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U.S. Federal Labor Relations Authority

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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 provide space for employees to prepare and eat
 their lunches concerned a matter affecting conditions of employment);
 Library of Congress and Congressional Research Employees Association, 15
 FLRA 589, 590 (1984) (unilateral adoption of a requirement that
 employees pay for use of microwave ovens to heat their lunches where
 access to such equipment had been free of charge constituted a change in
 an established condition of employment concerning which the agency was
 obligated to bargain).
    The Agency acknowledges that employee food services and prices
 concern working conditions.  Further, the Agency admits that employees
 have been authorized to use the KACH dining facility.  However, the
 Agency claims such incidental use of this military mess does not concern
 a condition of employment.  Statement of Position at 3.  We disagree.
 We find that by granting employees access to the KACH dining facility,
 the Agency has changed the character of that facility from a military
 mess to a dining facility that meets employee needs as well.  In other
 words, the Agency's action has created an employee cafeteria.  Since
 food services and prices to be charged in an employee cafeteria are
 conditions of employment, we conclude that the price of food charged
 employees in the KACH dining facility is a working condition.  Finally,
 in circumstances such as are present here, that is, where the Agency has
 altered the character of a military mess by authorizing its use as an
 employee cafeteria, it is unnecessary to rely on the factors set out in
 Fort Ritchie to establish that use of a dining facility is a working
    The Agency in this case, like the agency in Fort Ritchie, argues that
 the matter proposed to be bargained is specifically provided for by 37
 U.S.C. section 1011(a) which requires the Secretary of Defense to
 establish rates which are sufficient to cover food costs and operating
 expenses.  Permitting employees to obtain meals at the food rate,
 according to the Agency, would prevent the Department from fulfilling
 this statutory mandate.  In addition, like the agency in Fort Ritchie,
 the Agency in this case asserts that compelling need exists as defined
 in section 2424.11(a) and (c) of the Authority's regulations.
 Specifically, as to criterion (a) the Agency claims that if negotiations
 were required in bargaining units throughout the Department of Defense,
 the impact of the proposal would make it impossible for the Agency to
 meet its responsibility to feed military personnel without a substantial
 loss in revenue.  As to criterion (c), the Agency argues that 37 U.S.C.
 section 1011(a) effectively mandates employees using the mess at KACH to
 pay surcharges.
    We rejected these same arguments in Fort Ritchie and, for the reasons
 more fully explained in that case, we reject them here.  Thus, we
 conclude that the Agency has not established that the matter is
 specifically provided for, or inconsistent with, statute and that the
 proposal conflicts with Agency regulations for which a compelling need
                              VI.  Conclusion
    The proposal concerns a condition 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 has been
 established.  Consequently, it is within the duty to bargain.
                                VII.  Order
    The Agency must upon request, or as otherwise agreed to by the
 parties, negotiate concerning the proposal.  /2/
    Issued, Washington, D.C., May 7, 1087.
                                       /s/ Henry B. Frazier III
                                       Henry B. Frazier III, Member
                                       /s/ Jean McKee
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                   Separate Opinion of Chairman Calhoun
    I agree that the proposal in this case is to the same effect as the
 proposal in National Federation of Federal Employees, Local 1153 and
 U.S. Army, Seventh Signal Command and Fort Ritchie, Fort Ritchie,
 Maryland, 26 FLRA No. 61 (1987).  Therefore, for the reasons stated in
 my separate opinion in that case, I do not join the majority here.  As
 in Fort Ritchie, however, I agree that the proposal concerns the working
 conditions of bargaining unit employees.
    Issued, Washington, D.C., May 7, 1987.
                                       /s/ Jerry L. Calhoun
                                       Jerry L. Calhoun, Chairman
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  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.