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46:0520(48)NG - - NAGE Local R1-100 and Navy Branch Exchange Store, Naval Submarine Base, New London, Groton, CT - - 1992 FLRAdec NG - - v46 p520

[ v46 p520 ]
The decision of the Authority follows:

46 FLRA No. 48





LOCAL R1-100











November 12, 1992


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one proposal.

For the following reasons, we conclude that the proposal, which addresses shopping privileges for civilian employees at the Agency's exchange, is nonnegotiable.

II. Proposal

That all civilian employees, of the Subase be allowed to shop at all exchange outlets not the commissary and that the employees will be allowed to do so during prescribed hours set by the exchange [Officer in Charge] of the exchange. More hours will be allowed if the demand for profit is more e.g. if the exchange is in the red considerbly [sic], hours for civilians will be expanded to bring the exchange out of the red and to maintain a (40 hr.) work week.

III. Positions of the Parties

A. Union

The Union did not file a reply brief in this case. Following is the entire relevant portion of the Union's petition for review:

[The proposal] seeks nothing more than help [sic] both the employer and the employee. The employer benifits [sic] by selling more of his products thus producing a greater profit margin for the local Exchange. The employee's [sic] of Subase would be able to shop at the exchange at designated days and [sic] set forth by the exchange officer at times that are both convient [sic] and non-interfering with the primary customers; the privilege would also provide a convience [sic] to D.O.D. employees in that shoping [sic] could be done at the same facility they make their living.

Petition for Review at 1.

B. Agency

The Agency notes that the disputed proposal encompasses all civilian employees of the Naval Submarine Base. The Agency states, in this regard:

[T]he employees of the bargaining unit are already permitted to shop at the Exchange by virtue of their status as Exchange employees. Thus, the focus of the proposal is on the appropriated fund employees of the Submarine Base, who are not employees of the Exchange and are not authorized to shop there . . . . These appropriated fund employees . . . are not members of the bargaining unit involved in this case.

Statement of Position at 5.

According to the Agency, as the principal focus of the proposal is on supervisors and employees in other bargaining units, the proposal does not concern conditions of employment of unit employees. The Agency relies, in this regard, on United States Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point). In addition, citing Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235 (1986) (Antilles), the Agency argues that the Union has failed to allege or demonstrate that the proposal affects unit employees' working conditions.

The Agency also asserts that the proposal directly and excessively interferes with its right to determine its mission under section 7106(a)(1) of the Statute. In this regard, the Agency claims that "the determination of the customer base which a 'business' is created to serve is integrally related to its mission." Statement of Position at 15.

Finally, the Agency argues that the proposal conflicts with an Agency regulation for which a compelling need exists. The Agency relies on Department of Defense Directive 1330.9, which sets forth the individuals who are authorized to shop at exchanges and which does not include the civilian employees of the Submarine Based encompassed by the proposal. According to the Agency, the regulation satisfies the criteria for compelling need set forth in section 2424.11(a) and (c) of the Authority's Regulations, which provide, in relevant part:

A compelling need exists for an agency rule . . . when the agency demonstrates that the rule . . . meets one or more of the following illustrative criteria:

(a) The rule . . . is essential, as distinguished from helpful or desirable, to the accomplishment of the mission or the execution of functions of the agency . . . in a manner which is consistent with the requirements of an effective and efficient government.

. . . .

(c) The rule . . . implements a mandate to the agency . . . under law or other outside authority, which implementation is essentially nondiscretionary in nature.

With respect to criterion (a), the Agency argues that the proposal "would create unfair competition with the private sector, jeopardize congressional support and therefore, the viability of the" military morale, welfare, and recreation program. Statement of Position at 24. With respect to criterion (c), the Agency asserts that the DoD directive "implements Congressional mandates . . . concerning the operation of military exchanges, including determinations as to patron eligibility." Id.

IV. Analysis and Conclusions

Under Antilles, the Authority determines whether a proposal concerns a condition of employment of unit employees by determining whether the proposal pertains to unit employees and, if it does, by examining the nature and extent of the effect of the matter proposed to be bargained on unit employees' working conditions. Consistent with Antilles, proposals granting exchange privileges to unit employees have been found to concern conditions of employment. See generally, AFGE, Local 2671 v. FLRA, 866 F.2d 1443 (D.C. Cir. 1989).

In this case, however, the Union does not propose to extend exchange privileges to unit employees. In this regard, it is undisputed that employees in the unit for which the proposal is offered already are granted shopping privileges at the exchange. Instead, the proposal would extend exchange privileges to other personnel.

In Cherry Point, the court held, as relevant here, that the "vitally affects" test is appropriately used "to define the limited circumstances in which subjects not normally seen to be within the compass of mandatory bargaining--e.g., the terms of a relationship between the employer and a third party--may become mandatory subjects due to their effect on bargaining unit employees." 952 F.2d at 1440. The court added that the test "is not implicated . . . merely because a union proposal . . . would . . . have some impact on persons outside the bargaining unit." Id. (emphasis in original). According to the court, the vitally affects test applies only when the interests of nonunit personnel are "directly implicated" by a proposal--when a proposal "purports to regulate the terms and conditions of employment of non[]unit employees." Id. at 1441.

In addressing the applicability of the test, the court differentiated among four groups of personnel: (1) employees not in any bargaining unit; (2) nonemployees; (3) management and supervisory personnel; and (4) employees in other bargaining units. The court held that the test does not apply when a union seeks to regulate the conditions of employment of employees in other bargaining units and/or management and supervisory personnel.

The proposal now before us, by its terms, extends specific shopping privileges at the Agency's exchange to "all civilian employees" of the Naval Submarine Base. As it is undisputed that employees in the unit for which the proposal is offered already are granted shopping privileges at the exchange, and as exchange privileges have been held to constitute terms and conditions of employment, we conclude that the proposal attempts to regulate, and directly implicates, conditions of employment of nonunit employees.

It also is undisputed that among the civilian employees encompassed by the proposal are supervisors, unrepresented employees, and employees in another bargaining unit. See Statement of Position at 10. Insofar as the proposal encompasses supervisors and other individuals, such as employees who engage in personnel work in other than a purely clerical capacity, who, under the Statute, may not be represented by the Union, it is nonnegotiable. See National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Louisville, Kentucky, 45 FLRA 640, 643-45 (1992) (a proposal that required the agency to provide training for supervisors who reviewed unit employees' security questionnaires held nonnegotiable because it sought to regulate the conditions of employment of supervisors). See also American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1422-24 (1992) (proposal requiring agency to hold supervisors and managers, among others, accountable for implementation of an affirmative employment program held nonnegotiable as an attempt to regulate conditions of employment of supervisory and managerial personnel).

Moreover, although the vitally affects test would appear to apply to a proposal extending shopping privileges to unrepresented, nonsupervisory employees, the proposal now before us, as written and explained by the Union, is not consistent with a construction that limits its terms to such employees. Providing for such a limitation would require substantive revision of the proposal, which is not the Authority's role. See International Association of Machinists and Aerospace Workers, Local Lodge 2297 and U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina, 45 FLRA 1154, 1162 (1992). Accordingly, we do not address the negotiability of a proposal that may be presented in the future that is limited to unrepresented, nonsupervisory employees. See id.

Finally, the Agency states that "[w]hile some Submarine Base employees are represented by the same union involved in this case, they are in a different bargaining unit and come under the jurisdiction of the Submarine Base, not the Exchange." Statement of Position at 10. As it is undisputed that the Union here is not bargaining as the exclusive representative of the employees in that different unit, we do not address whether the proposal would be negotiable if the Union were bargaining in that capacity. In addition, as stated previously, the proposal applies, by its terms, to all civilian employees and is not consistent with a construction that limits its terms and effects to fewer than all employees.

V. Order

The petition for review is dismissed.(1)

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

1. In view of our decision, we do not address the Agency's other arguments regarding the negotiability of the proposal.