54:1377(119)NG - - Intl. Federation of Professional and Technical Engineers, Local 35 and Navy, Norfolk Naval Shipyard, Portsmouth, Virginia - - 1998 FLRAdec NG - - v54 p1377



[ v54 p1377 ]
54:1377(119)NG
The decision of the Authority follows:


54 FLRA No. 119

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNATIONAL FEDERATION OF PROFESSIONAL

AND TECHNICAL ENGINEERS

LOCAL 35

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NORFOLK NAVAL SHIPYARD

PORTSMOUTH, VIRGINIA

(Agency)

0-NG-2311

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

October 30, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.(1)

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. For the reasons that follow, we find that the proposal is within the duty to bargain.

II. Background

Prior to the events giving rise to this case, food services at the Agency's facility were provided primarily by the Norfolk Naval Shipyard Cooperative Association (COOP). The COOP was established "to provide hot meals and other daily necessities and conveniences at minimum cost" to military and civilian employees of the Agency's facility. COOP Constitution, Enclosure 8 to Petition for Review, page 1.(2)

The Agency notified the Union that, pursuant to an agreement between the Navy Exchange Service Command (NEXCOM) and McDonald's Corporation, it would be opening a McDonald's restaurant at a site on the Agency's property that would be chosen by the Agency.(3) In response to the Agency's notification, the Union requested that the Agency negotiate all issues related to the decision to open a McDonald's. Enclosure 2 to Petition for Review. Among other things, the Union proposed: "Locate the McDonald's [Restaurant] at the Scott Center Annex[.]" According to the Union, that location would better serve the military personnel the McDonald's was intended to serve. Enclosure 5 to Petition for Review. The Agency declined the Union's request, stating that the Union had not identified how the location of the McDonald's would adversely affect the bargaining unit. The Agency further stated that, because the McDonald's is for the benefit of military personnel, the location of the restaurant is not a condition of employment and there is no obligation to bargain over the proposal. Enclosure 7 to Petition for Review, page 1. The Agency stated, however, that "bargaining unit employees will be allowed to use the McDonald's[.]" Id.

The Union's Petition for Review stated that the McDonald's in question was scheduled to open at about the same time as the petition for review was filed. The restaurant was ultimately located in a renovated building in a different part of the Agency's facility from that proposed by the Union. The Union has also filed an unfair labor practice (ULP) charge (WA-CA-60441) with respect to the Agency's refusal to bargain over its proposal. In its petition, the Union requested that its negotiability appeal and ULP charge proceed simultaneously. However, the Union subsequently elected to proceed first with the negotiability procedure.

III. Proposal

Locate the McDonald's Restaurant at the Scott Center Annex.

IV. Positions of the Parties

A. Agency

The Agency contends that the Union's proposal is outside the duty to bargain because it does not concern the conditions of employment of bargaining unit employees. The Agency acknowledges that the availability of food services for unit employees, including the accessibility of the location of food service facilities, is within the scope of bargaining. The Agency claims, however, that the proposal would locate the McDonald's in an area primarily intended for military personnel and make it less accessible for unit employees. According to the Agency, the proposal is directed at the working conditions of military personnel and does not concern unit employees' conditions of employment.

As to the impact of the location of the McDonald's on the COOP, the Agency states that, in addition to providing food services, the COOP generates funds for athletic, recreational, and social activities, which are conducted during nonduty time and are not related to the employment relationship. Because such activities are unrelated to the employment relationship, the Agency contends that the proposal does not concern unit employees' conditions of employment.

According to the Agency, the proposal also is outside the duty to bargain because it would affect personnel outside the bargaining unit, such as supervisors, and employees in other bargaining units.

Finally, the Agency claims that the McDonald's in question has been open for business since "late April" 1996.(4) Statement of Position at 2.

B. Union

The Union claims that there is a nexus between the location of the McDonald's and unit employees' conditions of employment because of the impact of the McDonald's on the ability of the COOP to generate sufficient revenue. The Union notes that the COOP's revenue supports its food service operations and safety shoe store and argues that both matters relate to conditions of employment.(5) According to the Union, the fact that COOP revenues are also used to support athletic, recreation, and social activities is "irrelevant." Response at 2.

As to the extra-unit effects of the proposal, the Union contends that the proposal "does not deny food service to military or civilian non-unit employees." Id. The Union argues that the proposal meets the "vitally affects" test.

V. Analysis and Conclusions

A. The Meaning of the Proposal

By its literal terms, the proposal requires that a McDonald's restaurant be located in the Scott Center Annex. Consistent with its plain wording, the proposal requires that the McDonald's restaurant that was built at the Agency's facility be located in the Scott Center Annex. See, e.g., American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 138-39 (1995).(6)

B. Conditions of Employment

The Agency concedes that the location of food services is a matter pertaining to the conditions of employment of unit employees. 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 1331, 1347-48 (1992). It follows that a proposal designating the location of a McDonald's restaurant that will be available to unit employees constitutes a matter pertaining to the conditions of employment of those employees. In particular, although NEXCOM contracted with McDonald's Corporation to establish a restaurant pursuant to its mission to provide services to military personnel, the Agency states that civilian personnel will be able to use the restaurant and does not dispute that unit employees would be among those civilian personnel.(7) See, e.g., Service Employees International Union, Local 556 and U.S. Department of the Navy, Marine Corps Air Station, Kaneohe Bay Morale, Welfare, and Recreation Activity, Kaneohe Bay, Hawaii, 49 FLRA 1205, 1209 (1994) (access to military exchange a condition of employment because of agency practice allowing civilian employees to use the exchange).

The Agency's argument concerning the use of COOP revenues for nonwork-related purposes is beside the point. As worded, the proposal concerns the location of a food service facility which is available to unit employees. That fact is determinative of whether the proposal pertains to the conditions of employment of those employees. The collateral effect of the location of the restaurant on COOP revenues and the uses of those revenues does not remove the proposal from the scope of bargainable conditions of employment. See, e.g., American Federation of State, County & Municipal Employees, Local 2910 and Library of Congress, 53 FLRA 1334, 1338 (1998) (proposal pertaining to unit employees' conditions of employment not rendered outside duty to bargain by indirect effect on matters outside scope of conditions of employment).

The effect of the proposal on nonunit personnel, such as military personnel, supervisors and management officials, or employees in other bargaining units, also does not remove the proposal from the scope of bargainable conditions of employment and does not implicate the vitally affects test. The proposal concerns the conditions of employment of unit employees. By locating the McDonald's restaurant at the Scott Center Annex, the proposal might affect how accessible the restaurant is to personnel outside the unit--more accessible to some, less accessible to others. However this indirect effect on the availability of its services to personnel outside the unit does not mean that the proposal is outside the scope of bargaining. See, e.g., U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434, 1440 n.6 (D.C. Cir. 1992) (extra-unit effects on nonunit personnel of proposal concerning unit employees' conditions of employment do not alter agency's duty to bargain over mandatory subjects). In this regard, where the question involves the indirect effects of a proposal concerning unit employees' conditions of employment on nonunit personnel, the vitally affects test is not implicated. Id. at 1440. See also American Federation of Government Employees, Local 1920 and U.S. Department of Defense, Army and Air Force Exchange Service, Fort Hood Exchange, Fort Hood, Texas, 47 FLRA 340, 345-46 (1993). As such, we do not need to make that determination in this case.

Accordingly, we conclude that the proposal is within the duty to bargain and issue a bargaining order. In issuing such an order, we take no position on whether the Agency committed a ULP in implementing its decision as to the location of the McDonald's and, if it did, on whether any particular remedy is warranted.

VI. Order

The Agency shall upon request, or as otherwise agreed to by the parties, bargain on the proposal.(8)

Concurring opinion of Member Wasserman:

I agree with the analysis of this case and the resulting bargaining order. However, I disagree with the characterization of the proposal in Norfolk Naval Shipyard, as stated in footnote 6, above. For the reasons stated in my dissent, I do not think that the proposal in that case was moot.




FOOTNOTES:
 

1. Member Wasserman's concurring opinion is found at the end of this decision.

2. The COOP is governed by a Board of Directors which includes representatives from various departments at the Agency's facility and from units of exclusive recognition. Id. at pages 3-4. Revenue from the COOP funds various athletic, recreational, and social activities and subsidizes reduced prices at a COOP-operated safety shoe store. Petition for Review at 2.

3. NEXCOM is a non-appropriated fund instrumentality that generates operating revenue through the sale of goods and services and exists to serve only military personnel and their families. Petition for Review at 2.

4. The Union's Petition for Review is dated April 24, 1996.

5. The record indicates that unit employees are required to wear safety shoes in industrial areas of the Agency's facility. Petition for Review at 2.

6. The facts of this case are similar to the facts in International Federation of Professional and Technical Engineers, Local 35 and U.S. Department of the Navy, Norfolk Naval Shipyard, Portsmouth, Virginia, 54 FLRA No. 120 (1998) (Norfolk Naval Shipyard), wherein the Authority found that the disputed proposal was moot. Because the proposal in this case designates the specific location of the McDonald's, it is distinguishable from the proposal in Norfolk Naval Shipyard, which concerned the plans for the renovations involved therein. The proposal in this case continues to have viability notwithstanding that a restaurant has been constructed at site other than the Scott Center Annex. Specifically, even though a restaurant has been placed in a different location, that does not me