AFGE Local 51 and U.S. Assay Office San Francisco (Authority decision, August 4, 1982)

Final FLRA decision. This is a final Authority order. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

AFGE Local 51 proposed a joint committee and cooperation over snack-bar prices and service at the San Francisco Assay Office. The Authority rejected the agency’s request to dismiss the appeal because the union corrected filing defects without prejudice to the agency. It held the disputed cooperation term negotiable because it did not require bargaining over prices and the agency had some discretion over the facility. It ordered bargaining on request.

Decision snapshot

• Authority: 5 U.S.C. § 7117.
• Outcome: Agency objection rejected; snack-bar cooperation proposal negotiable.
• Key point: A cooperation commitment did not require the agency to bargain over snack-bar prices.

Full text (FLRA public release)

[ v09 p809 ]

09:0809(102)NG

The decision of the Authority follows:

9 FLRA No. 102

AMERICAN FEDERATION OF
OVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 51
Union

and

DEPARTMENT OF THE
TREASURY, BUREAU OF THE
MINT, U.S. ASSAY OFFICE,
SAN FRANCISCO, CALIFORNIA
Agency

Case No. O-NG-351

DECISION AND ORDER ON NEGOTIABILITY ISSUE

THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY
PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE). UPON CAREFUL
CONSIDERATION OF THE ENTIRE RECORD, INCLUDING THE PARTIES' CONTENTIONS,
THE AUTHORITY MAKES THE FOLLOWING DETERMINATIONS.

THE AGENCY CONTENDS AT THE OUTSET THAT, ALTHOUGH THE UNION'S INITIAL
SUBMISSION WAS TIMELY FILED, THE UNION, AFTER NOTIFICATION THAT THE
APPEAL DID NOT CONFORM TO CERTAIN OF THE REQUIREMENTS SET FORTH IN THE
AUTHORITY'S RULES AND REGULATIONS, DID NOT CORRECT THE APPEAL WITHIN THE
PERIOD PERMITTED BY THE AUTHORITY. THUS, ACCORDING TO THE AGENCY, THE
APPEAL SHOULD BE DISMISSED.

AS MENTIONED PREVIOUSLY, IT IS UNDISPUTED THAT THE UNION FILED THE
APPEAL IN THIS CASE WITHIN THE TIME LIMIT PRESCRIBED UNDER THE
PROVISIONS OF 5 U.S.C. 7117(C)(2) AND SECTION 2424.3 OF THE AUTHORITY'S
RULES AND REGULATIONS. THE AUTHORITY, CONSISTENT WITH WELL-ESTABLISHED
PRACTICE IN LIKE SITUATIONS, /1/ ADVISED THE UNION OF APPARENT
DEFICIENCIES IN MEETING CERTAIN PROCEDURAL REQUIREMENTS AND GRANTED THE
UNION TIME TO TAKE CORRECTIVE ACTION. IN THIS REGARD, THE UNION WAS
ADVISED THAT FAILURE TO COMPLY WITH THE CITED REQUIREMENTS WITHIN THE
TIME LIMIT PROVIDED MIGHT RESULT IN DISMISSAL OF THE APPEAL. INSOFAR AS
IT APPEARS FROM THE RECORD, THE UNION WAS TWO DAYS LATE IN FILING WITH
THE AUTHORITY ITS SUBMISSION IN COMPLIANCE WITH THE STATED REQUIREMENTS.
SINCE THE DEFICIENCIES INVOLVED WERE IN FACT CORRECTED BY THE UNION AND
INASMUCH AS THERE IS NO INDICATION IN THE RECORD THAT ANY PREJUDICE WILL
ACCRUE TO THE AGENCY AS A RESULT OF THE FACT THAT THE DEFICIENCIES WERE
CORRECTED TWO DAYS LATE, THE AGENCY'S MOTION TO DISMISS ON THIS GROUND
IS DENIED. /2/

TURNING NOW TO THE QUESTION OF NEGOTIABILITY, THE DISPUTED UNION
PROPOSAL PROVIDES AS FOLLOWS:

THE ACTIVITY AND THE UNION WILL COOPERATE IN THE CONTINUING EFFORT TO
ESTABLISH AND

MAINTAIN EQUITY IN PRICES AND QUALITY OF SERVICE(S) AT THE U.S.A.O.
CAFETERIA; AND THERE SHALL

BE ESTABLISHED A SPECIAL SERVICES COMMITTEE CONSISTING OF TWO (2)
MEMBERS APPOINTED BY THE

ACTIVITY AND TWO (2) MEMBERS APPOINTED BY THE UNION. (ONLY THE
UNDERSCORED PORTION OF THE

PROPOSAL IS IN DISPUTE.)

THE AGENCY'S CONTENTION THAT THE PROPOSAL IS OUTSIDE THE DUTY TO
BARGAIN IS PRINCIPALLY BASED UPON ITS ERRONEOUS CHARACTERIZATION OF THE
PROPOSAL AS REQUIRING NEGOTIATIONS CONCERNING PRICES AND SERVICES IN THE
ON-SITE SNACK BAR. THE PLAIN LANGUAGE OF THE PROPOSAL DOES NOT REQUIRE
THE AGENCY TO NEGOTIATE THE ESTABLISHMENT OR MAINTENANCE OF PRICES AND
SERVICES IN THE SNACK BAR, AND THE RECORD PROVIDES NO INDICATION THAT
THE UNION INTENDS THE PROPOSAL TO REQUIRE NEGOTIATIONS. RATHER, IT
WOULD ONLY REQUIRE THE AGENCY TO "COOPERATE IN THE CONTINUING EFFORT TO
ESTABLISH AND MAINTAIN EQUITY IN PRICES AND QUALITY OF SERVICE(S) AT THE
(SNACK BAR) . . . " /3/

FURTHERMORE, THE AGENCY'S ARGUMENT THAT, IN ANY EVENT, IT HAS NO
DISCRETION WITH RESPECT TO MATTERS CONCERNING THE SNACK BAR IS NOT
SUPPORTED IN THE RECORD. IN THE FIRST PLACE, THE RECORD INDICATES THAT
THE SNACK BAR EXISTS ONLY AS THE RESULT OF THE AGENCY'S HAVING EXERCISED
ITS DISCRETION UNDER THE PROVISIONS OF THE RANDOLPH-SHEPPARD ACT, 20
U.S.C. 107(1976), AND IMPLEMENTING REGULATIONS CONTAINED IN 45 CFR
1369(1980). PURSUANT TO THE RANDOLPH-SHEPPARD ACT, THE AGENCY APPROVED
THE ESTABLISHMENT OF THE SNACK BAR ON ITS PREMISES BY SIGNING, AS THE
FEDERAL PROPERTY AGENCY, A "PERMIT AGREEMENT" WITH THE STATE LICENSING
AGENCY OF THE STATE OF CALIFORNIA. IN THIS CONNECTION, BASED ON THE
RECORD, PRICES AND SERVICES ARE CONTROLLED BY THE BLIND VENDOR WHO
OPERATES THE SNACK BAR ON THE AGENCY'S PREMISES, SUBJECT TO THE
LICENSING PROVISIONS AND SUPERVISION OF THE STATE LICENSING AGENCY.
MOREOVER, SINCE THE RECORD INDICATES THAT THE AGENCY IS THE FEDERAL
PROPERTY AGENCY FOR PURPOSES OF THE RANDOLPH-SHEPPARD ACT AND ITS
IMPLEMENTING REGULATIONS, THE AGENCY WOULD HAVE THE RIGHT TO PARTICIPATE
WITH THE BLIND VENDOR AND THE STATE LICENSING AGENCY IN ANY ATTEMPT TO
RESOLVE DAY-TO-DAY PROBLEMS CONCERNING THE OPERATION OF THE SNACK BAR.
SEE 45 CFR 1369.36(A). IN ADDITION, UNDER THE TERMS AND CONDITIONS OF
THE "PERMIT," THE AGENCY MAY INITIATE THE PROCESS OF TERMINATING THE
PERMIT AND THEREBY CAUSE THE REMOVAL OF THE SNACK BAR FROM ITS PREMISES.
THUS, CONTRARY TO THE AGENCY'S ARGUMENT, THE AGENCY WOULD HAVE
DISCRETION UNDER LAW AND REGULATION WITH RESPECT TO SOME MATTERS
CONCERNING THE SNACK BAR.

WITH RESPECT TO THE SPECIFIC REQUIREMENT OF THE PROPOSAL, THE AGENCY
HAS OFFERED NO SUPPORT FOR A FINDING THAT IT WOULD NOT HAVE SUFFICIENT
DISCRETION TO IMPLEMENT THE PROPOSAL IF IT WERE AGREED UPON BY THE
PARTIES. THE AGENCY CITES NO PROVISION OF LAW OR REGULATION, AND NONE
IS OTHERWISE APPARENT, WHICH WOULD PRECLUDE IT FROM SEEKING TO INFLUENCE
THOSE WITH THE DECISION-MAKING AUTHORITY IN AN EFFORT TO ESTABLISH AND
MAINTAIN "EQUITY IN PRICES AND QUALITY OF SERVICES" AT THE SNACK BAR, OR
FROM AGREEING TO COOPERATE WITH THE UNION IN SUCH EFFORT, AS THE
PROPOSAL WOULD REQUIRE. IN THIS REGARD, THE ISSUE PRESENTED ,HEREIN
BEARS NO MATERIAL DIFFERENCE FROM THAT IN AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 32 AND OFFICE OF PERSONNEL
MANAGEMENT, WASHINGTON, D.C., 8 FLRA NO. 87(1982), WHERE THE AUTHORITY
HELD THAT A PROPOSAL IN PART REQUIRING THE AGENCY TO TAKE WHATEVER
ACTION IT COULD TO ENSURE THAT EMPLOYEE CAFETERIA PRICES DID NOT RISE
FASTER THAN EMPLOYEES' INCOME WAS WITHIN THE AGENCY'S DUTY TO BARGAIN
BECAUSE IT DID NOT REQUIRE THE AGENCY TO ACT IN EXCESS OF ITS DISCRETION
UNDER LAW OR REGULATION, EVEN THOUGH SUCH DISCRETION DID NOT INCLUDE
DECISION-MAKING AUTHORITY AS TO CAFETERIA PRICES. THUS, THE AGENCY'S
CONTENTIONS THAT THE DISPUTED PORTION OF THE UNION'S PROPOSAL IS OUTSIDE
THE DUTY TO BARGAIN CANNOT BE SUSTAINED. SEE ALSO NATIONAL TREASURY
EMPLOYEES UNION, CHAPTER 6 AND INTERNAL REVENUE SERVICE, NEW ORLEANS
DISTRICT, 3 FLRA 748(1980).

ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND
REGULATIONS (5 CFR 2424.10(1981)), IT IS ORDERED THAT THE AGENCY SHALL
UPON REQUEST (OR AS OTHERWISE AGREED TO BY THE PARTIES) BARGAIN
CONCERNING THE UNION'S PROPOSAL. /4/

ISSUED, WASHINGTON, D.C., AUGUST 4, 1982

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ SEE AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL
3804 AND FEDERAL DEPOSIT INSURANCE CORPORATION, CHICAGO REGION,
ILLINOIS, 5 FLRA NO. 71(1981).

/2/ COMPARE NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1167 AND
DEPARTMENT OF THE AIR FORCE, HEADQUARTERS, 31ST COMBAT SUPPORT GROUP,
(TAC), HOMESTEAD AIR FORCE BASE, FLORIDA, 6 FLRA NO. 105(1981), AFF'D
SUB NOM. NFFE, LOCAL 1167 V. FEDERAL LABOR RELATIONS AUTHORITY, F.2D
(D.C. CIR. NO. 81-2198, JUNE 29, 1982) (IN WHICH THE AUTHORITY DID NOT
CONSIDER THE UNION'S SUBMISSION BECAUSE IT WAS NOT FILED WITHIN THE
STATUTORY TIME LIMITS).

/3/ ALTHOUGH THE PROPOSAL SPEAKS IN TERMS OF A CAFETERIA, BASED ON
THE RECORD THE FACILITY IN QUESTION IS A SNACK BAR.

/4/ IN DECIDING THAT THE DISPUTED PORTION OF THE PROPOSAL IS WITHIN
THE DUTY TO BARGAIN, THE AUTHORITY, OF COURSE, MAKES NO JUDGMENT AS TO
ITS MERITS.