the report with its statement of position or otherwise provide us with information that was sufficient to allow us to identify the report. Consequently, we are unable to confirm the wording of the alleged mandate, to determine whether the alleged mandate represents the view of both the Senate and the House of Representatives, or to ascertain whether the report accompanied legislation that was passed by Congress. We find, therefore, that in these circumstances the Agency has not established that the Congressional committee report constitutes the legislative history of a public law or otherwise legally constitutes a mandate to the Agency. Compare National Federation of Federal Employees, Local 1669 v. FLRA, 745 F.2d 705 (D.C. Cir. 1984), affirming National Federation of Federal Employees, Local 1669 and Arkansas Air National Guard, 13 FLRA 176 (1983) (in affirming the Authority, the court found that a Congressional committee report constituted outside authority on the basis that it was an expression by the Appropriations Committees of both Houses and that it accompanied a bill that passed the Congress); National Association of Government Employees, Service Employees International Union, Local R1-34 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 43 FLRA 1526 (1992) (where we found that Congressional committee reports constituted an outside authority where the reports accompanied a bill that passed the Congress).
As to the letter from Congressman Price, we note that the record shows that this letter was a personal letter expressing the Congressman's views as Chairman of the HASC concerning the use of military exchanges and that there is no indication that Congress as a whole was aware of those views. See Montana Wilderness Associa