17:0759(105)NG - NFFE Local 561 and Army, Army Corps of Engineers, Mobile, AL -- 1985 FLRAdec NG
[ v17 p759 ]
The decision of the Authority follows:
17 FLRA No. 105 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 561 Union and DEPARTMENT OF THE ARMY, U.S. ARMY CORPS OF ENGINEERS, MOBILE, ALABAMA Agency Case No. O-NG-728 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute), and raises issues concerning the negotiability of the following Union proposal. Government-Furnished Subsistence and Quarters Employees required to travel in locations where Government-furnished subsistence and quarters are available will be paid as provided by Joint Travel Regulations. Although use of Government quarters by Unit employees is not mandatory, nonutilization of available adequate Government quarters can result in forfeiture of the quarters portion of the per diem allowance. Adequate Government quarters shall be decent, safe and sanitary; comparable to rooms furnished by national chain hotels/motels priced within the allowance quarters portions of the prevailing per diem rate. Prior to requiring that a traveler stay in Government quarters, those quarters will be evaluated by the Employer against a mutually established set of criteria to determine adequacy. The Union will be provided a copy of the list of installations with adequate quarters and supporting data for purposes of negotiations thereon prior to adoption or changes of list. The Employer shall initiate development of this list within 6 months of effective date of this contract. Use of Government quarters will not be required until they are determined to be adequate. The list of adequate Government quarters shall be updated as needed based on feedback of using employees. No quarters shall be considered adequate unless confirmed reservations can be granted by the supplying facility. (Only those underlined portions of the Union's proposal are in dispute.) Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. /1/ The Union's proposal concerns negotiated standards of adequacy for government temporary duty. The Agency contends, among other things, that the proposal is inconsistent with Agency regulations for which a compelling need exists and, therefore, is not within the duty to bargain under section 7117(a)(2) of the Statute. /2/ The Union, however, disputes the Agency's contention claiming that a conflict does not exist between its proposal and the Agency's regulations and that, in the event that a conflict does exist, there is no compelling need for the Agency's regulations. The Agency claims a compelling need exists for provisions of the Department of Defense Civilian Personnel, Volume 2, Joint Travel Regulations (JTR), /3/ and the Department of Defense Instruction 4165.47, Adequacy, Assignment, Utilization, and Inventory of Unaccompanied Personnel Housing (DoD Instruction). /4/ The relevant provisions of the JTR state that while an employee is not required to utilize government quarters, when "adequate" government quarters are not used by an employee on temporary duty, the quarters portion of the per diem will not be paid in the absence of a statement of nonavailability or nonutilization. The JTR also provides that the standards to determine the adequacy of government quarters will be prescribed by the Office of the Secretary of Defense (OSD). These standards are prescribed in DoD Instruction 4165.47, in question herein, and are the basis upon which a determination is made as to whether certificates of nonavailability should be issued. The record indicates that these Agency regulations were promulgated in response to section 853 of the Department of Defense Appropriation Act of 1978 (Appropriation Act), /5/ which prohibited the disbursement of funds for lodging for employees while on temporary duty when "adequate government quarters" are available but not occupied. Congress incorporated section 853 within the Appropriation Act in order to ensure significant savings to the Federal government by providing an economic disincentive to employees who fail to use government quarters when these quarters are adequate and available. While the provision initially resulted in savings to the government, numerous complaints were raised concerning the lack of uniformity in the implementation of the provision. As a consequence, some opposition emerged to its continuation in the subsequent Appropriation Act. The Agency, itself, requested elimination of the provision. In response to these complaints and statements of opposition, the House Appropriations Committee (House Committee) conducted a review of the implementation of Section 853. In a report containing its findings, the House Committee found that it was necessary to continue the provision in the 1979 Appropriation Act and, in addition, to (1) provide detailed guidance as to what constitutes adequate quarters and (2) require uniform and reasonable application of the provision. /6/ Specifically, the report reflected the House Committee's concern that although the DoD Instruction prescribed the minimum standards of adequacy, it did not provide for the uniform application of the standards by these various activities. /7/ Thus, to ensure uniformity in the application of the provision, the House Committee included within its report the following directive to the Agency: The Committee expects the Department of Defense to establish policies which will: Assure that a civilian employee on TDY would get no lesser accommodations than a private room with a bath shared by no more than one other person. . . . . Establish uniform reservation procedures using the DoD autovon system and issue uniform rules for non-availability certificates. Congress, by issuing such a directive to the Agency, mandated the Agency to provide accommodations which, at least, would meet the above standards and to issue uniform rules governing the issuance of non-availability certificates. In view of the foregoing, the Authority finds, contrary to the Union's contention, that the proposal is inconsistent with the JTR and the DoD Instruction. /8/ That is, the record herein and the legislative history of the Appropriation Acts clearly require a finding that as long as the minimum standards prescribed in the House's directive to the Agency are met, employees on temporary duty are required to utilize those quarters or lose a portion of their per diem allowance. Furthermore, as noted previously, the legislative history is replete with evidence indicating that Congress intended the Agency to issue uniform rules for determining whether to grant certificates of nonavailability. Accordingly, to the extent that the issuance of certificates of nonavailability are based upon whether the quarters involved meet the standards of adequacy specified in the DoD Instructions, these standards must be uniformly applied in order to comply with Congress' mandate. Therefore, contrary to the Union's contention, the DoD Instruction prescribes standards of adequacy which must be uniformly applied in determining whether funds can be disbursed for lodging. To the extent that the Union's proposal exceeds the standards set forth in the DoD Instruction, the proposal is inconsistent with the regulation. Similarly, the proposal is inconsistent with provisions of the JTR. These provisions reiterate the mandate of the Appropriation Act that funds not be disbursed to employees who fail to use "adequate government quarters" as prescribed in the DoD Instruction unless, among other things, a certificate of nonavailability is issued. Accordingly, to the extent that the Union's proposal would permit disbursement of funds to employees for lodging who fail to use "adequate government quarters" as prescribed in the DoD Instruction, the proposal is inconsistent with the JTR. Finding the proposal inconsistent with the Agency's regulations, the Authority must now address the issue of whether a compelling need exists for these regulations so as to bar negotiation over the Union's proposal as claimed by the Agency. In agreement with the Agency, therefore, the Authority finds that a compelling need exists for the JTR and DoD Instruction 4165.47 pursuant to section 2424.11(c) of the Authority's Rules and Regulations. /9/ That is, the Agency was placed under a mandate from Congress to prescribe uniform rules for nonavailability certificates. /10/ As previously detailed herein, the provisions of the JTR and the DoD Instruction in question reflect this nondiscretionary mandate. Hence, the Agency's regulatory scheme implements a nondiscretionary mandate of law and outside authority. In this connection, the Authority has previously held a Conference Committee report to constitute an "outside authority" within the meaning of section 2424.11(c) of the Authority's Rules and Regulations. See National Federation of Federal Employees, Local 1669 and Arkansas Air National Guard, 13 FLRA 176 (1983), enforced sub nom. National Federation of Federal Employees, Local 1669 v. Federal Labor Relations Authority, 745 F.2d 705 (D.C. Cir. 1984). Likewise, the Authority concludes herein that the House Committee report, which clearly reflects Congress' intent as to the manner in which the relevant provision of the Appropriation Act is to be implemented, constitutes "outside authority" under section 2424.11(c) of the Authority's Rules and Regulations. /11/ Inasmuch as the Union's proposal conflicts with the JTR and DoD Instruction, Agency regulations for which a compelling need exists, the proposal is not within the duty to bargain under section 7117(a)(2) of the Statute. /12/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., May 7, 1985 Henry B.Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Agency's request to dismiss the appeal because the proposal is not sufficiently specific and delimited to permit the Authority to issue a negotiability determination is denied. The specific language of the proposal permits the Authority to reach a determination as to whether the proposal is inconsistent with Federal law, rule or regulation and, thus, its negotiability under the Statute. See American Federation of Government Employees, AFL-CIO, Local 1395 and Social Security Administration, Great Lakes Program Center, Chicago, Illinois, 14 FLRA 408 (1984), and the case cited therein. /2/ Section 7117(a)(2) of the Statute provides: Sec. 7117. Duty to bargain in good faith; compelling need; duty to consult (a)(2) The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation. /3/ The JTR provides in pertinent part as follows: C1055 USE OF GOVERNMENT QUARTERS 1. GENERAL. Although an employee may not be required to utilize Government quarters, when adequate Government quarters are available but not used, the payment of the quarters portion of the per diem or actual expense allowances of any employee on temporary duty away from his designated post of duty may not be made except under the following conditions: 1. When the order issuing authority, either prior to or subsequent to the travel involved, issues a statement to the effect that the utilization of Government quarters at the temporary duty station or delay point would adversely affect the performance of the assigned mission (this exception is not applicable to personnel attending training courses at an installation of the Uniformed Services); 2. When the commanding officer (or designated representative) responsible for Government quarters at the temporary duty or delay point furnishes a statement to the effect that utilization of Government quarters was impracticable; . . . . 2. EFFECT OF ABSENCE OF STATEMENT. In the absence of a statement issued under the provisions of subpart. I or unless the nonavailability of adequate Government quarters can be ascertained by reference to a publication issued by the Uniformed Service concerned, it shall be assumed that adequate Government quarters were available on any day for which the employee fails to submit an appropriate statement (see subpars. 3 and 4) indicating that such quarters were not available or not utilized on that date. . . . 3. COMMANDING OFFICER'S STATEMENT. If the length of temporary duty or delay is for a period of 24 hours or more . . . , a statement by the commanding officer . . . , is required . . . , as to the nonavailability of adequate Government quarters. Such a statement is not required under the conditions outlined in subpar. I or in any case where the nonavailability of adequate Government quarters can be ascertained by reference to a publication issued by the Uniformed Service concerned. . . . . Appendix D. Glossary of Terms GOVERNMENT QUARTERS. Sleeping accommodations in a facility (other than a mode of transportation) operated under United States Government control or supervision; or furnished by a foreign government under agreement or on a complimentary basis. . . . Government quarters include guest houses, officers clubs, operation hotels, bachelor officers quarters, visiting officers quarters, or similar quarters facilities located at a military activity; . . . Standards of adequacy are prescribed by Office, Secretary of Defense, and implemented by appropriate regulations of the Service concerned. /4/ DoD Instruction 4165.47 provides in pertinent part as follows: D. POLICY AND PROCEDURES 1. General . . . . b. The minimum standards of adequacy shall apply worldwide, except for shipboard or field duty and for specific foreign areas, as determined by the Head of the Component concerned. . . . . . . . D.2 Minimum Standards of Adequacy . . . . e. Furnishings. Criteria and allowances for furnishings shall be as specified in DoD Instruction 4165.43 (reference (i)). However, the following basic items are required in all room-configured units for unaccompanied transient personnel: bed, bed linens, pillow, blanket, chair, closet or wardrobe, dresser or chest of drawers for each person, window coverings, lock and keys for doors to all rooms, and inside and outside locks or latches on all bathroom or kitchen facilities between rooms. f. Services and Supplies. The following services and supplies are required in all room-configured units used for unaccompanied transient personnel: 1. Twenty-four hour check-in or check out service and 24 hour wake-up service, or issue of an alarm clock; 2. Custodial service in all common-use areas; 3. Daily maid service, which includes bed-making, cleaning of bathroom, emptying of trash containers and ashtrays, dusting and vacuuming, change of towel, washcloth, and drinking glass; 4. Change of bed linens when guests have departed, and at least weekly for long-term guests; and, 5. At least one towel, washcloth, bar of soap, and drinking glass per person. g. Application. The minimum standards of adequacy for the existing inventory are contained in enclosures 3 and 4 for permanent party and transient personnel. The latter, together with the requirements specified in subparagraphs D.2.e and f., above, shall be used for determining when certification of nonavailability may be issued to personnel on TDY. /5/ Section 853 of the Department of Defense Appropriation Act of 1978 provided: None of the funds appropriated by this Act or available in any working capital fund of the Department of Defense shall be available to pay the expenses attributable to lodging of any person on official business away from his designated post of duty, or in the case of an individual described under section 5703 of title 5, United States Code, his home or regular place of duty, when adequate government quarters are available, but not occupied by such person. /6/ The report, which accompanied the Appropriation Act of 1979, H.R. Rep. No. 95-1398, 95th Cong., 2d Sess. 161, 164 (1978), stated: The Committee has again considered this matter and has concluded that Section 853 should remain in the Defense Appropriations Bill. However, it is apparently necessary to provide detailed guidance to the Department of Defense as to what constitute adequate quarters and ensure that other procedures are uniform and reasonable. /7/ The House Committee in its report noted the following: While OSD prescribes minimum standards of adequacy for transient quarters, each service has its own ideas about the adequacy of the standards. Further, within each service, there are sharp differences of opinion about whether quarters considered adequate for the military are also necessarily adequate for civilian personnel. . . . . In practice, each of the military services has interpreted and applied these standards in its own way. Navy, in the past, has disregarded them altogether and established its own square footage requirements which were less than the DOD minimums. The discrepancy was attributed to lack of funds for bringing quarters up to DOD minimum levels of adequacy. Navy is now reportedly inventorying its facilities for transient personnel and is committed to discontinue using substandard quarters by October 1978. Army and Air Force have also gone in different directions in applying the DOD criteria. Army has interpreted the standard to mean that nothing more is required in excess of what the regulation specifies in order to make quarters "adequate." Air Force, on the other hand, has set its own unwritten but higher standard of adequacy which requires more of the comforts and amenities usually associated with a commercial lodging facility. As a result, the difference between Army and Air Force accommodations of similar age and configuration can be striking. H.R. Rep. No. 95-1398, 95th Cong., 2d Sess. 161, 163 (1978). /8/ The Agency contends, and the Union concedes, that both the JTR and the DoD Instruction 4165.47 are Agency regulations. /9/ Section 2424.11(c) of the Authority's Rules and Regulations provides: Sec. 2424.11 Illustrative criteria. A compelling need exists for an agency rule or regulation concerning any condition of employment when the agency demonstrates that the rule or regulation meets one or more of the following illustrative criteria: . . . . (c) The rule or regulation implements a mandate to the agency or primary national subdivision under law or other outside authority, which implementation is essentially nondiscretionary in nature. /10/ This mandate is reflected in Congress' directive to the Agency as stated in the House report and which can be found on pages 7 and 8, infra. /11/ As to the Union's claim that the Appropriation Act is no longer in effect and therefore not binding, the Authority notes that section 853 has appeared, with little modification, in all subsequent Appropriation Acts under various sections including the Department of Defense Appropriation Act of 1985. /12/ In view of the decision herein, the Authority finds it unnecessary to address the remaining contentions of the Agency as to the negotiability of the proposal.