[ v37 p919 ]
37:0919(76)CA
The decision of the Authority follows:
37 FLRA No. 76
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
U.S. DEPARTMENT OF THE ARMY
FORT BUCHANAN
SAN JUAN, PUERTO RICO
(Respondent)
and
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
LOCAL 2614
(Charging Party)
42-CA-40232
(24 FLRA 971)
(35 FLRA 1105)
DECISION AND ORDER
October 9, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This unfair labor practice 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 decision in 24 FLRA 971 (1986). In that decision, the Authority had dismissed a complaint that alleged a unilateral withdrawal of employee post exchange shopping privileges based on a finding that the exchange privileges did not concern conditions of employment and, therefore, there was no duty to bargain over the matter. The court found that, under the circumstances, the post exchange privileges are a condition of employment. The court remanded the matter for further action that may be required consistent with its opinion.
On remand, we adopt the court's finding that the exchange privileges were a condition of employment. As the Respondents have withdrawn their remaining defense to the unfair labor practice complaint, we find that the refusal to bargain over the change in a condition of employment violated the Statute, and we shall order an appropriate remedy.
II. Procedural History
It is undisputed that Respondent Fort Buchanan unilaterally terminated the post exchange shopping privileges of its civilian employees. The complaint alleged that by such acts, the Respondents violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute). However, the Respondents asserted that Respondent Fort Buchanan was prevented from bargaining over the cancellation of the exchange privileges by an agency regulation for which there was a compelling need. In light of the Authority's conclusion that post exchange privileges are not a condition of employment and, therefore, that they are outside the duty to bargain, the Authority did not address the question of whether there is a compelling need for the regulation. 24 FLRA at 976.
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 Statute. The court granted the Authority's request for clarification and remanded the case for further action that might be required consistent with the court's opinion. 866 F.2d at 1449.
On May 15, 1990, we issued an order giving the Union the opportunity to file a negotiability appeal raising the compelling need question. 35 FLRA 1105. We stated that we would hold in abeyance the unfair labor practice case pending the outcome of such a negotiability appeal, if filed. We would then decide the unfair labor practice case in accordance with both the decision of the court that the post exchange privileges are a condition of employment, and the determination as to whether the change in those privileges was negotiable or whether the Union's proposal conflicts with an Agency regulation for which there is a compelling need.
Subsequently, the Respondents withdrew the allegation that there was a compelling need for the regulation upon which they based the refusal to bargain. American Federation of Government Employees and U.S. Department of the Army, Fort Buchanan, San Juan, Puerto Rico, 37 FLRA No. 75 (1990).
III. The Respondents Have Withdrawn the Compelling Need Allegation
In response to the Union's filing of a negotiability appeal, the Respondents argued that the appeal was improperly filed. The Respondents further stated that if it were determined that the matter was properly before the Authority, they were withdrawing the compelling need allegation.
On October 9, 1990, the Authority issued its decision on the negotiability appeal, finding that the Union's appeal was properly filed. As the Respondents had withdrawn the allegation of nonnegotiability, the Union's petition for review was dismissed. American Federation of Government Employees and U.S. Department of the Army, Fort Buchanan, San Juan, Puerto Rico, 37 FLRA No. 75 (1990).
IV. The Change Violated the Statute
The court concluded that post exchange privileges for Respondent Fort Buchanan's civilian employees are a condition of employment. It is undisputed that the privileges were unilaterally terminated at the direction of the Department of Defense. The Respondents have withdrawn the allegation that there is a compelling need for the regulation upon which Respondent Fort Buchanan based its unilateral change in a condition of employment. Accordingly, as no defense to the change in a condition of employment remains, the change violated the Statute.
No exceptions were filed to the Judge's finding that Respondent Fort Buchanan refused to negotiate upon the orders of higher authority, or to his dismissal of the complaint against Respondent Fort Buchanan for that reason. 24 FLRA at 988. There also was no exception to the Judge's dismissal of the complaint against Respondent Department of the Army on the same basis. 24 FLRA at 995. Therefore, the only issue is the liability of Respondent Department of Defense. As the unlawful change in a condition of employment was made at the direction of Respondent Department of Defense, we find, in accordance with the Judge's recommendation, that Respondent Department of Defense violated section 7116(a)(1) of the Statute, and we shall order an appropriate remedy.(*)
V. Order
Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Statute, the Department of Defense shall:
1. Cease and desist from:
(a) Unilaterally withdrawing authority to grant unlimited exchange privileges to civilian employees in Puerto Rico.
(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Statute.
2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:
(a) Withdraw that portion of the May 12, 1982, DOD Directive 1330.9, Section 2-101 p. which added the words "and Puerto Rico" and reinstate the provisions of DOD Directive 1330.9, Section 2-101 p. as issued on July 8, 1980.
(b) Notify American Federation of Government Employees, Local 2614, the exclusive representative of a unit of its employees, of any intention to change established past practices concerning exchange privileges for employees in the bargaining unit and, upon request, negotiate with such representative, to the extent consistent with law and regulation, on any decision to change established past practices.
(c) Post at its facilities at Fort Buchanan, San Juan, Puerto Rico, 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 Secretary of Defense, and shall be posted and maintained for 60 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 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.
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 withdraw authority to grant unlimited exchange privileges to civilian employees in Puerto Rico.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.
WE WILL withdraw that portion of the May 12, 1982, DOD Directive 1330.9, Section 2-101 p. relating to exchange privileges which added the words "and Puerto Rico" and reinstate the provisions of DOD Directive 1330.9, Section 2-101 p. as issued July 8, 1980.
WE WILL notify American Federation of Government Employees, Local 2614, the exclusive representative of a unit of our employees, of any intention to change established past practices concerning exchange privileges for employees in the bargaining unit and, upon request, negotiate with such representative, to the extent consistent with law and regulation, on any decision to change established past practices.
______________________________
(Agency)
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 II, Federal Labor Relations Authority, whose address is: 26 Federal Plaza, Room 3700, New York, New York 10278, whose telephone number is: (212) 264-4934.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
*/ Although the complaint alleged that the Respondents violated section 7116(a)(1) and (5) of the Statute, the Judge found a violation only of section 7116(a)(1). There was no exception to the Judge's failure to address the section 7116(a)(5) allegation or to his recommended remedy.