AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2761,
AFL-CIO, Petitioner,
v.
FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 2614,
AFL-CIO, Petitioner,
v.
FEDERAL LABOR RELATIONS AUTHORITY, Respondent.
Nos. 87-1099, 87-1111.
United States Court of Appeals,
District of Columbia Circuit.
Argued Nov. 18, 1988.
Decided Jan. 31, 1989.
Motion for Clarification Granted and Opinion Amended March 28, 1989.
Motion for Stay of Mandate Denied March 28, 1989.
Judith D. Galat, with whom Mark D. Roth, Washington, D.C., was on the brief, for petitioners.
Charles A. Hobbie, Washington, D.C., entered an appearance for petitioners.
Denise Morelli, Attorney, Federal Labor Relations Authority, with whom William E. Persina, Acting Sol., and Arthur A. Horowitz, Associate Sol., Federal Labor Relations Authority, Washington, D.C., were on the brief, for respondent.
Ruth E. Peters and Elsa D. Newman, Federal Labor Relations Authority, Washington, D.C., entered appearances for respondent.
Before ROBINSON, EDWARDS and WILLIAMS, Circuit Judges.
Opinion for the Court filed by Circuit Judge EDWARDS.
Opinion concurring in part and dissenting in part filed by Circuit Judge WILLIAMS.
HARRY T. EDWARDS, Circuit Judge:
Locals 2761 and 2614 of the American Federation of Government Employees, AFL-CIO ("AFGE" or "Union") petition for review of two separate decisions of the Federal Labor Relations Authority ("FLRA" or "Authority") finding that the Government did not have a duty to bargain over (1) patronage privileges for civilian employees at the post exchange at Fort Buchanan, Puerto Rico, or (2) an annual picnic at the U.S. Army Adjutant General Publiсation Center at St. Louis, Missouri. Because we find that the FLRA's decisions in both cases were not supported by substantial evidence and were inconsistent with FLRA precedent, we grant the petitions for review.
I. BACKGROUND
A. Statutory Background
Under the Federal Service Labor-Management Relations Statute, federal government employees have the right "to engage in collective bargaining with respect to conditions of employment." 5 U.S.C. Sec. 7102(2) (1982). "Conditions of employment" is defined, in pertinent part, as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions." Id. Sec. 7103(a)(14). Failure to negotiate as required by the statute is an unfair labor practice. See id. Sec. 7116(a)(5).
The FLRA has applied a two-pronged test to determine whether a practice constitutes a condition of employment over which a Government employer has a duty to bargain. First, the Authority asks if the practice affects bargaining unit employees. Second, the Authority inquires into the extent and nature of the effect of the practice on working conditions. See Antilles Consol. Educ. Ass'n,
B. The Post Exchange
AFGE Local 2614 is the exclusive representative of civilian employees at Fort Buchanan, Puerto Rico. For eighteen years prior to 1984, post exchange privileges at the U.S. Army base at Fort Buchanan, Puerto Rico, had been available to all base employees. Some civilian employees were promised use of the exchange as an inducement for employment in Puerto Rico. The exchange included a small grocery store; a general store selling toiletries, clothing, small appliances, and other goods; and other business facilities, such as a furniture store, a dry cleaners, an optical shop, a watch repair store, a toy store, and a movie theater. There arе several stores and shopping centers near Fort Buchanan in the city of San Juan, but employees felt that prices were lower and the quality of goods higher at the exchange. In particular, employees preferred buying milk and poultry at the exchange, because they believed that products sold in Puerto Rico contained chemicals that deter growth in children.
Under Department of Defense ("DOD") directive 1330.9, civilian employees working in the United States do not have еxchange privileges. Previously, this directive applied only to civilian employees in the continental United States. On May 12, 1982, however, DOD amended the directive to include civilian employees in Alaska, Hawaii and Puerto Rico.
The Union asked for negotiations over the directive, and Fort Buchanan agreed to negotiate over the implementation of the regulation but informed the Union that the substance of the decision was nonnegotiable. Exchange privileges for civilian employees at Fort Buchanan eventually were terminated on January 31, 1984. The Fort did not terminate privileges for those employees who had been contractually promised use of the exchange.
The Union filed suit, and the case was referred to an administrative law judge ("ALJ"). Noting the employees' health concerns and the Army's use of exchange privileges as an inducement for employment, the ALJ determined that the privilege of using the exchange, "while not a direct form of compensation, is certainly an adjunct to compensation and directly affects the work situation and employment relationship of bargaining unit employees." Department of Defense, Dep't of the Army, Fort Buchanan, San Juan, P.R.,
The Government appealed, and the FLRA reversed.
C. The Annual Picnic
AFGE Local 2761 is the exclusive representative of all employees at the U.S. Army Adjutant General Publication Center at St. Louis, Missouri ("Publication Center" or "Center"). From 1966 until 1984, the Publication Center had held an annual picnic for management and employees. Prior to 1981, most of the picnics were held on weekends and off Center premises, although some were held on the premises and/оr during working hours. In 1981, in order to celebrate the Center's thirtieth anniversary, a picnic was held on the premises during working hours, and the employees were released from their duties between 10 a.m. and noon. The practice of holding the picnic during the work-week was continued in 1982 and 1983. Management generally planned the picnic, in consultation with the Union, and used the picnic as an occasion to present monetary awards, letters of appreciation, and safety pins for dеserving employees.
As planning for the 1984 picnic began, a dispute arose between management and the Union regarding management's announcement that employees who chose not to participate in the picnic would be required to work the entire day or take annual leave. The Union was in the process of surveying personnel to see if they were still interested in participating on those terms when the Center unilaterally cancelled the picnic.
The Union filed suit, and the case was assigned to an ALJ, who found that the eighteen-year practice of holding the picnic, and the more recent three-year practice of holding it on Government time and premises, had ripened the practice into a condition of employment. United States Army Adjutant Gen. Publication Center, St. Louis, Mo.,
The FLRA reversed, stating simply that there was no direct relationship between the work situation and the employment relationship and that the picnic was essentially a recreational activity.
II. DISCUSSION
It is well established that the court's role in reviewing the FLRA's negotiability determinations is narrow. See OEA,
The FLRA has found in three previous cases that changes affecting exchange privileges of civilian employees at U.S. Army bases are a condition of employment. See Eielson,
First, the Army used access to the exchange to induce some employees to work at Fort Buchanan. The ALJ relied on this fact in concluding that exchange privileges were a significant and valued benefit of employment that directly affected the work situation at Fort Buchanan.
Second, the quality of Puerto Rican milk and produce was of major concern to the employees at Fort Buchanan, and employees raised this issue in explaining the importance of exchange privileges to their employment at the base. Although the ALJ did not purport to decide whether Puerto Rican products did in fact pose a health threat, he did find that there was a general belief that these products posed a risk to children. See
Third, the civilians at Fort Buchanan consistently received exchange privileges over a period of eighteen years. The Authority dismissed this fact as irrelevant, stating that "[i]n our view, matters which are not conditions of employment within the meaning of section 7103(a)(14) do not become conditions of employment merely by the effect of a past practice."
If a matter is unquestionably within or outside of the duty to bargain--because, for example, the effect on working conditiоns is clear and direct, or, conversely, because the matter does not affect bargaining unit employees or is within management's exclusive authority--the existence or lack of past practice is irrelevant to the question whether a matter is a condition of employment. See, e.g., IRS,
The present case falls within this gray area. As noted above, changes affecting post exchanges have been found to be conditions of employment in three prior cases. See Eielson,
Accordingly, we hold that past FLRA precedent, the Army's use of exchange privileges as an inducement to employment, health and safety concerns, and longstanding past practice all indicate that exchange privileges at Fort Buchanan are a condition of employment. While any one of these factors alone might not be determinative, taken together they support our conclusion that the FLRA's ruling that Fort Buchanan does not have a duty to bargain over employee access to the post exchange was arbitrary and capricious.
B. The Annual Picnic
The Union appeals the FLRA's finding that the annual picnic at the Publication Center was not a condition of employment. We agree with the Union and reverse the Authority, because we find that the annual picnic indisputedly affected the employees' work at the Publication Center. See, e.g., IRS,
III. CONCLUSION
For the reasons stated above, the petitions for review are granted and these cases are remanded to the FLRA for further action, as may be required, consistent with this opinion.
SO ORDERED.
WILLIAMS, Circuit Judge, concurring in part and dissenting in part:
I agree with the court that the employees' annual picnic at the Adjutant General's Publication Center in St. Louis was a "condition[ ] of employment" and therefore a subject of bargaining under 5 U.S.C. Sec. 7102(2) (1982). As the court observes, the issue in dispute was whether employees who skipped the picnic would be required to work while it occurred; it thus went essentially to hours of employment and what workers would actually do on the job.
The access of Fort Buchanan, Puerto Rico, civilian employees to PX privileges is a different matter. First, I see a modest problem in this court's recent decision in Department of Defense Dependents Schools v. FLRA,
But to say the Authority was free to find the privileges a condition of employment is quite different from saying it was bound to do so. The facts are ambiguous, and under its precedents the Authority was, in my view, free to regard the privileges as peripheral to working conditions. In AFGE, Local 2094 v. FLRA,
The court identifies three features that "lead ... to th[e] conclusion" that the union propоsal for continued access to the PX was bargainable. First, it notes that the Army used PX privileges to induce employees to work at Fort Buchanan. But it is equally true that it preserved the privileges for all who were so lured. Maj. Op. at 1447. Perhaps one may infer from the Army's action that "these privileges were generally considered to be a condition of employment at the base," id., but the inference is hardly compelling. An alternative view might be that, as a general matter, the privileges were not a material inducement. In both Department of the Army, Fort Greely, Alaska,
Second, some employees believed that the quality of milk, eggs and poultry available at convеntional island markets jeopardized their children's health. Maj. Op. at 1447. But the union offered no evidence to support these fears; they may be groundless. That the employees' fears were real, id., does not necessarily equate them with the isolation experienced at remote Army bases in Alaska, a factor that has persuaded the Authority to find PX privileges bargainable in other cases. See, e.g., Department of the Air Force, Eielson Air Force Base, Alaska,
Finally, the court notes the Army's consistent provision of the privilеges for 18 years, and argues that the Authority's treatments of established practice can be reconciled by the principle that for cases within a "gray area" the presence or absence of a long-established practice can tip the scales. Maj.Op. at 1447-48. The principle is fine, but hardly proves that practice can take the case so far to one side of the "gray area" as to call for our overruling the Authority. It is in precisely that area, surеly, that we should defer to its weighing of the nuances, in exercising its " 'special function of applying the general provisions of the Act to the complexities' of federal labor relations." Bureau of Alcohol, Tobacco & Firearms v. FLRA,
Notes
In Antilles,