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23:0266(34)NG - NAGE Local R1-25 and VA Medical Center, Brockton, MA -- 1986 FLRAdec NG

[ v23 p266 ]
The decision of the Authority follows:

 23 FLRA No. 34
                                            Case No. 0-NG-1120
                         I.  Statement of the Case
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 concerning the negotiability of one Union proposal.  The Union made the
 proposal in response to Agency action in discontinuing a practice of
 making left-over coffee, which had been provided for consumption by
 patients, available to employees.  When informed of the Agency's plans
 to terminate its practice of allowing employees to drink the surplus
 coffee, the Union proposed that the practice not be discontinued.  Based
 on the following, we find that the Union's proposal is not negotiable.
                           II.  Procedural Issue
    The Agency argues that the petition should be dismissed because a
 copy was not served upon it within 15 days of its allegation of
 nonnegotiability.  This contention is rejected.  Under established
 Authority practice, the Union was allocated time to correct the
 deficiency in its filing and serve the Agency with a copy of the
 petition.  The Union did take the necessary action within the allotted
                      III.  Positions of the Parties
    The Agency argues that what is at issue is the disposal of coffee
 leftover from patients' meals, a matter that is not part of the
 employer-employee relationship and therefore does not involve a
 condition of employment.  The Agency also contends that providing "free
 food" amounts to additional compensation of employees -- something which
 is prohibited by 5 U.S.C. Section 5536.  /1/ As an extension of this
 argument it asserts that, because compensation is specifically provided
 for by Federal statute, the matter does not concern a condition of
    The Union did not file a response to the Agency's statement of
 position.  However, in its petition it argues that there is no
 compelling reason for discontinuing the practice of allowing employees
 to drink left-over coffee which would otherwise be thrown away.
                               IV.  Analysis
            A.  The Record Does Not Establish That the Proposal
                Concerns Conditions of Employment
    In Antilles Consolidated Education Association and Antilles
 Consolidated School System, 22 FLRA No. 23 (1986), the Authority
 identified as one of the factors which it considers in determining
 whether a proposal concerns conditions of employment:
          The nature and extent of the effect of the matter proposed to
       be bargained on working conditions of unit employees.
    In applying the above factor to this case, we find that there is
 insufficient basis for concluding that the matter, in fact, concerns
 working conditions.  The Union has provided no specific information as
 to how the disposal of the coffee is related to the work situation of
 employees or the employment relationship.  /2/ For example, there are no
 details as to whether consumption of the coffee occurred when employees
 were on-duty or off-duty or whether consumption was tied to their status
 as employees as opposed to being a privilege afforded to any member of
 the public present at the facility at the time the surplus coffee was
 available.  Absent the demonstration of a relationship between the
 matter proposed and working conditions, we have no basis for rejecting
 the Agency's contention that the proposal does not concern conditions of
 employment.  Therefore, we find that the proposal is not within the duty
 to bargain.  See National Federation of Federal Employees, Council of
 Consolidated Social Security Administration Locals and Social Security
 Administration, 13 FLRA 422 (1983) (Union Proposals 3 and 4), in which
 the Authority determined that, in the absence of any showing in the
 record that proposals concerning recycling discarded paper products were
 related to unit employees' work situation or employment relationship,
 those proposals did not concern conditions of employment and were
 outside the duty to bargain.
            B.  The Record Does Not Establish That the Proposal
                Conflicts with 5 U.S.C. Section 5536
    The Agency contends that 5 U.S.C. Section 5536 as interpreted by the
 Comptroller General prohibits an agency from providing "free food" to
 employees while they are at their official duty station.  In 42 Comp.
 Gen. 149 (1962), the Comptroller General ruled that appropriated funds
 could not be used to reimburse an agency official for carry-out food he
 had purchased for employees who were unable to leave an office.  The
 Comptroller General denied the claim based on, among other reasons, his
 interpretation that 5 U.S.C. Section 5536 prohibited providing employees
 with compensation -- in that case "free food" -- over and above that
 which was allowed by law.
    In our view, the circumstances involved in this case are
 significantly different from those involved in the Comptroller General
 decision relied upon by the Agency.  In this case, the issue involves
 use of surplus coffee which was procured for an authorized purpose --
 feeding patients -- as opposed to involving an outlay of appropriated
 funds for the purpose of feeding employees.  Given this difference, we
 conclude that the Comptroller General's decision is not applicable to
 this case.  Additionally, we note that the Comptroller General has not
 interpreted 5 U.S.C. Section 5536 as an absolute prohibition on agency
 subsidization of food for employees.  See, for example, 53 Comp. Gen. 71
 (1973), in which a situation "involving danger to human life and the
 destruction of Federal property" justified government purchase of
 employees' meals at headquarters.  Also in some circumstances, the
 Comptroller General has permitted the expenditure of agency funds to
 subsidize operation of an employees' cafeteria.  Unpublished Decision of
 the Comptroller General, B-169141, November 17, 1970.  We do not
 conclude that a proposal which is limited to addressing the disposition
 of brewed coffee which otherwise would be thrown away amounts to seeking
 compensation which is prohibited under 5 U.S.C. Section 5536.  Because
 we do not view this issue as governed by that statutory provision, we
 reject the Agency's contention that the proposal concerns a matter which
 is specifically provided for by Federal statute.
                              V.  Conclusion
    Because the record does not demonstrate that the proposal concerns a
 matter which is a condition of employment, we conclude that the Agency
 has no duty to bargain over it.
                                VI.  Order
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.
    Issued, Washington, D.C., August 19, 1986.
                                       /s/ Jerry L. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) 5 U.S.C. Section 5536 provides as follows:
    Section 5536.  Extra pay for extra services prohibited
          An employee or a member of a uniformed service whose pay or
       allowance is fixed by statute or regulation may not receive
       additional pay or allowance for the disbursement of public money
       or for any other service or duty, unless specifically authorized
       by law and the appropriation therefor specifically states that it
       is for the additional pay or allowance.
    (2) The parties to a case are responsible for creating the record
 upon which we will resolve negotiability disputes.  National Association
 of Federal Employees, Local 7 and U.S. Army Corps of Engineers, Portland
 District, 19 FLRA No. 18, n. 4 (1985);  National Federation of Federal
 Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886
 (D.C. Cir. 1982).  A party failing to assume this burden acts at its