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35:1105(121)CA - - DOD, Army, Fort Buchanan, San Juan, PR and AFGE Local 2614 - - 1990 FLRAdec CA - - v35 p1105

[ v35 p1105 ]
The decision of the Authority follows:

35 FLRA No. 121









LOCAL 2614

(Charging Party)


(24 FLRA 971)


May 15, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Procedural History

This case is before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit. American Federation of Government Employees, Local 2761, AFL-CIO v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989). The court reversed the Authority's determination that in the circumstances of this case, post exchange privileges of civilian employees were outside the duty to bargain. Subsequently, pursuant to the Authority's motion for clarification, the court remanded the case for further action that may be required consistent with the court's opinion.

The court determined, contrary to the Authority, that post exchange privileges for Respondent Fort Buchanan's civilian employees are a condition of employment within the meaning of section 7103(a)(14) of the Federal Service Labor-Management Relations Statute (the Statute). It is undisputed that Respondent Fort Buchanan unilaterally terminated the privileges, and the complaint alleged that by such acts, the Respondents violated section 7116(a)(1) and (5) of the Statute. However, Respondent Fort Buchanan asserted that it was prevented from bargaining over the cancellation of the exchange privileges by an agency regulation for which there is a compelling need. In light of its conclusion that the matter was outside the duty to bargain, the Authority did not address the question of whether there is a compelling need for the regulation. Therefore, we still must consider the effect of this aspect of the Respondents' defense.

II. Extraordinary Circumstances of this Case

Subsequent to the Authority's decision in this case, the U.S. Supreme Court issued its decision in FLRA v. Aberdeen Proving Ground, 108 S. Ct. 1261 (1988). The Court held that questions of whether a compelling need exists for an agency regulation are to be resolved exclusively through a negotiability appeal under section 7117(b) of the Statute. Compelling need determinations cannot be made in unfair labor practice proceedings.

At the time the instant case was argued and decided, the Authority's position was that compelling need questions could be decided in unfair labor practice proceedings. Until the Supreme Court's decision in Aberdeen Proving Ground, parties were not compelled to file a negotiability appeal under section 7117(b) of the Statute in order to question a compelling need defense. Consistent with the Court's decision, however, we cannot decide the compelling need question in the unfair labor practice proceeding now before us on remand from the U.S. Court of Appeals.(1) See Federal Emergency Management Agency, 32 FLRA 502 (1988), where the Authority dismissed an unfair labor practice complaint finding, consistent with Aberdeen Proving Ground, that all elements of a compelling need determination must be resolved in a negotiability proceeding under section 7117(b) of the Statute. Due to the passage of time, if we dismiss the complaint in this case because a compelling need defense has been raised, the Union would be precluded by section 7118(a)(4)(A) of the Statute from refiling the complaint even if a negotiability proceeding under section 7117(b) should determine that there is no compelling need for the regulation at issue.(2) Therefore, in the circumstances of this case, we are faced with the need to determine the compelling need issue in the proper forum while dealing fairly with the Union, which filed the charge in this case at a time when the previous view of the law controlled.

III. Order

To accommodate the extraordinary circumstances described above, we will hold in abeyance further processing of this matter for 30 days from the date of this order. During that period, the Union may, if it wishes, file a negotiability appeal under section 7117(b) to determine whether a compelling need exists for the regulation at issue. The Union should note in its appeal that it is being filed in accordance with this order. If such an appeal is filed, we will await the outcome of that determination to act on the remand of the court. We will then decide this case in accordance with both the decision of the court that post exchange privileges are a condition of employment, and the Authority's compelling need determination as to whether the change in the privileges was negotiable. If no negotiability appeal is filed within that time, we will dismiss the complaint.

(If blank, the decision does not have footnotes.)

1. In its original decision, the Authority suggested that the compelling need issue in this case would be treated in the same manner as the similar issues in Department of the Air Force, Eielson Air Force Base, Alaska, 23 FLRA 605 (1986) and Department of the Army, Fort Greely, Alaska, 23 FLRA 858 (1986). 24 FLRA at 976. We note that as both of those were unfair labor practice decisions, the compelling need findings therein cannot be dispositive of the issue in cases decided after Aberdeen.

2. Section 7118(a)(4)(A) provides, in pertinent part:

[N]o complaint shall be issued based on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority.