American Federation of Government Employees, Local 1547 (Union) and United States Department of Air Force Luke Air Force Base, Arizona (Agency)
| Decision Date | 29 July 2014 |
| Docket Number | 0-NG-3143 |
| Citation | 67 FLRA No. 128 |
| Court | Federal Labor Relations Authority Decisions |
| Parties | AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL 1547 (Union) and UNITED STATES DEPARTMENT OF THE AIR FORCE LUKE AIR FORCE BASE, ARIZONA (Agency) |
Before the Authority: Carol Waller Pope, Chairman, and Ernest DuBester and Patrick Pizzella, Members (Member Pizzella dissenting)
This is the second time the Authority has been presented with a negotiability appeal involving these parties and the issue of civilian access to facilities on a military installation. And in between the two appeals, issues regarding this access were presented to and resolved through mediation-arbitration directed by the Federal Service Impasses Panel (the Panel). Details of this complex situation follow.
In the first negotiability appeal, AFGE, Local 1547 (Local 1547), [1] the Authority ordered the Agency to bargain over two Union proposals to give civilian employees represented by the Union (unit employees) access to respectively, the commissary and the exchange – including the exchange’s satellite stores, such as a “Shoppette” – on Luke Air Force Base (the base).[2] When they were unable to reach agreement during subsequent bargaining, the Panel directed that the parties participate in mediation-arbitration, which resulted in a Panel Member (the arbitrator) directing the parties to include in their collective-bargaining agreement a provision that grants unit employees full access to the Shoppette. On agency-head review under § 7114(c) of the Federal Service Labor-Management Relations Statute (the Statute), the Agency head disapproved the provision. The Union then filed this (second) negotiability appeal under § 7105(a)(2)(E) of the Statute. The appeal presents us with two substantive questions.
The first question is whether the provision concerns unit employees’ conditions of employment. Because decades of precedent hold that it does, the answer is yes.
The second question is whether the Agency has shown that the provision is contrary to 10 U.S.C. §§ 101, 113, 2481(a)-(b), or 2484(c)(2). Because the Agency has not demonstrated that those sections either give the Secretary of Defense “sole and exclusive discretion” to determine who has access to the Shoppette, [3] or prohibit the Agency from granting civilian employees such access, the answer is no.
The Shoppette, part of the base exchange, sells food, gas, and certain health and household items. Unit employees currently have access to the Shoppette only to purchase food that can be consumed on the premises. These unit employees work varying shifts during the week and on weekends, and many have limited break periods. And they often have to drive off of the base during breaks in their shifts to “satisfy their shopping needs, ”[4] which can contribute to traffic congestion on the base.
The Union proposed to grant unit employees broad access to base commissary and exchange facilities, including the Shoppette. When the Agency declared the Union’s proposals outside the duty to bargain, the Union filed a petition for review with the Authority and, in Local 1547, [5] the Authority found that the Agency was obligated to bargain over the following two proposals:
The Authority concluded that the proposals concerned unit employees’ conditions of employment by applying the two-part test set forth nearly thirty years ago in Antilles Consolidated Education Ass’n.[7] The Authority found that: (1) the proposals pertained to unit employees; and (2) the record established a direct connection between the proposals and unit employees’ work situation or employment relationship.[8] Based on long-standing precedent, the Authority rejected the Agency’s arguments that the required connection was not established because: (1) access to the base facilities was only a matter of employee convenience;[9] and (2) access to facilities could occur during non duty hours.[10]
The Authority concluded also that the statutory provisions on which the Agency relied – 10 U.S.C. §§ 2481 and 2482, 10 U.S.C. §§ 1061 to 1065 – neither expressly granted unit employees access to commissaries and exchanges nor prohibited granting such access.[11] The Authority noted that “the Agency [did] not contend that the proposals [were] contrary to the provisions of Title 10; the Agency merely assert[ed] that nothing in Title 10 grants unit employees the privileges that the proposals request[ed].”[12] Finding that the Agency had discretion to bargain over the proposals, the Authority found that the proposals were within the duty to bargain.[13]
The Agency did not seek Authority reconsideration or judicial review of Local 1547. Instead, the parties resumed bargaining. When they could not reach agreement, they submitted the matter to the Panel, which determined that the dispute should be resolved through mediation-arbitration before the arbitrator. During mediation, the Union revised the two proposals found negotiable in Local 1547 to one proposal providing unit employees access only to the Shoppette, including the gas station (but not to uniform items, alcohol, or tobacco).
During arbitration, the Agencyconceded that “there is no statutory bar”[14] to granting unit employees access to the Shoppette and acknowledged that, under Department of Defense Instruction 1330.21 (the DOD Instruction), all civilian employees working on base have access to food and beverages sold at any exchange facility, if consumed on base. But the Agency argued that, with regard to the Shoppette, it had authority to extend access to unit employees “solely to the ‘heat and eat’ section.”[15] The Agency’s proposal before the arbitrator was to permit “unit employees to purchase ‘at [the] . . . Shoppette . . . food and beverages of the heat and eat category.’”[16]
The arbitrator found that the DOD Instruction permits the Secretary of the Air Force to expand the list of authorized patrons of exchanges. The arbitrator acknowledged the Agency’s claim that access to commissaries and exchanges provides a benefit to military personnel that serves as a recruitment and retention tool. But she “fail[ed] to see how allowing civilian employees access to a gas station convenience store measurably weakens that benefit.”[17]
As to the latter point, the arbitrator noted that: (1) civilian employees have access to various eating establishments on base, including the “heat and eat” part of the Shoppette;[18] (2) civilian employees who work in exchange facilities are authorized to shop in them, including the Shoppette; and (3) the prices at the Shoppette’s gas station are not cheaper than those outside the base. She found, as a result, that military personnel do not have exclusive access to the Shoppette and that access to the gas station provides them no “benefit other than convenience.”[19] She noted that access to the Shoppette would “significantly benefit” unit employees, who “due to the closing of many gates after September 11, 2001, have been confronted with more traffic and, therefore, more travel time to leave the base, ”[20] and who are not able to buy on base such necessary items as “health items [and] feminine care products.”[21]
The arbitrator found it “illogical that it is acceptable to have civilians enter a store to buy hot dogs, but damaging to morale if they are allowed to purchase aspirin, batteries, or tissues.”[22] Accordingly, the arbitrator concluded thatadopting the Union’s proposal for full access to the Shoppette was a reasonable compromise between the Union’s initial proposals (found negotiable in Local 1547) and the Agency’s proposal for access only to food that is eaten on site.[23] She directed the parties to adopt the provision at issue here.
The Agency head disapproved the provision, without elaboration, as contrary to “law, rule[, ] or regulation.”[24] The Union then filed with the Authority a petition for review (the Union’s petition) of the disapproval, resulting in the case now before us. The Agency filed a statement of position (the Agency’s statement), the Union filed a response (the Union’s response), and the Agency filed a reply (the Agency’s reply).
Bargaining[-]unit employees with a valid DOD [identification] card shall be granted full access to the Luke Air Force Base Exchange Shoppette, including the gas station. Employees may not purchase uniform items, “[t]ax free” tobacco items[, ] and “[t]ax-free” alcoholic beverages.[25]
The parties agree that the provision gives unit employees access to the Shoppette during both duty and non-duty hours.[26]
As an initial matter, we note that it is the Authority’s responsibility to apply the law to the issues and facts that are a part of the case record properly before it.[27] And in discharging this responsibility, we honor the section of the Statute requiring that its provisions be interpreted in a manner consistent with an effective and efficient government.[28] Where other statutory and regulatory provisions apply, we are guided, as adjudicators, by the fundamental principle that the terms and intent of those statutory and regulatory provisions control.[29]
1. The Agency’s claim regarding conditions of employment provides no basis for finding the provision contrary to law.
In Local 1547, the Authority concluded that the Union’s proposals –...
To continue reading
Request your trial