23:0578(80)CA - Army, Dugway Proving Ground, Dugway, UT and NAGE Local R14-62 -- 1986 FLRAdec CA
[ v23 p578 ]
The decision of the Authority follows:
23 FLRA No. 80 DEPARTMENT OF THE ARMY DUGWAY PROVING GROUND DUGWAY, UTAH Respondent and NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R14-62 Charging Party Case No. 7-CA-50559 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority based on the Regional Director's "Order Transferring Case to the Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. The complaint alleged that the Respondent refused to bargain over a change in the established practice with regard to the assignment of government-owned, on-post, non-housekeeping quarters to "geographical bachelors" in violation of section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute). II. Background The National Association of Government Employees, Local R14-62, (Charging Party), is the exclusive representative of the Respondent's professional employees. It represents approximately 75 of the Respondent's 747 civilian employees. The Respondent, Dugway Proving Ground (DPG), is a remote installation located approximately 45 miles from the nearest community, Tooele, Utah, where limited housing is available. To reach this community requires more than an hour commute over a mountain pass which is either impassable or extremely hazardous during winter storms. DPG is 80 miles from Salt Lake City, Utah, where a wide variety of housing is available. There is no housing other than government housing at DPG. Due to this remote location and the lack of locally-available housing, 250 family quarters were constructed, and it was required that certain of those quarters be provided to civilian employees. Other quarters were constructed for the use of transient and permanent civilian and military personnel. Civilian employees at DPG fall into three categories for assignment of government housing: (1) married civilians with families who are eligible for family quarters; (2) "bona fide bachelors" (i.e., unmarried civilian employees) who are provided non-housekeeping quarters if available; and (3) "geographical bachelors" (i.e., civilian employees with dependents who are eligible for family quarters and may or may not be on the waiting list for such quarters, and who live on DPG but maintain and commute on weekends to and from a primary residence outside DPG). The third group and the practice that developed regarding their housing is the subject of the present case. On May 9, 1975, DPG issued DPG Regulation 210-7, establishing priorities for assignment of non-housekeeping quarters (private room quarters where housekeeping services are not provided) to military and civilian personnel. Since at least the issuance of that regulation, geographical bachelors have been provided, upon request, with, at a minimum, the single occupancy non-housekeeping quarters, thereby permitting such employees to reside on DPG during the workweek and commute to their primary residence outside DPG on weekends. Since 1980 these employees have been permitted to work a Monday through Thursday schedule (10 hours per day). The initial assignment to non-housekeeping quarters is made by DPG on an "as available" basis. Under DPG Regulation 210-7, bona fide bachelors have a higher priority for assignment of non-housekeeping quarters than geographical bachelors. However, once assigned to such quarters, the geographical bachelors were not required to vacate the quarters when new bona fide bachelor employees arrived at the base. This practice initially developed during a period when DPG had excess non-housekeeping quarters. This excess no longer existed by January, 1985. On May 20, 1985, the Commanding Officer informed the three unions with bargaining unit employees at DPG, including the Charging Party, that it might be necessary to evict some of the geographical bachelors in order to provide space for the bona fide bachelors. At that time there were 48 geographical bachelors, 10 of whom are part of the Charging Party's bargaining unit. The Commanding Officer followed this up with a letter to the geographical bachelors evicting them from the non-housekeeping quarters. This action resulted in the filing of an unfair labor practice charge that was withdrawn after the Commanding Officer offered to suspend the eviction action pending review of the matter by an ad hoc committee and to include union representatives on the committee. The parties stipulated that the Charging Party's membership on the committee did not constitute a waiver of its right to bargain over the proposed change in quarters policy, and that collective bargaining, as defined by the Statute, did not occur at the meeting. A majority of the Ad Hoc committee recommended that dual occupancy dormitory rooms in another building be offered to the geographical bachelors which would permit their relocation from the single occupancy, non-housekeeping quarters and use of those quarters by bona fide bachelors. The Charging Party filed a Minority Opinion with the Commanding Officer suggesting alternate methods of handling the problem. The Commanding Officer essentially adopted the majority's recommendations. The Commanding Officer informed the Charging Party of his decision to evict the geographical bachelors on August 5, 1985. On August 6, 1985, the Charging Party requested to bargain over the Commanding Officer's decision and submitted an initial proposal to maintain the status quo. On the same date, the Commanding Officer issued letters to all the geographical bachelors, including those represented by the Charging Party. The letter required geographical bachelors to vacate their quarters and offered dormitory rooms at a higher cost. On the next day, August 7, 1985, DPG responded to the Charging Party's request to bargain, stating, "It is the position of this agency that we have negotiated this issue in question in accordance with applicable statutes to the limits of our authority. We will have to request a determination on the negotiability of the regulation through our chain of command to Headquarters, Department of Army." /1/ No further discussion took place between the parties. The geographical bachelors were evicted on or about August 23, 1985. Of 847 Department of Army civilian employees, 437 occupy DPG family housing, bachelor officer quarters, or dormitories. Over 400 employees commute on a daily basis. As stipulated by the parties, the relative isolation of DPG and the lack of available housing has resulted in a significant impact on civilian employee recruitment and retention and has placed DPG at a competitive disadvantage with Tooele Army Depot where limited facilities are available. Therefore, the possible availability of housing at DPG is used as a recruitment inducement. III. Positions of the Parties The Respondent argues that offering surplus quarters to geographical bachelors was never considered a condition of employment. The Respondent noted the Authority's finding in United States Department of Justice, United States Immigration and Naturalization Service, 14 FLRA 578 (1984), that the assignment of government-owned housing, in the circumstances of that case, was a condition of employment. However, the Respondent contends that none of the criteria applied by the Authority in that case were applicable to the geographical bachelors at DPG. The Respondent notes that DPG has never been declared a hardship station and that none of the employees are assigned to serve there as in the cited case. The Respondent also claims that while there is no housing other than government-owned in the immediate area, there must be adequate housing in the commuting area because the majority of the DPG employees commute to work. The Respondent also argues that it cannot be fairly said that the housing at DPG was constructed for the benefit and use of civilian employees because military personnel would have priority if the mission required an increase in their numbers. Finally, the Respondent alleges that while the Commanding Officer exercised his discretion in making the quarters available to geographical bachelors, he was not delegated the responsibility to make assignments under regulation as in United States Department of Justice, United States Immigration and Naturalization Service. The General Counsel contends that a past practice of assigning geographical bachelors in the unit to non-housekeeping quarters existed, and that this practice is a condition of employment. The General Counsel notes that since 1975 these geographical bachelors have been provided with quarters during their normal workweek, and that they have not been required to vacate these quarters when employees with higher priority arrived at the facility. The General Counsel notes that the Respondent acknowledged this practice in its regulatory scheme and has consistently followed it for the ten year period preceding the change on August 23, 1985. The General Counsel argues further that the practice is a matter affecting conditions of employment because it was integrally involved with the employment of unit employees. The General Counsel claims that it meets the test applied by the Authority in previous cases for the following reasons: DPG is a remote location; the assignment of housing is directly related to the facility's recruitment and retention program; and, the policy was a direct outcome of the Commander's local discretion. Therefore, the General Counsel contends that the unilateral change in the policy, which is both an established practice and a condition of employment, violated section 7116(a)(1) and (5) of the Statute. Finally, the General Counsel submits that a status quo ante order with backpay to make whole employees who were required to reside in higher cost quarters and/or commute on a daily basis as a consequence of the Respondent's unlawful conduct is the only appropriate remedy. IV. Analysis A. Was there an Established Past Practice of Assigning Government-Owned, On-Post, Non-Housekeeping Quarters to Geographical Bachelors? Since 1975, as set forth in the Respondent's regulations (DPG 210-7), the priority for assignment of non-housekeeping quarters has included geographical bachelors, and the record reflects that geographical bachelors resided in these quarters until their eviction on August 23, 1985. The Authority concludes, based on the facts set out above, which are not disputed by the Respondent, that the assignment of non-housekeeping quarters to the category of employees referred to as geographical bachelors constituted an established practice at DPG. B. Is the Past Practice of Assigning Government-Owned On-Post, Non-Housekeeping Quarters to Geographical Bachelors a Condition of Employment? The Authority concludes for the reasons set forth below that the assignment of non-housekeeping quarters to geographic bachelors is a condition of employment within the meaning of section 7103(a)(14) of the Statute. In our recent decision, Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23 (1986), we described two basic considerations in deciding whether a particular proposal involved a condition of employment: (1) whether the matter proposed to be bargained pertains to bargaining unit employees; and (2) the nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees. As to the second consideration, there must be a direct connection between the proposal and the work situation or employment relationship of bargaining unit employees. As to the first consideration, in this case it is undisputed that the practice of assigning non-housekeeping quarters to geographical bachelors involved bargaining unit employees. Moreover, any bargaining unit employee meeting the definition of geographical bachelor was eligible. Therefore, the established past practice pertains to bargaining unit employees. With respect to the second consideration, we conclude that the General Counsel has established a direct connection between the practice of assigning non-housekeeping quarters to geographical bachelors and their work situation or employment relationship. The parties stipulated that government housing was constructed with the proviso that a portion be set aside for civilian use because of the remote location of DPG. The relative isolation and lack of available housing resulted in a significant impact on civilian employee recruitment and retention, and the potential availability of housing was used as a recruitment inducement. Further, there was a financial benefit to residing in on-post housing because those employees had reduced daily commuting costs. Moreover, there is a connection between hours of work and geographical bachelors' assignment to the housing because the geographical bachelors were permitted to work a four day week (ten hours per day) which increased the amount of time spent with their families. In sum, the practice of assigning non-housekeeping quarters to geographical bachelors pertains to bargaining unit employees and has a direct effect on the working conditions of those employees. The practice constitutes a condition of employment of bargaining unit employees. V. Conclusion Having concluded that the practice of assigning government-owned, on-post, non-housekeeping quarters to geographical bachelors is a condition of employment, the Authority finds that Respondent's failure to bargain upon request with the Charging Party over its change constitutes a failure to bargain in good faith in violation of section 7116(a)(1) and (5) of the Statute. VI. Remedy As noted above, the General Counsel requested, in addition to a cease and desist order, both status quo ante relief and a make whole order to reimburse those unit employees unlawfully affected by the eviction. We conclude that status quo ante relief, limited to reinstitution of the practice of assigning single occupancy, non-housekeeping quarters to geographical bachelors, as supplemented by an order requiring the parties to negotiate and give retroactive effect to any agreement reached, will best effectuate the purposes and policies of the Statute. /2/ In carrying out its statutory functions, the Authority has wide discretion to fashion remedies under section 7105(g)(3) and section 7118(a)(7) of the Statute. /3/ In this case, the General Counsel requests a status quo ante remedy that would require the eviction of any bona fide bachelor who replaced an evicted geographical bachelor. Such a requirement would have an obvious disruptive effect on the agency's operations as well as on the employees involved, Further, the Respondent offered all of the evicted geographical bachelors alternative housing at DPG so none were actually foreclosed from continuing on the same work schedule. In view of these facts, we conclude that displacement of any bona fide bachelor residing in the disputed quarters is unwarranted. While not ordering eviction of the bona fide bachelors to make room for geographical bachelors, we view as appropriate that affected employees be made whole for increased expenses resulting from the Respondent's improper action. In our view, a determination of these expenses can best be made by ordering the Respondent, upon request, to negotiate with the Union with respect to the change in conditions of employment involved in this case. Thereafter, Respondent shall make whole affected employees for their increased expenses suffered as a result of their eviction, consistent with applicable law and taking into account the agreement resulting from the negotiations we are ordering, applied retroactive to the date of the eviction. ORDER Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, it is ordered that the Department of the Army, Dugway Proving Ground, Dugway, Utah, shall: 1. Cease and desist from: (a) Refusing to negotiate with the National Association of Government Employees, Local R14-62, the exclusive representative of certain of its employees, concerning a change in the practice of assigning government-owned, on-post, non-housekeeping quarters to geographical bachelors in the bargaining unit. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute: (a) Reinstate the past practice of assigning government-owned, on-post, single occupancy, non-housekeeping quarters to geographical bachelors. (b) Make available to the evicted bargaining unit geographical bachelors any equivalent vacant non-housekeeping quarters. (c) Negotiate, upon request, over the change in conditions of employment which resulted in the unlawful eviction of bargaining unit geographical bachelors, and make them whole for their increased expenses suffered as a result of their eviction, consistent with applicable law and taking into account the agreement resulting from the negotiations the Authority is ordering, applied retroactive to the date of the eviction. (d) Negotiate in good faith, upon request, over any proposed change in the practice of assigning government-owned, on-post, non-housekeeping quarters to geographical bachelors in the bargaining unit represented exclusively by the National Association of Government Employees, Local R14-62. (e) Post at Dugway Proving Ground, Dugway, Utah, in all facilities where bargaining unit employees are located, 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 Commanding Officer, or a designee, and 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. (f) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region VII, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply with it. Issued, Washington, D.C., October 14, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The Respondent was referring to Army Regulation (AR) 210-11, Billeting Operations, which provided for quarters assignment priorities. For purposes of this case, the Respondent is not asserting that a compelling need exists for this regjlation. Also, as noted previously, Respondent stipulated that (1) the Charging Party's membership on the Ad Hoc committee did not waive any right to bargain over the changes, and (2) collective bargaining did not occur at the committee meetings. (2) Reinstitution of the practice shall include making available to the evicted unit geographical bachelors any vacant equivalent quarters. (3) See, for example, the discussion in footnote 4 of Veterans Administration, Washington, D.C. and Veterans Administration Medical Center and Regional Office Center, Fargo, North Dakota, 22 FLRA No. 64 (1986). APPENDIX NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT refuse to negotiate with the National Association of Government Employees, Local R14-62, the exclusive representative of certain of our employees, concerning a change in the practice of assigning government-owned, on-post, non-housekeeping quarters to geographical bachelors in the bargaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Statute. WE WILL REINSTATE the past practice of assigning government-owned, on-post, single occupancy, non-housekeeping quarters to geographical bachelors. WE WILL make available to the evicted bargaining unit geographical bachelors any equivalent vacant non-housekeeping quarters. WE WILL negotiate, upon request, over the change in conditions of employment which resulted in the unlawful eviction of bargaining unit geographical bachelors and, make them whole for their increased expenses suffered as a result of their eviction, consistent with applicable law and taking into account the agreement resulting from the negotiations the Authority is ordering, applied retroactive to the date of the eviction. WE WILL negotiate in good faith, upon request, over any proposed change in the practice of assigning government-owned, on-post, non-housekeeping quarters to geographical bachelors in the bargaining unit represented exclusively by the National Association of Government Employees, Local R14-62. (Activity) Dated: . . . 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, Region VII, whose address is: 535 16th Street, Suite 310, Denver, Colorado 80202 and whose telephone number is: (303) 837-5224.