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The decision of the Authority follows:
38 FLRA No. 121
FEDERAL LABOR RELATIONS AUTHORITY
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES
U.S. DEPARTMENT OF THE AIR FORCE
AIRLIFT MILITARY COMMAND
McCHORD AIR FORCE BASE, WASHINGTON
DECISION AND ORDER ON NEGOTIABILITY ISSUES
January 16, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of three provisions that were agreed upon by the parties at the local level, but were disapproved by Headquarters, Military Airlift Command under section 7114(c) of the Statute.
Provision 1 provides that civilian employees will be permitted to enroll dependents in the child development center (the center) up to 10 percent of the total enrollment. Provision 2 provides that civilian employees will be placed on waiting lists at the center on an alternating basis with military personnel. Provision 3 provides that the specified waiting lists will be established for each age group at the center.
For the following reasons, we find that the three disputed provisions are negotiable.
The Agency's primary mission is to provide air transportation of troops and war material to areas of combat. The Agency employs approximately 5,300 military members and 1,400 civilian employees.
The Agency operates a child development center, which provides day care for the children of military members and civilian employees. The center has a maximum capacity of 210 children. At the present time, 200 children of military members and 10 children of civilian employees are enrolled in the center.
As the need for day care exceeds the maximum capacity, there is a waiting list for vacancies at the center. Currently, there are 375 children of military members and 8 children of civilian employees on the waiting list.
III. The Provisions
Management will allow civilian employees to enroll dependents in the child development Center not to exceed 10% of the total enrollment.
Civilian employees will be placed on waiting lists on an alternating basis with military personnel.
Alternating waiting lists will be established for each age group.
IV. Positions of the Parties
The Agency contends that Air Force Regulation (AFR) 215-1 and Department of Defense Instruction 1015.2 (the DoD regulation) "specify that children of military members will have priority" for vacancies at Air Force child-development centers." Statement of Position at 7. The Agency asserts that the three disputed provisions conflict with AFR 215-1 and the DoD regulation because, when applied together, the provisions would grant unit employees priority for vacancies at the center until 10 percent of the total positions at the center were occupied by children of unit employees. (1)
The Agency argues that a compelling need exists for the regulations under the criteria in section 2424.11(a) and (c) of the Authority's Rules and Regulations. To support its argument regarding criterion (a), the Agency notes that, by law, the Secretary of the Air Force is responsible for the welfare of Air Force personnel and, to fulfill that responsibility, the Air Force provides morale, welfare and recreational (MWR) facilities and activities to "stimulate, develop, and maintain military members' mental, physical and social well-being." Id. at 9. The Agency asserts that the center constitutes an MWR activity and that the "very nature of the MWR system" mandates a conclusion that the regulations are "absolutely essential to effectuating the goals of the Agency." Id. at 10.
The Agency claims that the MWR system was established, in part, to enhance the military readiness of Air Force personnel. The Agency asserts that because the center cannot accommodate all of the children that require its services, there is a compelling reason to adopt the system of priorities established in AFR 215-1 and the DoD regulation. The Agency asserts also that providing day care for the dependents of military personnel is essential to fulfilling its mission because those personnel are subject to deployment, shifts in work schedules, and extended hours.
To support its claim that AFR 215-1 and the DoD regulation implement a nondiscretionary mandate, within the meaning of criterion (c), the Agency notes that Congress addressed child care for military families by including Section 1502(a)(3)(B) of the National Defense Authorization Act for Fiscal Years 1990, 1991, Pub. L. No. 101-189, Div. A, Title XV - Military Child Care Act, 103 Stat. 1589-1594 (1989) (the Child Care Act), which provides, in pertinent part, that:
(a) Fiscal Year 1990 Funding. - (1) It is the policy of Congress that the amount of appropriated funds available during fiscal year 1990 for operating expenses for military child development centers shall not be less than the amount of child care fee receipts that are estimated to be received by the Department of Defense during the fiscal year. . . .
. . . .
(3) In using the funds referred to in paragraph (1), the Secretary shall give priority to--
. . . .
(B) expanding the availability of child care for members of the Armed Forces.
The Agency claims that this Congressional statement constitutes a mandate supporting a compelling need for the regulations.
The Union states that Provisions 1, 2, and 3 are to be read together and that, as such, Provisions 2 and 3, which address waiting lists for vacancies at the center, would operate only until dependents of unit employees constituted 10 percent of the total enrollment of the center. In addition, the Union rejects the Agency's claim that the disputed provisions would ensure that all unit employees would gain access to the center. The Union notes, however, that "[u]sing . . . current waiting lists for civilian dependents, if implemented today the Provisions would provide access to all civilian dependents who now happen to be on the waiting list." Reply Brief at 4 (emphasis in original) (footnote omitted).
The Union claims that the Agency has not demonstrated that the provisions conflict with AFR 215-1 and the DoD regulation. First, the Union asserts that the base commander has greater discretion under the DoD regulation than under AFR 215-1. Next, the Union asserts that AFR 215-1 "expressly reserves the discretion to the base commander to determine which individuals within approved 'priority' groups are eligible for MWR programs such as the Center." Id. at 7 (emphasis omitted). The Union also notes that the regulation provides that "[t]he commander decides the groups and persons within the groups that may be extended use privileges in the priority order indicated below." Id. at 8 (emphasis supplied by Union). Further, the Union asserts that AFR 215-1 allows "the base commander even greater latitude, that of adding additional persons not expressly listed in the AFR." Id. (emphasis supplied by the Union). The Union claims that the base commander has "discretion to extend use privileges to as many 'persons' within an approved priority group as would comprise 10% of the total use of the Center." Id. at 8.
The Union argues also that the regulations do not state how vacancies are to be allocated among the groups that have access to the center. Therefore, the Union asserts that neither regulation "prohibits exercise of the base commander's discretion by setting aside a given number or percentage of Center spaces for members of the [Union's] bargaining unit." Id. at 12-13. Consequently, the Union concludes that there is no conflict between the regulations and its provisions.
Finally, the Union claims that, even if the provisions conflict with the regulations, the Agency has not demonstrated that a compelling need exists for AFR 215-1 or the DoD regulation. The Union argues that the Agency "has not demonstrated that any of the 375 members at [the Agency] or in the Air Force generally has been hampered in performing her or his duties as the result of not having children in the Center." Id. at 21. Further, the Union claims that the Agency "has not demonstrated that any such military member has opted to leave the Air Force because (s)he could not gain admittance of a dependent to the center." Id. The Union also rejects the Agency's argument that the erratic hours of military members make it difficult for them to use civilian day care centers. The Union claims, in this regard, that the center's hours are similar to those of civilian day care facilities, and that the center does not operate on a 24-hour, 7 day-per-week schedule.
V. Analysis and Conclusions
Although not disputed here, we note that proposals addressing day care facilities concern conditions of employment. The availability of day care directly affects the working conditions of employees because it is directly related to the personnel policies, practices and matters affecting working conditions of unit employees. See American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base Ohio, 2 FLRA 604, 606 (1980), aff'd as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied, 455 U.S. 945 (1982).
The Agency's sole claim in this case is that the provisions are inconsistent with Agency regulations for which there is a compelling need. In order to show that a provision is nonnegotiable because it conflicts with an agency regulation for which there is a compelling need, an agency must: (1) identify a specific agency-wide or primary national subdivision-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need with reference to the Authority's standards set forth in section 2424.11 of its Regulations. See Service Employees International Union, Local 556 and U.S. Department of the Navy, Navy Exchange, Pearl Harbor, Hawaii, 37 FLRA 320, 333 (1990) (Navy Exchange).
A. The Disputed Provisions Are Not Inconsistent With DoD Instruction 1015.2
We reject the Agency's assertion that the disputed provisions conflict with the DoD regulation.
The DoD regulation, which is entitled "Authorized Patronage of MWR Activities[,]" provides, in pertinent part, that the "patronage authorizations" contained in the regulation "shall be followed, except when in conflict with other DoD issuances and international agreements." The regulation provides further that "DoD Components shall issue amplifying guidance for determining priority order . . . ." The patronage authorizations for "Military General Welfare and Recreation" activities include, as relevant here, active duty personnel and their dependents in category a, and DoD civilian employees and their dependents who reside on an installation in category k. Although the regulation does not specifically reference unit employees who do not reside on a military installation, category o references "[o]thers as authorized by DoD Components[.]" Finally, the regulation states that:
In no instance shall participation be authorized for individuals in a priority group without members in all higher priority groups having first been authorized.
It is clear that, as plainly worded, the DoD regulation addresses authorizations to participate in MWR programs. That civilian employees have been authorized to participate in the center is not in dispute. Further, it is reasonable to assume that some of the unit employees who currently have been authorized to use the center do not reside on the Agency's premises. It is not, therefore, clear that the DoD regulation applies in this case. Even assuming that it does, however, it is clear also that the DoD regulation enables DoD components, including the Agency, to determine, at least in part, the priority order for patronage authorizations. In fact, category o of the DoD regulation specifically references "others . . . authorized by DoD Components."
It is apparent that the Agency has discretion to determine authorized patronage categories under the DoD regulation. It is well-established that to the extent that a regulation gives an agency "discretion . . . [the agency] is obligated by the [Statute] 'to exercise that discretion through negotiation." Department of Health and Human Services, Family Support Services v. FLRA, No. 88-1867 (D.C. Cir. Nov. 30, 1990), slip op. at 9 (HHS v. FLRA) (quoting Department of the Treasury v. FLRA, 836 F.2d 1381, 1384 (D.C. Cir. 1988)).
In this case, the Agency already has exercised its discretion to authorize patronage of the center by unit employees. Consequently, we conclude that the disputed provisions, which limit unit employees' use of the center to 10 percent of the center's slots, do not conflict with the DoD regulation.
B. The Disputed Provisions Are Inconsistent With AFR 215-1
The relevant portion of AFR 215-1, entitled "Program Eligibility and Use Priority[,]" sets forth categories of persons who are authorized to use MWR activities. The regulation provides that the "eligibility criteria and use priorities" set forth therein "must be used . . . ." The regulation provides further that the "commander decides the groups and persons within the groups that may be extended use privileges in the priority order indicated [in the regulation]." Like the DoD regulation, AFR 215-1 identifies active duty military personnel and their family members in category 1. Certain DoD civilian employees and their family members who "reside on the base" are in category 10. DoD civilian employees and their family members who merely are "assigned to the Air Force base" are in category 14.
As noted previously, AFR 215-1, unlike the DoD regulation, which does not specifically reference civilian employees who do not reside on a military installation, expressly authorizes the use of MWR activities by "[o]ther DoD civilians . . . employees assigned to the . . . base and their family members." It appears also that, unlike the DoD regulation, AFR 215-1 applies not only to overall authorizations to use MWR facilities but also to the use of those facilities by persons who have been granted authorization. The regulation refers, in this regard, to both "eligibility criteria and use privileges . . . ." Moreover, contrary to the Union's assertion, the regulation plainly states that the base commander's decisions regarding use privileges must be "in the priority order" listed in the regulation.
Read as a whole, we find reasonable the Agency's interpretation of AFR 215-1 as requiring it to provide children of military members on a waiting list for child day care at the Agency's center with priority over children of unit employees for vacancies at the center. Accordingly, we will adopt that interpretation for the purposes of this decision.
As so interpreted, the disputed provisions are inconsistent with AFR 215-1. The disputed provisions would, among other things, set aside up to 10 percent of the center's slots for unit employees' children and would establish waiting lists on which children of unit employees would be alternated with children of military personnel. We conclude, therefore, that the disputed provisions are inconsistent with the AFR 215-1.
C. A Compelling Need Has Not Been Established Under Section 2424.11(a) For AFR 215-1
Under section 2424.11(a) of the Authority's Rules and Regulations, a compelling need exists for an agency rule or regulation if "[t]he 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."
We recognize, at the outset, the importance of MWR activities to military personnel and the desirability of on-base day care for all personnel, military and civilian. Compelling need is not established based on the desirability of a regulation, however. Section 2424.11(a) specifically provides that, to support a finding of compelling need, the regulation must be "essential, as distinguished from helpful or desirable, to the accomplishment of the mission" of the Agency. See HHS v. FLRA, slip op. at 6 (emphasis added) (court stated that it did "not take seriously the notion that the FLRA's distinction between helpful or desirable and compelling can be thought to be an unreasonable interpretation of the [S]tatute."). We emphasize, in this regard, that the Agency already has authorized civilian employees to use the center. It is, therefore, clear that providing military personnel with absolute priority for slots at the center is not essential to the fulfillment of the Agency's mission.
Moreover, we find speculative the Agency's arguments that failure to provide priority to military personnel for vacancies at the center would affect "[s]pouse perception of military life style" and would, in turn, correlate "with retention decisions." Id. at 11. The Agency offers no evidence, empirical or otherwise, to support its assertions. See HHS v. FLRA, slip op. at 7 (court sustained Authority's finding that arguments advanced in support of compelling need assertion were speculative and noted that the "testimony in question . . . is not a factual assertion; it is an opinion which the FLRA was not obliged to [accept]."). More importantly, as noted above, the fact that the regulation would be helpful to the Agency's efforts to retain military personnel does not establish compelling need. See id., slip op. at 6.
The Agency has failed to demonstrate how the regulation is essential to the fulfillment of the Agency's mission. Therefore, we conclude that there is no compelling need for AFR 215-1 under section 2424.11(a) of the Authority's Rules and Regulations.
D. A Compelling Need Has Not Been Established Under Section 2424.11(c) for AFR 215-1
Under section 2424.11(c) of the Authority's Rules and Regulations, a compelling need exists for an agency rule or regulation if "[t]he 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." See generally, Navy Exchange, 37 FLRA at 341-42. In support of its claim that its regulation meets the requirements for compelling need set forth in section 2424.11(c), the Agency notes that, in the Child Care Act, Congress mandated priority for military members for vacancies at on-base day care facilities.
We find no such mandate in the Child Care Act. It is clear, in this regard, that, as asserted by the Agency, the use of MWR facilities is "monitored" by congressional committees. Statement of Position at 12. It is clear also that in the Child Care Act, Congress directed the Secretary of Defense to use available monies in a manner which gives priority to "expanding the availability of child care for members of the Armed Forces." The record does not support a conclusion that Congress has directed the Agency to do so in any particular manner, however. See Navy Exchange, 37 FLRA at 341 (Authority found that the agency made "no showing that Congress directed the military services to create any particular personnel system" so as to demonstrate compelling need for the regulatory system it adopted). In fact, the Agency acknowledges that it has discretion to determine how to fulfill its responsibility under the Child Care Act:
One way of expanding the availability of child care for military members is to build new, or expand existing facilities; however, another way of expanding availability is to give priority for the limited spaces presently available.
Statement of Position at 12.
We agree with the Agency that it has discretion under the Child Care Act to determine how to expand the availability of child care for military personnel. As such, we conclude that AFR 215-1 does not implement a nondiscretionary mandate to the Agency under law or other outside authority. Accordingly, we conclude that there is no compelling need under section 2424.11(c) of the Authority's Rules and Regulations for AFR 215-1.
The Agency has not established that there is a compelling need for AFR 215-1 under the criteria set forth in section 2424.11(a) or (c) of the Authority's Rules and Regulations. Therefore, we will order the Agency to rescind its disapproval of, and give effect to the provisions.
The Agency shall rescind its disapproval of, and give effect to, Provisions 1, 2, and 3.(2)
Air Force Regulation 215-1
6. Program Eligibility and Use Priority. Except when in conflict with cooperative (AFR 126-1) and country-to-country agreements, the following eligibility criteria and use priorities must be used for MWR programs. The commander decides the groups and persons within the groups that may be extended use privileges in the priority order indicated below. The commander may suspend or terminate use privileges of individuals who abuse such privileges or for other good cause.
a. In MWR programs that receive welfare fund support and for audio and photo clubs:
(1) Active duty military personnel (and their family members) assigned to the base or directly supported by it through intraservice or interservice support agreements . . . .
. . . .
(10) DOD civilian employees (including NAF) and their family members who reside on the base and are authorized exchange privileges.
. . . .
(14) Other DOD civilian (including NAF) employees assigned to the Air Force base and their family members.
Department of Defense Instruction 1015.2
AUTHORIZED PATRONAGE OF MWR ACTIVITIES
The following patronage authorization for participation in MWR programs and activities shall be followed, except when in conflict with other DoD issuances and international agreements. DoD Components shall issue amplifying guidance for determining priority order and parameters for suspending, terminating, or denying eligible participants the use of facilities, when such action is determined to be in the best interest of the MWR program. In no instance shall participation be authorized for individuals in a priority group without members in all higher priority groups having first been authorized
. . . .
. . . .
CATEGORY III - MILITARY GENERAL WELFARE AND RECREATION
a. Active duty personnel and their dependents assigned to the installation or supported directly by it through intraservice or interservice support agreements . . . .
. . . .
k. DoD civilian employees and their dependents, who reside on the installation and are authorized exchange privileges.
. . . .
o. Others as authorized by DoD Components, except that these patrons are not authorized patrons of MWR resale activities.
(If blank, the decision does not have footnotes.)
1. Pertinent sections of AFR 215-1 and DoD Instruction 1015.2 are set forth in the Appendix to this decision.
2. In finding Provisions 1, 2, and 3 to be within the duty to bargain, we make no judgment as to their merits.