American Federation of Government Employees, Local 3240 and Dep't of the Air Force, 325th Support Group, Tyndall AFB, Florida, 0-NG-2665, July 15, 2003, 58 FLRA No. 168.

Proposals requiring the Air Force to pay the entire amount of nonappropriated fund (NAF) employees' health insurance premiums and requiring it to offer NAF employees the option to enroll in the Blue Choice Health Benefit plan are nonnegotiable because inconsistent with the statutory mandate for DOD-wide uniformity under § 349 of the National Defense Authorization Act for FY 1995 (Authorization Act).

Section 349 of the Authorization Act required DOD to take necessary steps to provide "a uniform health benefits program for employees of the Department of Defense assigned to a nonappropriated fund instrumentality of the Department." In the Act's legislative history Congress said that this provision would require DOD "to provide for a single uniform program" for NAF employees. House Rpt. 103-499. It also noted that health insurance plans offered NAF employees in the past by DOD components had "major differences in provisions and premium contribution rates . . . [which are] inconsistent with the national effort toward universal health care coverage."

When the union proposed that the Air Force pay 100% of the health benefit premiums and to give employees the option to enroll in a plan other than that provided under DOD's current arrangement with Aetna, the agency took the position that both proposals were nonnegotiable because inconsistent with the uniformity mandated by § 349 of the Authorization Act. FLRA agreed:

The Authorization Act and its legislative history demonstrate that Congress intended DoD to establish one health benefits program with uniform provisions, including premium contribution rates, for all DoD NAF entities. Section 349 does not provide discretion to the heads of any of the six DoD components and their subordinate agencies to establish separate health benefit programs. [Emphasis added.]

FLRA agreed with the agency that if one local union could negotiate a different percentage of premiums to be paid by the agency, then other unions could also do so. "Such bargaining," said FLRA, "would be inconsistent with the clear Congressional mandate of uniformity that was intended to address the differences in premium contribution rates through DoD for NAF employees." Similarly, the uniformity mandated by § 349 would be negated by that part of the proposal providing for the addition of the Blue Choice Health Benefit plan "because other unions could propose the addition of different plans."

FLRA distinguished its holding here from that in NFFE, Local 29, 32 FLRA 721, 729-731 (1988) because the statute in that case required uniformity "insofar as practicable." In that case FLRA had noted that "had Congress intended to mandate uniformity, it would not have authorized agencies to exercise their discretion with regard to considerations of practicality."

This case also differed from Naval Aviation Depot, Cherry Point, NC v. FLRA, 952 F.2d 1434, 1443 (D.C. Cir. 1992), where the court rejected the view that when a subject of bargaining affects two or more units it is nonnegotiable. The court there said that "[i]t is true that it is sometimes inconvenient, even unseemly, to have two or more unions bargaining over all or a share of a finite benefit (such as parking spaces); but this is a problem inherent in the nature of collective bargaining." The court had indicated that perhaps the problem could be solved by resorting to coordinated bargaining when more than one unit can legitimately claim bargaining rights over a given subject. "In the absence of such coordinated bargaining, however, each union may lay claim to a right to negotiate over matters within the compass of mandatory subjects of bargaining for employees within its designated bargaining unit."

However, FLRA found that the Cherry Point decision didn't apply to the case at bar because "[t]hat case did not involve a Congressional mandate that required uniformity on a department-wide basis."

Consequently, we agree with the Agency that to sanction collective bargaining on these proposals would run counter to the nondiscretionary mandate for DoD-wide uniformity that the Authorization Act requires because it could lead to different agreements among the six DoD components and their subordinate agencies on premium contribution rates and PPO coverage. [Emphasis added.]

Not all discretion over conditions of employment delegated to an agency are subject to bargaining. To the extent that the discretion involves the exercise of management's reserved rights under § 7106, there is no duty to bargain (unless the proposal qualifies as a § 7106(b)(3) appropriate arrangement). Sometimes the law or regulation makes it clear that the discretion given the agency is intended to be "sole and exclusive," as was the case in 47 FLRA No. 84, aff'd AFGE, Local 3295 v. FLRA, 46 F.3d 73 (D.C. Cir. 1995) where proposals dealing with employee compensation and health insurance coverage and premiums were found to be nonnegotiable because the Director of the Office of Thrift Supervision (OTS) was granted sole and exclusive authority to set the pay and benefits for OTS employees.

Although this case doesn't involve a grant of discretion, but rather a limitation on the exercise of discretion, the uniformity requirement (particularly for agencies with highly fragmented bargaining unit structures represented by many different unions) apparently has the same effect as a grant of sole and exclusive discretion. By imposing the requirement of agency-wide uniformity, Congress in effect said that this particular condition of employment would be established by agency regulation, where the requirement is to consult with unions accorded NCR rights, not by collective bargaining.