DEPARTMENT OF THE AIR FORCE TYNDALL AIR FORCE BASE TYNDALL AFB, FLORIDA and LOCAL 3240, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO

United States of America

BEFORE THE FEDERAL SERVICE IMPASSES PANEL

In the Matter of

DEPARTMENT OF THE AIR FORCE

TYNDALL AIR FORCE BASE

TYNDALL AFB, FLORIDA

and

LOCAL 3240, AMERICAN FEDERATION OF

GOVERNMENT EMPLOYEES, AFL-CIO

Case No. 01 FSIP 193

DECISION AND ORDER

    Local 3240, American Federation of Government Employees, AFL-CIO (Union) filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Statute (Statute), 5 U.S.C. § 7119, between it and the Department of the Air Force, Tyndall Air Force Base (AFB), Tyndall AFB, Florida (Employer).

    Following an investigation of the dispute concerning six issues which arose during the parties’ midterm re-opener negotiations, the Panel determined that the case should be resolved through an informal conference with a Panel representative. The parties were informed that, if no settlement was reached, the Panel representative would notify the Panel of the status of the dispute, including the parties’ final offers and his recommendations for resolving the impasse. The Panel would then take whatever action it deemed appropriate to resolve the matter, which could include the issuance of a Decision and Order.

    In accordance with the Panel’s determination, on November 15, 2001, Panel Member Stanley M. Fisher conducted an informal conference at Tyndall AFB, Florida. The parties were unable voluntarily to resolve only two of the six issues in dispute.(1)  Mr. Fisher has reported to the Panel, and it has now considered the entire record.

BACKGROUND

    The Employer’s mission is to support training for F-15 pilots and other "battle managers." It also provides goods and services for military personnel and their dependents, as well as morale, recreation, and welfare programs and activities. The Union represents approximately 250 nonappropriated fund (NAF) employees who work as recreational aides, child development specialists, housekeepers, warehouse workers, plumbers, carpenters, painters, electricians, mechanics, and motor vehicle operators at grades NA-1 through -III (crafts and trades), NF-III through -IV (support staff), and pay bands CC-1 through -III (child development). The parties’ collective bargaining agreement (CBA) is due to expire in February 2002.

ISSUES AT IMPASSE

    The parties disagree over (1) whether NAF employees should be authorized shopping privileges at the Base Exchange (BX) and, (2) what the Employer’s share of healthcare insurance premiums should be for Calendar Years (CY) 2001 and 2002.

1.  Base Exchange Privileges

    a. The Union’s Position

    The Union proposes that all NAF employees be authorized shopping privileges at the BX. Access to the BX is more convenient for employees than leaving the base during the work day to purchase items. The impact on the Employer would be minimal since 100 of the 180 affected employees already have access to the BX as dependents of military personnel. Giving the remaining NAF employees BX privileges would increase their morale and serve as a recruitment incentive to attract new employees.

    b. The Employer’s Position

    The Panel should order the Union to withdraw its proposal because it conflicts with Department of Defense (DOD) policy 1330.9, which does not include NAF employees within the list of authorized BX patrons. Furthermore, employees’ primary needs are already met since they have ready access to on-base food and snack establishments. If they need to purchase other items, there are local stores nearby that can be reached easily by car. Finally, the Employer could not grant employees BX privileges even if it wanted to because it does not control the facility.

CONCLUSIONS

    Having reviewed the evidence and arguments presented by the parties on the merits of this issue, we conclude that they should adopt compromise wording which would permit regular, full-time NAF employees to have limited exchange privileges. In our view, the Employer has not provided persuasive reasons for denying a relatively small number of affected employees the use of the BX, particularly where the DOD regulation it cites permits such access to BX employees who are also represented by the Union. Moreover, the Employer does not deny that other BXs may already provide similar privileges. Allowing these lower- paid employees the convenience of purchasing less expensive goods and services should result in improved morale and act as an incentive for attracting new hires. In consideration of the Employer’s interests, however, our order shall extend BX privileges to regular, full-time employees only in accordance with the conditions that apply to BX employees under the current regulations. Finally, while its basis for alleging that it has no control over the BX is unclear, the compromise nevertheless specifies that the Employer shall provide BX privileges only to the extent that it possesses such authority. Any issues that may arise regarding enforcement of our order should be pursued in the appropriate forum.

2.  Healthcare Premiums

    a. The Union’s Position

    The Union proposes that the Employer’s share of the total group insurance premiums be at least 75 percent for CY 2001, and at least 85 percent for CY 2002. Increasing the Employer’s contribution would provide welcome extra disposable income for lower-paid NAF employees. Further, adoption of this proposal would not have a significant impact on the Employer’s budget since only 47 unit employees currently participate in the healthcare insurance program.

    b. The Employer’s Position

    The Panel should order the Union to withdraw the portion of its proposal that addresses CY 2002 because it is nonnegotiable. In this regard, the wording conflicts with Public Law 103-307, Section 349 and a DOD Memorandum, dated July 16, 1999, promulgating the legislation.(2) DOD regulations mandate that the Employer’s share of healthcare premiums for CY 2002 "may not exceed 75 percent.(3)" The Panel also should order the Union to withdraw its proposal with respect to CY 2001 because the year is nearly over, rendering it moot. Rather, the Employer proposes that its share of the health insurance premium for CY 2002 be 65 percent, which is within the policy established by DOD, and the same amount that it paid on behalf of participating employees in CY 2001.

CONCLUSIONS

    After carefully considering the record developed by the parties concerning the percentage the Employer should contribute to employees’ health insurance premiums in CY 2001 and 2002, we are persuaded that a compromise solution should serve as the basis for resolving their dispute. With respect to CY 2001, we note that by the time this decision is issued, the calendar year will nearly be over. In this regard, the Union did not specifically propose that the Employer reimburse employees the difference between the 65 percent that the Employer has been contributing, and the 75 percent that the Union is seeking, for the period between the start of CY 2001 and the date of this decision. Nor does there appear to be any support, based on the arguments and evidence presented, for applying the Panel’s decision retroactively, even if the Union had proposed doing so.(4) Accordingly, the Union shall be ordered to withdraw the portion of its proposal addressing CY 2001.

    We turn next to the Employer’s jurisdictional argument that the portion of the Union’s proposal requiring it to contribute 85 percent of the employees’ health insurance premiums in CY 2002 is nonnegotiable because it violates law and DOD policy. In this connection, the Panel is guided by the FLRA’s decisions in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988)(Carswell) and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, Local 1487, 41 FLRA 3 (1991)(Bureau of Reclamation), which establish the obligations and limitations relating to the Panel’s authority to resolve impasses where duty-to-bargain issues are raised.(5) Applying Carswell and Bureau of Reclamation in the circumstances presented, we conclude that, even if it were inclined to do so, the Panel currently is without authority to order the adoption of any rate of Employer contribution that exceeds 75 percent for CY 2002. In evaluating the merits of the issue on the basis of the record before us, however, we also find that neither party has demonstrated that its proposal should be adopted. For this reason, we believe that a compromise solution requiring the Employer to contribute the maximum percentage established in DOD policy for CY 2002, 75 percent, appropriately balances the parties’ interests. This should provide welcome extra disposable income for the affected employees without having an adverse impact on the Employer’s mission.(6)

    It is well settled that either party in a dispute before the Panel may raise a jurisdictional question at any stage of the proceedings. In this case, bilateral negotiations over this matter began in April 2001, yet the Employer made its duty-to-bargain allegations for the first time just prior to the informal conference in mid-November. In our view, these facts justify additional wording permitting the Union to file a petition for review of the negotiability issue, and to reopen negotiations over the percentage of the Employer’s contributions, if it receives a ruling from the FLRA finding that a proposal which exceeds DOD guidelines is negotiable. In this regard, we note that the parties’ dispute arose during midterm reopener negotiations, and that their CBA is due to expire in February 2002. While it is probably too late for the Employer’s duty-to-bargain allegations to be resolved in the appropriate forum in time to affect its percentage of contribution in CY 2002,(7) we believe it is in the public’s interest for the legal question to be settled, at the very least, before the parties address this matter again during successor CBA negotiations.

ORDER

    Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel, under 5 C.F.R. § 2471.11(a) of its regulations, hereby orders adoption of the following:

  1. Base Exchange Privileges

To the extent the Employer possesses such authority, regular full-time NAF employees shall be entitled to all privileges at the Base Exchange, except for purchase of articles of uniform and State tax-free items. Dependents of this patron category are authorized to enter exchanges, but are not authorized to make purchases.

2. Healthcare Premiums

The Union shall withdraw the portion of its proposal addressing CY 2001.

In CY 2002, the Employer shall contribute 75 percent of the total group insurance premium unless the Union receives a decision from the FLRA finding that a proposal which exceeds DOD guidelines is negotiable. In that event, at its discretion, the Union may reopen negotiations and propose a higher percentage of contribution from the Employer at such time.

By direction of the Panel.

H. Joseph Schimansky

Executive Director

December 18, 2001

Washington, D.C.

1. With Member Fisher’s assistance during the informal conference, the parties reached agreement on Article 9, § 7, Union Representation; Article 10, § 14, Hours of Work and Basis of Work Week; Article 23, § 7, Uniforms and Special Clothing; and Article 38, § 1(E), Wage Benefits.

2. The Employer submitted an unsolicited statement dated October 25, 2001, declaring the Union’s CY 2002 healthcare proposal nonnegotiable because it conflicted with law and DOD policy.

3. The Office of the Deputy Assistant Secretary of Defense (Civilian Personnel Policy) submitted a supplemental statement of position supporting the Employer’s allegation that the Union’s proposal is contrary to Congress’ intent when it enacted Section 349 of Public Law 103-337 which “mandates that DoD establish a uniform health benefits program, including uniform contribution sharing.” It essentially argues that the Panel should decline to retain jurisdiction over the proposal because the Federal Labor Relations Authority (FLRA) has not found a “substantively identical” proposal negotiable; in the alternative, it argues that the Panel “should find that the proposal is outside the duty to bargain for conflicting with an Agency policy for which there is a compelling need.” It cites National Federation of Federal Employees, Local 29 and Kansas City District, Corps of Engineers, Kansas City, Missouri, 17 FLRA 759 (1985), and National Association of Government Employees, Local R4-6 and Department of the Army, Fort Eustis, Virginia, 42 FLRA 687 (1991), in support of its contentions.

4. We are aware that the Union filed an unfair labor practice (ULP) charge in August 2001 alleging that the Employer violated the Statute by implementing a draft regulation, DOD 1400.25-M, on uniform healthcare benefits for NAF employees, without first notifying the Union and providing it an opportunity to negotiate over the change. The Panel takes no position as to the merits of the Union’s ULP charge, or any related remedy.

5. Carswell allows the Panel to resolve duty-to-bargain issues raised in impasse proceedings where the FLRA previously has found a “substantively identical” proposal negotiable; Bureau of Reclamation allows such resolution even where an employer’s negotiability arguments are different from those previously addressed by the FLRA.

6. Working with the scant information provided by the parties, assuming the s