21:0590(76)NG - NWSEO, MEBA and Dept. of Commerce, National Weather Service, NOAA -- 1986 FLRAdec NG



[ v21 p590 ]
21:0590(76)NG
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
 propos