National Federation of Federal Employees, Local 1363 (Union) and Headquarters, U.S. Army Garrison, Yongsan, Korea (Agency) (Authority decision, September 4, 1980)

Final FLRA decision. This negotiability order ends the petition before the Authority. An aggrieved person may seek judicial review in a court of appeals within 60 days of issuance under 5 U.S.C. § 7123(a).

Plain-English summary

A union representing Army garrison employees in Korea proposed changes to ration-control limits on purchases at commissary and exchange facilities. The Army claimed the proposal was outside the duty to bargain or conflicted with management rights. The Authority found it within the duty to bargain and set aside the agency’s allegation without deciding whether the proposal was wise.

Decision snapshot

• Authority: 5 U.S.C. § 7117, 5 U.S.C. § 7106(a).
• Outcome: Agency nonnegotiability allegation set aside.
• Key point: The proposed purchase-limit changes concerned bargainable employee conditions.

Full text (FLRA public release)

[ v04 p139 ]

04:0139(23)NG

The decision of the Authority follows:

4 FLRA No. 23

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 1363
(Union)

and

HEADQUARTERS, U.S. ARMY GARRISON
YONGSAN, KOREA
(Agency)

Case No. O-NG-226

DECISION ON NEGOTIABILITY ISSUE

THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).

UNION PROPOSAL

THE PROPOSAL INVOLVES CERTAIN CHANGES TO UNC/USFK/EA REGULATION 60-1,
GOVERNING RATION CONTROL WITHIN THE REPUBLIC OF KOREA, AND IS SET FORTH
IN ITS ENTIRETY IN AN APPENDIX HERETO.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THE UNION'S PROPOSAL, CONCERNING CHANGES TO
THE RATION CONTROL REGULATION, IS OUTSIDE THE SCOPE OF THE DUTY TO
BARGAIN UNDER SECTION 7117 OF THE STATUTE /1/ OR CONFLICTS WITH RETAINED
MANAGEMENT RIGHTS UNDER SECTION 7106(A) OF THE STATUTE, /2/ AS ALLEGED
BY THE AGENCY.

OPINION

CONCLUSION: THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN UNDER THE
STATUTE AND DOES NOT CONFLICT WITH SECTION 7106(A) OF THE STATUTE.
ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS, (5 CFR 2424.10), THE AGENCY'S ALLEGATION THAT THE PROPOSAL
IS OUTSIDE THE DUTY TO BARGAIN IS SET ASIDE. IN SO DECIDING THAT THE
SUBJECT PROPOSAL IS WITHIN THE DUTY TO BARGAIN, THE AUTHORITY MAKES NO
JUDGMENT AS TO THE MERITS OF THE PROPOSAL.

REASONS: THE UNION PROPOSAL ESSENTIALLY SEEKS TO ELIMINATE THE
MONTHLY DOLLAR AND/OR QUANTITY LIMITS IMPOSED OF BARGAINING UNIT
EMPLOYEES BY UNC/USFK/EA REGULATION 60-1 REGARDING THE PURCHASE OF
CERTAIN MERCHANDISE FROM THE COMMISSARY, EXCHANGE AND OTHER FACILITIES
IN KOREA, AND TO DELETE CERTAIN OTHER MERCHANDISE FROM THE "LETTER OF
AUTHORIZATION" LIST. THE AGENCY TAKES THE POSITION THAT THE UNION'S
PROPOSAL CONCERNING RATION CONTROL DOES NOT INVOLVE "CONDITIONS OF
EMPLOYMENT" AND THEREFORE IS OUTSIDE THE SCOPE OF BARGAINING UNDER THE
STATUTE.

IN THE CIRCUMSTANCES OF THE PRESENT CASE, THE AUTHORITY FINDS THE
MATTER OF RATION CONTROL IS A CONDITION OF EMPLOYMENT WITHIN THE MEANING
OF SECTION 7103(A)(14) OF THE STATUTE (SUPRA NOTE 1). SPECIFICALLY, THE
MATTER OF SUBSISTENCE, COMMISSARY, EXCHANGE AND OTHER ESSENTIAL
FACILITIES AND SERVICES, WHICH MUST BE FURNISHED TO EMPLOYEES SUCH AS
THOSE INVOLVED HEREIN, IS COVERED BY DEPARTMENT OF DEFENSE DIRECTIVE
NUMBER 1400.6, DATED JANUARY 16, 1976, ENTITLED "STATEMENT OF PERSONNEL
POLICY FOR CIVILIAN PERSONNEL OF THE DEPARTMENT OF DEFENSE IN OVERSEAS
AREAS." PARAGRAPH III D OF THAT DIRECTIVE /3/ SETS FORTH AGENCY-WIDE
POLICY REGARDING THE ESSENTIAL FACILITIES AND SERVICES TO BE PROVIDED
UNITED STATES CIVILIAN EMPLOYEES IN AN OVERSEAS COMMAND AND STATES, IN
PART, THAT EXCEPT TO MEET UNEXPECTED EMERGENCY CONDITIONS (NOT ALLEGED
OR SHOWN TO EXIST IN THE INSTANT CASE), "AN OVERSEAS COMMANDER WILL NOT
REQUEST UNITED STATES CITIZEN PERSONNEL FROM THE UNITED STATES UNLESS
AND UNTIL HIS COMMAND IS ABLE TO PROVIDE SUCH FACILITIES, TO THE EXTENT
OF MEETING REASONABLE STANDARDS OF HEALTH AND DECENCY."

ACCORDINGLY, IT IS CONCLUDED THE MATTER OF RATION CONTROL IS A
CONDITION OF EMPLOYMENT. IT IS DIRECTLY RELATED TO THE "REASONABLE
STANDARDS OF HEALTH AND DECENCY" FOR UNIT EMPLOYEES WHICH THE AGENCY
REQUIRES AS A PRECONDITION TO THEIR EMPLOYMENT IN AN OVERSEAS COMMAND.
THEREFORE, SUCH MATTER INVOLVES THE PERSONNEL POLICIES, PRACTICES AND
MATTERS AFFECTING WORKING CONDITIONS OF UNIT EMPLOYEES AND IS WITHIN THE
SCOPE OF BARGAINING UNDER SECTION 7117 OF THE STATUTE.

THE AGENCY ASSERTS, FURTHER, THAT THE PROPOSAL HEREIN VIOLATES
MANAGEMENT'S RESERVED RIGHT UNDER SECTION 7106(A)(1) OF THE STATUTE TO
DETERMINE THE INTERNAL SECURITY PRACTICES OF THE AGENCY. IN THIS
REGARD, THE AGENCY ARGUES THE DOLLAR AND QUANTITY LIMITS ON THE PURCHASE
OF CERTAIN MERCHANDISE CONTAINED IN THE RATION CONTROL REGULATION
(UNC/USFK/EA REGULATION 60-1) "HELPS CONTROL BLACKMARKETEERING BY
LIMITING THE AVAILABILITY OF THESE GOODS TO AUTHORIZED PERSONNEL."
HOWEVER, IN THE AUTHORITY'S VIEW, REGULATION 60-1 DOES NOT CONCERN THE
INTERNAL SECURITY PRACTICES OF THE AGENCY. UNLIKE THE REGULATION AT
ISSUE IN AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 15
AND DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE, NORTH ATLANTIC
REGION, 2 FLRA NO. 109, WHICH WAS PART OF THAT AGENCY'S PLAN TO PREVENT
DISRUPTION, IMPROPER OR UNAUTHORIZED DISCLOSURE OF INFORMATION OR
PROPERTY DESTRUCTION AT ITS FACILITIES, THE AGENCY HAS NOT ESTABLISHED
THAT THE REGULATION INVOLVED HEREIN RELATES TO OR CONTAINS A MANAGEMENT
PLAN FOR SECURING OR SAFEGUARDING ITS PHYSICAL PROPERTY AGAINST INTERNAL
OR EXTERNAL RISKS, OR IN ANY OTHER MANNER CONCERNS THE INTERNAL SECURITY
PRACTICES OF THE AGENCY. SIMILARLY, THE RECORD FAILS TO ESTABLISH, AND
IT DOES NOT OTHERWISE APPEAR, THE SUBJECT PROPOSAL CONFLICTS WITH OTHER
RESERVED MANAGEMENT RIGHTS UNDER SECTION 7106(A) OF THE STATUTE.
ACCORDINGLY, NOTING THAT NO COMPELLING NEED WAS RAISED BY THE AGENCY FOR
THE REGULATION HEREIN, THE PROPOSAL IS A MATTER WITHIN THE AGENCY'S DUTY
TO BARGAIN UNDER THE STATUTE, AND THE AGENCY'S ALLEGATION THAT THE
PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET ASIDE.

IN SO CONCLUDING, THE AUTHORITY SPECIFICALLY REJECTS THE AGENCY'S
CONTENTION THAT THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN
UNDER THE STATUTE INASMUCH AS "THE RATION CONTROL REGULATION HAS DIRECT
APPLICABILITY FAR BEYOND THE BARGAINING UNIT." AS PREVIOUSLY FOUND, THE
MATTER OF RATION CONTROL DIRECTLY AFFECTS THE WORKING CONDITIONS OF
BARGAINING UNIT EMPLOYEES AND IS THEREFORE WITHIN THE DUTY TO BARGAIN

ISSUED, WASHINGTON, D.C., SEPTEMBER 4, 1980

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

APPENDIX

LOCAL 1363 NFFE PROPOSAL REGARDING RATIONING CHANGES

THE FOLLOWING PROPOSAL WOULD APPLY TO EMPLOYEES IN THE EXCLUSIVE
BARGAINING UNIT(S) REPRESENTED BY LOCAL 1363:

1. THE FOLLOWING ITEMS BE DELETED (OR NOT APPLIED TO) THE LOA LIST:

TV (COLOR OR BLACK & WHITE)

RADIOS OF ALL TYPES

TAPE RECORDERS OR CASSETTES OF ALL TYPES

AMPLIFIERS OF ALL TYPES

RECORD PLAYERS OF ALL TYPES

SPEAKERS OF ALL TYPES

VIDEO RECORDERS OF ALL TYPES

TYPEWRITERS OF ALL TYPES

CAMERAS OF ALL TYPES

CARPETS OF ALL TYPES

CLOTHES WASHERS OR DRYERS OF ALL TYPES

OVENS OR RANGES OF ALL TYPES

REFRIGERATORS OR FREEZERS OF ALL TYPES

VACUUM CLEANERS

FIREARMS

ELECTRIC TOOLS OF ALL TYPES

ORGANS

PIANOS

WATER HEATERS

KITCHEN APPLIANCES OF ALL TYPES

AIR CONDITIONERS

ELECTRIC BLANKETS

GOLF CLUBS OF ALL TYPES

DIAMONDS

WATCHES OF ALL TYPES

TENNIS EQUIPMENT OF ALL TYPES

FLOOR POLISHERS

ELECTRIC IRONS

LAWN MOWERS

DISH SETS OF ALL TYPES

COOKING UTENSILS OF ALL TYPES

2. THE FOLLOWING LIMITS ON CONSUMABLES: (TABLE OMITTED)

3. PURCHASE OF ELECTRIC HAND-HELD BLOW DRYERS WOULD BE UNLIMITED FOR
   EACH EMPLOYEE.

4. THE PURCHASE OF RECORDS AND PRE-RECORDED TAPES WOULD NOT COUNT
   AGAINST ANY DOLLAR LIMIT.

5. THE MONTHLY COSMETIC LIMIT FOR EACH EMPLOYEE WOULD BE UNLIMITED.

6. THE MONTHLY DOLLAR LIMIT FOR EACH EMPLOYEE WOULD BE AS FOLLOWS:
   (TABLE OMITTED)

--------------- FOOTNOTES$ ---------------

/1/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:

SEC. 7117. DUTY TO BARGAIN IN GOOD FAITH; COMPELLING NEED; DUTY TO
CONSULT

(A)(1) SUBJECT TO PARAGRAPH (2) OF THIS SUBSECTION, THE DUTY TO
BARGAIN IN GOOD FAITH

SHALL, TO THE EXTENT NOT INCONSISTENT WITH ANY FEDERAL LAW OR ANY
GOVERNMENT-WIDE RULE OR

REGULATION, EXTEND TO MATTERS WHICH ARE THE SUBJECT OF ANY RULE OR
REGULATION ONLY IF THE RULE

OR REGULATION IS NOT A GOVERNMENT-WIDE RULE OR REGULATION.

THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE
STATUTE"

SEC. 7103. DEFINITIONS; APPLICATION

(A) FOR THE PURPOSE OF THIS CHAPTER--

(12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
OBLIGATION OF THE

REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
EMPLOYEES IN AN APPROPRIATE

UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
BARGAIN IN A GOOD-FAITH

EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
EMPLOYMENT AFFECTING SUCH

EMPLOYERS . . .

(14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES
AND MATTERS, WHETHER

ESTABLISHED HELD BY RULE, REGULATION,

OR OTHERWISE, AFFECTING WORKING CONDITIONS . . .

/2/ SECTION 7106(A) OF THE STATUTE PROVIDES, IN RELEVANT PART, AS
FOLLOWS:

SEC. 7106. MANAGEMENT RIGHTS

(A) SUBJECT TO SUBSECTION (B) OF THIS SECTION, NOTHING IN THIS
CHAPTER SHALL AFFECT THE

AUTHORITY OF ANY MANAGEMENT OFFICIAL OF ANY AGENCY--

(1) TO DETERMINE THE . . . INTERNAL SECURITY PRACTICES OF THE AGENCY
. . .

/3/ PARAGRAPH III D OF DOD DIRECTIVE 1400.6 STATES AS FOLLOWS:

IN MAKING HIS DETERMINATION OF THE NUMBERS AND TYPES OF UNITED STATES
CITIZEN CIVILIANS TO

BE RECRUITED FROM THE UNITED STATES FOR EMPLOYMENT IN AN OVERSEAS
COMMAND, THE COMMANDER WILL

CONSIDER THE ABILITY OF HIS COMMAND TO ASSURE ADEQUATE HOUSING,
SUBSISTENCE, MEDICAL,

COMMISSARY, EXCHANGE, LAUNDRY, TRANSPORTATION, AND OTHER ESSENTIAL
FACILITIES AND SERVICES TO

UNITED STATES CIVILIAN EMPLOYEES, WHERE ADEQUATE FACILITIES ARE NOT
OTHERWISE AVAILABLE TO

SUCH PERSONNEL. EXCEPT AS MAY BE REQUIRED TO MEET UNEXPECTED
EMERGENCY CONDITIONS, AN

OVERSEAS COMMANDER WILL NOT REQUEST UNITED STATES CITIZEN PERSONNEL
FROM THE UNITED STATES

UNLESS AND UNTIL HIS COMMAND IS ABLE TO PROVIDE SUCH FACILITIES, TO
THE EXTENT OF MEETING

REASONABLE STANDARDS OF HEALTH AND DECENCY.