27:0011(2)NG - AFGE Local 1622 and Army, Fort George G. Meade -- 1987 FLRAdec NG

[ v27 p11 ]
The decision of the Authority follows:

 27 FLRA No. 2
                                            Case No. 0-NG-974
                         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 proposal.  Based on the following reasons we
 find the proposal is negotiable.  /1/
                               II.  Proposal
          Article 43:  Eating Areas
          Section 2.  The Employer agrees that there will not be a
       "surcharge" added to the cost of meals in the KACH dining
                             III.  Background
    The disputed proposal concerns prices at an appropriated fund dining
 facility operated by the Agency at Kirk Army Community Hospital (KACH)
 located at Fort George G. Meade.  Employees are permitted to use this
 mess although the facility was established and funded to provide
 patients and duty enlisted personnel with the daily ration to which they
 are entitled under 10 U.S.C. section 4561.  Civilians and military
 officers authorized to use a military mess in specified circumstances
 are permitted to do so on a reimbursable basis.
    Under 37 U.S.C. section 1011 and implementing regulations, the Agency
 may establish two rates -- a "food rate" which is derived from food
 costs and a "surcharge" which includes the cost of operating expenses
 incurred in preparing and serving the meals.  The Agency has discretion
 to determine which rate will be charged those required to pay for meals.
  In this case, when the Department of the Army proposed adding a
 surcharge to the food rates being paid by employees, the Union submitted
 and disputed proposal in negotiations with commanders of KACH and Fort
 George G. Meade.
                       IV.  Positions of the Parties
    The Agency argues that the proposal is nonnegotiable for the
 following reasons.
    1) It does not concern conditions of employment.  In this regard, the
 Agency argues that incidental use of military facilities by bargaining
 unit employees is not a condition of employment.
    2) It would extend to employees outside the bargaining unit.
    3) It is inconsistent with Federal statute -- 37 U.S.C. section
 1011(a).  Also, the Agency asserts that the statute's requirements
 specifically provide that the Secretary of Defense must impose a
 surcharge in military messes and that the surcharge must be part of a
 standard rate structure for the Department of Defense.
    4) It is inconsistent with agency regulations for which a compelling
 need exists.
    The Union contends that the proposal is negotiable and offers the
 following counter arguments.
    1) The availability of meals for civilian employees at the KACH
 dining facility constitutes an established working condition and fringe
 benefit for bargaining unit employees.  In support, the Union adds that
 there are compensating benefits to the Agency from employees' use of
 such facilities which are similar to the benefits an agency receives by
 making child care available.
    2) The proposal is not inconsistent with Federal statute because the
 Secretary of Defense has authority to exempt certain individuals from
 paying a surcharge for meals under 37 U.S.C. section 1011(a).
                               V.  Analysis
    The proposal in this case is to the same effect as the proposal found
 negotiable in National Federation of Federal Employees, Local 1153 and
 U.S. Army, Seventh Signal Command and Fort Ritchie, Maryland, 26 FLRA
 No. 61 (1987) (Chairman Calhoun, dissenting).  The proposal in Fort
 Ritchie permitted civilian employees who were authorized to patronize a
 military mess to do so without being required to pay a surcharge for
 their meals.  The agency in that case argued that the proposal was
 nonnegotiable because it included individuals outside the bargaining
 unit, did not concern a condition of employment, and was inconsistent
 with a Federal statute and agency rules and regulations for which a
 compelling need existed.
    In Fort Ritchie, the Authority found that the military mess in
 question was the only dining facility at the work site and employee
 access to commercial facilities was hampered by distance and a
 time-consuming security process necessary to enter and exit the
 installation.  In those circumstances, we held that access to the
 military mess and the prices to be charged employees for food service
 were matters affecting employee working conditions.  We also found that
 the union's intent in making the proposal and the proposal's language
 limited it to bargaining unit employees.  Thus, we rejected the agency's
 argument that the proposal was nonnegotiable because it would include
 individuals outside the bargaining unit.  Additionally, we rejected the
 agency's arguments that the proposal was inconsistent with statute and
 that it conflicted with agency rules and regulations for which a
 compelling need existed.  We concluded that the language of 37 U.S.C.
 section 1011(a) gives the Secretary of Defense discretion to exmpt
 certain personnel from paying the surcharge at military messes as long
 as the rates, overall, cover food costs and operating expenses.  We also
 rejected as hypothetical the agency's claim that bargaining on
 surcharges would prevent it from meeting the mandate to cover food and
 operating costs if it were required to negotiate on similar proposals
 throughout the Department of Defense.  We stated that such concerns
 should be raised at the bargaining table or before the Federal Services
 Impasses Panel.  Finally, because the agency's compelling need
 contentions were essentially reiterations of previous statutory
 arguments, we rejected these claims.
    In this case, the Agency raises the same arguments regarding the
 nonnegotiability of this proposal that were asserted in Fort Ritchie.
 With regard to the Agency's argument that the proposal is applicable to
 nonbargaining unit employees and other personnel, we find, as we did in
 Fort Ritchie, that the Union intends the proposal to preserve
 established working conditions for bargaining unit employees.  Thus, we
 reject the Agency's argument that the proposal includes individuals and
 groups other than employees and is therefore nonnegotiable.
    Regarding the Agency's contention that the proposal does not concern
 a condition of employment, the Authority has held that employee food
 services and related prices are working conditions.  See American
 Federation of Government Employees, AFL-CIO, Local 32 and Office of
 Personnel Management, Washington, D.C., 8 FLRA 409, 412 (1982).  See
 also American Federation of Government Employees, Social Security Local
 3231, AFL-CIO and Department of Health and Human Services, Social
 Security Administration, 16 FLRA 47 (1984) (Proposal 1) (proposal
 requiring the agency to