21:0590(76)NG - NWSEO, MEBA and Dept. of Commerce, National Weather Service, NOAA -- 1986 FLRAdec NG
[ v21 p590 ]
The decision of the Authority follows:
21 FLRA No. 76 NATIONAL WEATHER SERVICE EMPLOYEES ORGANIZATION, MEBA, AFL-CIO Union and DEPARTMENT OF COMMERCE, NATIONAL WEATHER SERVICE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION Agency Case No. 0-NG-627 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 71-5(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of the following Union Proposal: Students at the (National Weather Service Training) Center shall be given the option of staying at housing of their choice in the Kansas City area. In addition, each student who elects to stay at housing other then the Downtown Travelodge shall be given the $11.85 which would have been paid to the Downtown Travelodge (by the Agency) for their housing, to use in paying for whatever housing the student selects. This $11.85 would be in addition for the $23.00 per diem given to each student for food and miscellaneous expenses. II. Positions of the Parties The Agency essentially contends that the proposal is nonnegotiable for the following reasons. First it conflicts with management's right to determine its budget under section 7106(a)(1) of the Statute, because the increase in cost associated with the proposal is significant and is not offset by compensating benefits. Second, the Agency asserts that the proposal is inconsistent with its right under 41 U.S.C. Section 252(a) to contract for service. Third, the Agency states that the proposal is inconsistent with a policy determination it made pursuant to its authority under 5 U.S.C. Section 5911(e) that employees may be required to use Government furnished quarters when they are students at the training center if the Agency head determines it is necessary. Finally, the Agency head determines it has a "requirements" contract with a private contractor which is consistent with 41 C.F.R. Section 1-3.409(b). According to the Agency, a "requirements" contract requires an employer to have all its needs supplied exclusively by the contractor. In the Agency's view, its contract legally prevents it from purchasing its housing needs from anyone but the private contractor, thereby making it impossible for the Agency to agree to the terms of the proposal without risking a lawsuit. The Union contends that the proposal is not intended to cost the Agency any more than it has already determined to spend. The Union also contends that the proposal would not violate law or regulation. It argues that the contract the Agency has negotiated for housing its employees/students may be altered or terminated at its sole discretion, and that the contract does not force the Agency to compel its employees/students to lodge with the private contractor. III. Analysis The Union's proposal would allow employees who are students at the National Weather Service Training Center to arrange for their own housing instead of being required to stay in Agency-arranged housing. The Proposal further provides that the Agency would pay to employees who arrange their own housing the same amount of money as the Agency pays per employee for the housing it has arranged. The housing allowance would be added to the regular per diem given to all students for food and other expenses. Right To Determine Budget Under Section 7106(a)(1) In support of its position that the proposal would infringe upon management's right to determine its budget, the Agency cites American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright Patterson Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). In that decision the Authority determined the conditions under which an otherwise negotiable proposal could be found to violate an agency's right to determine its budget under section 7106(a)(1) of the Statute. The Authority stated, in relevant part, that such a determination will be made only where an agency makes a substantial demonstration that a proposal would require a significant and unavoidable increase in costs which is not offset by compensating benefits. The Authority finds in this case that the Agency has failed to demonstrate that the proposal would require any increase in costs whatsoever. B. Proposal's Consistency With 41 U.S.C. Section 252(a), 5 U.S.C. Section 5911(e) and 41 C.F.R. section 1-3. 409(b) The Agency's contentions concerning the proposal's alleged inconsistency with law, and with the Agency's policy determinations made under the authority of law, are all without merit. 41 U.S.C. Section 251(a) provides that "Executive agencies shall make purchases and contracts for property and services in accordance with the provisions of this chapter and implementing regulations of the Adminstrator." The proposal would not have prevented the Agency from contracting, as it did, with a private contractor, nor would it require the Agency to contract for any housing when the Agency had not already determined to do so. The proposal would only provide employees/students with the option of arranging their own housing and being reimbursed up to the cost of Agency-furnished housing. 5 U.S.C. Section 5911(e) states that "(t)he head of an agency may not require an employee. . . to occupy quarters on a rental basis, unless the agency head determines that the Government cannot adequately be protected, otherwise." The fact that the head of the Agency in this case made a previous policy determination consistent with the terms of 5 U.S.C. Section 5911(e), does not settle the issue of whether the Agency is barred from negotiating over the proposal. For the proposal to be outside the duty to bargain, it must be inconsistent with law (or Government-wide regulations or agency regulations for which there is a compelling need). The Agency does not contend, nor does it appear, that the proposal is inconsistent with 5 U.S.C. Section 5911(e), or that 5 U.S.C. Section 5911 requires the Agency to find it necessary that its employees/students reside in Agency contracted housing. The Agency argues only that the proposal is inconsistent with a policy determination it made pursuant to 5 U.S.C. Section 5911(e). /1/ Since the policy determination was a matter strictly within the discretion of the Agency, and concerned conditions of employment affecting unit employees, the Agency's argument does not provide a basis for finding the proposal nonnegotiable. Finally, 41 C.F.R. Section 1-3.409(b) sets forth the description and application of "requirements" contracts. /2/ Although the Agency asserts that its contract in this case is a "requirements" contract consistent with this regulatory provision, the proposal would have to be inconsistent with the Code of Federal Regulations in order to be barred from negotiations. The Agency has not shown this. Further, in agreement with the Union, the Authority finds that regardless of whether the contract it has negotiated is a "requirements" contract, the contract has provisions which specify that it may be altered or terminated at the will of the Agency. Therefore, there is no inconsistency between the proposal and 41 C.F.R. Section 1-3.409(b), nor is there any other apparent reason why the proposal should be barred from negotiations. IV. Conclusion For the reasons stated in the foregoing analysis, the proposal is not inconsistent with the Agency's right to determine its budget, under section 7106(a)(1) of the Statute, nor is it inconsistent with Federal law or regulation. /3/ Moreover, the Agency's view that the proposal conflicts with a policy determination made under the authority of law provides no basis for finding the proposal nonnegotiable. Therefore, the Authority concludes that the proposal is within the duty to bargain. V. Order Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, 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., April 30, 1986. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier, III, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES (1) Nor does a General Accounting Office (GAO) Memorandum (Certificate of Settlement, Claim No. 2-2624287 (March 30, 1978) referred to by the Agency support the Agency's conclusion that it is barred from negotiating the Union's proposal. The GAO memorandum would at most indicate that the Agency has satisfied the finding of necessity required by 5 U.S.C. Section 5911(e), but cites to no law or regulation preventing the Agency from complying with the provisions of the proposal. (2) This section of the C.F.R. has been replaced by regulations found at 48 C.F.R. Chapter 1. However, the new regulations do not apply to this case as they only govern contracts executed after April 1, 1984. (3) The Authority notes that the proposal is consistent with the applicable federal Travel Regulations. In this regard, although the Agency has the discretion to bargain over the proposal, it may require proof that students who elect to stay in alternative housing are paying the negotiated amount. The Agency may also adjust the per diem amount for food and miscellaneous expenses based on circumstances resulting from the use of other lodging, for example, when a student elects to stay with friends or relatives at no cost. (4) in deciding that the proposal is within the duty to bargain, the Authority makes no judgment as to its merits.