09:0809(102)NG - AFGE Local 5l and Treasury, Bureau of the Mint, Assay Office, San Francisco, CA -- 1982 FLRAdec NG

 9 FLRA No. 102
 
 AMERICAN FEDERATION OF
 OVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 51
 Union
 
 and
 
 DEPARTMENT OF THE
 TREASURY, BUREAU OF THE
 MINT, U.S. ASSAY OFFICE,
 SAN FRANCISCO, CALIFORNIA
 Agency
 
                                            Case No. O-NG-351
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
    THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
 PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE).  UPON CAREFUL
 CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS,
 THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.
 
    THE AGENCY CONTENDS AT THE OUTSET THAT, ALTHOUGH THE UNION'S INITIAL
 SUBMISSION WAS TIMELY FILED, THE UNION, AFTER NOTIFICATION THAT THE
 APPEAL DID NOT CONFORM TO CERTAIN OF THE REQUIREMENTS SET FORTH IN THE
 AUTHORITY'S RULES AND REGULATIONS, DID NOT CORRECT THE APPEAL WITHIN THE
 PERIOD PERMITTED BY THE AUTHORITY.  THUS, ACCORDING TO THE AGENCY, THE
 APPEAL SHOULD BE DISMISSED.
 
    AS MENTIONED PREVIOUSLY, IT IS UNDISPUTED THAT THE UNION FILED THE
 APPEAL IN THIS CASE WITHIN THE TIME LIMIT PRESCRIBED UNDER THE
 PROVISIONS OF 5 U.S.C. 7117(C)(2) AND SECTION 2424.3 OF THE AUTHORITY'S
 RULES AND REGULATIONS.  THE AUTHORITY, CONSISTENT WITH WELL-ESTABLISHED
 PRACTICE IN LIKE SITUATIONS, /1/ ADVISED THE UNION OF APPARENT
 DEFICIENCIES IN MEETING CERTAIN PROCEDURAL REQUIREMENTS AND GRANTED THE
 UNION TIME TO TAKE CORRECTIVE ACTION.  IN THIS REGARD, THE UNION WAS
 ADVISED THAT FAILURE TO COMPLY WITH THE CITED REQUIREMENTS WITHIN THE
 TIME LIMIT PROVIDED MIGHT RESULT IN DISMISSAL OF THE APPEAL.  INSOFAR AS
 IT APPEARS FROM THE RECORD, THE UNION WAS TWO DAYS LATE IN FILING WITH
 THE AUTHORITY ITS SUBMISSION IN COMPLIANCE WITH THE STATED REQUIREMENTS.
  SINCE THE DEFICIENCIES INVOLVED WERE IN FACT CORRECTED BY THE UNION AND
 INASMUCH AS THERE IS NO INDICATION IN THE RECORD THAT ANY PREJUDICE WILL
 ACCRUE TO THE AGENCY AS A RESULT OF THE FACT THAT THE DEFICIENCIES WERE
 CORRECTED TWO DAYS LATE, THE AGENCY'S MOTION TO DISMISS ON THIS GROUND
 IS DENIED.  /2/
 
    TURNING NOW TO THE QUESTION OF NEGOTIABILITY, THE DISPUTED UNION
 PROPOSAL PROVIDES AS FOLLOWS:
 
    THE ACTIVITY AND THE UNION WILL COOPERATE IN THE CONTINUING EFFORT TO
 ESTABLISH AND
 
    MAINTAIN EQUITY IN PRICES AND QUALITY OF SERVICE(S) AT THE U.S.A.O.
 CAFETERIA;  AND THERE SHALL
 
    BE ESTABLISHED A SPECIAL SERVICES COMMITTEE CONSISTING OF TWO (2)
 MEMBERS APPOINTED BY THE
 
    ACTIVITY AND TWO (2) MEMBERS APPOINTED BY THE UNION.  (ONLY THE
 UNDERSCORED PORTION OF THE
 
    PROPOSAL IS IN DISPUTE.)
 
    THE AGENCY'S CONTENTION THAT THE PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN IS PRINCIPALLY BASED UPON ITS ERRONEOUS CHARACTERIZATION OF THE
 PROPOSAL AS REQUIRING NEGOTIATIONS CONCERNING PRICES AND SERVICES IN THE
 ON-SITE SNACK BAR.  THE PLAIN LANGUAGE OF THE PROPOSAL DOES NOT REQUIRE
 THE AGENCY TO NEGOTIATE THE ESTABLISHMENT OR MAINTENANCE OF PRICES AND
 SERVICES IN THE SNACK BAR, AND THE RECORD PROVIDES NO INDICATION THAT
 THE UNION INTENDS THE PROPOSAL TO REQUIRE NEGOTIATIONS.  RATHER, IT
 WOULD ONLY REQUIRE THE AGENCY TO "COOPERATE IN THE CONTINUING EFFORT TO
 ESTABLISH AND MAINTAIN EQUITY IN PRICES AND QUALITY OF SERVICE(S) AT THE
 (SNACK BAR) . . . " /3/
 
    FURTHERMORE, THE AGENCY'S ARGUMENT THAT, IN ANY EVENT, IT HAS NO
 DISCRETION WITH RESPECT TO MATTERS CONCERNING THE SNACK BAR IS NOT
 SUPPORTED IN THE RECORD.  IN THE FIRST PLACE, THE RECORD INDICATES THAT
 THE SNACK BAR EXISTS ONLY AS THE RESULT OF THE AGENCY'S HAVING EXERCISED
 ITS DISCRETION UNDER THE PROVISIONS OF THE RANDOLPH-SHEPPARD ACT, 20
 U.S.C. 107(1976), AND IMPLEMENTING REGULATIONS CONTAINED IN 45 CFR
 1369(1980).  PURSUANT TO THE RANDOLPH-SHEPPARD ACT, THE AGENCY APPROVED
 THE ESTABLISHMENT OF THE SNACK BAR ON ITS PREMISES BY SIGNING, AS THE
 FEDERAL PROPERTY AGENCY, A "PERMIT AGREEMENT" WITH THE STATE LICENSING
 AGENCY OF THE STATE OF CALIFORNIA.  IN THIS CONNECTION, BASED ON THE
 RECORD, PRICES AND SERVICES ARE CONTROLLED BY THE BLIND VENDOR WHO
 OPERATES THE SNACK BAR ON THE AGENCY'S PREMISES, SUBJECT TO THE
 LICENSING PROVISIONS AND SUPERVISION OF THE STATE LICENSING AGENCY.
 MOREOVER, SINCE THE RECORD INDICATES THAT THE AGENCY IS THE FEDERAL
 PROPERTY AGENCY FOR PURPOSES OF THE RANDOLPH-SHEPPARD ACT AND ITS
 IMPLEMENTING REGULATIONS, THE AGENCY WOULD HAVE THE RIGHT TO PARTICIPATE
 WITH THE BLIND VENDOR AND THE STATE LICENSING AGENCY IN ANY ATTEMPT TO
 RESOLVE DAY-TO-DAY PROBLEMS CONCERNING THE OPERATION OF THE SNACK BAR.
 SEE 45 CFR 1369.36(A).  IN ADDITION, UNDER THE TERMS AND CONDITIONS OF
 THE "PERMIT," THE AGENCY MAY INITIATE THE PROCESS OF TERMINATING THE
 PERMIT AND THEREBY CAUSE THE REMOVAL OF THE SNACK BAR FROM ITS PREMISES.
  THUS, CONTRARY TO THE AGENCY'S ARGUMENT, THE AGENCY WOULD HAVE
 DISCRETION UNDER LAW AND REGULATION WITH RESPECT TO SOME MATTERS
 CONCERNING THE SNACK BAR.
 
    WITH RESPECT TO THE SPECIFIC REQUIREMENT OF THE PROPOSAL, THE AGENCY
 HAS OFFERED NO SUPPORT FOR A FINDING THAT IT WOULD NOT HAVE SUFFICIENT
 DISCRETION TO IMPLEMENT THE PROPOSAL IF IT WERE AGREED UPON BY THE
 PARTIES.  THE AGENCY CITES NO PROVISION OF LAW OR REGULATION, AND NONE
 IS OTHERWISE APPARENT, WHICH WOULD PRECLUDE IT FROM SEEKING TO INFLUENCE
 THOSE WITH THE DECISION-MAKING AUTHORITY IN AN EFFORT TO ESTABLISH AND
 MAINTAIN "EQUITY IN PRICES AND QUALITY OF SERVICES" AT THE SNACK BAR, OR
 FROM AGREEING TO COOPERATE WITH THE UNION IN SUCH EFFORT, AS THE
 PROPOSAL WOULD REQUIRE.  IN THIS REGARD, THE ISSUE PRESENTED ,HEREIN
 BEARS NO MATERIAL DIFFERENCE FROM THAT IN AMERICAN FEDERATION OF
 GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL
 MANAGEMENT, WASHINGTON, D.C., 8 FLRA NO. 87(1982), WHERE THE AUTHORITY
 HELD THAT A PROPOSAL IN PART REQUIRING THE AGENCY TO TAKE WHATEVER
 ACTION IT COULD TO ENSURE THAT EMPLOYEE CAFETERIA PRICES DID NOT RISE
 FASTER THAN EMPLOYEES' INCOME WAS WITHIN THE AGENCY'S DUTY TO BARGAIN
 BECAUSE IT DID NOT REQUIRE THE AGENCY TO ACT IN EXCESS OF ITS DISCRETION
 UNDER LAW OR REGULATION, EVEN THOUGH SUCH DISCRETION DID NOT INCLUDE
 DECISION-MAKING AUTHORITY AS TO CAFETERIA PRICES.  THUS, THE AGENCY'S
 CONTENTIONS THAT THE DISPUTED PORTION OF THE UNION'S PROPOSAL IS OUTSIDE
 THE DUTY TO BARGAIN CANNOT BE SUSTAINED.  SEE ALSO NATIONAL TREASURY
 EMPLOYEES UNION, CHAPTER 6 AND INTERNAL REVENUE SERVICE, NEW ORLEANS
 DISTRICT, 3 FLRA 748(1980).
 
    ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
 REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL
 UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
 CONCERNING THE UNION'S PROPOSAL.  /4/
 
    ISSUED, WASHINGTON, D.C., AUGUST 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
 3804 AND FEDERAL DEPOSIT INSURANCE CORPORATION, CHICAGO REGION,
 ILLINOIS, 5 FLRA NO. 71(1981).
 
    /2/ COMPARE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 AND
 DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT GROUP,
 (TAC), HOMESTEAD AIR FORCE BASE, FLORIDA, 6 FLRA NO. 105(1981), AFF'D
 SUB NOM. NFFE, LOCAL 1167 V. FEDERAL LABOR RELATIONS AUTHORITY, F.2D
 (D.C. CIR. NO. 81-2198, JUNE 29, 1982) (IN WHICH THE AUTHORITY DID NOT
 CONSIDER THE UNION'S SUBMISSION BECAUSE IT WAS NOT FILED WITHIN THE
 STATUTORY TIME LIMITS).
 
    /3/ ALTHOUGH THE PROPOSAL SPEAKS IN TERMS OF A CAFETERIA, BASED ON
 THE RECORD THE FACILITY IN QUESTION IS A SNACK BAR.
 
    /4/ IN DECIDING THAT THE DISPUTED PORTION OF THE PROPOSAL IS WITHIN
 THE DUTY TO BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO
 ITS MERITS.