[ v26 p505 ]
The decision of the Authority follows:
26 FLRA No. 61 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1153 Union and U.S. ARMY, SEVENTH SIGNAL COMMAND AND FORT RITCHIE, FORT RITCHIE, MARYLAND Agency Case No. 0-NG-1055 DECISION AND ORDER ON NEGOTIABILITY ISSUE /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 concerns the negotiability of a single Union proposal. Based on the following reasons we find the proposal negotiable. /2/ II. The Proposal Civilian employees shall not be required to pay a surcharge for meals at the Site R Dining facility III. Background Site R is a "remote" facility subordinate to Fort Ritchie at which entry and exit are subject to extensive security procedures. At Site R there is an appropriated fund dining facility (a.k.a. "mess") which exists for the primary purpose of providing enlisted military personnel with the "daily ration" to which they are entitled under 10 U.S.C. Section 4561. Military officers and civilians, when they are permitted to use that dining facility, are charged for the food obtained there. The rates charged are established under agency regulations issued pursuant to 37 U.S.C. Section 1011. /3/ The rates established are two-tiered: (1) rates are set forth which apply to food costs -- "food rates"; and (2) rates are set forth which apply to operating expenses -- "surcharges." Based on provisions of law and agency regulations, some officers and civilians who are authorized to use messes are exempted from paying surcharges and are charged only food rates. The proposal in this case seeks such an exemption from paying surcharges for bargaining unit employees who are performing official business at Site R. IV. Positions of the Parties The Agency contends that the proposal is nonnegotiable for the following reasons. 1) It would extend to employees outside the bargaining unit. 2) It does not concern conditions of employment. In this regard, incidental use of military facilities by bargaining unit employees is not a condition of employment. Also the rates to be charged civilans using messes is a matter specifically provided for by Federal statute. 3) It is inconsistent with Federal statute -- 37 U.S.C. Section 1011(a). 4) It is inconsistent with agency regulations for which a compelling need exists. The Union contends that the proposal is negotiable and counters the agency's arguments as follows. 1) The proposal is limited to bargaining unit employees. 2) The proposal does concern conditions of employment. Availability of food during working hours and prices charged for that food are conditions of employment. In the circumstances present in this case, the prices charged are a matter which under law is within the discretion of the agency. 3) Inasmuch as the Agency has discretion to exempt particular employees from the surcharges established pursuant to 37 U.S.C. Section 1011(a), the proposal is not inconsistent with that provision. 4) The proposal does not conflict with the Agency's regulations, but is consistent with an exemption allowed by those regulations. 5) The proposal is an appropriate arrangement for employees adversely affected by a management decision. V. Analysis A. The Proposal Is Limited To Bargaining Unit Employees In its petition for review and its reply brief the Union has specifically stated that the proposal is meant to apply only to bargaining unit employees. This interpretation is compatible with the language of the proposal and is adopted for purposes of this decision. Therefore, we reject the Agency's argument that the proposal is nonnegotiable because it would apply to employees outside of the bargaining unit. B. The Proposal Concerns Employee Working Conditions The Agency does not dispute that employee food service and related prices are conditions of employment. See, e.g., American Federation of Government Employees, AFL-CIO, Local 15 and Department of the Treasury, Bureau of the Mint, U.S. Assay Office, San Francisco, California, 9 FLRA 809 (1982). Rather, its contention that the proposal does not concern a condition of employment centers on the fact that the food services involved are established and funded to provide meals to enlisted military personnel. Moreover, it does not dispute that it has allowed bargaining unit employees to use the mess involved in this dispute. In addressing the question of whether employee access to military facilities and services constitutes a condition of employment, we apply two basic factors: /4/ (1) Whether the matter 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. Applying this analysis to this proposal, based on the reasons expressed in section V(A) above, the first factor is satisfied. Based on the circumstances involved in this case, we conclude that the second factor in the test has been met as well. The Union asserts, and the Agency does not dispute, that the mess located at Site R is the only restaurant/cafeteria style facility available at the Site. Moreover, employee access to commercial facilities outside of the Site is hampered by (1) distance and (2) the time-consuming security processing involved in entering and exiting the Site. Based on the record, it appears that availability of food services, other than the mess, to employees working at Site R is severely restricted. In view of this we conclude that access to the mess is a matter affecting the working conditions of employees assigned to duties at Site R. See Department of the Air Force, Eielson Air Force Base, Alaska, 23 FLRA No. 83 (1986). It follows that the prices to be charged them for that food service is related to their working conditions. See, e.g., U.S. Assay Office, 9 FLRA 809 (1982). C. The Matter Proposed Is Neither Specifically Provided For by, Nor Inconsistent with, Statute The provisions of 37 U.S.C. Sction 1011(a) upon which the Agency relies simply require the Secretary of Defense to establish rates which will be charged civilians and military officers, among others, who buy meals at messes. They require that the rates established be at a level sufficient to provide reimbursement of operating expenses and food costs. See note 2, above. The specific rates or rate structures are not dictated by those provisions but are left to the discretion of the Secretary of Defense. Further, the provisions do not require that uniform rates be established for all those required to pay them. In fact, the regulations implementing these provisions which were issued by the Department of Defense and Department of The Army /5/ allow for certain personnel to be exempted from paying the surcharges established by those regulations for the purpose of covering operating expenses. DOD 1338-10M, Chapter VII, B-3 and AR 30-1, Chapter 5, 5-2(b). The personnel for whom exemptions are allowed under those regulations extend beyond those specifically mandated by 37 U.S.C. Section 1011(b) and (c). For example, under DOD 1338-10M, chapter VII, B-3 numerous categories and subcategories of officers and civilians are exempt from surcharges when not on per diem, including, "Personnel on official duty . . . (w)hen an assignment necessitates eating in an appropriated fund food service activity." Based on the language of 37 U.S.C. Section 1011 and the Agency's implementing regulations we conclude that the Agency has discretion, with exceptions not relevant here, to determine the specific rates for meals at messes, in various circumstances, as long as the rates, overall, cover food costs and operating expenses. In view of this we reject the Agency's assertion that payment of the surcharges by the bargaining unit employees involved in this case is a matter which is specifically provided for by Federal statute. We also reject the argument that the proposal is inconsistent with Federal statute -- 37 U.S.C. Section 1011. In support of this argument, the Agency contends that if similar proposals were made in behalf of all members in bargaining units throughout the Department of Defense who buy meals from messes, the Department would be prevented from fulfilling the mandate in Section 1011 that the money collected be sufficient to cover food costs and operating expenses. This argument is only hypothetical. It is based on the conjecture that exclusive representatives will be successful in obtaining agreement provisions similar to this proposal on a widespread basis and, furthermore, if that should occur, that the Agency could not compensate for the ensuing revenue losses by some means. In our view such a hypothesis alone does not present a basis for finding a specific proposal inconsistent with Federal statute. The Agency, of course has a valid concern over what it hypothesizes to be the extended effect of this bargaining proposal. A negotiability dispute, which is concerned only with the consistency of a particular proposal with applicable law and regulation, is not the forum in which to address that concern. Under the Statute, the Agency must protect its interests in relation to the merits of proposals at the bargaining table or, in the event that a mutually satisfactory agreement as to the proposal cannot be reached at the bargaining table, before the Federal Service Impasses Panel. D. The Proposal Does Not Conflict with Agency Regulations for Which a Compelling Need Exists The Agency asserts that the proposal conflicts with Agency regulations which meet the Authority's criteria for determining compelling need which are found at section 2424.11(a) and (c) of our regulations. As to criterion (a) the Agency argues that feeding its military personnel is essential to accomplishing its mission of providing a military force. Controlling the costs involved in feeding those personnel is essential to its ability to accomplish that mission in an effective and efficient manner. It attempts to support its contentions as to the "impact" of the proposal on its ability to feed its military personnel by relying on the same hypothesis just discussed -- that the proposal would be imposed on a widespread basis resulting in huge and unavoidable losses of revenue. Such conjecture does not support a finding of compelling need. See Federal Employees Metal Trades Council, AFL-CIO and Department of the Navy, Mare Isalnd Naval Shipyard, Vallejo, California, 25 FLRA No. 31 (1987). Moreover, the Agency has failed to demonstrate that its regulatory provisions are essential, as opposed to helpful and desirable, to the accomplishment of that aspect of its mission which relates to feeding military personnel. See American Federation of Government Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 451 (1980). As to criterion (c), the Agency's supporting argument is essentially the same as that discussed and rejected earlier in section V(C) -- that 37 U.S.C. Section 1011(a) effectively mandates employees using the mess at Site R to pay the designated surcharge. We reject it here for the same reasons. We conclude that the Agency has not established that the regulations on which it relies meet the Authority's compelling need criteria. In view of this, we find it unnecessary to rule on the Union's contention that the proposal does not even conflict with the cited regulations. E. Appropriate Arrangement The Union asserts that the proposal is negotiable as an appropriate arrangement for employees adversely affected by a "management decision." However, it has not identified any management right as producing the adverse effects, nor has the Agency asserted any management right. Since section 7106(b)(3) expressly applies only to ameliorating the adverse effects resulting from the exercise of management rights set out elsewhere in section 7106, the absence of any record that the proposal relates to the exercise of a management right renders section 7106(b)(3) inapplicable. The Union's claim that the proposal constitutes an "appropriate arrangement" therefore cannot be sustained. See American Federation of Government Employees, Local 1546 and Department of Army, Sharpe Army Depot, Lathrop, California, 19 FLRA No. 118 (1985) (Provision 1), remanded as to other matter sub nom. American Federation of Government Employees, AFL-CIO, Local 1546 v. FLRA, No. 85-1689 (D.C. Cir. Nov. 17, 1986). VI. Summary and Conclusion The proposal concerns conditions of employment and is limited to bargaining unit employees. It is not inconsistent with either Federal statute or an agency regulation for which a compelling need exists. Consequently, it is within the duty to bargain. VII. Order The Agency shall upon request, or as otherwise agreed to by the parties, negotiate concerning the proposal. Issued, Washington, D.C., March 31, 1987. /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY Separate Opinion of Chairman Calhoun I agree that the proposal concerns the working conditions of bargaining-unit employees. However, I conclude that the exemption of the employees involved from payment of the surcharge for operating expenses conflicts both with the relevant statute and Department of Defense and Department of the Army regulations for which there is a compelling need. 37 U.S.C. Section 1011 was enacted by Congress as part of the Defense Officer Personnel Management Act of 1980, Pub. L. No. 96-513, a comprehensive overhaul of the military personnel system. The legislative history of section 1011 demonstrates that it was intended to resolve previously-existing inequities between enlisted members and officers who are assigned to temporary duty. See 1980 U.S. Code Cong. & Admin. News 6376. Subsection (c) of section 1011, contained in Pub. L. No. 99-145, 99 Stat. 681 (1985), is to the same effect: it provides a benefit for the families of certain enlisted members. Congress expressed a clear intention that appropriated funds not be used to provide meals to civilians. Subsection (a) requires that rates paid by civilians who purchase meals in appropriated fund facilities "shall be established at a level sufficient to provide reimbursement of operating expenses and food costs to the appropriations concerned(.)" The regulations at issue in this case were promulgated to meet this requirement. In appropriating monies for various Governmental activities, Congress frequently attaches "strings" to the "purse" by expressing its intent that the appropriation be used or not used in a certain fashion. This is the case with military appropriations, including those for mess operations. The Agency asserts, without contradiction, that at least since 1951 and until passage of section 1011, all Defense Appropriation Acts contained provisions limiting the use of appropriated funds to providing meals for enlisted personnel entitled by law to be furnished a daily ration. I believe that the proposal in this case contravenes the intent of Congress and is contrary to law. Further, the proposal is inconsistent with the provisions of AR 30-1 and the DOD Food Service Manual, DOD 1338-10M, in that it would exempt all civilian employees from payment of the surcharge. These regulations, which are mandated by section 1011, constitute a comprehensive world-wide scheme to assure the recoupment of food costs and operating expenses. As such, they standardize the recovery of the costs of providing meals for which the Congress has expressly declined to appropriate funds. This scheme, in my view, is "essential, as distinguished from helpful or desirable" to accomplish the Agency's mission under section 2424.11(a) of our regulations. In light of section 1011(a), the regulations also are "essentially nondiscretionary in nature" within the meaning of section 2424.11(c). I would, therefore, find that there is a compelling need for the regulations. I do not regard this case as another in the line of "pay and fringe benefit" cases in which I have previously dissented. See, for example, 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), petition for review filed sub. nom. Department of the Air Force, Eglin Air Force Base, Florida v. FLRA, No. 87-3073 (11th Cir. February 2, 1987). Rather than being faced with a statutory void as we are in those cases, this is a situation which Congress has recently addressed in a specific manner. For these reasons, I dissent. Issued, Washington, D.C., March 31, 1987. /s/ Jerry L. Calhoun, Chairman --------------- FOOTNOTES$ --------------- (1) Chairman Calhoun dissents for the reasons stated in his separate opinion (2) In finding that this proposal is negotiable, we make no judgment as to its merits. (3) 37 U.S.C. Section 1011 provides: Section 1011. Mess operation: reinbursement of expenses (a) The Secretary of Defense shall, by regulation, establish rates for meals sold at messes to officers, civilians, or enlisted members entitled to a per diem transportation allowance determined under section 404(d)(2) of this title. Such rates shall be established at a level sufficient to provide reimbursement of operating expenses and food costs to the appropriations concerned, but members of the uniformed services and civilians in a travel status receiving a per diem allowance in lieu of subsistence shall be charged at a rate of not less than $2.50 per day. (b) For the purposes of this section, payment for meals at the rates established under this section may be made in cash or, in the case of enlisted members or civilian employees, by deduction from pay. Members of organized nonprofit youth groups sponsored at either the national or local level, when extended the privilege of visiting a military installation or when residing at a military installation pursuant to an agreement in effect on June 30, 1986, and permitted to eat in the general mess by the commanding officer of the installation, shall pay the commuted ration cost of such meal or meals. (c) Spouses and dependent children of enlisted members in pay grades E-1, E-3, and E-4 may not be charged for meals sold at messes in excess of a level sufficient to cover food costs. (4) Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23 (1986). (5) Manual for the Department of Defense Food Service Program, DOD 1338.10-M, Chapter VII and AR 30-1, Chapter 5.