23:0266(34)NG - NAGE Local R1-25 and VA Medical Center, Brockton, MA -- 1986 FLRAdec NG
[ v23 p266 ]
23:0266(34)NG
The decision of the Authority follows:
23 FLRA No. 34
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R1-25
Union
and
VETERANS ADMINISTRATION
MEDICAL CENTER
BROCKTON, MASSACHUSETTS
Agency
Case No. 0-NG-1120
DECISION AND ORDER ON NEGOTIABILITY ISSUE
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
time.
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
employment.
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
peril.