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31 FLRA No. 83

DEPARTMENT OF THE AIR FORCE,
SCOTT AIR FORCE BASE, ILLINOIS

     Respondent

     and

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R7-23, SEIU, AFL-CIO

     Charging Party

Case No. 5-CA-60238

DECISION AND ORDER 
I. Statement of the Case 
This unfair labor practice case is before the Authority on exceptions filed 
by the Respondent to the attached decision of the Administrative Law Judge. 
The complaint alleged that the Respondent violated section 7116(a)(1) and (5) 
of the Federal Service Labor - Management Relations Statute (the Statute) by 
initiating the collection of a meal surcharge from bargaining unit employees in 
the Respondent's medical center dining facility without providing the Charging 
Party (the Union) with prior notice and an opportunity to bargain concerning the 
substance and/or impact and implementation of the collection of the surcharge. 
The Judge concluded that the Respondent's conduct violated the Statute as 
alleged. 
For the reasons stated in our separate opinions, we conclude that the 
Respondent committed the unfair labor practice alleged in the complaint. 
II. Background 
The dispute concerns the rates charged for food at the dining facility of the 
medical center at Scott Air Force Base. The facility is an appropriated fund 
dining facility of the Department of Defense (DOD). The facility exists for the 
primary purpose of feeding patients (active duty [PAGE] military, retired 
military, and their dependents) and enlisted military personnel assigned to the 
medical center who are entitled to a daily ration or subsistence. Military 
officers and civilian employees are not entitled to a daily ration. When they 
are authorized to use an appropriated fund dining facility, they are charged for 
the food obtained from the facility. The rates charged are established under 
regulations issued pursuant to 37 U.S.C. 1011, which provides as follows: 
1011. Mess operation: reimbursement 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-2, E-3, 
and E-4 may not be charged for meals sold at messes in excess of a level 
sufficient to cover food costs. 
The rates established are two-tiered: (1) a basic food charge which covers 
the costs of food and (2) a surcharge which covers operating expenses. Based on 
provisions of law and regulation, some military officers and civilian employees 
who are authorized to use appropriated fund dining [ v31 p2 ] facilities are 
exempted from paying surcharges and are charged only basic food charges. For 
example, personnel on official duty and not on per diem are exempt from 
surcharges when an assignment necessitates eating in an appropriated fund dining 
facility. DOD sets the food charges and surcharges and specifies who is exempt 
from surcharges in DOD Manual 1338.10-M. The Department of the Air Force 
implements the charges and exemptions applicable to medical center appropriated 
fund dining facilities in Air Force Regulation (AFR) 168-7. 
III. Facts 
The Union is the exclusive representative of certain of the Respondent's 
employees, including employees of the Respondent's medical center. The 
Respondent and the Union are parties to a collective bargaining agreement. 
From February 1980 to December 1982, all civilian employees of the medical 
center, except food service workers and other employees who were exempt, paid a 
food charge and a surcharge for food obtained from the dining facility. 
Beginning January 1, 1983, and continuing until March 16, 1986, bargaining unit 
employees assigned to the center paid only the basic food charge. The employees 
were not required to pay a meal surcharge. 
On February 18, 1986, the Department of the Air Force issued a new version of 
AFR 168-7. The new regulation incorporated changes to DOD Manual 1338.10-M which 
restricted the personnel who are exempt from paying the meal surcharge. As a 
result of the new version of AFR 168-7, the Respondent initiated the collection 
of the surcharge from bargaining unit employees assigned to the medical center. 
The collection of the surcharge was initiated on March 17, 1986, without advance 
notice to the Union. 
IV. Administrative Law Judge's Decision 
The Judge found that the price of meals charged to bargaining unit employees 
in the appropriated fund dining facility concerns a condition of employment. 
Therefore, the Judge found that the Respondent had a duty to provide notice of 
and bargain with the Union over any change in the meal prices. The Judge also 
found that since 1983, the Respondent had not collected the surcharge from unit 
employees. The Judge concluded that charging bargaining unit employees only the 
basic food charge had become an established condition of employment through past 
practice. [ v31 p3 ] 
The Judge rejected the Respondent's argument that the established practice 
was to charge whatever prices were directed by the Department of the Air Force. 
He also ruled that there was a duty to bargain on the decision to reinstitute 
the surcharge because the Respondent failed to establish that there was a 
compelling need for the regulations requiring the surcharge. Accordingly, the 
Judge concluded that the Respondent violated the Statute. He recommended that 
the Respondent be ordered to rescind the collection of the surcharge and afford 
the Union an opportunity to bargain concerning the substance and/or impact and 
implementation of the change in the collection of the surcharge. 
V. Respondent's Exceptions 
The Respondent contends that the Judge erred by failing to find a past 
practice of following Department of the Air Force directives. The Respondent 
also contends that compelling need determinations can not be resolved in an 
unfair labor practice proceeding. 
Alternatively, the Respondent argues that a compelling need exists for DOD 
Manual 1338.10-M. However, the Respondent does not make specific compelling need 
arguments. The Respondent disagrees with the Authority's two prior decisions 
concerning surcharges, National Federation of Federal Employees, Local 1153 and 
U.S. Army, Seventh Signal Command and Fort Ritchie, Maryland, 26 FLRA 505 (1987) 
(Chairman Calhoun, dissenting) (Ft. Ritchie) and American Federation of 
Government Employees, AFL - CIO, Local 1622 and Department of the Army, Fort 
George G. Meade, 27 FLRA 11 (1987) (Chairman Calhoun, dissenting) (Ft. Meade). 
The Respondent argues that both cases should be overruled here. 
VI. Analysis 
A. Conditions of Employment and the Practice of the Parties 
We agree with the Judge that the meal prices charged bargaining unit 
employees in the medical center's appropriated fund dining facility concern 
their conditions of employment. In Ft. Meade, 27 FLRA 11, 14, the Authority, 
with Chairman Calhoun concurring, held that when bargaining unit employees are 
granted access to a military appropriated fund dining facility, the price of the 
food charged the employees affects their working conditions and concerns [ v31 p
4 ] their conditions of employment. We find no reason in this case to depart from 
the holding on this point in Ft. Meade. 
We also agree with the Judge's conclusion that the past practice of the 
parties was to charge bargaining unit employees only the basic food charge. 
Accordingly, we adopt the Judge's finding that charging bargaining unit 
employees only the basic food charge and not the surcharge was an established 
condition of employment as to which the Respondent had a duty to provide notice 
of and to bargain with the Union over any change. 
B. Compelling Need 
1. Whether compelling need determinations can be made as part of an unfair 
labor practice case 
The view of the Authority consistently has been that allowing the resolution 
of compelling need issues in an unfair labor practice proceeding where the issue 
was raised as a defense to the unfair labor practice charge is supported by the 
Statute, its legislative history, and public policy. For example, Defense 
Logistics Agency (Cameron Station, Virginia), 12 FLRA 412 (1983); U.S. Army 
Engineer Center and Fort Belvoir, 13 FLRA 707 (1984); Aberdeen Proving Ground, 
Department of the Army, 21 FLRA 814 (1986). 
Defense Logistics Agency, 12 FLRA 412, was affirmed by the U.S. Court of 
Appeals for the D.C. Circuit in Defense Logistics Agency v. FLRA, 754 F.2d 1002 
(D.C. Cir. 1985). Both U.S. Army Engineer Center, 13 FLRA 707, and Aberdeen 
Proving Ground, 21 FLRA 814, were reversed by the U.S. Court of Appeals for the 
Fourth Circuit. U.S. Army Engineer Center v. FLRA, 762 F.2d 409 (4th Cir. 1985) 
; Aberdeen Proving Ground, Department of the Army v. FLRA, No. 86-2577 (4th Cir. 
Jan. 28, 1987) (unreported summary reversal). Certiorari was granted by the U.S. 
Supreme Court on this issue in Aberdeen Proving Ground, 108 S. Ct. 64 (1987), 
and oral argument was recently held. 
While the issue is pending before the U.S. Supreme Court, we will adhere to 
the Authority's position that compelling need determinations can be resolved in 
the context of an unfair labor practice proceeding. Furthermore, apart from this 
consideration, we note that in both Ft. Ritchie and Ft. Meade, the issue of 
whether there is a compelling need for DOD Manual 1338.10-M with respect [ v31 p
5 ] to meal surcharges was determined in accordance with section 2424.11 of the 
Authority's regulations in proceedings brought under section 7117(c) of the 
Statute. 
2. Whether the Respondent established a compelling need for agency 
regulations 
For the reasons set forth in our separate opinions, we conclude that DOD 
Manual 1338.10-M and AFR 168-7 do not bar negotiations over the Respondent's 
decision to collect the meal surchage from unit employees. 
VII. Conclusion 
Accordingly, we conclude that the Respondent violated section 7116 (a) (1) 
and (5) of the Statute when it reinstituted the collection from bargaining unit 
employees of a meal surcharge without providing the Union with prior notice and 
an opportunity to bargain over the change in such condition of employment. 
VIII. Order 
Pursuant to section 2423.29 of the Authority's Rules and Regulations and 
section 7118 of the Statute, we order that the Department of the Air Force, 
Scott Air Force Base, Illinois, shall: 
1. Cease and Desist from: 
(a) Unilaterally instituting changes in working conditions by initiating the 
collection of a surcharge from bargaining unit employees for meals served by the 
medical center dining facility without providing notice to the National 
Association of Government Employees, Local R7-23, SEIU, AFL - CIO, the exclusive 
representative of certain of its employees, and affording it the opportunity to 
bargain concerning the change. 
(b) In any like or related manner, interfering with, restraining, or coercing 
its employees in the exercise of rights assured by the Statute. 
2. Take the following affirmative action in order to effectuate the purposes 
and policies of the Statute: 
(a) Notify the National Association of Government Employees, Local R-7, SEIU, 
AFL - CIO, the exclusive representative of certain of its employees, in advance 
of any intended changes in the working conditions of bargaining [ v31 p6 ] unit 
employees concerning the initiation of surcharges for bargaining unit employees 
at the medical center dining facility and, upon request, negotiate with the 
exclusive representative concerning such proposed changes. 
(b) Rescind the surcharge initiated on March 17, 1986, and collected 
thereafter for meals to bargaining unit employees at the medical center dining 
facility. 
(c) Post at its Scott Air Force Base, Illinois, medical center dining 
facility copies of the attached Notice on forms to be furnished by the Federal 
Labor Relations Authority. Upon receipt of such forms, they shall be signed by 
the Commanding Officer and shall be posted and maintained for 60 consecutive 
days thereafter, in conspicuous places, including all bulletin boards and other 
places where notices to employees are customarily posted. Reasonable steps shall 
be taken to ensure that such notices are not altered, defaced, or covered by any 
other material. 
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, 
notify the Regional Director, Region V, Federal Labor Relations Authority, 
Chicago, Illinois, in writing, within 30 days from the date of this Order, as to 
what steps have been taken to comply. 
Issued, Washington, D.C., March 25, 1988. 
Jerry L. Calhoun,        Chairman

Jean McKee,                Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v31 p7 ] 
SEPARATE OPINION OF CHAIRMAN CALHOUN 
I am writing separately because contrary to Member McKee, I have held that 
proposals to exempt civilian employees from the payment of the meal surcharge at 
military appropriated fund dining facilities conflict with 37 U.S.C. 1011 and 
with DOD Manual 1338.10-M, a regulation for which I found a compelling need 
under section 2424.11(a) and (c) of our Regulations. In Ft. Ritchie, 26 FLRA at 
513-14, I concluded that Congress had expressed a clear intention that 
appropriated funds not be used to provide meals to civilians. I noted that under 
section 1011(a), rates paid by civilians who purchase meals in an appropriated 
fund dining facility "shall be established at a level sufficient to provide 
reimbursement of operating expenses and food costs to the appropriations 
concerned." I found that the discretion of the Secretary of Defense was not 
subject to bargaining and concluded that the Union's proposal contravened the 
intent of Congress and was contrary to law. 
I also found that the Union's proposal was inconsistent with DOD Manual 
1338.10-M and implementing regulations of the Department of the Army. I 
concluded that the regulations were mandated by section 1011 and constituted a 
comprehensive world-wide scheme to assure recoupment of food costs and operating 
expenses. I found under the criterion of section 2424.11(a) that this scheme was 
essential to accomplish the Agency's mission. I also found under the criterion 
of section 2424.11(c) that the regulations are essentially nondiscretionary in 
nature in view of section 1011(a). 
I reaffirmed these views in Ft. Meade, 27 FLRA at 17, and I reaffirm them 
today. Moreover, I believe recent court decisions support and reinforce my views 
on the Secretary's discretion and the compelling need standard to be applied in 
this fact situation. 
I believe that the discretion granted the Secretary of Defense by section 
1011 is to the same effect as the discretion granted the Department of the Navy 
by 5 U.S.C. 5348 in setting the pay rates for civilian mariners employed by the 
Military Sealift Command. In my dissenting opinion in National Maritime Union of 
America AFL - CIO and Department of the Navy, Military Sealift Command, 25 FLRA 
105 (1987), I found that the administrative discretion granted to the Department 
of the Navy under section 5348 to set pay consistent with the public interest in 
accordance with the prevailing rates in the maritime industry was not 
bargainable. [ v31 p8 ] 
In Department of the Navy, Military Sealift Command v. FLRA, Nos. 87-3179, 
87-3276 (3d Cir. Jan. 12, 1988), the U.S. Court of Appeals for the Third Circuit 
reversed the Authority's decision. The court held that the Authority's decision 
was inconsistent with Congressional intent because it deprived the Navy of the 
discretion given by Congress. Id. at 18. In the view of the court, subjecting 
that discretion to collective bargaining would frustrate the Congressional 
scheme. Id. at 19-20, 28. Accord Department of the Treasury, Bureau of Engraving 
and Printing v. FLRA, No. 87-1192 (D.C. Cir. Feb. 16, 1988), reversing 
International Brotherhood of Electrical workers Local 121 and Department of the 
Treasury, 25 FLRA 1082 (1987) (court adopted the reasoning of the U.S. Court of 
Appeals for the Third Circuit in reversing the Authority's decision that a 
proposal concerning the setting of pay rates of electricians under a similar 
statutory provision was negotiable). 
I believe that the Authority's decisions in Ft. Ritchie and Ft. Meade 
frustrate the Congressional mandate of section 1011 that the Secretary of 
Defense establish food rates at a level sufficient to reimburse both food costs 
and operating expenses. I believe the Authority's decisions ignore the intent of 
Congress by depriving the Secretary of the discretion essential to carry out the 
Congressional mandate. 
These decisions are in contrast to the decision in National Treasury 
Employees Union and Family Support Administration, Department of Health and 
Human Services, 30 FLRA 677 (1987) (Proposals 3), which involved a proposal for 
the provision of day care services at no cost to the employees. Under the 
relevant statute, the agency may establish day care services and the charges for 
such services, but no appropriated funds may be used for such services. We found 
the proposal to be negotiable because the statute left the agency with 
discretion to determine the appropriate fees. In my view, Congressional intent 
was not frustrated if the agency was required to bargain to the extent of its 
discretion to charge employees different amounts or to charge some employees and 
not others. I view section 1011 quite differently. Substantial funds are 
appropriated by Congress for military dining facilities world-wide and these 
funds are prohibited from being used to provide meals to civilians. moreover, 
Congress has mandated that the Secretary of Defense establish fees sufficient to 
reimburse both food and operating costs. Unlike Family Support Administration, 
Congress has not merely left the Secretary of Defense with discretion to 
determine appropriate [ v31 p9 ] fees if meals are provided civilians at military 
appropriated fund dining facilities. 
I also believe that my conclusions in Ft. Ritchie and Ft. Meade that there 
was a compelling need for DOD Manual 1338.10-M are supported by the decision in 
Department of Defense Dependent Schools, Fort Bragg, North Carolina v. FLRA, No. 
87-8061 (4th Cir. Feb. 3, 1988) denying enforcement of American Federation of 
Government Employees, AFL - CIO, Local 1770 and U.S. Department of Defense 
Dependent Schools, Fort Bragg, North Carolina, 25 FLRA 1132 (1987). I dissented 
from the Authority's decision in DODDS, Ft. Bragg, which found that a salary 
proposal for certain school employees was negotiable. The Authority determined 
that the salaries were within the duty to bargain under 20 U.S.C. 241, 
pertaining to dependent schools, and that there was no compelling need for an 
agency regulation implementing section 241 by prescribing salary comparability 
with state public schools. The Authority concluded that there was no compelling 
need for the regulation because it did not reflect the nondiscretionary 
implementation of a mandate of Congress under the criterion of section 
2424.11(c). 
The court denied enforcement of the Authority's decision and held that the 
decision was contrary to section 241 and to the agency regulation for which 
there was a compelling need under section 2424.11(c). The court concluded that 
the regulation implemented the mandates of section 241 by prescribing salary 
schedules in order to achieve the requirements of Congress that the agency 
provide an education comparable both in quality and cost to state public 
schools. Slip op. at 11. In the view of the court: 
Perhaps one could conceive of a less rigid way to ensure comparability and 
cost parity. Nevertheless, the regulations defining a compelling need do not 
require the school to use the least restrictive means of satisfying its 
congressional mandate. Tested by (section) 2424.11(c), the Army regulation is 
supported by a compelling need. 
Id. 
The majority position of the Authority on meal prices at military 
appropriated fund dining facilities is that proposals regarding meal surcharges 
are negotiable. As a member of the then majority, and consistent with this 
precedent, Member McKee finds that when the Respondent [ v31 p10 ] reinstituted 
the collection of the meal surcharge, the Respondent violated the Statute by not 
providing the Union with prior notice of the change and affording it an 
opportunity to bargain concerning the substance and the impact and 
implementation of the change. 
There is currently a vacancy in the membership of the Authority. Until that 
vacancy is filled, the issuance of decisions requires agreement between Member 
McKee and me. I believe that it is vital to the parties that the Authority avoid 
impasse today. I am compelled to place these considerations before my personal 
adherence to a result my previous dissents and my reasoning in this case would 
dictate. See Public Service Commission v. Federal Power Commission, 543 F.2d 
757, 777-78 (D.C. Cir. 1974). 
Accordingly, in order to provide a disposition to this case, and consistent 
with the existing precedent of the Authority, especially in light of the fact 
that the Government did not appeal the Authority's decisions in either Ft. 
Ritchie or Ft. Meade, I join Member McKee in the Order in section VIII. of the 
Authority's decision. See Opinion of Justice Rutledge concurring in the result 
in Screws v. U.S., 325 U.S. 91, 113-34 (1945). If this action were not necessary 
to resolve this matter, I would find that the Respondent only violated section 
7116(a)(1) and (5) of the Statute by not providing the Union with prior notice 
of the change in the collection of the meal surcharge and affording it an 
opportunity to bargain concerning the impact and implementation of the change. 

Issued, Washington, D.C., March 25,1988. 
Jerry L. Calhoun,        Chairman

FEDERAL LABOR RELATIONS AUTHORITY

[ v31 p11 ] 
SEPARATE OPINION OF MEMBER McKEE 
Chairman Calhoun and I differ over whether the Agency was obliged to bargain 
concerning the substance of its decision to reimpose a surcharge on the cost of 
food furnished to unit employees at its appropriate fund dining facilities. Our 
disagreement stems from differing interpretations of the legislative intent in 
enacting the applicable law, 37 U.S.C. 1101, and from our separate views on 
whether related Department of Defense (DOD) and Agency regulations requiring the 
surcharge on civilian employee food purchases are supported by a compelling 
need. 
In my view, the holdings in Ft. Ritchie and Ft. Meade are dispositive of this 
dispute, the Respondent having failed to persuade me otherwise. In both of those 
cases, the Authority, with Chairman Calhoun dissenting, found negotiable 
proposals permitting authorized employees to patronize military appropriated 
fund dining facilities without paying a meal surcharge. In reaching that 
conclusion, the Authority examined the impact of applicable law, DOD, and agency 
regulations on the proposals. I note that the same agency was involved in those 
cases. 
In the cited cases, the Authority determined that the rate to be charged to 
civilian employees at appropriated fund dining facilities was not a matter 
specifically provided for by Federal law. That is, the proposals were not 
excluded from the definition of "conditions of employment" by section 7103(a) 
(14)(C) of the Statute. The Authority noted particularly that, while requiring 
that the rates for food and service be set at a level which would recoup food 
and operating costs, the applicable statute, 37 U.S.C. 1011(a), leaves to the 
Secretary of Defense the discretion to set the specific rates, and does not 
require that the rates charged be uniform for all personnel authorized to use 
the facilities. 
The Authority also rejected the agency's argument that finding the disputed 
proposals to be negotiable would frustrate the objective of 37 U.S.C. 1011. The 
agency argued that if similar proposals were offered by a large number of 
exclusive representatives within DOD, the statutory requirement that food and 
operating costs be recovered could not be fulfilled. But the Authority found 
that reasoning to be speculative, based on the assumptions that comparable 
proposals would be agreed to by management and that the resultant revenue losses 
could not be recovered in other ways. The Authority also observed that such 
arguments [ v31 p12 ] addressed the merits of the proposals, not their consistency 
with Federal law. 
Although the Respondent in this case did not specifically assert any 
compelling need arguments, I consider it appropriate to reiterate and reaffirm 
the Authority's findings on that matter in Ft. Ritchie and Ft. Meade. In those 
cases the agency contended that its regulations and those of DOD met the 
compelling need criteria found at section 2424.11(a) and (c) of our Rules and 
Regulations. As to criterion (a), the agency argued that feeding its military 
personnel was essential to its basic mission of providing a military force. 
Therefore, controlling food costs was essential to effective and efficient 
accomplishment of its assigned mission. The agency's position was much the same 
as that purporting to show that the proposals were inconsistent with Federal 
law. If the proposals, it contended, were held to be negotiable, there would be 
a widespread offering of like proposals, resulting in huge and unavoidable 
losses. The Authority again rejected that argument, noting that such a 
hypothesis did not provide grounds for a compelling need finding. Additionally, 
the Authority found no demonstration by the agency that the disputed regulations 
were essential, rather than helpful and desirable, in accomplishing that aspect 
of its mission relating to feeding military personnel. 
The agency's argument that the regulations met criterion (c) was a 
reassertion of its view that the underlying provision of law required employees 
using the dining facilities to pay the designated surcharge. Because of its 
finding that 37 U.S.C. 1011 did not mandate the imposition of any specified 
surcharge on all civilian employees, the Authority held that the regulations, 
requiring that a particular surcharge be collected from civilian employees 
generally, were not supported by a compelling need under criterion (c) because 
they did not implement a legislative mandate and, consequently, did not bar 
negotiations over the disputed proposals. 
Therefore, for the reasons set forth in Ft. Ritchie and Ft. Meade, and 
restated here, I conclude that permitting a group of civilian employees to 
purchase food from a military appropriated fund dining facility without paying a 
meal surcharge is not inconsistent with 37 U.S.C. 1011. I also affirm the 
Judge's finding, which is consistent with the holdings in Ft. Ritchie and Ft. 
Meade, that no compelling need has been established for DOD Manual 1338.10-M and 
AFR [ v31 p13 ] 168-7, which implements the Manual for agency appropriated fund 
medical dining facilities. The regulations, therefore, do not relieve the agency 
of its obligation to negotiate over its decision to reimpose a surcharge on the 
price of meals charged to unit employees. 
Issued, Washington, D.C., March 25, 1988. 
Jean McKee,                Member

FEDERAL LABOR RELATIONS AUTHORITY

[ v31 p14 ] 
                    NOTICE TO ALL EMPLOYEES
     AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY
             AND TO EFFECTUATE THE POLICIES OF THE
      FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
                 WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally institute changes in working conditions by 
initiating the collection of a surcharge from bargaining unit employees for 
meals served by the medical center dining facility without providing notice to 
the National Association of Government Employees, Local R7-23, SEIU, AFL - CIO, 
the exclusive representative of certain of our employees, and affording it the 
opportunity to bargain over the change. 
WE WILL NOT, in any like or related manner, interfere with, restrain, or 
coerce our employees in the exercise of rights assured them by the Federal 
Service Labor - Management Relations Statute. 
WE WILL notify the National Association of Government Employees, Local R-7, 
SEIU, AFL - CIO, the exclusive representative of certain of our employees, in 
advance of any intended changes in the working conditions of bargaining unit 
employees concerning the initiation of surcharges for bargaining unit employees 
at the medical center dining facility and, upon request, negotiate with the 
exclusive representative concerning such proposed changes. 
WE WILL rescind the surcharge initiated on March 17, 1986, and collected 
thereafter for meals to bargaining unit employees at the medical center food 
service facility. 
                               ____________________________
                                      (Activity)

Dated: ___________________ By: ____________________________
                                 (Signature)  (Title)

This Notice must remain posted for 60 consecutive days from the date of 
posting, and must not be altered, defaced, or covered by any other material. 

If employees have any questions concerning this Notice or compliance with its 
provisions, they may communicate directly with the Regional Director, Region V, 
Federal Labor Relations Authority, whose address is: 175 West Jackson Blvd., 
Suite 1359-A, Chicago, Illinois 60604 and whose telephone number is: (312) 
353-6306. [PAGE] 

DEPARTMENT OF THE AIR FORCE
SCOTT AIR FORCE BASE, ILLINOIS

     Respondent

     and

NATIONAL ASSOCIATION OF
GOVERNMENT EMPLOYEES,
LOCAL R7-23, SEIU, AFL-CIO

     Charging Party

Case No. 5-CA-60238

Lt. Col. Robert E. Sutemeier and
Mr. James Otzelberger
        For the Respondent

Mr. Carl L. Denton
        For the Charging Party

Sandra LeBold and
Rick Hampton, Esqs. (on Brief)
        For the General Counsel

Before: ELI NASH, JR.
        Administrative Law Judge

DECISION 
Statement of the Case 
This is a proceeding under the Federal Service Labor - Management Relations 
Statute, 92 Stat. 1191, 5 U.S.C. Section 7101, et seq. (herein called the 
Statute). It was instituted by the Regional Director of Region V based upon an 
unfair labor practice charge filed on April 25, 1986 by the National Association 
of Government Employees, Local R7-23, SEIU, AFL - CIO (herein called the Union), 
against the Department of the Air Force, Scott Air Force Base, Illinois (herein 
called the Respondent). The Complaint alleged, in essence, that Respondent 
violated section 7116(a)(1) and (5) of the Statute by initiating the collection 
of a surcharge [PAGE] From Bargaining unit employees in Respondent's Medical 
Center dining facility for meals served in the dining facility with-out 
providing advance notice and an opportunity to bargain concerning the substance 
and/or impact and implementation of the collection of the surcharge. 
Respondent's Answer denied the commission of any unfair labor practices. It 
also asserted several affirmative defenses which are considered herein. 
A hearing was held before the undersigned at Scott Air Force Base, Illinois 
at which the parties were represented by counsel and afforded full opportunity 
to adduce evidence and to call, examine, and cross-examine witnesses and to 
argue orally. Timely briefs were filed by the Respondent and the General Counsel 
and have been duly considered. 
Upon consideration of the entire record in this case, including my 
observation of the witnesses and their demeanor, I make the following findings 
of fact, conclusions of law, and recommendation. 
Findings of Fact 
1. The Union, at all times material herein has been the exclusive 
representative of certain of Respondent's employees. Respondent and the Union 
also, at all times material herein, have been parties to a collective bargaining 
agreement. 
2. The pertinent parts of the above-noted collective bargaining agreement are 
as follows: 
Article III, Section 1: It is agreed and understood that matters appropriate 
for consultation or negotiation between the parties are personnel policies, 
practices and procedures related to working conditions which are within the 
discretion of the Employer, including but not limited to such matters as safety, 
training, labor-management cooperation, employee services, methods of adjusting 
grievances or appeals, granting of leave, promotion plans, demotion practices, 
application of pay practices, reduction-in-force practices and hours of work. 

Section 2: The issuance, continuance, revision, or cancellation of rules and 
[ v31 p2 ] regulations governing matters not specifically covered by this 
Agreement are acknowledged functions of the Employer. However, in issuing, 
revising, or canceling rules and regulations relating to personnel policy, 
procedures, practices and matters of working conditions, the Employer will give 
due regard and consideration to the obligations imposed by this Agreement and 
the provisions of PL 95-454. The Employer agrees to negotiate with the union 
before implementing any changes of the rules and regulations referred to in this 
section. 
Section 4: New or revised higher head-quarters regulations, directives and 
written policies that affect personnel policies, practices and matters affecting 
working conditions to bargaining unit employees will be provided the Union when 
they are received by the base Civilian Personnel Office. The Central Civilian 
Personnel Office will also provide the (U)nion a copy of new or revised base 
regulations, pamphlets or newsletters which address matters affecting the 
working conditions of unit employees. 
3. In the past, notification of proposed changes in working conditions have 
been covered by Article VI, Section 1 of the Agreement which provides that: 
"...the Civilian Personnel Office will notify the Acting Chief Executive 
regarding matters of proposed changes to personnel policies, practices, or 
procedures affecting the working conditions of unit employees." Carl Denton, 
Union President, is the official designated to receive such notice. 
4. Prior to March 1986, the charges to bargaining unit employees assigned to 
the Medical Center for eating lunch or dinner in the Medical Center dining 
facility was $1.45 and the charge for breakfast was $.70. Employees were 
required to pay only a Basic Food Charge for meals in the Medical Center dining 
facility, but were not required to pay a surcharge. 
5. Of the approximate 165 bargaining unit civilian employees at the Medical 
Center, represented by the Union, 30 are food service workers who are exempt 
from paying the surcharge. Of the remaining 135, none are otherwise excepted 
under AFR 168-7, 18 February 1986, Rates For Hospitalization, [ v31 p3 ] 
Outpatient Treatment, and Subsistence In Air Force Medical Facilities, (herein 
called AFR 168-7) from paying the surcharge. Additionally, of those 135 
employees, only seven are required to physically remain in the hospital during 
their entire tour of duty and that is only when they work the night shift. The 
hospital dining facility would only be open then for a few minutes near the end 
of their shift. All other civilian employees receive 45 minute lunch breaks and 
are free to leave the hospital for meals. 
6. 10 U.S.C. 9561 provides that enlisted members, of the Air Force are 
entitled to be issued a daily ration. 1 
Pursuant to this charge, the Department of Defense (herein called DOD) maintains 
appropriated fund dining facilities throughout the military services. The 
instant Medical Center dining facility is one such appropriated fund dining 
facility. The primary function of that messing facility of course is to feed 
patients (active duty military, retired military, and their dependents) and 
those enlisted personnel assigned to the Medical Center who are entitled to 
subsistence. 
7. Officers of the military services and civilian employees are not entitled 
to a daily ration and, therefore, may only be authorized to eat in an 
appropriated fund facility on a reimbursable basis. This policy has been 
recognized and approved by the Congress over a lengthy period of time. 
Respondent represents Section 625 of the General Appropriations Act for 1951 
provides as follows: 
No appropriation contained in this chapter shall be available for expenses of 
operation of messes (other than organized messes which are financed principally 
from non-appropriated funds) at which meals are sold to officers or civilians 
except under regulations approved by the Secretary of Defense, which shall 
(except under unusual or extraordinary circumstances) establish rates for such 
meals sufficient to provide reimbursement of operating expenses and food costs 
to [ v31 p4 ] the appropriations concerned: Provided, that, for the purposes of 
this section, payments for meals at the rates established hereunder may be made 
in cash or by deductions from the pay of civilian employees. 
Act of September 6, 1950, Pub. L. No. 81-759, 1950, U.S. Code Cong. and Ad. 
News (64 Stat.) 675, 817. This provision, with minor changes, has allegedly been 
included in all Defense Appropriation Acts through 1980. 2 

8. In 1980, essentially similar language was enacted as permanent legislation 
in the Defense Officer Personnel Management Act, Public Law 96-513, Title VI, 
Section 413, 94 Stat. 2906, codified at 37 U.S.C. 1011(a). That section states: 

(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. 
9. The DOD discharges its statutory responsibilities listed above through the 
Department of Defense Manual 1338.10-M, entitled Manual for the Department of 
Defense Food Service Program (herein called the Manual). The Manual is binding 
and mandatory on all of the military services. [ v31 p5 ] 
The current edition of the Manual was published in November 1978. Since that 
time, it has been updated through the use of Official Changes. 3 
Chapter VII of the Manual deals with the financial aspects of the DOD Food 
Service Program, including food charges, surcharges and exemptions from 
surcharges. The responsibility for Chapter VII is under the Assistant Secretary 
of Defense (Comptroller) (herein called ASD(C)). 
10. The Air Force implements the financial provisions of the Manual, as 
applicable to Medical Center Dining Facilities, through AFR 168-7. There are two 
editions of this regulation which Respondent contends are material to the issues 
of this case, one dated October 24, 1979 and the current edition dated February 
18, 1986. This regulation is written by the Office of the Air Force Surgeon 
General. Surcharge exemptions are discussed in paragraphs 3 and 5, respectively, 
of the two regulations. 
11. Since October of 1981, only civilian employees actually assigned to the 
Respondent's Medical Center have been allowed to patronize the dining facility. 
AFR 168-4, Chapter 11, para. 11-18c. as read by Respondent, restricts patronage 
to such employees at the discretion of the Hospital Commander. If there is ample 
space and the staff is adequate, the Commander may allow civilian employees of 
the Medical Center access to the dining facility. 
12. Payment for meals at Respondent's Medical Center dining facility is, and 
has been at all times material herein, made in the following manner: 
(a) During meal hours, all patrons must pass by a cashier before proceeding 
to the food line. 
(b) The cashier identifies diners into two basic categories: (1) enlisted 
personnel allowed to subsist, i.e., entitled to a ration, at government expense; 
and (2) persons (officers, civilians, others, etc.) paying cash for meals. [ v31 p
6 ] 
(c) Enlisted personnel present a Meal Card, sign their name, and proceed 
through the line. 
(d) All others pay cash, which includes a basic food charge plus a surcharge, 
unless they are exempted. They must also sign the Cash Meal Log. 
13. Food charges and surcharges for all the Services are set by DOD in 
Chapter VII of the Manual and the Appendix thereto, The Air Force implements 
these charges through AFR 168-7. 4 
There is allegedly no discretion by any of the Services, or at a local 
installation, as to the amount of either the basic food charge or the surcharge. 

14. A surcharge is: 
A charge established to comply with statutory requirements to recover 
operating expenses in appropriated fund food service activities from officer and 
civilian personnel authorized meals on a reimbursable basis and from all 
officers, civilians, and enlisted personnel when authorized the subsistence per 
diem allowance. 
While the food charge covers the basic cost of the food, the surcharge covers 
overhead, supplies, labor and all of the other costs to prepare meals for those 
not entitled to a ration. Historically food charge and surcharge rates generally 
change once or twice a year. DOD changes the charges based on an increase or 
decrease in food costs and/or an increase in military pay and subsistence. 5 

15. At Respondent's Medical Center dining facility, the food charge and 
surcharge rate increases (or decreases) would be received by message from the 
Office of the Air Force Surgeon General. According to Respondent, the dining 
[ v31 p7 ] facility would then implement those changes immediately and without 
notification or negotiation with the Union. Notwithstanding the above, there is 
no evidence of any changes in price at Respondent's facility since 1983. 
16. Heretofore, when Respondent's dining facility Hospital Commanders have 
determined that space and staff within the dining facility was adequate, 
civilian hospital employees have been allowed to patronize the dining facility. 
Between February 1980 and December of 1982, all civilian hospital employees, 
unless otherwise exempt, who chose to eat in the dining facility, paid a food 
charge plus a surcharge. 6 

17. Sometime around January 1, 1983, DOD eliminated the "two-tier" surcharge 
in favor of a single surcharge system whereby anyone required to pay a surcharge 
would pay the same amount. 7 
This change also established new rates for food charges and surcharges and 
slightly modified certain exemptions from the surcharge. The changes were 
incorporated into "Change 6" of the Manual. 8 
Chapter VII provided for exemption from the surcharge (for personnel on official 
duty) "when an assignment necessitates eating in an appropriated fund food 
service activity." 
18. The Air Force implemented DOD "Change 6" to the Manual by way of a 
Surgeon General message to the field dated December 30, 1982. Paragraph 2 of 
that message interpreted the "assignment necessitates" exemption "to include 
civilian and officer members of the medical staff for meals served during their 
tour of duty." The message also advised Hospital Commanders not to charge 
civilians and officers on the medical staff any surcharge until further notice. 
Respondent complied with the message and ceased collection [ v31 p8 ] of the 
surcharge on January 1, 1983. DOD and specifically ASD(C), had no notice of this 
message, nor did they coordinate on it. Respondent alleged in its brief that the 
Air Force's action in ceasing collection of the surcharge at the time was 
improper, and its interpretation of the "assignment necessitates" clause was 
both erroneous and overly broad. 9 

19. On or about January 26, 1984, the Air Force Surgeon General's Office 
issued another message pertaining to surcharge exemptions. It noted that even 
the Air Force would not support automatic exemption of the surcharge for all 
civilian and officer members of the medical staff under the "assignment 
necessitates" clause, because such an interpretation would "create an inequity 
for other officers and civilian employees on base who are required to pay the 
surcharge when using a government dining facility." The message further advised 
that it would be proper, under the "assignment necessitates" clause of the 
Manual, to "exempt from the surcharge those hospital personnel and volunteers 
whose duties involve direct patient care support." The message does not mention 
any illegality attached to not collecting the surcharge. Respondent interpreted 
"direct patient care support" to include all officer and civilian personnel of 
the hospital. Accordingly, it continued to excuse payment of the surcharge. 
Apparently neither the message nor the Respondent's interpretation was in 
compliance with the Manual and its policy for hospital personnel exemptions. 

20. Sometime in late 1983 or early 1984, ASD(C) received a request from the 
Army to examine surcharge collections inasmuch as it appeared to the Army that 
the Services had divergent policies on the payment of surcharges by hospital 
personnel for meals consumed in medical treatment dining facilities. ASD(C) 
requested the DOD Inspector General to look into the situation. The DOD/IG 
Report, dated January 15, 19B5, showed that the Services did, in fact, have 
differing policies and procedures concerning meal surcharge exemptions for 
officer and civilian personnel assigned to medical treatment facilities. The 
Report recommended that ASD(C) revise Chapter VII of the Manual to "specify who 
is [ v31 p9 ] exempt from paying the surcharge ... by identifying the duty 
assignments that necessitate personnel to remain in their duty areas and take 
meals in such facilities." Based on that Report, ASD(C) organized a "working 
group," including members from each of the staffs of the Service Surgeon 
Generals, to study the matter. In May of 1986, a new change to Chapter VII of 
the Manual was issued. Specifically, in paragraph C.3., the change stated that 
"(E)xemptions are to be applied strictly and consistently. Other exemptions are 
not permitted, unless approved by the ASD(C)." In explaining the "assignment 
necessitates" exemption for hospital personnel, the change provided: 
(h) When no other feeding facility is available and the nature of the 
individual Is duty assignment, as a matter of mission essentiality, requires his 
or her immediate availability thereby precluding the individual from eating 
except in the appropriated fund dining facility. For medical facilities, this 
specifically refers to the Medical Officer(s) of the Day (MOD) and 
Administrative Officer(s) of the Day (AOD). 
21. Based on the Manual Change, the Air Force issued a new version of AFR 
168-7, dated February 18, 1986. 10 
Paragraph 5.h.(10) of the new Air Force Regulation restates the Manual policy as 
contained in para. C.3.(h). 
22. In early March 1986, Joan Lucher, a bargaining unit employee assigned to 
Respondent Medical Center, discovered that the dining facility was soon to start 
collecting a surcharge for meals from civilian employees assigned to the Medical 
Center. Lucher first learned of the collection of this surcharge on Thursday 
prior to its implementation, somewhat by accident, when she happened to be in 
the Medical Center accounting office as a fellow employee said, she had just 
received a telephone call from a Colonel Johnson stating that the price of one 
meal was to be raised from $1.45 to $3.60. That same afternoon, Lucher's 
supervisor, Captain [ v31 p10 ] Jacoboski, also mentioned that a surcharge for the 
meal was to be made and that the price was going up to $3.60 on the following 
Monday. 
23. On Monday, as stated, Respondent initiated the collection of the 
surcharge from bargaining unit employees assigned to the Medical Center. It is 
uncontroverted that Respondent provided no advance notice of this change to the 
Union. 
On the following Tuesday, Lucher informed the Union President, Carl Denton, 
about the surcharge. Denton told Lucher that he did not know anything about the 
change, but that he would look into it. 
24. Denton proceeded to the call Respondent's Civilian Personnel Office 
(hereinafter called CPO) and advised them of what had transpired. Denton 
followed the telephone call with a hand-delivered letter dated March 21, 1986 to 
Mr. R. F. Stevenson, Civilian Personnel Officer. In that letter Denton charged 
Respondent with violating the Statute by changing the price of meals for 
bargaining unit employees entitled to eat at the Medical Center dining facility 
effective on or about March 17, 1986. As a remedy, Denton requested that 
Respondent reinstate the status quo and refund employees the difference in 
prices paid. He requested negotiation over the substance, implementation and 
impact of any proposal to raise the price of meals or change in policy relative 
to the price of food for bargaining unit employees. 
25. On April 4, 1986, Denton received a response to his letter from James 
Otzelberger, Acting Chief, Personnel Management Section, Civilian Personnel 
Branch, who informed Denton that, "Attachment 1, received by the Medical Center 
on March 13, 1986, reflects the applicable regulation, AFR 168-7, which 
generated the price changes. Normally, price changes are implemented upon 
receipt of a message or regulatory guideline as evidenced by HQ USAF/SG HC 
message 2619002 Dec 85 (atch 2), which authorized reduced prices". Otzelberger 
further stated, "While we are not willing to reinstate the status quo nor refund 
any difference in prices paid by bargaining unit employees, we are willing to 
meet and discuss with you any impact and implementation proposals you may have." 

26. On April 21, 1986, Denton hand-delivered Union proposals to Respondent 
concerning the change. Sometime later, Denton met with Otzelberger and Loren 
Donoho, Cook Foreman, to discuss the Union's proposals. Otzelberger told [ v31 p
11 ] Denton that a Union proposal concerning "...employees be allowed to continue 
eating in the Medical Center at the old price structure pending the outcome of 
negotiations" was completely out of the question. The only reason that 
Otzelberger gave for this position was that his "hands were tied" by the AFR 
168-7. Denton then asked Otzelberger to declare this substantive proposal 
non-negotiable. Otzelberger said he was not prepared to declare it 
non-negotiable. Neither Otzelberger nor Mr. Donoho claimed at that time AFR 
168-7 was a regulation for which there was a compelling need and neither made 
any arguments in support of such a compelling need. 
27. There are five dining facilities on Respondent's grounds other than the 
Medical Center facility open to civilian employees. Further, there are several 
commercial eating establishments within a 10-minute drive from the base, and 
numerous restaurants within a 15-minute drive. 
Issue 
The issue is whether the Respondent violated section 7116(a)(1) and (5) of 
the Statute by changing a condition of employment, by initiating collection of a 
surcharge at the Medical Center dining facility, without affording the Union 
notice and an opportunity to bargain concerning the substance and/or impact and 
implementation of that change. 
Discussion and Conclusions 
Initially, Respondent argues that collection of the surcharge added to the 
cost of the food served to bargaining unit employees in the appropriated fund 
dining facility, to reimburse the government for operating expenses, does not 
concern a condition of employment, therefore, Respondent had no duty to provide 
notice to and bargain with the Union. 
With regard to this position, and others raised by Respondent concerning the 
surcharge not being a condition of employment, Authority decisions indicate 
otherwise. See for example, American Federation of Government Employees, AFL - 
CIO, Local 2670 and Army and Air Force Exchange Service, Keesler Air Force Base 
Exchange, Mississippi, and American Federation of Government Employees, AFL - 
CIO, Local 1504 and Departments of the Army and Air Force, Army and Air Force 
Exchange Service, Northwest Area Exchange, Ft. Lewis, Washington, 10 FLRA No. 
19, 10 FLRA 71 (1982). In that case, the Authority found Union proposals which 
increased the value of the free meals provided to employees within the duty to 
[ v31 p12 ] bargain. Such a finding clearly indicates that it considers that a 
duty to negotiate exists with respect to the value of meals served even where 
providing such meals would result in increased costs to the agency. In short, 
such meals and their costs have not been spared from bargaining. Similarly, in 
Veterans Administration Medical Center, Bath, New York and Veterans 
Administration, Washington, D.C., 12 FLRA No. 107, 12 FLRA 552, 568 the 
Authority found that the elimination of a free meal to certain employees was 
violative of the Statute. Furthermore, the Authority in that case found that the 
Union had a right to bargain not only on the impact and implementation of the 
change, but that it had a right to bargain fully on the subject. Faced with 
these cases, it becomes clear that the Authority considers meals, meal prices 
and their availability, as are the subject of this matter, to be a condition of 
employment requiring bargaining. 11 
[ v31 p13 ] Consequently, Respondent's arguments that a condition of employment 
has not been established must be rejected. 
Respondent also contends that no condition of employment has been established 
by past practice in this case. Clearly, however, bargaining unit employees while 
on duty had not been required to pay a surcharge for meals at the Medical Center 
dining facility for over three years. The elimination of that indirect meal 
subsidy by requiring payment is a change in what employees were required to pay 
for such meals in the past. Furthermore, employees who do not pay the surcharge 
are not allowed to "brown bag" or bring their own lunch into a facility which 
had previously been used by them not only to purchase meals, but to sit and 
comfortably eat those meals. Thus, aside from the price increase for meals, 
another condition of employment exists since bargaining unit employees who chose 
not to pay the surcharge are not allowed to use the dining facility and are now 
required to seek other places to eat their meals while at work. 
Respondent argues that there was no past practice other than to receive Air 
Force direction, either by message or regulation, and then implement locally 
without notice or negotiation with the Union. According to Respondent, not 
paying the surcharge was illegal, and once the illegality was noticed it was 
stopped. 12 
This argument not only does not establish that not paying the surcharge was 
illegal, but it misses the point. If anything, it establishes that Respondent 
eliminated the surcharge in 1983 without notice or bargaining. However, to 
reinstitute the charge some three years later, once it is established practice 
relied on by Medical Center employees and established as a practice of both 
supplying cheaper meals and allowing use of the dining facility, it can be 
discontinued only by notice and bargaining. Respondent's argument therefore, 
does not meet the requirements of establishing a contrary past practice as 
Respondent argues, nor does it relieve Respondent of the obligation to provide 
advance notice and the opportunity to bargain over this substantively negotiable 
subject. 
Respondent also asserts that even if the collection of the surcharge is 
deemed to be a condition of employment, it [ v31 p14 ] had no duty to bargain 
about the decision to discontinue it because such bargaining would be 
inconsistent with agency and primary national subdivision regulations for which 
there is a compelling need. The regulations referred to by Respondent are the 
Manual and AFR 168-7. 
The Authority has held that processing of a "compelling need" allegation as 
part of a unilateral change unfair labor practice case in which such an 
allegation of non-negotiability arises as an affirmative defense is appropriate. 
See Aberdeen Proving Ground, Department of the Army, 21 FLRA No. 100 21 FLRA 814 
(1986). However, Respondent bears the burden of establishing any such compelling 
need defense in accordance with established criteria. 
Section 2424.11 of the Authority's regulations provide that there is a 
compelling need for an agency or primary national regulation if one or more of 
the following illustrative criteria is met: 
(a) The rule or regulation is essential, as distinguished from helpful or 
desirable, to the accomplishment of the mission or the execution of functions of 
the agency or primary national subdivision in a manner which is consistent with 
the requirements of an effective and efficient government. 
(b) The rule or regulation is necessary to insure the maintenance of basic 
merit principles. 
(c) The rule or regulation implements a mandate to the agency or primary 
national subdivision under law or other outside authority, which implementation 
is essentially nondiscretionary in nature. 
Respondent maintains that the regulations in question meet (a) and (c) of the 
Authority's listed criteria and that a compelling need exists under section 
7117(a)(2) of the Statute. 
Thus, it contends that the mission of the DOD is the defense of the United 
States and that the Air Force plays a vital role within the overall DOD mission. 
In order to accomplish that mission, DOD and the Department of the Air Force 
must be able to field a military force properly [ v31 p15 ] trained, equipped, and 
supported. Inherent in this task is the need to feed the military personnel who 
make up the system that the DOD has established to feed its people. Respondent 
does not seriously contend that it could not accomplish its national defense 
mission at all if it could not impose the surcharge in question; however, that 
fact alone, does not dispose of the compelling need question. The Authority's 
criterion provides that there is a compelling need for an agency regulation if 
it is essential to the accomplishment of the agency's mission in a manner 
consistent with the requirements of an efficient and effective Government. 
Respondent therefore is asserting that DOD cannot efficiently and effectively 
accomplish its mission if it cannot regulate the recovery of substantial costs 
for which the Congress has expressly declined to appropriate funds. Those cost 
according to Respondent are far from de minimis. 13 
In fiscal year 1985 alone, $18,000,000.00 in surcharges were collected by the 
Services, including almost [ v31 p16 ] $13,000,000.00 by the Air Force. Since no 
surcharges were collected by Respondent during the preceding three years it is 
difficult to see how the potentially small surcharge collected from its dining 
facility prior to bargaining would be significant or preclude it from acting 
efficiently or effectively. 
Respondent contends that if DOD could not promulgate regulations which allow 
it to recover these large sums from dining facility patrons, it would be forced 
to make up this loss from funds appropriated for other purposes. This it says 
would violate the law. Furthermore, Respondent maintains, even if that were not 
the case, such a situation could hardly be viewed as efficient and effective 
accomplishment of DOD or the Air Force's mission, nor would such a construction 
of the law be consistent with the requirement of 5 U.S.C. 7101(b) that the 
Statute be interpreted in a manner consistent with an effective and efficient 
Government. Consequently, the first of the Authority's compelling need criteria, 
according to Respondent, is satisfied by the regulations at issue. AFR 168-7 
however, in attachment 3 provides for splitting surcharges for meals evenly 
between 3400 Medical facility dining halls, apparently anticipating different 
surcharges in different facilities. In any event, the record does not 
demonstrate any substantial costs commanding Respondent to implement the 
surcharge prior to meeting its bargaining obligation with the Union. 
While Respondent asserts that AFR 168-7 is essential to the accomplishment of 
the mission or the execution of functions of the Department of the Air Force or 
DOD in a manner which was consistent with the requirements of an effective and 
efficient government it fails, in my opinion, to meet its burden of 
demonstrating that the regulations are essential as distinguished from helpful 
or desirable. Lexington Blue Grass, Army Depot, Lexington, Kentucky, 24 FLRA No. 
6, 24 FLRA 50 (1986); International Federation of Professional and Technical 
Engineers, Local 12, 24 FLRA No. 24, FLRA 178 (1986); Department of the 
Interior, Washington, D.C., 25 FLRA No. 6, 25 FLRA 91 (1987); Respondent's 
evidence concerning compelling need must, therefore, be examined. Respondent's 
witness Gary W. Amlin testified that if local unions could bargain over the 
applicability of the surcharge or the amount of the surcharge "If they did, the 
only thing I could think of, you would have some people at one location paying 
different prices than people at other locations. So there would be some possible 
unfairness or difference in rates, certainly, when you go from location to 
location, if you could do that". It is [ v31 p17 ] again noted that the regulation 
itself implicitly acknowledges that this could happen and provides for a 
splitting of the surcharge among some 3400 facilities. 
Although Respondent specifically identifies the relevancy of this testimony 
as part of its compelling need defense, it failed to establish any nexus between 
this testimony and any criteria of compelling need. In fact, Amlin also 
testified that the "real issue" was that the surcharge was mandated by law for 
people not specifically exempted, not that the Air Force or DOD needed the 
money. Further, Amlin admitted, in fact, that the $13,000,000.00, the amount 
reportedly collected by the Air Force in surcharges in its dining facilities for 
FY 85, was not going to make or break DOD and that as evidenced over the 
previous three years, Respondent had no difficulty and indeed could operate very 
successfully without the surcharge being collected at Respondent's facility. 

Respondent, in my view, failed to demonstrate, and Amlin's testimony has 
precluded it from arguing, that any exemption covering bargaining unit employees 
assigned to the Medical Center by AFR 168-7 is essential to the accomplishment 
of the mission or the execution of the function of the Air Force or DOD in a 
manner which is consistent with the requirements of an effective and efficient 
government. Further, Amlin's testimony restricts Respondent's basis for a 
compelling need argument to the contention that AFR 168-7 implemented a mandate 
of the Air Force or DOD under law or other outside authority with respect to the 
exemption of bargaining unit employees assigned to the Medical Center from 
paying the surcharge, which implementation was essentially nondiscretionary in 
nature. 
AFR 168-7 does not appear to implement a mandate of the Air Force or DOD 
under law or outside authority with respect to the exemption of bargaining unit 
employees assigned to the Medical Center from paying the surcharge. Besides that 
implementation of the suggested mandate upon which Respondent bases its defense 
appears to be discretionary in nature. Amlin testified that DOD mandated that a 
surcharge be collected from civilian employees and officers to eat in 
appropriated fund facilities because it is required by law that they do so. He 
also specifically identified the sources of this mandate under law as the 
appropriations bills of DOD which he claims prohibit DOD from using appropriated 
money to provide food service to other than enlisted members of the military 
departments, except in unusual or special situations and 37 U.S.C. 1011. 
Specifically [ v31 p18 ] Amlin identified the language of 37 U.S.C. 1011 upon 
which he relied as follows: "Such rates shall be established at a level 
sufficient to provide reimbursement of operating expenses and food costs to the 
appropriations concerned..." as the source of this mandate under law. 
The elimination of the exemption for bargaining unit employees assigned to 
the Medical Center was based not on any exemption contained in AFR 168-7, but 
rather, the language of the manual, as conveyed by the "message" of December 
1982 and January 1984. Therefore, a past practice of not paying a surcharge 
existed independently of AFR 168-7, on the basis of the Manual, which was 
unchanged at the time Respondent implemented the instant surcharge. Subsequent 
changes in the Manual are thus, irrelevant to this case. The coexistence of the 
past practice with AFR 168-7 clearly shows the discretionary nature of the 
mandate of the Secretary of Defense and, in turn, of the Air Force. Thus, while 
the requirements for payment of surcharges was clearly on the books, its payment 
was suspended for at least three years. In all the circumstances, it must be 
concluded that Respondent has not met its burden of demonstrating that its 
regulations concerning levying of surcharges for meals served in Medical Center 
dining facilities were essential as distinguished from helpful or desirable, to 
effectively and efficiently accomplish its mission and, thus has not established 
under the requirements set forth in section 2424.11(a) of the Rules and 
Regulations that a compelling need exists. 
Respondent's argument that the regulations at issue were promulgated to 
satisfy the mandate of 37 U.S.C. 1011(a) that the Secretary of Defense establish 
rates for meals sold at messes to officers, civilians, or enlisted members 
entitled to a per diem allowance at a level sufficient to provide reimbursement 
of operating expenses and food costs to the appropriations concerned also must 
be rejected. Clearly, the law allows the Secretary of Defense some limited 
discretion as to how to establish rates or surcharges. According to Respondent, 
however, it allows him no discretion at all not to establish them. Consequently, 
to the extent that the regulations at issue merely establish rates as required 
by the law, they are a nondiscretionay implementation of a statutory mandate. 
Under this theory, while it might be argued that the Secretary has discretion to 
make exceptions to the rate structure, it was not established on the record that 
any basis existed for doing so in this case. According to Respondent, the 
specific regulatory provisions with which any substantive proposals [ v31 p19 ] 
would be inconsistent, constitute an essentially nondiscretionary implementation 
of a statutory mandate, and accordingly does satisfy the last of the Authority's 
"compelling need" criteria. Respondent's argument, however, does not demonstrate 
that the regulations meet the compelling need criteria of section 2424.11 (c) of 
the Authority's Rules. In fact, it demonstrates to the contrary, that there is, 
as already noted, some discretion in collection of charges such as the 
surcharge. 
Regarding 37 U.S.C. 1011, which was introduced into evidence by the General 
Counsel, the specific language cited by Amlin conveys discretionary authority 
upon the Secretary of Defense to establish the mix under which these dining 
facilities are reimbursed operating expenses and food costs. In any event, 37 
U.S.C. 1011 was effective September 16, 1981, but the authority to prescribe 
regulations under this section became effective earlier on December 12, 1980 
(See note under 37 U.S.C. 1011). Surely, it did not take DOD six years to 
recognize this mandate. Rather, it appears to be a discretionary mandate which 
has been fulfilled through a variety of surcharge and meal rate schemes since 
its enactment. The Manual exemptions for personnel on official duty when an 
assignment necessitates eating in an appropriated fund food service facility, 
which was in effect at the time Respondent changed the past practice is so broad 
as to reflect the discretion of the Secretary of Defense in fulfilling this 
mandate. AFR 168-7 apparently represents an effort to fulfill this mandate in 
another, more restrictive fashion. In fact, the surcharge appears to be a 
discretionary implementation of a discretionary mandate in a manner which was 
not specifically required by the Manual at the time of its implementation. 
Again, it appears that Respondent failed in establishing a compelling need 
defense in accordance with established criteria. 
In this case Respondent had a duty to provide notice and the opportunity to 
bargain prior to implementing the March 17, 1986 change in the past practice of 
exempting bargaining unit employees assigned to the Medical Center from payment 
of the surcharge. Although Respondent may be required to comply with Air Force 
regulations, it must fulfill its bargaining obligation when such compliance 
requires a change in established conditions of employment of bargaining unit 
employees. Since, there was no evidence presented at the hearing that Respondent 
was directed to implement the change in this past practice prior to fulfilling 
its bargaining obligation it is clear that the [ v31 p20 ] responsibility for the 
change is its own. There is no evidence that higher level management is 
responsible for Respondent's action herein. Consequently, there is no prima 
facie showing that either DOD or the Air Force was responsible for Respondent's 
action. United States Department of Defense, United States Department of the 
Navy, Washington, D.C., 28 FLRA No. 112 (1987); United States Department of 
Defense, Department of the Air Force and Department of the Air Force, Carswell 
Air Force Base, 28 FLRA No. 117 (1987). 
With respect to the appropriations bills, if Respondent intended to base a 
compelling need defense on these documents, the documents themselves would 
certainly have provided the best evidence of their contents. 14 
Thus, on the face of Amlin's testimony, it is impossible to determine whether 
any of the unusual or special circumstances raised by his testimony are 
applicable or even whether any "mandate" exists. Finally, it appears that Amlin 
may have changed his own testimony by identifying, on cross-examination, 
specific language of 37 U.S.C. 1011 as the source of this mandate. In any event, 
it is clear that Respondent did not meet its burden of establishing that the 
requirements set forth in section 2424.11 of the Authority's Rules and 
Regulations that a compelling need exists. 
Accordingly, it is found that Respondent violated section 7116(a)(1) and (5) 
of the Statute by changing a condition of employment, by initiating collection 
of a surcharge at the Medical Center dining facility, without affording the 
Union notice and an opportunity to bargain concerning the substance and/or 
impact and implementation of the change. 
In agreement with the General Counsel, it is found in addition to the posting 
requirements that a status quo ante remedy requiring Respondent to rescind the 
change in past practice and to bargain with the Union concerning the substance 
and impact and implementation of the change is appropriate. 
Accordingly, it is recommended that the Authority adopt the following: [ v31 p
21 ] 
ORDER 
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules 
and Regulations and section 7118 of the Federal Service Labor - Management 
Relations Statute, it is hereby ordered that the Department of the Air Force, 
Scott Air Force Base, Illinois, shall: 
1. Cease and desist from: 
(a) Unilaterally instituting changes in working conditions by initiating the 
collection of a surcharge from bargaining unit employees for meals served by the 
Medical Center dining facility without providing notice to the National 
Association of Government Employees, Local R7-23, SEIU, AFL - CIO, the exclusive 
representative of certain of its employees, and affording it the opportunity to 
bargain concerning the substance and/or impact and implementation of the change. 

(b) In any like or related manner interfering with, restraining or coercing 
its employees in the exercise of rights assured by the Federal Service Labor - 
Management Relations Statute. 
2. Take the following affirmative action in order to effectuate the purposes 
and policies of the Federal Service Labor - Management Relations Statute: 
(a) Notify the National Association of Government Employees, Local R7-23, 
SEIU, AFL - CIO, in advance of any intended changes in the working conditions of 
bargaining unit employees concerning the initiation of surcharges for bargaining 
unit employees at the Medical Center dining facility and upon request, negotiate 
with the exclusive representative concerning such proposed changes. 
(b) Rescind the surcharge initiated on March 21, 1986 and collected 
thereafter for meals to bargaining unit employees at the Medical Center food 
service facility. [ v31 p22 ] 
(c) Post at its Scott Air Force Base, Illinois, Medical Center dining 
facility copies of the attached Notice on forms to be furnished by the Federal 
Labor Relations Authority. Upon receipt of such forms, they shall be signed by 
the Commanding Officer, and shall be posted and maintained for 60 consecutive 
days thereafter, in conspicuous places, including all bulletin boards and other 
places where notices to employees are customarily posted. Reasonable steps shall 
be taken to insure that such Notices are not altered, defaced, or covered by any 
other material. 
(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, 
notify the Regional Director, Region II, Federal Labor Relations Authority, in 
writing, within 30 days from the date of this Order, as to what steps have been 
taken to comply herewith. 
ELI NASH, JR.
Administrative Law Judge

Dated: September 29, 1987
       Washington, D.C.

[ v31 p23 ] 
                  NOTICE TO ALL EMPLOYEES
                        PURSUANT TO
                A DECISION AND ORDER OF THE
             FEDERAL LABOR RELATIONS AUTHORITY
         AND IN ORDER TO EFFECTUATE THE POLICIES OF
                CHAPTER 71 OF TITLE 5 OF THE
                     UNITED STATES CODE
     FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE
            WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT unilaterally institute changes in working conditions by 
initiating the collection of a surcharge from bargaining unit employees for 
meals served by the Medical Center dining facility without providing notice to 
the National Association of Government Employees, Local R7-23, SEIU, AFL - CIO, 
the exclusive representative of certain of its employees, and affording it the 
opportunity to bargain concerning the substance and/or impact and implementation 
of the change. 
WE WILL NOT in any like or related manner, interfere with, restrain, or 
coerce our employees in the exercise of rights assured by the Federal Service 
Labor - Management Relations Statute. 
WE WILL notify the National Association of Government Employees, Local R7-23, 
SEIU, AFL - CIO, in advance of any intended changes in the working conditions of 
bargaining unit employees concerning the initiation of surcharges for bargaining 
unit employees at the Medical Center dining facility and upon request, negotiate 
with the exclusive representative concerning such proposed changes. 
WE WILL, rescind the surcharge initiated on March 21, 1986 and collected 
thereafter for meals to bargaining unit employees at the Medical Center dining 
facility. 
                               ____________________________
                                   (Agency or Activity)

Dated: ___________________ By: ____________________________
                                       (Signature)

[PAGE] 
This Notice must remain posted for 60 consecutive days from the date of 
posting and must not be altered, defaced or covered by any other material. 
If employees have any questions concerning this Notice or compliance with any 
of its provisions, they may communicate directly with the Regional Director of 
the Federal Labor Relations Authority, Region V, whose address is: 175 W. 
Jackson Boulevard, Suite A-1359, Chicago, IL 60604, and whose telephone number 
is: (312) 353-6306. [ v31 p2 ] 

FOOTNOTES
Footnote 1 The same requirement is levied on the other 
military services under separate statutory provision. See e.g. 10 U.S.C. 4561 
(Army) and 6081 (Navy). "Ration" is a term used since colonial times which means 
"the allowance of food for the subsistence of one person for one day." 
Footnote 2 According to Respondent, these Appropriation 
Acts, which were not offered as evidence at the hearing are as follows: Act of 
August 1, 1953, Pub. L. 83-179, 1953 U.S. Code Cong. and Ad. News 377, 392; Act 
of July 13, 1955, Pub. L. 84-157, 1955 U.S. Code Cong. and Ad. News 332, 
345-346; Act of August 2, 1957, Pub. L. 85-117, 1957 U.S. Code Cong. and Ad. 
News 328, 339; Act of August 18, 1959, Pub. L. 86-166, 1959 U.S. Code Cong. and 
Ad. News 401, 412-413; etc. 
Footnote 3 The Official Changes include: Change 1, 24 
October 1979; Change 2, 30 June 1980; Change 3, 22 October 1980; Change 4, 14 
January 1981; Change 5, 23 July 1981; Change 6, 6 April 1983; Change 7, 22 
February 1984; Change 8, 24 April 1984; Change 9, 23 January 1985; Change 10, 1 
March 1985. An "eleventh" change was issued on 27 May 1986. 
Footnote 4 As an example, a civilian employee at 
Respondent's Medical Center dining facility would pay $3.60 to eat lunch or 
dinner at the facility. This amount includes $1.45 (basic food charge) and 
$12.15 (surcharge). 
Footnote 5 Members of uniformed services receive basic 
pay, a basic allowance for subsistence (unless receiving rations), and an 
allowance for quarters (unless occupying government quarters). See 37 U.S.C. 402 
and 1009. 
Footnote 6 Food service workers, as previously noted, 
have always been exempt from the surcharge because their work schedules (during 
meal hours) prohibit absences during the normal operation of other messing 
facilities in and around the installation. 
Footnote 7 The change from the dual to a single 
surcharge eliminated a special rate of surcharge for military members and 
civilians in a travel status receiving per diem. 
Footnote 8 Although "Change 6" is dated April 6, 1983, 
the changes within it were made effective January 1, 1983. 
Footnote 9 "Assignment necessitates" or job necessity 
within the hospital context, means an employee, military or civilian, whose 
duties require him or her to physically remain in the hospital for periods of 
time in which meals would normally be served and eaten. E.g., Medical Officer of 
the day. 
Footnote 10 According to Respondent, normally a 
Service implementing regulation would follow a change to the Manual. Apparently 
here, the Air Force, as a member of the "working group" described above, knew 
what the new language would be, and simply published its regulation before the 
Manual Change was released. 
Footnote 11 In several recent cases the Authority has 
dealt directly with the question of deciding whether a matter affects conditions 
of employment within the meaning of section 7103(a)(14) of the Statute. See 
Antilles Consolidated Education Association and Antilles Consolidated School 
System, 22 FLRA No. 23, 22 FLRA 235 (1986); Department of Defense, Department of 
the Army, Fort Buchanan, San Juan, Puerto Rico, 24 FLRA No. 96, 24 FLRA 971 
(1986); Department of the Army, Dugway Proving Ground, Dugway, Utah and National 
Association of Government Employees, Local R14-62, 23 FLRA No. 80, 23 FLRA 578 
(1986); Department of the Air Force Eielson Air Force Base, Alaska and American 
Federation of Government Employees, Local 1836, AFL-CIO, 23 FLRA No. 83, 3 FLRA 
605 (1986); Department of the Army, Fort Greely, Alaska and Department of the 
Army, 172d Infantry Brigade (Alaska), Fort Richardson, Alaska and Department of 
the Army, Headquarters, U.S. Army Forces Command, Fort McPherson, George and 
Department of the Army, The Pentagon, Washington, D.C. and American Federation 
of Government Employees, Local 1949, AFL-CIO, 23 FLRA 105, 23 FLRA 58 (1986). In 
the above cases, the Authority described the basic considerations for 
determining whether a matter involves conditions of employment as (1) whether 
the matter proposed to be bargained pertains bargaining unit employees; and (2) 
the nature and extent of the effect of the matter proposed on working conditions 
of those employees. Here both considerations appear to nave been met since the 
Union is seeking to negotiate concerning employees it represents and an 
established practice existed for several years of allowing employees, as part of 
their employment, to obtain meals without a surcharge being added to their cost. 

Footnote 12 A duty to bargain about the termination of 
an illegal past practice nonetheless extends to "impact and implementation" 
bargaining which may occur after unilateral termination of the unlawful 
practice. Since illegality was not established Dept. of the Interior and AFGE, 
Local 3457, 9 FLRA 543 (1982) cited by Respondent is inapposite. 
Footnote 13 Respondent does not, but the General 
Counsel does, make an argument based on Department of Health and Human Services, 
Social Security Administration, Region V, Chicago 19 FLRA No. 101, 19 FLRA 827 
(1985) that the total impact or reasonably foreseeable impact of the change 
herein is more than de minimis. Since the hearing in this matter the Authority 
decided Department of Health and Human Services, Social Security Administration, 
24 FLRA No. 42, 24 FLRA 403 1986 where it reassessed and modified its standard 
used to determine whether or not a particular agency action has more than a de 
minimis impact on conditions of employment. Under the new standard the Authority 
has decided to place principal emphasis on such general areas of consideration 
as the nature and extent of the effect or reasonably foreseeable effect of the 
change on conditions of employment of bargaining unit employees. The Authority 
will also take equitable considerations into account in balancing the various 
interests involved. Because Respondent does not raise the issue it does not 
appear necessary to address the General Counsel's de minimis argument. However, 
assuming arguendo that it were necessary, if called upon to decide the issue, I 
would find the impact or foreseeable impact to be more than de minimis. Applying 
the above factors to the instant case, and noting that Respondent made no real 
argument that the impact or foreseeable impact was no more than de minimis, but, 
argues only that the recovery of costs of certain meals is far from de minimis, 
it is found that there was an obligation on Respondent's part to bargain with 
the Union herein. 
Footnote 14 Respondent cited several appropriation 
acts in its brief. However, none of these acts are, at this time, evidence in 
the instant case. 

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