22:0351(34)NG - Overseas Education Association, Inc. and DOD, Office of Dependents Schools -- 1986 FLRAdec NG



[ v22 p351 ]
22:0351(34)NG
The decision of the Authority follows:


 22 FLRA No. 34
 
 OVERSEAS EDUCATION ASSOCIATION, INC.
 Union
 
 and
 
 DEPARTMENT OF DEFENSE 
 OFFICE OF DEPENDENTS SCHOOLS
 Agency
 
                                            Case No. 0-NG-850
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    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).  It raises issues
 concerning the negotiability of 14 Union proposals.  The Union has
 requested that the Authority sever "any parts, subparts, sentences,
 phrases or words" of proposals which are found to be nonnegotiable and
 "declare negotiable so much of the proposals which are negotiable." The
 Authority grants the Union's request to the limited extent that we will
 rule upon those portions of the proposals which we view, as submitted,
 as being able to stand independently of the rest of the proposal and
 which have been specifically addressed by the parties in their
 submissions to the Authority.  /1/
 
                           II.  Union Proposal 1
 
          ARTICLE 2 -- CONDITIONS OF THE AGREEMENT Section 1-B:  The
       Employer and/or its designee at the appropriate level shall
       provide the Association with the opportunity to include
       appropriate orientation information in the orientation mailing
       sent to new employees in the bargaining unit.  The Association
       shall also be provided an opportunity to present appropriate
       orientation material at any orientation sessions.
 
                       A.  Positions of the Parties
 
    Because the underlined portion of the proposal applies to a point in
 time before the newly selected teachers have actually been appointed to
 their positions, that is, during the summer before the school year has
 begun, the Agency (DoDDS) argues that it does not relate to "employees."
 Additionally, it asserts that newly selected teachers may be destined
 for a bargaining unit other than that represented by the Union (OEA).
 Consequently, it contends that the proposal does not concern conditions
 of employment of employees in the OEA bargaining unit.  Secondly, DoDDS
 states that because not all schools do orientation mailings, the
 proposal would require it to institute mailings where none currently
 exist.  Thus, it argues that the proposal conflicts with its right under
 section 7106(b)(1) to determine the methods, means and technology of
 performing its work.
 
    The Union states that the proposal is intended to apply only to those
 new employees who are being assigned to schools in its bargaining unit
 and only to existing orientation mailings.
 
                       B.  Analysis and Conclusions
 
    As to requiring new mailings, neither the literal language nor the
 intended meaning of the proposal would require that.  Therefore, DoDDS'
 argument that the proposal conflicts with section 7106(b)(1) of the
 Statute is rejected.
 
    As to the "conditions of employment" argument, we note that the
 proposal, by intent and language, is limited to new employees assigned
 to schools in the OEA bargaining unit.  Moreover, DoDDS does not dispute
 that the provision of "appropriate orientation information" is a matter
 affecting working conditions and hence a condition of employment.  The
 only issue, then, is with the timing of the mailing.  In our view, the
 material which would be provided relates solely to the selectees' status
 as individuals designated for employment in bargaining unit positions
 and has relevance specifically to employment in those positions.  Thus,
 even though the proposal would be effective at a time before the
 selectees have been appointed, it relates to matters concerning
 bargaining unit positions and, consequently, concerns conditions of
 employment in the bargaining unit.  Union Proposal 1 is within the duty
 to bargain.  See, for example, National Treasury Employees Union and
 Internal Revenue Service, 7 FLRA 275 (1981) (Union Proposals 2-4) where
 the Authority held negotiable proposals which prescribed procedures for
 filling vacancies in the bargaining unit even though the procedures
 would apply to candidates who were currently outside the unit.
 
                          III.  Union Proposal 2
 
          Section 2-E
 
          Employees who are released from duty without pay to represent
       the Association shall retain entitlement to all allowances and
       benefits (including, but not limited to:  step increase,
       insurance, health benefits, LQA, post allowances, transportation
       agreement, teaching position, eligibility for transfer program,
       retirement credit) for the period of representation unless
       prohibited by law.
 
                       A.  Positions of the Parties
 
    DoDDS contends that Union Proposal 2 conflicts with Government-wide
 regulations, specifically asserting that:
 
          (1) the provision relating to insurance conflicts with Federal
       Personnel Manual Supplement 870-1;
 
          (2) the provision relating to health benefits conflicts with
       Federal Personnel Manual Supplement 890-1;
 
          (3) the provision relating to living quarters allowance (LQA)
       and post differential conflicts with the Department of State
       Standardized Regulations (DSSRs).
 
    OEA, in its reply brief, states that the phrase "unless prohibited by
 law" is intended to mean that the entitlements sought are to be granted
 only to the extent permitted by law and Government-wide regulations.  It
 claims that the proposal, being so limited, cannot possibly conflict
 with those regulations.  It concedes that the Federal Personnel Manual
 provisions involved are Government-wide regulations, however, it
 contends that the DSSRs are not.
 
                       B.  Analysis and Conclusions
 
                        1.  Conflict with the DSSRs
 
    The Authority has construed the term "Government-wide regulation" to
 include regulations and official declarations of policy which apply to
 the Federal civilian work force as a whole and are binding on the
 Federal agencies and officials to which they apply.  The Authority
 emphasized that a requirement that a regulation apply, literally, to all
 Federal civilian employees in order to constitute a "Government-wide"
 regulation under section 7117 would render that provision virtually
 meaningless, since it appeared that few, if any, regulations affect
 every civilian employee of the Federal Government.  The Authority found
 from the legislative history of the Statute that Congress understood
 "Government-wide regulations" to constitute a significant limitation on
 the scope of bargaining and intended the term to include more than the
 inconsequential number of regulations that might fall within a literal
 definition.  Thus, the Authority concluded that a regulation is a
 Government-wide regulation under section 7117 if it is generally
 applicable throughout the Federal Government as opposed to applying to
 every Federal employee.  National Treasury Employees Union, Chapter 6
 and Internal Revenue Service, New Orleans District, 3 FLRA 747 (1980).
 
    Various laws providing for certain allowances and differentials for
 civilian employee travel and assignment overseas authorize the President
 of the United States to issue implementing regulations.  /2/ By
 Executive Orders, /3/ this authority is delegated to the Secretary of
 State who has exercised it by issuing the DSSRs.  The DSSRs govern
 allowances, differentials, and defraying of official residence expenses
 in foreign areas.  /4/ As to those subjects, they apply to Federal
 civilian employees generally /5/ and are binding on the heads of
 agencies.  /6/
 
    OEA argues that because Chapter 700 of the DSSRs applies only to
 Department of Defense teachers and that, but for Chapter 700, the DSSRs
 would not apply to the teachers, the DSSRs are not Government-wide rules
 or regulations.  In the Authority's view, Chapter 700 merely sets forth
 modifications to the overall provisions of the DSSRs to accommodate the
 special circumstances of teacher employment -- most notably the fact
 that their employment is oriented around the school year.  /7/ The
 Authority concludes that the DSSRs, in general, apply to teachers.  See
 also note 4 above.
 
    We reach this conclusion notwithstanding two apparently contrary
 statements in, respectively, the legislative history of the Statute and
 of the Foreign Service Act of 1980.  First, the legislative history of
 the Statute contains remarks made by Rep. William D. Ford, regarding the
 "Udall substitute" which became the final House Version of the bill
 which was enacted, which seem to suggest that the DSSRs are not to be
 treated as Government-wide regulations within the meaning of the
 Statute.  /8/ We think this misconstrues the DSSRs and is inconsistent
 with the overall intent of the Congress.  As noted above, authority to
 issue regulations governing the subjects which the DSSRs address was
 delegated from the Congress through the President to the Department of
 State.  Further, the DSSRs cover not only teachers but civilian Federal
 employees generally with respect to certain allowances and differentials
 provided in connection with overseas assignment and travel.
 
    Second, a statement in the conference report preceeding enactment of
 the Foreign Service Act of 1980 (legislation which, among other things,
 established a labor-management relations program in the Foreing Service,
 modeled on the Statute), characterizes the DSSRs as not being
 "Government-wide" within the meaning of the Statute.  /9/ The
 legislative history of the Foreign Service Act is not dispositive in
 interpreting the Statute.  See Department of Defense v. FLRA, 659 F.2d
 1140, 1157 n.94 (D.C. Cir. 1981) in which the court stated that it
 considered the legislative history of the Foreign Service Act to be
 relevant but not dispositive evidence or even an "especially important
 factor" in interpreting the Statute.  In any event, as explained
 earlier, the Authority does not interpret the term "Government-wide rule
 or regulation" literally because we believe the result would be
 inconsistent with Congressional intent.
 
    Hence, based on the Authority's previous decisions, we conclude that
 the DSSRs are Government-wide regulations.
 
    Union Proposal 2 would require the continuation of LQA and post
 allowances for unspecified periods during which employees are
 representing OEA while in a nonpay status.  We find that this conflicts
 with DSSR provisions which contain explicit restrictions on payment of
 those allowances.  /10/ Although OEA has stated that its proposal should
 be read as incorporating any limitations imposed by Government-wide
 rules and regulations as well as law, the language of the proposal does
 not reflect this intent.  Consequently, we find the proposal as written
 concerning LQA and post allowances is inconsistent with a
 Government-wide regulation and outside the duty to bargain.
 
              2.  Conflict with the Federal Personnel Manual
 
    DoDDS has also argued that insofar as the proposal would allow an
 unlimited and unconditional continuation of life insurance and health
 insurance benefits, it conflicts with provisions in the Federal
 Personnel Manual (FPM).  The FPM limits the extent to which employees in
 nonpay status may retain life insurance coverage /11/ and continue
 enrollment in a health benefits plan.  /12/ However, the FPM also allows
 an employee granted leave without pay to serve in an employee
 organization to elect the option of continuing health benefits and life
 insurance coverage indefinitely if the employee pays both the Government
 and employee contributions to cover premium costs.  These FPM provisions
 are derivative and only reiterate specific limitations contained in
 Federal law.  See 5 U.S.C. Section 8706(a) and (d) (life insurance) and
 5 U.S.C. Section 8906(e) (health benefits).  Because limitations imposed
 by law are expressly incorporated by the language of the proposal, so by
 extension are the derivative provisions of the FPM.  Therefore, we find
 the proposed entitlements to health benefits and life insurance do not
 exceed those permitted by Federal law and the FPM.  DoDDS' contention
 that the proposal conflicts with the FPM is rejected as a basis for
 finding that aspect of the proposal nonnegotiable.
 
                           IV.  Union Proposal 3
 
          Section 3-D
 
          Each employee has the right to seek assistance from an
       Association Representative at any time as long as such assistance
       does not interfere with the carrying out of instructional duties.
 
                         Positions of the Parties
 
    DoDDS asserts that the proposal would interfere with its rights under
 section 7106(a)(2)(A) and (B) to direct employees and to assign work.
 In support of this contention, it argues that the proposal, as written,
 would prevent it from assigning duties to an employee who decides to
 seek assistance from a Union representative during the preparation
 period, lunch period or between classes.
 
    The OEA states the Union Proposal 3 is intended to allow teachers to
 visit Association representatives only when no specific duties are
 assigned and that it is not intended to prohibit the Agency from
 assigning duties to teachers during periods of free time.
 
                       B.  Analysis and Conclusions
 
    The Union's statement of intent is compatible with the language of
 the proposal which specifically allows that performance of duties will
 take precedence over any rights to seek union assistance.  In view of
 this meaning, the Agency's argument that the proposal would interfere
 with its rights to direct employees and to assign work is unpersuasive.
 Union Proposal 3 is within the duty to bargain.  See American Federation
 of Government Employees, AFL-CIO, Local 3511 and Veterans Administration
 Hospital, San Antonio, Texas, 12 FLRA 76 (1983) (Union Proposal 29) in
 which the Authority found negotiable a proposal which would neither
 prevent management from assigning duties to employees during their meal
 periods nor relieve employees of the responsibility to perform any work
 scheduled during that time.
 
                           V.  Union Proposal 4
 
          Section 3-E(7):
 
          Any records to which the employee has not been granted access
       shall not be used to adversely affect said employee.
 
                       A.  Positions of the Parties
 
    OEA states that under the proposal, when an employee is denied access
 to material, "those records or documents and the information contained
 in them may not be used against the employee in any way which may
 adversely affect the employee in the course of his/her employment."
 (Emphasis supplied.) DoDDS asserts that, as written, the proposal could
 require it to disclose information even though under law and regulation
 it might be improper to do so.  Alternatively, the proposal could
 prevent it from taking actions relating to an employee because of legal
 prohibitions on the release of relevant information.  Because of this,
 the proposal is inconsistent with law and Government-wide rule or
 regulation and interferes with its management rights under section
 7106(a) of the Statute.  In response OEA argues that under the Privacy
 Act and the laws and regulations governing adverse actions employees are
 already entitled to the records addressed by the proposal.
 
                       B.  Analysis and Conclusions
 
    Based on the language of the proposal and the Union's statement of
 intent, we find that the proposal is not limited to "adverse actions"
 within the meaning of title 5 of the U.S. Code.  5 U.S.C. 7501 et seq.
 Rather, it would give employees unrestricted access to any and all
 "records" used in a manner which would affect them in a negative way.
 The proposal makes no allowance for instances where disclosure would be
 inconsistent with law and Government-wide rule or regulation such as
 divulging medical information contrary to the regulations of the Office
 of Personnel Management (OPM).
 
    OPM is authorized to issue regulations governing, among other things,
 disability retirement applications.  5 U.S.C. Section 8347.  Its
 regulations concerning applications filed by agencies are codified at 5
 CFR Sections 831.1201-1206 and apply generally to employees in the
 executive branch.  5 CFR Sections 831.201 and 831.1201.  The Authority
 finds that they are Government-wide regulations.  /13/
 
    Those regulations incorporate by reference /14/ another OPM
 regulation which prohibits an agency from disclosing medical information
 "concerning a mental or other condition of such a nature that a prudent
 physician would hesitate to inform a person suffering from it of its
 exact nature and probable outcome . . . ." According to this provision
 an agency may give this type of information only to a licensed physician
 with no requirement to allow the employee access to it.  Because these
 applications are filed in the context of removing an employee, /15/ it
 is reasonable to conclude that it is an action adversely affecting the
 employee within the meaning of this proposal.
 
    In another example, the proposal as written could also require that
 an employee be given access to the records of other employees in
 violation of the Privacy Act.  More specifically, in a promotion action
 a nonselected employee seeking to challenge the outcome could, under the
 proposal, demand access to the records of other competing employees.
 The Authority has previously held that a proposal seeking unqualified
 access by nonselected employees to records of other employees involved
 in a promotion action was inconsistent with the Privacy Act and
 consequently nonnegotiable.  National Federation of Federal Employees,
 Local 1745 and Veterans Administration, 13 FLRA 543 (1983) (Union
 Proposal 2), appealed as to other matters sub nom.  National Federation
 of Federal Employees, Local 1745 v. FLRA, No. 84-1054 (D.C. Cir. Feb.
 16, 1984).
 
    In summary, because the proposal is framed in a manner that does not
 allow for observing legitimate legal and regulatory restrictions on
 disclosure of records, it is inconsistent with section 7117 of the
 Statute and is not within the duty to bargain.  Because we have found
 that the Agency can not be required to divulge information where
 prohibited by law or Government-wide regulation, it is unnecessary to
 address the Agency's arguments that as an alternative to disclosure it
 would be prevented from exercising various management rights.
 
                           VI.  Union Proposal 5
 
          Section 3-K:
 
          Unless otherwise mandated by Federal law or government-wide
       regulations, employees in the bargaining unit will be responsible
       only to the Employer with respect to matters that affect their
       terms and conditions of employment.
 
                       A.  Positions of the Parties
 
    As explained by OEA, this proposal is intended to exempt employees
 from any obligation to follow directives given by military personnel but
 not to prohibit agency supervisors from issuing under their own
 authority orders of military origin.  DoDDS asserts that because the
 proposal relates to "ancillary services" made available to employees,
 such as recreational services, housing facilities, and PX and commissary
 privileges, it does not concern conditions of employment.  The Agency
 argues that because it has no control over the military it cannot
 bargain over services and facilities which are operated by the military.
  In support of this argument, it cites the Authority's decision in
 American Federation of State, County and Municipal Employees, AFL-CIO
 and Library of Congress, Washington, D.C., 7 FLRA 578 (1982).  OEA
 responds that because the Agency holds employees responsible for
 following orders of military personnel, the proposal relates to
 conditions of employment.
 
                       B.  Analysis and Conclusions
 
                       1.  Conditions of Employment
 
    Based on OEA'S explanation and the language of the proposal itself,
 the proposal clearly would apply to matters which are conditions of
 employment.  Therefore, we reject the Agency's argument to the contrary.
 
             2.  Effect of Military Control on Duty to Bargain
 
    The Authority also rejects the Agency's argument that because control
 over the matters addressed by the proposal rests with other components
 of the Department of Defense it has no obligation to bargain.  The
 Authority addressed a similar question in Defense Contract
 Administration Services Region, Boston, Massachusetts, 15 FLRA 750
 (1984).  In that case, the Authority held that where a union holds
 exclusive recognition in a component of an agency, that component is
 obligated to bargain over conditions of employment despite the fact that
 control over a particular condition of employment rests with a different
 organizational component in the same overall agency.  The only limits on
 an agency's obligation to bargain over conditions of employment, in that
 circumstance, are those placed on its discretion by provisions of law,
 Government-wide rule or regulation or agency regulations for which a
 compelling need exists.  American Federation of State, County and
 Municipal Employees, AFL-CIO and Library of Congress, Washington, D.C.,
 7 FLRA 578 (1982) (Union Proposals XI-XIII, enf'd sub nom. Library of
 Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1982) relied upon by DoDDS is
 inapposite.  In Library of Congress authority over a particular
 condition of employment in the bargaining unit rested outside the agency
 (Library of Congress) with the Architect of the Capitol.  The
 circumstances in this case are analogous to those in DCASR, Boston, as
 contrasted to those in Library of Congress.  Therefore, the principles
 set forth in DCASR, Boston are applicable in this case.  The fact that
 Department of Defense organizations other than DoDDS possess control
 over a matter which is the subject of an otherwise negotiable proposal
 does not present a basis for finding that proposal nonnegotiable.
 
          3.  Management Right to Direct Employees in the Agency
 
    However, the Authority finds that the proposal is nonnegotiable for a
 reason other than those raised by the Agency.  In the conduct of its
 mission DoDDS utilizes various facilities and services which are under
 the control of the military departments.  The proposal would prevent
 DoDDS from requiring employees to follow directives given by military
 personnel in the context of their use of those facilities and services
 as DoDDS employees.  In the Authority's view this would directly
 interfere with the Agency's supervision and guidance of employees
 insofar as use of those facilities and services is concerned.  The
 proposal therefore conflicts with the Agency's right under section
 7106(a)(2)(A) to direct employees.  See National Treasury Employees
 Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
 769, 775 (1980), aff'd sub nom. National Treasury Employees Union v.
 FLRA, 691 F.2d 553 (D.C. Cir. 1982), in which the Authority discussed
 what is encompassed in the management right "to direct . . . employees
 in the agency." Thus, it is not within the duty to bargain.  Compare
 American Federation of Government Employees, AFL-CIO, International
 Council of U.S. Marshals Service Locals and Department of Justice, U.S.
 Marshals Service, 11 FLRA 672 (1983) (Union Proposal 1) (a proposal
 which would preclude certain individuals from making work assignments to
 employees was held to conflict with the agency's right under section
 7106(a)(2)(B) to assign work).
 
                          VII.  Union Proposal 6
 
          ARTICLE 6 -- DUES WITHHOLDING
 
          Section 2-A:
 
          Unit employees may have Association dues withheld from their
       pay on a biweekly basis during the school year in the amount
       established by the Association and authorized by the eligible
       employee.  The Employer shall take what action is necessary to
       ensure the monies withheld will be forwarded within fourteen
       calendar days of each pay period to the appropriate official
       designated by the Association.  Remittance checks will be
       accompanied by a listing of the names, amount withheld, and total
       income remitted, as well as the names of those employees for whom
       allotments have been temporarily or permanently stopped and the
       reason therefore.
 
                       A.  Positions of the Parties
 
    Because its payroll functions are administered by the military
 departments, DoDDS argues that the underscored portion of the proposal
 is nonnegotiable.  It also asserts that the proposal is contrary to law.
  OEA asserts that the fact that the military departments provide payroll
 services to DoDDS does not relieve DoDDS of its responsibility under
 section 7115 of the Statute to implement dues deductions for its
 employees.
 
                       B.  Analysis and Conclusions
 
    The record indicates that military departments provide payroll
 services to DoDDS under support or service agreements and as DoDDS'
 agents.  This arrangement does not relieve DoDDS of its statutorily
 prescribed responsibility under section 7115 to implement dues
 allotments for its employees who are in the OEA bargaining unit.  The
 Agency's contention that the proposal is not within its duty to bargain
 because its payroll function is administered by the military departments
 is rejected.  We note that, even if the military departments were acting
 under their own delegated authority rather than under a servicing
 agreement, the proposal would be negotiable.  See discussion in section
 VI(B)(2) above.
 
    DoDDS has failed to cite any specific provision and none is apparent
 to support its claim that the proposal conflicts with law.  This
 contention is, therefore, rejected.  Union Proposal 6 is within the duty
 to bargain.
 
                          VIII.  Union Proposal 7
 
          Section 3:
 
          Deductions for allotments shall begin on the first full day
       period in October of the school year.  Authorizations for
       allotments not received by the servicing finance office before the
       first full pay period in October shall become effective on the
       next biweekly pay period.  The amount for such allotments shall be
       the annual dues divided by the number of full pay periods left in
       the school year.  Dues shall be withheld only for full pay periods
       during the school year.  By mutual agreement, an appropriate
       finance office and Association Representative may vary the terms
       of this section.
 
                       A.  Positions of the Parties
 
    DoDDS contends that the underscored portion of Union Proposal 7
 conflicts with Section 7115 of the Statute.  By requiring payment of a
 total annual amount regardless of when during the year allotment is
 initiated the proposal would require the payment of back dues, contrary
 to the requirement in section 7115 that dues allotments be made on a
 "regular and periodic" basis.
 
    OEA states that its dues are an annual amount.  Thus, a member is
 expected to pay the total yearly amount regardless of the point during
 the year at which he/she joins and authorizes withholding.  It contends
 that the proposal reflects its flat membership fee type of dues
 structure rather than requiring payment of "back dues."
 
                       B.  Analysis and Conclusions
 
    Based on the Union's explanation of the proposal, we do not view the
 proposal as seeking collection of "back dues." Nor do we interpret the
 proposal to require the Agency to continue allotments after a revocation
 request or other circumstance (for example, promotion out of the
 bargaining unit) which would dictate termination.
 
    In the Authority's view section 7115 establishes a mechanism for the
 payment of dues by bargaining unit employees as opposed to prescribing a
 permissable dues structure for the labor organizations.  Nothing in it
 prohibits dues collection based on a particular "flat fee" dues
 structure.  Consequently, we find that this proposal does not conflict
 with section 7115 of the Statute and is within the duty to bargain.
 
                           IX.  Union Proposal 8
 
          ARTICLE 7 -- USE OF OFFICIAL FACILITIES
 
          Section 2:
 
          The Employer/Designee recognizes that the Association
       Representative(s) has exclusive right to distribute all Union
       literature in the school international distribution boxes for unit
       employees.  It is understood that the Civilian Personnel Office
       may distribute information on government-wide health benefit
       plans.
 
                       A.  Positions of the Parties
 
    DoDDS contends that the underscored portion of this proposal would
 require it to limit access to its internal mail system to OEA even when
 a competing union had "equivalent status." This would be inconsistent
 with section 7116(a)(3) of the Statute.  OEA states that the proposal is
 not intended to prevent a competing union from having access to the mail
 system "if there is a question concerning representation after the
 expiration of the contract." Union Reply Brief at 16.
 
                       B.  Analysis and Conclusions
 
    This proposal expressly applies to "all Union literature" and, thus,
 would encompass the distribution of Union campaign literature.  A
 question concerning representation (QCR) can be raised, and a rival
 union can therefore gain "equivalent status" with an incumbent exclusive
 representative, prior to the expiration of a collective bargaining
 agreement.  5 U.S.C. Section 7111(f) (3).  Section 7116(a)(3) of the
 Statute obliges agencies to furnish customary and routine facilities and
 services to labor organizations having equivalent status.  This proposal
 would require OEA to have exclusive use of the Agency mail system for
 the distribution of, among other things, union campaign literature even
 when a competing union had equivalent status.  Because of this, it
 conflicts with section 7116(a)(3) of the Statute and is not within the
 duty to bargain.
 
                           X.  Union Proposal 9
 
          Section 4:
 
          The Employer/Designee shall provide Association
       Representatives/Staff who are not employees of ODE/DoDDS with
       appropriate documents requesting utilization of military
       facilities and services overseas when such Representatives/Staff
       are acting pursuant to the Federal Service Labor-Management
       Relations Statute, Chapter 71 of Title 5 of the U.S. Code.
 
                       A.  Positions of the Parties
 
    DoDDS argues that this proposal is nonnegotiable because it relates
 solely to individuals who are neither DoDDS employees nor bargaining
 unit members.  OEA contends that the matters proposed would facilitate
 its ability to represent unit employees and, consequently, the proposal
 is negotiable.
 
                       B.  Analysis and Conclusions
 
    The Authority finds that this proposal concerns exclusively
 individuals who are neither employees of the Agency nor in the
 bargaining unit.  The obligation of an agency to bargain concerning
 conditions of employment extends only to those employees in an
 appropriate bargaining unit represented by the exclusive representative.
  See, for example, United States Department of Defense, Department of
 the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base,
 Texas, 15 FLRA 998 (1984).  For the reasons expressed in Kelly Air Force
 Base, Union Proposal 9 is not within the duty ot bargain.
 
                          XI.  Union Proposal 10
 
          Section 5-A:
 
          A.  The Employer/Designee shall provide Association
       Representatives/Staff who are employees of ODE/DoDDS with
       appropriate government Travel Orders for transportation for the
       purposes of conducting representational duties and to include a
       designation of the equivalent Management counterpart grade.
 
                       A.  Positions of the Parties
 
    DoDDS asserts that the proposal is nonnegotiable because it conflicts
 with various provisions of the Department of Defense Joint Travel
 Regulations (JTRs).  This claim centers on two Comptroller General (CG)
 decisions:  Unpublished Decision of the Comptroller General B-158880,
 April 28, 1966 and Unpublished Decision of the Comptroller General
 B-158880, October 27, 1966, which the Agency interprets as requiring
 uniform application of the JTRs to all employees -- unit and nonunit
 alike.  The Agency argues the proposal would require it to either
 "waive" conflicting JTR provisions for unit employees or apply the terms
 of the proposal to nonunit employees.  Either result places the proposal
 outside the duty to bargain.  To require it to waive JTR provisions is
 inconsistent with the CG decisions which it contends are Government-wide
 rules and regulations as well as a nondiscretionary mandate of an
 outside authority which establishes a compelling need for the JTRs under
 section 2424.11(c) of the Authority's Rules and Regulations.  To require
 it to apply the terms of the proposal to nonunit employees extends
 beyond its duty to bargain.
 
    OEA argues that the CG decisions cited by DoDDS are not relevant to
 the question of whether under section 7117 of the Statute parties can
 agree to contract provisions which are inconsistent with provisions of
 agency regulations.
 
                       B.  Analysis and Conclusions
 
    Section 7117(a) of the Statute specifically provides that the duty to
 bargain extends to matters which are the subject of an agency regulation
 where there is no compelling need for the regulation.  This allows
 negotiations over proposed conditions of employment of bargaining unit
 employees which may differ from unilaterally established conditions of
 employment set forth in agency regulations.  The agency's strained
 interpretation of the Comptroller General's decisions deprives the
 compelling need provisions of the Statute of their intended meaning and
 is not supportable.  Those decisions addressed the question of whether
 agencies could arbitrarily waive regulatory provisions in individual
 cases.  /16/ This question is distinguishable from that presented by
 this case which is whether parties have a statutory right to negotiate
 conditions of employment applying to bargaining unit employees which
 differ from those set forth in agency regulations.  This proposal, by
 merely seeking to negotiate over matters covered by JTRs, does not
 conflict with the cited Comptroller General decisions themselves, /17/
 or with any requirements they may place on the manner in which the JTRs
 are administered.  Additionally, the Authority finds that nothing in the
 cited Comptroller General decisions would require that any provisions
 negotiated be applied to nonunit employees.
 
    Based on these reasons the Authority rejects the Agency's arguments.
 Our findings that in this case the Agency has not established a
 compelling need for any part of the JTRs, does not of course imply that
 a compelling need could not be established under other circumstances.
 Compare National Federation of Federal Employees, Local 561 and
 Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama,
 17 FLRA 759 (1985) aff'd sub nom. National Federation of Federal
 Employees, Local 29 v. FLRA, No. 85-1398 (D.C. Cir. April 1, 1986) where
 the Authority found that a compelling need had been established for a
 portion of the JTRs.  The Authority finds, based on the record here,
 that Union Proposal 10 is within the duty to bargain.
 
                      XII.  Union Proposals 11 and 12
 
                            (Union Proposal 11)
 
          Section 5-B:
 
          B.  Association Representatives/Staff who are not employees of
       ODE/DoDDS shall be issued appropriate government Travel Orders on
       a reimbursable basis from the Association for transportation for
       the purpose of conducting representational duties and to include a
       designation of the equivalent Management counterpart grade.
 
                            (Union Proposal 12)
 
          Section 6:
 
          Association Representatives/Staff who are not ODE/DoDDS
       employees and are stationed outside the United States shall be
       given access to services and facilities provided by the Department
       of Defense as employees of the Department of Defense on a
       reimbursable basis or on the same basis that members of the
       American Red Cross, USO, U.S. commercial contractors, Boy Scout
       leaders, or traveling clergy are treated.
 
                       A.  Positions of the Parties
 
    The positions of the parties regarding these two proposals are
 essentially the same as those expressed regarding Union Proposal 9.  See
 section X(A) above.
 
                        B.  Analysis and Conclusion
 
    Union Proposals 11 and 12, like Union Proposal 9, deal exclusively
 with matters concerning individuals who are not in the bargaining unit.
 Based on the reasons expressed and the case cited in conjunction with
 Union Proposal 9, the Authority finds that Union Proposals 11 and 12 are
 not within the duty to bargain.  See section X(B) above.
 
                         XIII.  Union Proposal 13
 
          Section 11:
 
          The Employer/Designee shall provide an area with a minimum of a
       desk, chair, file cabinet, typewriter and Class A telephone for
       the Association at the national and regional levels.  An identical
       area shall be provided at the local level provided that an
       Association Representative represents at least 50 bargaining unit
       members.  If the Association Representative represents fewer than
       50 bargaining unit members, said area shall be provided if
       available.
 
                       A.  Positions of the Parties
 
    The Agency argues that the underlined portion of the proposal is
 nonnegotiable because the military components of the Department of
 Defense rather than DoDDS, control the allocation of telephone
 resources.  OEA argues that DoDDS can procure telephone services from
 the military through servicing support agreements.
 
                       B.  Analysis and Conclusions
 
    The Agency's argument is essentially the same as the one raised in
 conjunction with Union Proposal 5.  It is rejected here for the reasons
 expressed above in section VI(B)(2).  Union Proposal 13 is, therefore,
 within the Agency's obligation to bargain.
 
                          XIV.  Union Proposal 14
 
          Section 14:
 
          The Employer/Designee shall take what action it can to provide
       each school with a faculty lounge and a Class A telephone.  In any
       event, employees shall be given reasonable access to military and
       civilian telephones at the work site.
 
                       A.  Positions of the Parties
 
    DoDDS argues that:  to the extent the telephones are to be used for
 official business, the proposal concerns the methods and means by which
 the Agency accomplishes its work and under section 7106(b)(1) it is not
 within the duty to bargain;  and to the extent the telephones are to be
 used for personal business, the proposal conflicts with a
 Government-wide rule or regulation, specifically a GSA regulation found
 at 41 CFR, Part 101-37.
 
    OEA argues that DoDDS has not demonstrated that use of the telephone
 is "principally related to the performance of the Agency's work." Thus,
 it has not shown that the proposal interferes with its determination of
 the methods, means and technology of performing work.  In response to
 the Agency's assertion that use of the telephone for personal business
 conflicts with a GSA regulation, OEA asserts that the particular
 regulation only prohibits using long distance telephone service for
 personal reasons.  Under the proposal, the Agency retains the right to
 prohibit employees from making long distance calls.
 
                       B.  Analysis and Conclusions
 
                   1.  Conflict with Section 7106(b)(1)
 
    Because the Proposal would require that telephones, or access to
 them, be provided employees for the purpose of conducting the business
 of the Agency, it is to the same effect as Union Proposal 3 in American
 Federation of Government Employees, Local 644, AFL-CIO and U.S.
 Department of Labor, Mine Health and Safety Administration, Morgantown,
 West Virginia, 15 FLRA 902 (1984).  In that case, the Authority found
 that the proposal, which required that sufficient telephones for the
 conduct of Government business be furnished, concerned the technology of
 performing work within the meaning of section 7106(b)(1) of the Statute.
  For the same reasons, Union Proposal 14 as written is an elective
 subject on which the Agency has chosen not to bargain.
 
          2.  Conflict with a Government-wide Rule or Regulation
 
    The particular regulation on which DoDDS relies has been supplanted
 during the pendancy of the case by a provision in the Federal
 Information Resources Management Regulation (FIRMR).  Specifically, the
 FIRMR limits use of "the FTS and other Government provided long distance
 services" to Government business only.  41 CFR Section 201-38.007.
 However, it does not appear that the FIRMR applies to Department of
 Defense installations in the geographical areas involved in this case.
 Specifically, 41 CFR Section 201-1.103(c)(3) provides:
 
          (3) The applicability of the telecommunications resources
       provisions of the FIRMR to the Department of Defense (DoD) is
       governed by the statement of areas of understanding between DoD
       and GSA (15 FR 8226, December 1, 1950).
 
    The statement of areas of understanding referred to provides in
 relevant part:
 
          1.  The areas of understanding herein set forth were worked out
       pursuant to order of the President of July 1, 1949, directed to
       the Secretary of Defense, the Director, Bureau of the Budget, and
       the Administrator of General Services.
 
          2.  The areas of understanding with respect to communications
       services are:
 
                       . . . . . . .
 
 
          m.  This area of understanding is applicable to communications
       services within the Continental United States, Hawaii, Puerto Rico
       and the Virgin Islands.  The Department of Defense shall be exempt
       from action taken by the Administrator with respect to
       communication services under section 201(a) of Public Law 152 (The
       Federal Property and Administrative Services Act of 1949) in other
       geographical areas.
 
    In view of this, the Agency's assertion that the proposal conflicts
 with 41 CFR Section 201-38.007 cannot be sustained and would not, by
 itself, provide a basis for finding the proposal nonnegotiable.
 
                                XV.  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 Union proposals
 1, 2 (except insofar as it addresses Living Quarters Allowances and post
 allowances), 3, 6, 7, 10 and 13.  /18/ IT IS FURTHER ORDERED that the
 Union's petition for review as it relates to Union Proposals 2 (insofar
 as it addresses Living Quarters Allowances and post allowances), 4, 5,
 8, 9, 11, 12 and 14 be, and it thereby is, dismissed.
 
    Issued, Washington, D.C. July 7, 1986.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) By its Order dated June 30, 1986, the Authority denied the
 Agency's motion to consolidate Case Nos. 0-NG-840, 0-NG-850, 0-NG-950,
 0-NG-1115 and 0-NG-1227.
 
    (2) For example, Defense Department Overseas Teachers Pay and
 Personnel Practices Act, 73 Stat. 213 (1959);  the Overseas
 Differentials and Allowances Act, 74 Stat. 792 (1960);  and the Travel
 Expense Act of 1949, as amended (5 U.S.C. Sections 5701 et seq.).
 
    (3) E.O. 10903, as amended, and E.O. 12228.
 
    (4) Section 012 of the DSSRs.  For the text of this provision, see
 the Appendix to this decision.
 
    (5) See section 040 of the DSSRs.  For relevant portions of the text
 see Appendix.
 
    (6) See section 013 of the DSSRs.  For text see Appendix.
 
    (7) For relevant portion of the text of Chapter 700 of the DSSRs, see
 Appendix.
 
    (8) For text of these remarks, see Appendix.
 
    (9) For text of this statement, see Appendix.
 
    (10) For text of relevant provision of the DSSRs, see Appendix.
 
    (11) FPM, Chapter 870, Subchap. 1, 1-4 and FPM Supplement 870-1,
 Subchap. S2, S2-7.
 
    (12) FPM, Chapter 890, Subchap. 3, 3-3 and FPM Supplement 890-1,
 Subchap. S8, S8-4.
 
    (13) See discussion of what constitute a Government-wide regulation
 in section III(B)(1) above.
 
    (14) 5 CFR Section 831.1204(b) refers to 5 CFR Section 294.401(b).
 The provisions of 5 CFR Section 294.401(b) have been relocated and
 appear at 5 CFR Section 294.106(d).  See 47 Fed. Reg. 46513 (1982) and
 50 Fed. Reg. 3308 (1985).
 
    (15) See 5 CFR Sections 831.1201, 831.1203.
 
    (16) Citing an earlier decision, the Comptroller General held:
 
          (I)n 37 Comp. Gen. 820 . . . we held that a statute which
       authorizes an administrative officer to prescribe regulations does
       not imply authority to include a waiver provision in the
       regulations which would permit the administrator in his discretion
       to disregard the regulations in certain individual cases and
       enforce them in others.  Also, as we stated in that decision,
       regulations must contain a guide or standard alike to all
       individuals similarly situated, so that anyone interested may
       determine his own rights or exemptions therein.
 
    Unpublished Decision of the Comptroller General B-158880, October 27,
 1966.
 
    (17) In view of this, it is unnecessary to, and the Authority does
 not, decide under what circumstances decisions of the Comptroller
 General might constitute Government-wide rules and regulations.
 
    (18) In finding these proposals within the duty to bargain the
 Authority makes no judgment as to their merits.
 
 
                                 APPENDIX
 
                       /3/ 012 Exercise of Authority
 
          The Secretary of State hereby prescribes the following
       regulations governing allowances, differentials, and defraying of
       official residence expenses in foreign areas.  These regulations
       and any amendments and revisions to them shall govern:
 
          a.  Granting of quarters allowances, cost-of-living allowances,
       post differential, and danger pay allowance authorized by 5 U.S.C.
       5921-5925, and 5928 for employees defined in section 014i and for
       employees defined in section 040j who may be authorized by other
       provisions of law to be paid allowances and differentials;
 
          b.  Allotment of funds to defray official residence expenses
       authorized by 5 U.S.C. 5913;
 
          c.  Granting of representation allowances authorized by section
       905 of the Foreign Service Act of 1980, for officers or employees
       of the Foreign Service, and similar allowances authorized by other
       provisions of law (including section 235(a)(2) of Title 38 of the
       United States Code) for employees (Sec. 040i) other than employees
       of the Foreign Service unless authority to prescribe regulations
       for such employees under any such act has been vested in, or
       specifically delegated to, someone other than the Secretary of
       State;
 
          d.  Granting of quarters allowances, cost-of-living allowances
       and post differential authorized by sections 7 (a) and 8 (a) (1)
       and (2) of the Defense Department Overseas Teachers Pay and
       Personnel Practices Act (20 U.S.C. 905(a) and 20 U.S.C. 906(a)(1)
       and (2), as amended (2) U.S.C. 901 et seq.);
 
          e.  Maximum rates of per diem allowances for travel in foreign
       areas authorized by 5 U.S.C. 5702;
 
          f.  The payment of compensation, post differential and
       allowances in the event of an emergency evacuation of employees or
       their dependents, or both, from duty stations for military or
       other reasons or because of imminent danger to their lives (5
       U.S.C. 5521-5527);
 
          g.  The payment of a housing supplement to certain employees
       assigned to the U.S. Mission to the United Nations, and the
       payment of a housing and subsistence expense allowance to U.S.
       delegates and alternates to the United Nations General Assembly;
       authorized by Section 9 of the United Nations Participation Act of
       1945, as amended (59 Stat. 619).
 
          h.  Granting of compensatory time off to employees at certain
       posts in foreign areas authorized by 5 U.S.C. 5926.
 
          i.  Granting of relocation allowances authorized by 38 U.S.C.
       235(6) and (7) for Veterans Administration.
 
          j.  Advances of pay to employees entering foreign area
       assignments authorized by 5 U.S.C. 5927.
 
                /4/ The DSSRs define employee as follows:
 
          040 Definitions
 
          The following definitions apply to all chapters of these
       regulations, unless waived or modified in specific instances.
       Supplementary definitions which apply to specific chapters or
       sections only will be found in the General Provisions of those
       chapters and subchapters.
 
                       . . . . . . .
 
 
          i.  "employee" means an individual employed in the civilian
       service of a government agency (including ambassadors, ministers,
       and members of the Foreign Service of the United States under the
       Department of State) who is
 
          (1) a citizen of the United States;  (except under sec. 312);
 
          (2) officially stationed in a foreign area, except as otherwise
       specifically provided in these regulations;
 
          (3) receiving basic compensation (See Sec. 040k);  and
 
          (4) eligible for allowances or differential under sub-chapter
       030.
 
    Teachers are considered "employees." Section 040(n) provides:
 
          n.  "Teacher" means an employee who is a teacher as defined in
       section 2(2) of the Defense Department Overseas Teachers Pay and
       Personnel Practices Act (73 Stat. 213) and regulations issued
       thereunder by the Department of Defense.  Substitute teachers are
       not considered to be teachers for the purpose of these
       regulations.
 
              /5/ Section 013 of the DSSRs provides in part:
 
                      013 Authority of Head of Agency
 
          When authorized by law, the head of an agency may . . . grant
       post differential, special incentive differential, danger pay
       allowance, quarters, cost-of-living, representation allowances,
       compensatory time off at certain posts and advances of pay to
       employee of his/her agency and require an accounting therefore,
       subject to the provisions of these regulations and the
       availability of funds.  Within the scope of these regulations, the
       head of an agency may issue such further implementing regulations
       as he/she may deem necessary for the guidance of his/her agency
       with regard to the granting of and accounting for these payments.
 
                    /6/ Chapter 700 provides in part:
 
                                710 General
 
          Under the general provisions of Chapter 000 and the modifying
       provisions of this chapter, a teacher (Sec. 040n.) who is assigned
       to a teaching position at a post (Sec. 040h) may be granted
       quarters allowances in accordance with Chapter 100, cost-of-living
       allowances in accordance with chapter 200, and be paid a post
       differential in accordance with Chapter 500.  (Emphasis added.)
 
                 /7/ Rep. Ford's remarks were as follows:
 
    By also permitting negotiation of matters that are the subject of
 agency regulations that are not Government-wide rules of regulation