United States Department of Health and Human Services, Public Health Service, Indian Health Service, Quentin N. Burdick Memorial Health Care Facility, Belcourt, North Dakota (Respondent) and Laborers' International Union of North America, Local 580, AFL-CIO (Charging Party/Union)

[ v57 p903 ]

57 FLRA No. 190

UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES
PUBLIC HEALTH SERVICE
INDIAN HEALTH SERVICE
QUENTIN N. BURDICK MEMORIAL HEALTH
CARE FACILITY, BELCOURT, NORTH DAKOTA
(Respondent)

and

LABORERS' INTERNATIONAL UNION OF NORTH
AMERICA, LOCAL 580, AFL-CIO
(Charging Party/Union)

CH-CA-00465

_____

DECISION AND ORDER

June 26, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This unfair labor practice (ULP) case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent. The General Counsel filed an opposition to the Respondent's exceptions.

      The complaint alleges that the Respondent violated § 7116(a)(1) and 5 of the Federal Service Labor-Management Relations Statute (the Statute), by failing to provide the Union with notice and an opportunity to negotiate, to the extent required by the Statute, before implementing a housing rental rate increase affecting bargaining unit employees. The Judge found that the Respondent violated the Statute as alleged and recommended, among other things, status quo ante relief.

      Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order to the extent consistent with this decision.

II.     Background and Judge's Decision

      This case was decided by the Judge based on a stipulation of facts by the parties, who agreed that no material issue of fact exists, in accordance with § 2423.26(a) of the Authority's Regulations. The facts [ v57 p904 ] are set forth in the Judge's decision and are briefly summarized here.

      The Respondent provides on-site rental housing for bargaining unit employees because Belcourt, North Dakota is a remote area and private housing is not readily available. See Judge's Decision at 2; Joint Exhibit (Jt. Exh.) 1(e)(9) at 18, B-2a. The employees must pay rent, the amount of which is determined pursuant to 5 U.S.C. § 5911, Office of Management and Budget (OMB) Circular No. A-45, and procedures set forth in Respondent's manuals (the Indian Health Manual (IHM)and Technical Handbook, Volume IV, PART 36 (THB)). See Judge's Decision at 3, Jt. Exhs. 1(e)(9) and (e)(10) and Jt. Exh. 2.

      On or about February 25, 2000, the Union requested to negotiate with the Respondent concerning a proposed housing rental rate increase that affected approximately 35 unit employees. Rates were increased approximately 25-70%, which means that an employee had a monthly rental rate increase between $50 and $150. See id. at 3. On or about March 8, the Respondent refused to negotiate and advised the Union that the subject matter was nonnegotiable. On or about March 12, the Respondent implemented the proposed housing rental rate increase. Thereafter, the Union filed a ULP charge, as amended, which led to the instant complaint.

      The Respondent admitted that it implemented the increased housing rental rates without providing the Union notice and an opportunity to bargain over the change. However, the Respondent defended its action based on its assertions that: (1) the rental housing is not a condition of employment within the meaning of § 7103(a)(14) of the Statute; (2) bargaining is prohibited by § 7117(a)(1) of the Statute because the rental rates are set in accordance with 5 U.S.C. § 5911 and OMB Circular A-45, a Government-wide regulation; and (3) § 7116(d) precluded bargaining over the matter because an agency appeal procedure exists for employees affected by the increase.

      The Judge first found that the housing rental increase constituted a change in unit employees' conditions of employment. In so finding, the Judge applied the two-prong test for determining whether a matter involves a condition of employment set forth in Antilles Consolidated Education Association, 22 FLRA 235 (1986) (Antilles). In particular, the Judge considered 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. As to the first prong, the Judge, relying on Dep't of the Army, Dugway Proving Ground, Dugway, Utah, 23 FLRA 578 (1986) (Dugway), noted that the Authority had found that Government housing pertains to unit employees if such employees are eligible for the housing. As the Respondent admitted it provides on-site rental housing for unit employees, the Judge found that the first part of the test was satisfied.

      Applying the second prong, the Judge found there is a direct connection between the on-site housing and the employment relationship. The Judge found that the Respondent had: (1) "concede[d] that it provides on-site rental housing because Belcourt, North Dakota is a remote area and private housing is not readily available"; and (2) "acknowledge[d] that the housing is a benefit for both Respondent and . . . unit employees." Judge's Decision at 6 and Stipulation (Stip.) at ¶ 7. Accordingly, the Judge found that the rental increase was a condition of employment within the meaning of § 7103(a)(14) of the Statute.

      The Judge next addressed the Respondent's contention that the duty to bargain does not extend to matters that are prohibited by § 7117(a) of the Statute, i.e., because the matter is inconsistent with Federal law and Government-wide regulation, namely, § 5911(f) and OMB Circular A-45. [n1] Citing Department of the Treasury, United States Customs Service v. FLRA, 873 F.2d 1473, 1476 (D.C. Cir. 1989), the Judge found that "`many of the provisions [of § 5911 and the circular] do permit discretionary determinations[,]'" and that § 5911(f) and OMB Circular A-45 "do not, as a general matter, relieve Respondent of its obligation to bargain over the increase in rental rates to the extent of its discretion and the Statute." Judge's Decision at 6 (quoting General Counsel's brief at 13) and Id. at 7.

      Alternatively, the Judge found that even if the substance of the subject matter, i.e., the change in rental rates, is nonnegotiable, the Respondent is still obligated to bargain over the impact and implementation of the change. In that regard, the Judge found it uncontroverted that 35 unit employees had an additional $50 to $150 deducted from their paychecks each month because of the rental increase. The Judge found that this change was more than de minimis. [ v57 p905 ]

      Lastly, the Judge rejected the Respondent's claim that § 7116(d) barred the ULP charge here. Accordingly, the Judge found that the Respondent violated the Statute as alleged.

III.     Positions of the Parties

A.     Respondent's Exceptions

      The Respondent challenges the Judge's Decision on two grounds. First, the Respondent contends that the housing rental increase is not a condition of employment within the meaning of § 7103(a)(14) of the Statute and the Antilles test. The Respondent concedes that the rental rates pertain to bargaining unit employees. However, the Respondent contends that "factors two and three under the Antilles test are not met in this case." Exceptions at 3. [n2] The Respondent relies on 5 U.S.C. § 5911(e), which provides that:

an agency may not require an employee . . . to occupy quarters on a rental basis, unless the Agency head determines that necessary service cannot be rendered, or that property of the Government cannot adequately be protected, otherwise.

Id.

      The Respondent asserts that in this case unit employees were not required to live in Government housing and had options available to rent houses in the community. The Respondent contends that according to Indian Health Service policy, "where Government housing is a condition of employment, the `required occupant' must at the time of applying for a position submit a certification that he or she accepts this requirement as a condition of employment." Id. (quoting Jt. Exh. 1(e)(9) at 17 and 18).

      The Respondent further argues that the Judge's reliance on Dugway, in finding that a direct connection exists between Government housing and the employment relationship, is misplaced. According to the Respondent, Dugway is distinguishable from this case because, unlike in that case where availability of housing was used as a recruitment inducement, here the Respondent is "strictly prohibited from using rental rates as a recruitment inducement." Id. at 4. In support, the Respondent cites OMB Circular A-45, § 5(b)(2). [n3] 

      The Respondent also asserts that the Judge erred by finding it of no consequence that employees are not required to live in Government housing. Relying on AFGE v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987), the Respondent contends that the benefit referred to by the Judge does not establish a duty on its part to bargain over rental rates because the "mere fact that some benefit is involved . . . does not in and of itself, transform the matter of rental rates into one in which negotiation is required." Id. at 4.

      The Respondent next challenges the Judge's decision on the ground that housing rental rates are not a condition of employment because that matter is specifically provided for by Federal statute and, therefore, are not subject to bargaining under § 7103(a)(14)(C). The Respondent contends that the decision "lacks any determination as to whether the discretion to which [the Judge refers] is necessarily broad enough to render § 7103(a)(14)(C) inapplicable to this matter." Id. at 6. The Respondent states that it is bound by § 5911(f) and also must adhere to OMB Circular No. A-45, a Government-wide regulation issued pursuant to the authority vested in the President by § 5911(f), and delegated to the Director of OMB.

      The Respondent asserts that the circular sets forth policies and guidance that it must follow in administering the housing rental rates. [n4] The Respondent argues that, contrary to the Judge's finding that it may exercise some discretion under § 5911(f) and the circular and bargain over the rental increase to the extent of such discretion, it is only obligated to bargain where there is a finding that such discretion is "broad enough to take rental rates out from the statutory exception . . . ." Id. at 6.

B.     General Counsel's Opposition

      The General Counsel disputes the Respondent's contention that the Government housing did not have a direct connection to employees' work situation. The General Counsel contends that the Respondent, by its assertion that because it does not require unit employees [ v57 p906 ] to live in the rental housing such housing cannot be a condition of employment, misunderstands Antilles. The General Counsel refers to record evidence and contends that this evidence supports the Judge's finding that the rental housing had a direct link to the employees' work situation. The General Counsel contends, in particular, that the Respondent stipulated that it "provides rental housing for unit employees because Respondent is located in a remote area and private housing is not readily available[;]" and that the "rental housing is a benefit for Respondent and unit employees." Opposition at 6. The General Counsel further contends that the Respondent attempted to distinguish Dugway by "mischaracterizing OMB Circular A-45." Id. at 7 n.2.

      The General Counsel asserts that the Judge's conclusion, that § 5911 and OMB Circular A-45 do not, as a general matter, relieve the Respondent of its obligation to bargain over the increase in rental rates to the extent of its discretion, also is not erroneous. The General Counsel refers to certain provisions in § 5911 and the circular which it contends support the Judge's conclusion that the Respondent has some discretion over the disputed subject matter.

      The General Counsel further contends that even if the substance of the change is nondiscretionary, the Respondent is still obligated to bargain over the impact and implementation of the change.

IV.     Analysis and Conclusions

A.     Preliminary Matter

      The General Counsel contends that the Respondent in its exceptions asserted facts that are not in the record, for example, that "employees had options available to them to rent houses from the Chippewa tribe, . . . or they could choose to reside in neighboring communities of Belcourt . . . [which] have houses for rent or purchase." Opposition at 6 n.1 (quoting Exceptions at 3-4). The General Counsel argues that these facts are not a part of the record and cannot be considered by the Authority.

      Section 2429.5 of the Authority's Regulations provides that the Authority will not consider evidence that was not presented in the proceedings before the Administrative Law Judge. Based on the record, there is no evidence that the referenced facts were presented in the proceeding before the Judge. Therefore, pursuant to § 2429.5 of the Authority's Regulations, such facts have not been considered.

B.     The Judge Did Not Err in Concluding that the Rental Rate Increase Was a Condition of Employment within the Meaning of § 7103(a)(14) of the Statute pursuant to Antilles

      Section 7103(a)(14) of the Statute defines "conditions of employment" as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions." In determining whether a matter about which a union seeks to bargain concerns a "condition of employment," the Authority applies the two-prong test, set forth in Antilles, as stated above.

      With respect to the first prong of the test, the Respondent "does not dispute that the rental rates [for government housing involved here] pertain[] to bargaining unit employees." Exceptions at 3. With regard to the second prong, the Respondent contends that because it does not require unit employees to live in government housing there is no direct connection between such housing and the work situation or employment relationship of unit employees and, therefore, the increase in rental rates did not constitute a change in their conditions of employment.

      Contrary to the Respondent's contention, the record establishes a direct connection between the Government housing and the employment relationship of unit employees. As the Judge stated, the Authority previously found that the remoteness of an agency's facility and lack of available housing had a direct effect on unit employees' working conditions. See Dugway, 23 FLRA at 583. See also, Dep't of the Air Force, Eielson Air Force Base, Alaska, 23 FLRA 605, 608-10 (1986) (isolation of agency facilities made exchange privileges a condition of employment to unit employees). In this case, the Respondent conceded that it "provides on-site rental housing for bargaining unit employees because Belcourt, North Dakota, is a remote area and private housing is not readily available[.]" Judge's Decision at 6 and Stip. at ¶ 7. The Respondent also admitted that the on-site rental housing "is a benefit for both Respondent and bargaining unit employees." Id.

      The Respondent contends that this case is unlike Dugway because Government housing is not used as a recruitment inducement. However, even if the housing was not used for such reason, the Respondent admitted that the on-site rental housing is a benefit for it and unit employees. The Respondent's admission that such housing is a benefit for it and unit employees, coupled with the fact that its facility is located in a remote location and private housing is not readily available, establishes, [ v57 p907 ] like in Dugway, a direct connection between the Government housing and the employment relationship of the employees.

      The fact that the housing is voluntary and not used as a recruitment inducement does not require a different result. As determined above, the evidence here establishes a direct connection between the Government housing and the employment relationship of the unit employees. In that the proper test has been applied and the Respondent has not shown why the fact that the housing here is voluntary warrants a different approach, there is no basis to find that a different outcome is required.

      Also, the Respondent's reliance on AFGE v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987), is misplaced. In that case, the court affirmed the Authority's decision finding that an employee's use of recreational facilities, while in a nonduty status, did not directly relate to the employee's work situation. The court found, among other things, that the union had provided no evidence and the record did not otherwise establish that access to such facilities was directly related to the employee's work situation. Here, the record evidence establishes that Government housing is a benefit to unit employees and to the Respondent. Therefore, unlike in AFGE v. FLRA, a connection exists between the subject government housing and the employment relationship of unit employees that is not remote nor speculative. Accordingly, the Respondent's arguments are not sufficient to conclude that the record fails to establish that the second prong of Antilles has been met.

C.     The Rental Housing Increase Is Not Specifically Provided for by Federal Statute within the Meaning of § 7103(a)(14)(C)

      Section 7103(a)(14)(C) of the Statute excludes from the definition of "conditions of employment," and thus from the duty to bargain, matters that are "specifically provided for by Federal statute." Mere reference to a matter in a statute is not sufficient to exclude it from the definition of conditions of employment under subsection (C). International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135, 50 FLRA 677, 681 (1995) (BEP), aff'd mem. sub nom. United States Dep't of the Treasury, Bureau of Engraving and Printing v. FLRA, 88 F.3d 1279 (D.C. Cir. 1996). A matter is "specifically provided for," within the meaning of § 7103(a)(14)(C), only to the extent that the governing statute leaves no discretion to the agency. Id. at 682. When a statute provides an agency with discretion over a matter, that matter is not excepted from the definition of conditions of employment to the extent of the agency's discretion. Id.

      In arguing that the housing rental increase is "specifically provided for" and therefore subject to § 7103(a)(14)(C), the Respondent relies on § 5911(f) and OMB circular A-45. Section 5911(f) authorizes the President to prescribe regulations governing the "provision, occupancy, and availability of quarters and facilities, the determinations of rates and charges . . . and other related matters . . ." and grants agency heads the authority to "prescribe regulations, not inconsistent with the regulations of the President . . . ." The authority vested in the President has been delegated to the Director of OMB. See Jt. Exh. 1(e)(10) at 1 ¶ 4. On its face, there is nothing in § 5911(f) that specifies the actual rental rate for Government housing. Rather, the provision leaves to the President, who has redelegated this authority to OMB, the discretion to determine rental rates and charges. Therefore, rental rates are not specifically provided for by § 5911(f). See, e.g., NTEU, 37 FLRA 147, 151-52 (1990) (the fact that the prerogative to establish special salary rates (SSRs) is granted to the President by statute, and redelegated to OPM, means that the SSRs are not a matter that is specifically provided for under § 7103(a)(14)(C) of the Statute).

      The Respondent further claims that it must adhere to OMB Circular A-45, which sets forth policies and guidance that it must follow in administering rental rates for Government housing. There is no dispute that OMB Circular A-45 is a Government-wide regulation. The circular applies to "executive agencies in establishing and administering rental rates . . . for Government rental quarters . . . ." Jt. Exh. 1(e)(10) at 1 ¶ 1. It is thus generally applicable throughout the Federal Government. See, e.g., United States Dep't of the Treasury, IRS v. FLRA, 996 F.2d 1246, 1250 n.5 (D.C. Cir. 1993).

      Section 7103(a)(14)(C) excludes from the definition of conditions of employment only those matters that are specifically provided for by "Federal statute." See AFGE, Local 1923, 44 FLRA 1405, 1510 (1992). Here, the Respondent asserts only a Government-wide regulation, OMB Circular A-45. Therefore, the Agency's argument is not availing. See, e.g., BEP, 50 FLRA at 690 n.22 (requirements in Office of Personnel Management regulations promulgated pursuant to statute did not fall within the parameters of § 7103(a)(14(C)); and NTEU, 37 FLRA at 151-52, supra.

      Based on the above, we adopt the Judge's conclusion that the Respondent violated § 7116(a)(1) and (5) of the Statute by failing to provide the Union with notice [ v57 p908 ] and an opportunity to negotiate, to the extent required by the Statute, before implementing a housing rental rate increase affecting bargaining unit employees. [n5] 

V.     Order

      Pursuant to section 2423.41 of our Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the United States Department of Health and Human Services, Public Health Service, Indian Health Service, Quentin N. Burdick Memorial Health Care Facility, Belcourt, North Dakota, shall:

      1.     Cease and desist from:

           (a)     Failing to give notice and refusing to bargain with the Laborers' International Union of North America, Local 580, AFL-CIO, the exclusive representative of a unit of bargaining unit employees, concerning the increase in rents that it charged unit employees beginning on March 12, 2000.

           (b)     Unilaterally implementing changes in working conditions of bargaining unit employees by increasing rental rates for Government-provided housing without first providing the Laborers' International Union of North America, Local 580, AFL-CIO, with notice of the change and an opportunity to bargain over the change to the extent required by the Federal Service Labor-Management Relations Statute.

           (c)     In any like or related manner, interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

      2.     Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

           (a)     Rescind the March 12, 2000, increase in rental rates for bargaining unit employees.

           (b)     Effect a further decrease in rental rates charged bargaining unit employees for a period of time necessary to offset the difference between the unlawfully implemented rate and the former rate until such time as the affected employees have been made whole.

           (c)     Notify, and upon request, bargain with the Laborers' International Union of North America, Local 580, AFL-CIO, concerning any proposed change in rental rates.

           (d)     Post at the Quentin N. Burdick Memorial Health Care Facility, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director, Quentin N. Burdick Memorial Health Care Facility, Belcourt, North Dakota, and they shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

           (e)     Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, in writing within 30 days from the date of this Order, as to what steps have been taken to comply.


NOTICE TO ALL EMPLOYEES
POSTED BY ORDER OF THE
FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the United States Department of Health and Human Services, Public Health Service, Indian Health Service, Quentin N. Burdick Memorial Health Care Facility, Belcourt, North Dakota, violated the Federal Service Labor-Management Relations Statute, and has ordered us to post and abide by this Notice.

We hereby notify employees that:

WE WILL NOT fail to give notice and refuse to bargain with the Laborers' International Union of North America, Local 580, AFL-CIO, the exclusive representative of a unit of bargaining unit employees, concerning the increase in rents that it charged unit employees beginning on March 12, 2000.

WE WILL NOT unilaterally implement changes in working conditions of bargaining unit employees by increasing rental rates for Government-provided housing without first providing the Laborers' International Union of North America, Local 580, AFL-CIO, with notice of the change and an opportunity to bargain over [ v57 p909 ] the change to the extent required by the Federal Service Labor-Management Relations Statute.

WE WILL NOT in any like or related manner, interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL RESCIND the March 12, 2000, increase in rental rates for bargaining unit employees.

WE WILL effect a further decrease in rental rates charged bargaining unit employees for a period of time necessary to offset the difference between the unlawfully implemented rate and the former rate until such time as the affected employees have been made whole.

WE WILL notify, and upon request, bargain with the Laborers' International Union of North America, Local 580, AFL-CIO, concerning any proposed change in rental rates.

_________________________________
(Activity)

Date:___________ By:_________________________

      (Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Chicago Regional Office, Federal Labor Relations Authority, whose address is: 55 W. Monroe, Suite 1150, Chicago, IL 60603, and whose telephone number is (312) 353-6306.


File 1: Authority's Decision in 57 FLRA No. 190
File 2: ALJ's Decision


Footnote # 1 for 57 FLRA No. 190 - Authority's Decision

   5 U.S.C. § 5911(f) provides as follows:

The President may prescribe regulations governing the provision, occupancy, and availability of quarters and facilities, the determination of rates and charges therefor, and other related matters, necessary and appropriate to carry out this section. The head of each agency may prescribe regulations, not inconsistent with the regulations of the President, necessary and appropriate to carry out the functions of the agency head under this section.

Footnote # 2 for 57 FLRA No. 190 - Authority's Decision

   The Respondent refers to factor two and three. Antilles only identifies two factors. However, it appears that the Respondent has separated the second factor into two parts.


Footnote # 3 for 57 FLRA No. 190 - Authority's Decision

   Section 5(b)(2) of OMB Circular A-45 provides as follows:

Subsidies, inducements prohibited. Federal employees whose pay and allowances are fixed by statute or regulation may not receive additional pay and allowances for any services or duty unless specifically authorized by law. 5 U.S.C. § 5536. Consequently, rents and other charges may not be set so as to provide a housing subsidy, serve as an inducement in the recruitment or retention of employees, or encourage occupancy of existing Government housing.

Jt. Exh. 1(e)(10) at 2.


Footnote # 4 for 57 FLRA No. 190 - Authority's Decision

   The Respondent refers to the entire circular and does not identify any particular provisio