47:0454(37)CA - - Marine Corps Logistics Base, Barstow, CA and AFGE, Local 1482 - - 1993 FLRAdec CA - - v47 p454

[ v47 p454 ]
The decision of the Authority follows:

47 FLRA No. 37










(Charging Party)



(46 FLRA 782 (1992))



April 20, 1993


Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on the Respondent's request for reconsideration of our decision in 46 FLRA 782 (1992). The General Counsel filed an opposition to the request.

For the following reasons, we conclude that the Respondent has failed to establish that extraordinary circumstances exist warranting reconsideration of our decision. Accordingly, we will deny the Respondent's request for reconsideration.

II. The Decision in 46 FLRA 782

In 46 FLRA 782, the consolidated complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally changing the conditions of employment of unit employees. We found that the Respondent violated the Statute by increasing the price of soft drinks in Base vending machines from 50 cents to 55 cents per can without first notifying the Union and providing it with an opportunity to negotiate over the substance and the impact and implementation of the change and by refusing to bargain with the Union over a proposal concerning catering truck and vending machine prices. The Respondent argued that negotiations over catering truck and vending machine beverage item prices were barred by 5 U.S.C. § 5536 and Comptroller General decisions interpreting that provision. We disagreed and noted that matters pertaining to food services and related prices for bargaining unit employees are within the mandatory scope of bargaining. We also noted that, in considering other proposals regarding food service for employees, the Comptroller General has not interpreted 5 U.S.C. § 5536 as an absolute prohibition on agency subsidization of food for employees.

As a remedy, we ordered the Respondent, among other things, to cease implementing unilateral changes in the employees' working conditions without affording the Union the opportunity to negotiate. We also ordered the Respondent to rescind the price increase for canned beverages in Base vending machines and to decrease the price of canned beverages to 45 cents per can for the same number of days that the unilateral increase in price was in effect.

III. The Respondent's Request for Reconsideration

In support of its request for reconsideration, the Respondent asserts that: (1) the Authority's remedial order is improper and overly broad; and (2) the Authority's decision is inconsistent with 5 U.S.C. § 5536 and decisions of the Comptroller General dealing with that provision.

With respect to its first argument, the Respondent contends that the Authority's decision failed to address certain issues raised by the Respondent. In particular, the Respondent asserts that the Authority's order: (1) applies to all vending machines at the Marine Corps Logistics Base, Barstow, California, including machines that are used exclusively by nonunit employees; and (2) has the effect of requiring the Respondent's Morale, Welfare, and Recreation Activity (MWR), a nonappropriated fund activity which has no bargaining relationship with the Union, "to subsidize the wages of an appropriated fund entity, the Marine Base, a separate employer which employs the [Union's] unit employees." Request for Reconsideration at 5.

In support of its second argument, the Respondent argues that the Authority's decision improperly fails to consider the Respondent's contention that 5 U.S.C. § 5536 prohibits an agency from subsidizing food and beverages for employees and erroneously requires bargaining on a matter excluded from the definition of conditions of employment under section 7103(a)(14)(C) of the Statute. Specifically, the Respondent claims that the decisions of the Comptroller General relied on in the cases cited by the Authority are inapposite because those decisions pertain to an agency subsidizing a food vendor, not to an agency subsidizing bargaining unit employees. The Respondent argues that the MWR, a non-appropriated fund entity, cannot subsidize bargaining unit employees who are paid from appropriated funds.

IV. Position of the General Counsel

The General Counsel contends that no extraordinary circumstances exist requiring the Authority to reconsider its decision in 46 FLRA 782. According to the General Counsel, the Respondent's request is based on mere disagreement with the Authority's decision and is not a sufficient basis on which to grant the request for reconsideration.

Specifically, the General Counsel claims that the "Respondent had ample opportunity at trial as well as in its subsequently filed briefs to assert and establish whether there are food services which are at issue in this case which are not utilized by bargaining unit employees and are therefore not appropriately addressed in this forum." Opposition at 3. The General Counsel asserts that the "Respondent has provided no evidence whatsoever to establish that its own failure to assert this defense in a timely manner is somehow an extraordinary circumstance." Id. at 3-4. Further, with respect to the Respondent's argument that requiring it to bargain over food service prices would result in the MWR subsidizing the wages of appropriated fund employees, the General Counsel contends that the Respondent had ample opportunity to raise its argument earlier but failed to do so and that, in any event, the argument is without merit because nothing in this case concerns the issue of employee wages. Finally, the General Counsel asserts that the Respondent's contention that 5 U.S.C. § 5536 precludes negotiation on the price of food and beverages constitutes mere disagreement with the Authority's holding on this issue.

V. Analysis and Conclusions

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of extraordinary circumsta