25:0796(65)NG - SEIU Local 556 and Navy, Navy Exchange, Pearl Harbor, HI -- 1987 FLRAdec NG

 25 FLRA No. 65
 
 SERVICE EMPLOYEES' INTERNATIONAL 
 UNION, LOCAL 556, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF THE NAVY, 
 NAVY EXCHANGE, PEARL 
 HARBOR, HAWAII
 Agency
 
                                            Case No. O-NG-796
 
              DECISION AND ORDER ON NEGOITABILITY ISSUES /1/
 
    I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues as
 to the negotiability of two proposals.  /2/ We find that the proposals
 are netotiable.  /3/
 
    II.  Procedural Issue
 
    The Union argues that the Agency's statement of position is not
 properly before the Authority because it was submitted by someone other
 than the Agency's representative of record.  It asserts that in view of
 this alleged failure to properly file a statement of position the Agency
 has not complied with the requirements of the Statute and the
 Authority's Rules and Regulations and that the proposals should be
 declared negotiable.  The Union also argues that the Authority should
 not accept an additional submission which consisted of a cover letter
 forwarding copies of decisions by a Regional Director and the Assistant
 General Counsel for Appeals in an unfair labor practice case and which
 was made by the Agency after its statement of position had been filed.
 
    As to the Union's first contention, we do not require that a parties'
 designated representative of record be the signer of all or any
 submissions made in the case.  See 5 CFR 2924.24(h).  In the processing
 of negotiability appeals, the designation of a representative of record
 is primarily for purposes of service.  See, for example, 5 CFR Sections
 2424.7(c), 2429.12(b) and 2429.27(a).  As to the Union's second
 contention, we note that the documents submitted by the Agency were
 decisions disposing of an unfair labor practice (ULP) charge which was
 related to the appeal in this case.  Specifically, the Union had filed
 charges regarding the implementation of a dental plan within the Agency.
  In its appeal in this case, it elected to have the issue of the
 negotiability of Proposal 1 processed through the ULP procedures first.
 In such circumstances, we will always take into consideration actions
 disposing of ULP which relate to negotiability appeals.  The fact that
 the Agency submitted a copy of the decisions made no difference to our
 consideration of such decisions in this particular case.
 
    III.  Proposal 1
 
                              Dental Benefits
 
    Section 1
 
          The employer agrees to pay on behalf of each regular full-time,
       regular part-time, and regularly scheduled intermittent employee
       the entire monthly cost of dental coverage as provided by the
       Union through the Hawaii Dental Service 70/30 plan.  (Refer to
       Appendix . . ., Covered Dental Services, page . . .) /4/
 
          (a) In the event an employee requests to have their family
       covered under the dental plan, the employee shall bear the full
       cost to include their spouse and/or dependants.
 
          (b) It is agreed by the Employer to permit employees who choose
       coverage in subsection (a) above, to payroll deduct the
       appropriate cost.
 
          (c) It is further agreed that the Employer will forward a list
       of covered employees, their social security number and a check
       payable to SEIU Local 556, AFL-CIO, no later than the twentieth
       (20th) day of each month.
 
          (Footnote added.)
 
    A.  Positions of the Parties
 
    The Agency argues that the proposal is outside the duty to bargain
 because it does not concern conditions of employment within the meaning
 of the Statute and is inconsistent with an Agency regulation for which
 there is a compelling need.  The Union disputes the Agency's contentions
 and asserts that the proposal is negotiable.
 
    B.  Analysis and Conclusion
 
    1.  The Proposal Concerns Conditions of Employment
 
    In American Federation of Government Employees, AFL-CIO, Local 1897
 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA
 No. 41 (1986), appeal docketed sub nom. Department of the Air Force,
 Eglin Air Force Base, Florida v. FLRA, No. 87-3073 (11th Cir. Feb. 2,
 1987) the Authority held nothing in the Statute, or its legislative
 history, bars negotiation of porposals relating to pay and fringe
 benefits insofar as (1) the matters proposed are not specifically
 provided by law and are within the descretion of the agency and (2) the
 proposals are not otherwise inconsistent with law, Government-wide rule
 or regulation or an agency regulation for which a compelling need exist.
  In the present case as in Eglin Air Force Base the employees involved
 are Nonappropriated Fund (NAF) employees whose health insurance benefits
 are not established by law but are controlled by the Agency.  The
 Agency's argument that the proposal does not concern conditions of
 employment is essentially the same as that rejected in Eglin Air Force
 Base and, for the reasons expressed in that case, it is rejected here.
 
    2.  The Agency Has Not Established a Compelling Need for Its
 Regulations to Bar Negotiations
 
    To establish that a proposal is nonnegotiable on the basis of
 compelling need, an agency must (1) identify a specific agency-wide
 regulation;  (2) show that there is a conflict between its regulation
 and the proposal, and (3) demonstrate that its regulation is supported
 by a compelling need with reference to the Authority's illustrative
 standards set forth in section 2424.11 of its Regulations.  Generalized
 and conclusionary reasoning does not support a finding of compelling
 need.  American Federation of Government Employees, AFL-CIO, Local 3804
 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No.
 104 (1986) (Union Proposal 7).
 
    As to this proposal, the Agency asserts that, inasmuch as the
 proposal would provide dental benefits to intermittent employees, it
 conflicts with the Department of Defense Personnel Policy Manual for
 Nonappropriated Fund Instrumentalities which provides in Chapter II-2:
 
          d) Intermittent employees are not eligible for participation in
       benefit programs. . . .
 
    The Agency contends that its regulatory provision meets the
 Authority's criteria for determining compelling need which is found 5
 CFR Section 2424.11(a).  That is, it claims that the regulation is
 essential, as distinguished from helpful or desirable, to the
 accomplishment of its mission in a manner which is consistent with the
 requirements of an effective and efficient government.  In support it
 states but does not demonstrate that its regulation is necessary to
 minimize the overhead employment costs of operating the NAF system.  See
 Lexington-Blue Grass Army Depot, Lexington, Kentucky and American
 Federation of Government Employees, AFL-CIO, Local 894, 24 FLRA No. 6
 (1986), in which the Authority held that effectiveness and efficiency
 are not to be measured solely in monetary terms.
 
    We find that the Agency has shown a conflict between the proposal and
 a specific Agency regulation but that it has presented nothing more than
 generalized and conclusionary statements to support its contention that
 a compelling need exists for its regulation.  Thus, we must find that
 the Agency has not met its burden of demonstrating that its regulation
 is essential, as distinguished from merely being helpful or desirable,
 under 5 CFR Section 2424.22(a), as it claims.  See American Federation
 of Government Employees, AFL-CIO, Local 1928 and Department of the Navy,
 Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 451, 454
 (1980).  Consequently, we conclude that Proposal 1 is negotiable.
 
    IV.  Proposal 2
 
                         GROUP INSURANCE COVERAGE
 
          Section 1.
 
          All regular full-time, regular part-time and regularly
       scheduled intermittent employees will be eligible for coverage
       under the Group Insurance Plan provided by the Navy Resale and
       Services Support Office.
 
          Section 2.
 
          All regular part-time and regularly scheduled intermittent
       employees currently employed who are electing coverage for the
       first time shall be eligible to join the plan immediately.
 
    A.  Position of the Parties
 
    The Agency argues that this proposal is outside the duty to bargain
 only because it does not concern conditions of employment within the
 meaning of the Statute.  The Union argues to the contrary.
 
    B.  Analysis and Conclusion
 
    This proposal concerns a fringe benefit which is a matter within the
 Agency's discretion as opposed to being provided for by law.  The
 Agency's argument that this proposal does not concern conditions of
 employment is the same as that which we discussed and rejected in
 conjunction with Proposal 1.  We reject the argument for the same
 reasons stated in connection with Proposal 1, based on our decision in
 Eglin Air Force Base, 24 FLRA No. 41. (1986).  Furthermore, because this
 proposal concerns a condition of employment and it has not been
 asserted, nor it is otherwise apparent, that it conflicts with law,
 Government-wide rule or regulation or an agency regulation for which a
 compelling need exists, /5/ we find that it is negotiable.
 
    V.  Order
 
    The Agency shall upon request, or as otherwise agreed to by the
 Parties, negotiate concerning Proposals 1 and 2.
 
    Issued, Washington, D.C., February 19, 1987.
                                       Henry B. Frazier, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Chairman Calhoun dissents for the reasons stated in his separate
 opinion.
 
    (2) The Agency has withdrawn its allegation that a third proposal is
 nonnegotiable.  Therefore, we do not consider that proposal in this
 decision.
 
    (3) In finding these proposals negotiable, we make no judgment as to
 their merits.
 
    (4) The referenced Appendix sets forth in detail a description of the
 Dental Benefits program.  However, it is not relevant to the disposition
 of this proposal and therefore, is not quoted in this decision.
 
    (5) The Agency did not raise compelling need in its statement of
 position filed with respect to this particular proposal.  issenting
 Opinion of Chairman Calhoun
 
 
                  Dissenting Opinion of Chairman Calhoun
 
    In my opinion in American Federation of Government Employees,
 AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force
 Base, Florida, 24 FLRA No. 41 (1986), I stated that in the absence of a
 clear expression of Congressional intent to make wages and money-related
 frings benefits negotiable, I would find that these matters are not
 within the duty to bargain under the Statute.  I agree with the majority
 that the issue in this case is essentially the same as the one decided
 in Eglin Air Force Base.  Therefore, I do not join the majority for the
 reasons stated in my opinion in that case.
 
    Issued, Washington, D.C., February 19, 1987.
                                       Jerry L. Calhoun, Chairman