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26:0505(61)NG - NFFE Local 1153 and Army, Seventh Signal Command and Fort Ritchie, Fort Richie, MD -- 1987 FLRAdec NG

[ v26 p505 ]
The decision of the Authority follows:

 26 FLRA No. 61
                                            Case No. 0-NG-1055
                         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
          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
          4) The proposal does not conflict with the Agency's
       regulations, but is consistent with an exemption allowed by those
          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
    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
    (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.