[ v23 p858 ]
The decision of the Authority follows:
23 FLRA No. 105 DEPARTMENT OF THE ARMY FORT GREELY, ALASKA and DEPARTMENT OF THE ARMY 172d INFANTRY BRIGADE (ALASKA) FORT RICHARDSON, ALASKA and DEPARTMENT OF THE ARMY HEADQUARTERS, U.S. ARMY FORCES COMMAND FORT McPHERSON, GEORGIA and DEPARTMENT OF THE ARMY THE PENTAGON, WASHINGTON, D.C. Respondents and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1949, AFL-CIO Charging Party Case No. 9-CA-1204 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties, who have agreed that no material issue of fact exists. The Respondents and the General Counsel have filed briefs for the Authority's consideration. The second amended complaint alleges that the Respondents, Department of the Army, Fort Greely, Alaska (Ft. Greely); Department of the Army, 172d Infantry Brigade (Alaska), Fort Richardson, Alaska (Brigade); Department of the Army, Headquarters, U.S. Army ForcesCommand, Fort McPherson, Georgia (FORSCOM); and Department of the Army, Washington, D.C. (Headquarters), violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when commissary and post exchange privileges were unilaterally terminated effective September 1, 1981, for Ft. Greely civilian employees not residing on the installation, without providing the American Federation of Government Employees, Local 1949, AFL-CIO (the Union) with notice and an opportunity to bargain over the change in working conditions. II. Background The record indicates that Respondent's Ft. Greely, Brigade, and FORSCOM, respectively, report upward in the Army chain of command to Respondent Headquarters. The Union is the exclusive representative of a bargaining unit which includes all general schedule (GS) and wage grade (WG) employees at Fort Greely. The Union and Respondent Brigade have been parties to a collective bargaining agreement covering the bargaining unit at all times material herein. Bargaining unit civilian employees at Ft. Greely have not resided on the installation since the early 1970's. Both GS and WG employees had received exchange privileges since the mid-1950's, and GS employees have had commissary privileges since December 1975. As the Commander of Ft. Greely stated in a letter to Respondent Brigade in November 1979 requesting a continuation of commissary and exchange privileges for civilian employees at Ft. Greely: On-Post privileges have been a historical part of the For6t Greely civilian workforce relationship. In the past, tenant and garrison supervisors have routinely used the availability of privileges to encourage local and out-of-state civilians to accept employment at this geographically isolated location. We have always experienced extreme difficulty filling our authorized civilian positions and loss of privileges would have significant impact on present and future hiring and morale. The granting of civilian privileges at Fort Greely is one of the few incentives available to the Command to reduce the cultural-economic shock for career employees moving into the Delta Junction-Fort Greely area. By letter dated November 7, 1980, Respondent Ft. Greely again wrote to Respondent Brigade regarding the continuation of commissary and exchange privileges for civilian employees at Ft. Greely. The letter indicated that the basic reasons for granting such priviledges still existed, but that there had been improvements in those areas. Ft. Greely recommended that the civilian privileges should be continued on an interim basis, and that Brigade should undertake a comprehensive study of the need to continue authorizing such privileges. Respondent Brigade's response indicated that a study of civilian commissary and exchange privileges at Ft. Greely would be undertaken, and that such privileges would be extended through June 30, 1981. Brigade conducted the study during April and May 1981. The Union was not notified, consulted or given an opportunity to negotiate about any aspect of this study. By letter dated June 6, 1981, Brigade directed Ft. Greely to withdraw commissary and post exchange privileges from all civilian employees at Ft. Greely on September 1, 1981, based upon the results of its study. Brigade's labor relations specialist gave a copy of the June 6 letter to the Union's president on June 17, indicating that the decision to withdraw privileges was nonnegotiable but that management would negotiate "impact and implementation." On August 3, 1981, the Union sent Brigade a request to bargain over the withdrawal of civilian privileges at Ft. Greely, stating that its position regarding the privileges was to maintain the status quo. In its response, Brigade agreed to negotiate over the impact and procedures regarding the withdrawal of privileges. On August 26, the Union met with representatives of Brigade and Ft. Greely to negotiate concerning the withdrawal of civilian privileges. The Union sought to retain the privileges; Ft. Greely stated that, based on higher level guidance from Respondent's FORSCOM and Headquarters, the decision to withdraw the privileges was nonnegotiable and that the privileges would be withdrawn on September 1, 1981. By letter to the Union dated August 28, 1981, Ft. Greely confirmed management's oral statements of August 26 that the decision to withdraw privileges was nonnegotiable. Specifically, the letter stated that Army regulations (AR 60-20 and 30-199) precluded negotiations over the substance of the decision to discontinue commissary and exchange privileges, and also that the Union had inordinately delayed its request to negotiate. The letter also reiterated that the privileges would be withdrawn on September 1. The privileges were in fact withdrawn on that date. III. Positions of the Parties A. The Respondents 1. Commissary store privileges The Respondents contend that Department of Defense (DOD) Directive 1330.17 (1978) -- which sets forth policies for the extension of commissary store privileges -- provides that such privileges will not be extended to civilian employees of the military services who do not reside within the military installations; that deviations from this requirement are permitted only in cases of emergency and only until the emergency is terminated; that while civilian employees at Ft. Greely had received commissary privileges from 1975 to 1981 even though they did not reside on the installation, such action was taken with Headquarters approval; and that the decision to extend commissary privileges to these employees was reviewed by Headquarters on an annual basis. 2. Exchange privileges The Respondents contend that there were no restrictions on granting exchange privileges to civilian employees prior to July 8, 1980, when DOD Directive 1330.9 -- which sets forth policies for the extension of exchange privileges -- was promulgated, and that Respondent Brigade therefore acted within its discretion in affording such privileges to civilian employees at Ft. Greely since the 1950s at Ft. Greely's request. However, the Respondents assert that DOD Directive 1330.9 superseded Army regulations (AR 60-20) which had authorized local commanders to grant exchange privileges to civilian employees when determined to be in the best interest of their command's mission; removed the authority of Brigade and Ft. Greely to grant such privileges; and limited their discretion solely to requesting deviations through channels to Headquarters where necessary to alleviate personal hardships. Since Brigade concluded on the basis of its study that no personal hardships existed at Ft. Greely which would justify a continued deviation, the Respondents assert that the privileges were properly withdrawn. 3. The duty to bargain over the withdrawal of privileges The Respondents further contend that the duty to bargain does not extend to matters which are the subject of a regulation issued by an agency (DOD) or a primary national subdivision (Headquarters) unless the Authority has determined under section 7117(b) of the Statute that no compelling need exists for the regulation or unless exclusive recognition exists at the agency or primary national subdivision level. Since neither exception applies here, the Respondents argue that there was no duty to bargain concerning the decision to withdraw commissary and exchange privileges but only a duty to bargain over the impact and implementation of that decision -- an offer which the Union rejected. B. The General Counsel The General Counsel contends that Brigade and Ft. Greely were acting as agents of FORSCOM and Headquarters when Brigade ordered the withdrawal of commissary and exchange privileges from civilian employees at Ft. Greely and Ft. Greely implemented that order. The General Counsel maintains that these actions resulted in a unilateral change in conditions of employment without negotiating with the Union concerning the decision to make the change and therefore violated section 7116(a)(1) and (5) of the Statute. The General Counsel argues that commissary and exchange privileges are conditions of employment under section 7103(a)(14) of the Statute and past practice; that DOD regulations do not preclude negotiations at the local level concerning such matters; and that even if a conflict exists between DOD's regulations and the Union's proposal to continue the practice concerning commissary and exchange privileges, the Respondents failed to demonstrate a compelling need for the regulations. The General Counsel further contends that a status quo ante remedy is appropriate to cure the Respondents' unlawful conduct in this case since management failed and refused to meet the statutory duty to bargain over the decision to change negotiable conditions of employment. As requested by the General Counsel, the remedy would require restoration of the privileges to unit employees at Ft. Greely and their reimbursement for any monetary losses suffered as a result of the unilateral revocation of commissary and exchange privileges. IV. Analysis A. The Withdrawal of Commissary and Exchange Privileges from Uni Employees at Ft. Greely Affected their Conditions of Employment under Section 7103(a)(14) of the Statute The Respondents concede, and we find, that the withdrawal of commissary and exchange privileges from the unit employees at Ft. Greely affected their conditions 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 matter involves a condition of employment of bargaining unit employees: (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. Applying the Antilles analysis to the matters at issue in this case, it is clear that the first consideration is satisfied. The Union sought negotiations on the decision to withdraw existing privileges from employees it represents in a unit of exclusive recognition. With respect to the second consideration, we conclude that the General Counsel established a direct connection between the practice of granting commissary and exchange privileges to unit employees at Ft. Greely and their work situation or employment relationship. The stipulated record in this case shows, as in Department of the Air Force, Eielson Air Force Base, Alaska, 23 FLRA No. 83 (1986), which also involved the withdrawal of similar privileges from civilian employees in Alaska, that the privileges had been continued for a long period of time as part of the Ft. Greely civilian workforce relationship; were routinely used to encourage civilians to accept employment at that geographically isolated location; and constituted one of the few incentives to ease the extreme difficulty in filling authorized civilian positions and to improve morale. On this basis, we conclude that the matter of withdrawing commissary and exchange privileges from unit employees at Ft. Greely concerns conditions of employment under section 7103(a)(14) of the Statute. See also Department of the Army, Dugway Proving Ground, Dugway, Utah, 23 FLRA No. 80 (1986); U.S. Department of Justice, U.S. Immigration and Naturalization Service, 14 FLRA 578 (1984). B. Respondent Brigade Had a Duty to Bargain with the Union Concerning the Decision to Withdraw the Privileges It is well-established that an agency has a duty under the Statute to negotiate with an exclusive representative of an appropriate unit of its employees at the level of exclusive recognition concerning conditions of employment affecting them, except as provided otherwise by Federal law, Government-wide rule or regulation, or agency regulations for which a compelling need exists. Headquarters, Defense Logistics Agency, Washington, D.C., 22 FLRA No. 93 (1986); Defense Contract Administration Services Region, Boston, Massachusetts, 15 FLRA 750 (1984). Since there is neither a bargaining relationship between the Union and either Respondents Headquarters or FORSCOM nor evidence that either Headquarters or FORSCOM interfered with the fulfillment of the bargaining obligation between the Respondent Brigade and the Union, we conclude that the complaint must be dismissed as to Respondents Headquarters and FORSCOM. See Boston District Recruiting Command, Boston, Massachusetts, 15 FLRA 720 (1984). Since we have concluded that the withdrawal of commissary and exchange privileges from unit employees at Ft. Greely concerns conditions of employment, it follows that Respondent Brigade had a duty to bargain over its decision to do so except as provided by Federal law, Government-wide rule or regulation, or agency regulations for which a compelling need exists. There is no contention that the Union's proposal to maintain the privileges in question is inconsistent with any Federal law or Government-wide regulation. With respect to internal agency regulations issued at the DOD or Headquarters level, the Respondents contend essentially that such regulations have not delegated control over the subject matter to management officials at the level of bargaining but have retained such authority at higher levels of the agency. As we have previously held, however, an agency may not foreclose bargaining on an otherwise negotiable matter because authority has not been delegated to the level of exclusive recognition. See, for example, the Antilles case cited above and Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA No. 34 (1986) (Union Proposal 5), petition for review filed, Overseas Education Association v. FLRA, No. 86-11491 (D.C. Cir. Sept. 3, 1986). Under section 7114(b)92) of the Statute, an agency is obligated to provide representatives at the level of bargaining who are authorized to negotiate and enter into agreements on all matters within the scope of bargaining, and this statutory obligation cannot be obviated by an agency's internal regulations. See the Eielson case cited above and American Federation of Government Employees, AFL-CIO, Local 1409 and U.S. Army Adjutant General Publications Center, Baltimore, Maryland, 18 FLRA No. 68 (1985). The Respondents' argument that there was no duty to bargain over commissary and exchange privileges because such matters are the subject of internal agency regulations and the Authority has not determined under section 7117(b) of the Statute that no compelling need exists for those regulations is also misplaced. As we recently held under almost identical circumstances in Eielson, this argument is inapposite when the basis of the agency's argument concerns the delegation of authority rather than compelling need within the meaning of section 7117. Even assuming that the argument were relevant, the Respondents' position is inconsistent with established Authority precedent. In Defense Logistics Agency (Cameron Station, Virginia), 12 FLRA 412 (1983), affirmed sub nom. Defense Logistics Agency v. FLRA, 754 F.2d 1003 (D.C. Cir. 1985), the Authority held that compelling need determinations may appropriately be decided in an unfair labor practice proceeding. We reaffirmed this conclusion with further reasoning in Aberdeen Proving Ground, Department of the Army, 21 FLRA No. 100 (1986), petition for review filed, Aberdeen Proving Ground, Department of the Army v. FLRA, No. 86-2577 (4th Cir. June 26, 1986). But see United States Army Engineer Center v. FLRA, 762 F.2d 409 (4th Cir. 1985), reversing U.S. Army Engineer Center and Fort Belvoir, 13 FLRA 707 (1984). C. Respondent Brigade Failed to Fulfill Its Duty to Bargain It is undisputed that Respondent Brigade directed Ft. Greely to withdraw commissary and exchange privileges from unit employees at Ft. Greely and that such privileges were withdrawn on September 1, 1981. While Respondent Brigade gave the Union prior notice of its decision to withdraw the privileges in question, it consistently rejected the Union's request to negotiate over that decision. Although Ft. Greely also refused to negotiate on the basis that it lacked authority, and actually implemented the withdrawal of privileges, we conclude that Ft. Greely was acting in a representative capacity for Respondent Brigade and that Ft. Greely's conduct is attributable to Respondent Brigade. See Boston District Recruiting Command, Boston, Massachusetts, 15 FLRA 720, 724 (1984). Accordingly, we shall dismiss the complaint as to Respondent Ft. Greely but conclude that Respondent Brigade violated section 7116(a)(1) and (5) of the Statute by unilaterally changing negotiable conditions of employment as alleged in the complaint. V. Remedy The Authority has previously determined that where management has made a unilateral change in a negotiable term and condition of employment, effectuation of the purposes and policies of the Statute requires imposition of status quo ante remedies, absent special circumstances, in order not to render meaningless the mutual obligation to negotiate. Veterans Administration, West Los Angeles Medical Center, Los Angeles, California, 23 FLRA No. 37 (1986) (n.3 and accompanying text). As the Respondents have neither alleged nor established that special circumstances exist so as to negate the immposition of such a remedy in this case, we conclude that a status quo ante remedy is warranted. Accordingly, Respondent Brigade shall be ordered to reinstate the commissary and exchange privileges for civilian employees at Ft. Greely which existed prior to their withdrawal on September 1, 1981. This remedy is consistent with our remedial order in Eielson, which involved virtually identical circumstances. While the General Counsel did not request a "make whole" remedy in Eielson as requested here, we conclude that such a "make whole" order requiring Respondent Brigade to reimburse unit employees at Ft. Greely for monetary losses they may have suffered as a result of the withdrawal of privileges is speculative in nature and therefore inappropriate. Accordingly, since it would not effectuate the purposes and policies of the Statute, the requested "make whole" order is denied. ORDER Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of the Army, 172d Infantry Brigade (Alaska), Fort Richardson, Alaska shall: 1. Cease and desist from: (a) Unilaterally changing established conditions of employment at Ft. Greely by terminating the commissary and exchange privileges for civilian employees not residing on the installation. (b) In any like or related manner interfering with, restraining, or coercing unit employees in the exercise of their rights assured by the Statute. 2. Take the following affirmative action: (a) Reinstate the commissary and exchange privileges for those civilian employees at Ft. Greely not residing on the installation which existed immediately prior to September 1981. (b) Notify and, upon request, negotiate with the American Federation of Government Employees, Local 1949, AFL-CIO, the exclusive representative of the employees at Ft. Greely, concerning any proposed change in commissary and exchange privileges or any other proposed change in their established conditions of employment. (c) Post at Ft. Greely 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 Brigade Commander and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including bulletin boards and other places at each office where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material. (d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply. IT IS FURTHER ORDERED that the complaint in Case No. 9-CA-1204, insofar as it alleges a violation of section 7116(a)(1) and (5) of the Statute by Respondent Department of the Army Headquarters, U.S. Army Forces Command, Fort McPherson, Georgia, and Department of the Army, The Pentagon, Washington, D.C., be, and it hereby is, dismissed. Issued, Washington, D.C., October 31, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY 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 unilaterally change established conditions of employment at Ft. Greely by terminating the commissary and exchange privileges for civilian employees not residing on the installation. 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 commissary and exchange privileges for those civilian employees at Ft. Greely not residing on the installation which existed immediately prior to September 1981. WE WILL notify and, upon request, negotiate with the American Federation of Government Employees, Local 1949, AFL-CIO, the exclusive representative of the employees at Ft. Greely, concerning any proposed change in commissary and exchange privileges or any other proposed change in their established conditions of employment. (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 for Region IX, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103-9991, and whose telephone number is: (415) 995-5000.