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The decision of the Authority follows:
27 FLRA No. 2 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 1622 Union and DEPARTMENT OF THE ARMY FORT GEORGE G. MEADE Agency Case No. 0-NG-974 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 facility. 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 condition. 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 exists. 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 opinion. (2) In finding that this proposal is negotiable, we make no judgment as to its merits.