[ v27 p492 ]
27:0492(71)NG
The decision of the Authority follows:
27 FLRA No. 71
OVERSEAS EDUCTION
ASSOCIATION, INC.
Union
and
DEPARTMENT OF DEFENSE,
OFFICE OF DEPENDENTS SCHOOLS
Agency
Case No. 0-NG-840
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case (Footnotes appear in the appendix
to this decision)
The petition for review in this case is before us because of a
negotiability appeal filed under section 7105(a)(2)(D) and (E) of the
Federal Service Labor-Management Relations Statute (the Statute). It
raises issues concerning the negotiability of 49 proposals. The Union
requests 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." We
grant the Union's request to the limited extent that we will rule
separately upon those portions of the proposals which, as submitted, we
view as being able to stand independently of the rest of the proposal
and which have been specifically addressed by the parties. /1/
The Department of Defense, Office of Dependents Schools (the Agency)
is a field activity within the Office of the Secretary of Defense which
is responsible for providing an education for eligible dependents of
military and civilian personnel stationed overseas. It operates a
system of schools overseas which are typically located on or near U.S.
military bases. Consequently, many of the facilities and services which
the Agency utilizes and to which some of the proposals at issue in this
case relate are controlled by the military departments or other
components of the Department of Defense. Based on their overseas
employment, employees of the Agency are eligible for certain allowances
and differentials which are governed by regulations issued by the
Secretary of State. Based on their overseas employment, they are also
eligible for certain transportation and travel allowances which are
governed by regulations issued by the General Services Administration.
Given these circumstances, many of the proposals at issue in this case
relate to matters which are not directly or completely within the
Agency's control.
II. Proposal 1
Article 43 -- Housing and Housing Allowances
Section 1
The Employer shall assure adequate housing, subsistence,
medical, commissary, exchange, laundry, and other essential
facilities and services for unit employees, equivalent to
stateside standards, are available. The Employer shall not send
unit employees to a particular work site unless and until such
facilities are provided to the extent of meeting reasonable
standards of health and decency. Unit employees shall be entitled
to housing at government expense or to a living quarters
allowance. If assigned housing at government expense, a unit
employee shall not be required to vacate the housing because of
the passage of time or government need.
A. Positions of the Parties
The Agency contends that this entire proposal is nonnegotiable for
the following reasons. The first two sentences: (1) do not concern
conditions of employment but are limited to matters of personal interest
to employees; and (2) relate to matters which are not within the
control of the Agency but, are controlled by the military departments.
The second sentence, additionally, interferes with management's rights
under section 7106(a)(2) to direct employees and assign work. The third
sentence conflicts with Government-wide rules or regulations -- the
Department of State Standardized Regulations (DSSRs). The fourth
sentence relates to matters which are not within the control of the
Agency but are controlled by the military departments; and would affect
employees outside of the bargaining unit.
The Union argues as follows: The first two sentences concern
conditions of employment within the control of the Agency and are
intended to contractually guarantee provisions of Department of Defense
regulations which relate to the living standards of employees assigned
overseas. The third sentence would entitle all bargaining unit
employees to living quarters or a living quarters allowance regardless
of their point of hire. The DSSRs are not a bar to negotiation of the
proposal because they are not Government-wide regulations. In any
event, the proposal, unlike the DSSRs, is consistent with the Overseas
Teachers Pay and Personnel Practices Act. Alternatively, even assuming
that the DSSRs are Government-wide regulations, there is no conflict
between them and the third sentence insofar as it would require the
Agency to provide quarters (as opposed to a living quarters allowance)
for "local hires," that is, employees recruited outside of the United
States. The Union contends that the matters proposed in sentence 4 are
within the control of the Agency.
B. Analysis and Conclusions
1. Conditions of Employment
In Antilles Consolidated Education Association and Antilles
Consolidated School System, 22 FLRA No. 23 (1986), the Authority set
forth two basic factors which it would consider in deciding whether a
proposal involves a condition of employment.
(1) Whether the matter proposed to be bargained pertains to
bargaining unit employees.
(2) The nature and extent of the effect of the matters proposed
to be bargained on working conditions of those employees.
By its terms, this proposal is limited to bargaining unit employees.
The only argument which the Agency makes to the contrary is that
sentence four would impact on nonbargaining unit employees "because the
housing policies of military departments are applied equally to
employees not in the (Union's) unit of recognition." The Agency appears
to be arguing that, because its housing resources are finite, what it
provides to one individual or group necessarily results in denial to
another.
It is well settled that matters which are conditions of employment of
employees in a bargaining unit and are within the discretion of the
agency involved are within the duty to bargain. For example, National
Treasury Employees Union, Chapter 6 and Internal Revenue Service, New
Orleans District, 3 FLRA 748, 759-60 1980). Proposals which directly
determine, that is prescribe, the conditions of employment of nonunit
employees may be outside the duty to bargain. However, otherwise
negotiable proposals which directly determine conditions of employment
of bargaining unit employees are not rendered nonnegotiable simply
because they also effect conditions of employment outside of the
bargaining unit to a limited degree or in an indirect way. American
Federation of Government Employees, Local 32, AFL-CIO and Office of
Personnel Management, 22 FLRA No. 49 (1986), petition for review filed
sub nom. American Federation of Government Employees, Local 32 v.
Federal Labor Relations Authority, No. 86-1447 (D.C. Cir. Aug. 11,
1986).
This proposal does not prescribe what housing the Agency would
provide to nonbargaining unit employees. Consequently, we conclude that
the proposal's effect on nonbargaining unit employees is not sufficient
to render it outside the duty to bargain on that basis. Moreover, we
believe the argument is basically flawed. Much of collective bargaining
entails the distribution of finite resources. The Agency's argument
seems to presume that Congress intended to establish a system in which
the duty to bargain arises only where infinite resources are available
to it. Compare American Federation of Government Employees v. Federal
Labor Relations Authority, 785 F.2d 333, 337-8, (D.C. Cir. 1986) in
which the Court noted that under the Statute an agency was not released
from its duty to bargain whenever it had suffered economic hardship.
We find that this proposal meets the first factor set forth in
Antilles Consolidated School System.
For the reasons which follow, we find that the proposal also meets
the second factor insofar as employees whose residence abroad is
attributable to their employment are concerned. The first sentence of
this proposal reflects the provisions of Department of Defense Directive
Number 1400.6, dated February 15, 1980, entitled "DOD Civilian Employees
in Overseas Areas" which provides:
4. In making a determination of numbers and types of U.S.
employees for overseas areas, the Military Service Commander shall
consider the ability of the command to ensure adequate housing;
subsistence; and medical, commissary, exchange, laundry,
transportation, and other essential facilities and services.
Except when required to meet unexpected emergency conditions, an
overseas commander shall not request recruitment from the United
States unless the command can provide such facilities to meet
health and decency standards.
Furthermore, various laws address housing or housing allowances for
employees assigned to overseas posts of duty. /2/ One purpose
underlying these legal provisions is to compensate Federal employees for
the extra costs and hardships incidental to their assignment overseas.
See Acker v. United States, 620 F.2d 802 (Ct. Cl. 1980).
These laws and regulatory provisions establish a direct connection
between the facilities and services which are the subject of this
proposal and the employment relationship insofar as employees whose
residence overseas is attributable to their employment or who were
recruited from the United States are concerned. Therefore, we find that
the proposal, which addresses the extent and manner to which such
employees will be provided these facilities and services, concerns
conditions of employment. See National Federation of Federal Employees
Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA
139 (1980). However, the record does not establish a similar
relationship with regard to employees whose residence abroad is not
attributable to their employment. See Acker, 620 F.2d 802.
2. Management Rights
The second sentence of this proposal prohibits the Agency under
specified circumstances from assigning employees to a particular post of
duty. It is materially to the same effect as Proposal 1 in National
Federation of Federal Employees, Local 1650 and U.S. Forest Service,
Angeles National Forest, 12 FLRA 611 (1983). In that case the Authority
found that the proposal, which placed substantive restrictions on the
agency's discretion to assign employees to duty stations, prevented the
agency from exercising its right under section 7106(a)(2)(A) to assign
employees. For the reasons relied upon in Angeles National Forest, we
reach the same conclusion as to the second sentence of this proposal.
In view of this conclusion, we find it unnecessary to rule on the
Agency's argument that this sentence also conflicts with the Agency's
rights to direct employees and to assign work.
3. Government-wide Rules and Regulations
In Overseas Education Association, Inc., and Department of Defense
Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 2)
petition for review filed sub nom. Overseas Education Association, Inc.,
v. FLRA, No. 86-1491 (D.C. Cir. Sept. 3, 1986) we ruled that the DSSRs
are Government-wide regulations which will bar the negotiation of
conflicting proposals. Section 031 of the DSSRs restricts the
circumstances under which a "local hire" may receive a living quarters
allowance. /3/ Therefore, in agreement with the Agency, we conclude
that insofar as sentence three would create a blanket entitlement of
bargaining unit employees, regardless of their point of hire, to a
living quarters allowance, it conflicts with Government-wide
regulations.
4. Effect of Military Control on Duty to Bargain
The Agency's argument that it has no duty to bargain over matters,
such as the services and facilities addressed by this proposal, because
they are controlled by other components of the Department of Defense is
rejected here for the same reasons we expressed in Department of Defense
Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 5). As
noted in that decision, 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
exist.
5. Summary and Conclusions
Insofar as the proposal relates to employees whose residence overseas
is attributable to their employment, the proposal concerns conditions of
employment. Sentence two, however, conflicts with the Agency's right to
assign employees. Insofar as sentence three is expressly intended to
obtain living quarters allowances for all "local hires," it conflicts
with a Government-wide regulation. /4/ Insofar as that sentence is
expressly intended to obtain quarters for all "local hires" it does not
concern conditions of employment. Control of the facilities and
services which are the subject of the proposal by components of the
Department of Defense other than the Agency does not present a basis for
finding a proposal nonnegotiable. We therefore find the proposal
negotiable with the exception of sentences two and three which are not
within the Agency's duty to bargain.
III. Proposal 2
Section 2
At the end of each school year, each unit employee who is
either serving under a transportation agreement or who agrees in
writing to return to duty the following school year shall be
authorized for the recess period immediately preceding such next
school year at the option of the unit employee either housing or a
living quarters allowance or storage of his/her household goods.
(Only the underscored portions of the proposal are in dispute.)
A. Positions of the Parties
The Agency asserts that because this proposal is intended to obtain a
living quarters allowance for local hires and part-time employees it
conflicts with Government-wide regulations -- the DSSRs; because the
proposal concerns matters relating to the summer recess, when employees
are not in duty status, it does not relate to conditions of employment;
and because it would allow employees a choice of housing, quarters
allowance or storage it conflicts with the Joint Travel Regulations
(JTRs).
The Union contends that the DSSRs are not Government-wide regulations
or, even assuming that they are, the proposal does not conflict with
them; the proposal concerns a personnel policy or practice and,
consequently, conditions of employment; and the Agency has not
demonstrated either that a compelling need exists for the JTRs or even
that the proposal conflicts with the JTRs.
B. Analysis and Conclusion
1. Conflict with the DSSRs
As stated in connection with Proposal 1, the DSSRs, are
Government-wide regulations and bar the negotiation of proposals which
are inconsistent with them. This proposal conflicts with the DSSRs
inasmuch as it seeks to extend to all "local hires" and part-time
bargaining unit employees the option of receiving a quarters allowance
during the summer recess. As noted earlier, section 031 (see note 3)
limits the circumstances under which a "local hire" may receive a
quarters allowance. This proposal is inconsistent with those
limitations prescribed by the DSSRs. Section 031.5 of the DSSRs states
that part-time employees shall not be granted, among other things, a
living quarters allowance. /5/ We are unpersuaded by the Union's
argument that, because "part-time" teachers may actually work more than
32 hours a week since the demands of their profession require work
beyond time spent in the classroom, they cannot be viewed as part-time
employees within the meaning of the DSSRs. We find that a
straightforward reading of section 031.5 leads to the conclusion that,
insofar as teachers are concerned, a part-time employee is simply an
employee who is scheduled to work less than a full-time employee. /6/
Clearly the intent of the DSSRs is to deny quarters allowances to
part-time employees. Based on the language of the proposal and the
Union's explanation of it, we conclude that it seeks to circumvent this
restriction. The proposal is, therefore, inconsistent with the DSSRs.
2. Conditions of Employment
We reject the Agency's argument that, because the proposal concerns
matters which occur during the summer recess, it does not concern
conditions of employment. The Department of Defense Overseas Teachers
Pay and Personnel Practices Act specifically entitles certain teachers
to quarters, quarters allowances or storage of household effects during
the recess period. Their entitlement is specifically conditioned upon
agreement, and fulfillment of the agreement, to continue their
employment the following school year. 20 U.S.C. Section 905(c) and (d).
In our view this legal authority establishes, for those teachers to
whom it applies, a direct relationship between quarters, quarters
allowances and storage of household goods during summer recess and the
employment relationship. Based on this circumstance, we find that the
proposal meets the second factor of the Antilles test, discussed in
conjunction with Proposal 1, insofar as the teachers to whom 20 U.S.C.
Section 905 applies are concerned. See Acker v. U.S., 620 F.2d 802 (Ct.
Cl. 1980).
3. The Joint Travel Regulations
The Agency's argument here that the proposal is nonnegotiable because
of conflict with the JTRs is the same as that raised in conjunction with
Proposal 10 in Department of Defense Office of Dependents Schools, 22
FLRA No. 34 (1986). That is: the Agency asserts that pursuant to two
Comptroller General decisions it is required to apply the JTRs uniformly
to unit and nonunit employees. The argument continues that the proposal
would require it to either "waive" conflicting JTR provisions for unit
employees or to apply the terms of the proposal to nonunit employees.
The Agency contends that the first alternative would be inconsistent
with the Comptroller General decisions which it contends are
Government-wide rules and regulation as well as a nondiscretionary
mandate of an outside authority which establishes a compelling need for
the JTRs. It contends that the second alternative would extend beyond
its duty to bargain.
We reject this argument here for the same reasons expressed in
Department of Defense, Office of Dependents Schools, 22 FLRA No. 34
which stated, in relevant part:
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 Generals'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. 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, 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. (Footnotes deleted.)
4. Summary and Conclusions
The disputed portions of the proposal as written and explained by the
Union conflict with a Government-wide rule or regulation and are,
therefore, not within the duty to bargain. However, we reject the
Agency's contentions that the proposal does not concern conditions of
employment and that the proposal conflicts with the JTRs.
IV. Proposals 3 and 4
Section 3
(Proposal 3)
A. When a unit employee has been assigned to a new duty
station, the Employer shall make available to said employee the
availability of both government and economy housing prior to the
issuance of travel orders and ODE (Office of Dependent's
Education) shall be bound by such information.
(Proposal 4)
B. The Employer will also make available to each such employee
information concerning the availability of furniture and
appliances at the new duty station. If this information is
incorrect or subsequently altered after shipment of household
goods, the Employer shall accommodate the adversely affected unit
employee by storage of household goods, provision of appliances
and/or furniture, or partial shipment of household goods. (Only
the underscored portions are in dispute.)
A. Positions of the Parties
The Agency contends that both of these proposals are nonnegotiable
because they do not concern conditions of employment. Additionally, the
Agency contends that, insofar as the proposals concern Government
housing, the proposals concern matters within the control of the
military departments and are outside its duty to bargain. Insofar as
the proposals concern housing obtained on the "local economy," they
relate to matters over which it has no control. The Union disputes the
Agency's contention that the proposals are outside its duty to bargain.
B. Analysis and Conclusion
These two proposals concern conditions of employment. As noted
earlier, the Department of Defense Overseas Teachers Pay and Personnel
Practices Act entitles teachers to, among other things, quarters or
quarters allowances. The record shows that where quarters are provided,
they are in some instances provided with some or all furnishings and
appliances. Agency Brief at 16. As to shipment of household goods, 5
U.S.C. Section 5724 authorizes agencies to pay for transportation and
storage of household goods when an employee has transferred in the
interest of the Government from one official station to another.
However, where furnished or partly furnished quarters are provided,
agencies are required to make an "appropriate reduction in the weight of
household goods which may be authorized for shipment at Government
expense." Federal Travel Regulations (FTRs), 2-8.4.b.
The proposal relates to bargaining unit employees whose change of
residence is a result of a change in their official duty station. In
view of this circumstance and the above-cited legal and regulatory
provisions, we conclude that these proposals concern matters which are
directly connected to the employment relationship and affect the working
conditions of bargaining unit employees.
The Agency's contention that the proposals are nonnegotiable because
the military departments control the Government quarters referred to is
rejected for the same reasons expressed in Department of Defense Office
of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 5). The Agency's
argument that the proposals are nonnegotiable because it has no control
over matters relating to local economy housing does not present a basis
for finding a proposal nonnegotiable. It is related to the merits of
the proposals, not to whether the proposals concern conditions of
employment, or are inconsistent with applicable law and regulation.
Based on the foregoing, we find that Proposals 3 and 4 are within the
duty to bargain.
V. Proposal 5
Section 4
A. Unit employees shall have the option to live in government
housing or in economy housing. Unit employees living in economy
housing shall be authorized a living quarters allowance. (Only
the underlined portions are in dispute.)
A. Positions of the Parties
The Agency claims that the first sentence is nonnegotiable because it
concerns a matter within the control of the military departments and
conflicts with the regulations of those departments concerning the
assignment of military housing resources. It claims that insofar as it
seeks a living quarters allowance for "local hires," the second sentence
conflicts with the DSSRs; insofar as it seeks a living quarters
allowance for employees to whom Government housing has been made
available, it conflicts with law and Government-wide regulations; and
insofar as it relates to an employee's election to occupy "local
economy" housing as opposed to Government housing, it does not concern
conditions of employment.
The Union contends that Proposal 5 is intended to allow employees, as
opposed to the Agency, to determine whether they live in Government
housing or in local economy housing. It disputes the Agency's
contentions that it has no control over Government housing and that the
proposal conflicts with law or Government-wide regulation.
B. Analysis and Conclusions
Under 20 U.S.C. Section 905 teachers are entitled to quarters or
quarters allowances equal to those granted to other civilian employees.
See Acker v. United States, 620 F. 2d 806 (Ct. Cl. 1980). 5 U.S.C.
Section 5923, which governs grants of quarters allowances to civilian
employees, in general, in foreign areas, provides that quarters
allowances may be granted "when Government owned or rented quarters are
not provided without charge." The DSSRs, which implement both 5 U.S.C.
Section 5923 and 20 U.S.C. Section 905, provide that living quarters
allowance shall cease when Government quarters are made available to an
employee. /7/ We conclude that quarters allowances are authorized only
when quarters are not made available without charge to, although not
necessarily occupied by, an employee. /8/ Accord, Unpublished Decision
of the Comptroller General, B-160195, October 27, 1966. Inasmuch as
proposal 5 would obligate the Agency to authorize a living quarters
allowance despite the availability of Government quarters, it conflicts
with law and Government-wide regulation.
For the same reasons expressed in Department of Defense Office of
Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 5), we reject the
Agency's contention that proposal 5 is not within the duty to bargain
simply because the Government housing involved is within the control of
the military department. That decision, relying on an earlier Authority
decision, noted that where a union holds exclusive recognition in a
component of an agency, the 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. Furthermore, although the Agency has asserted that Proposal 5
conflicts with the regulations of the military departments relating to
the assignment of housing, it makes no claim or showing that a
compelling need exists for those regulations. Thus it has presented no
support for a finding that those regulations bar negotiations. American
Federation of Government Employees, AFL-CIO, Local 1928 and Department
of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2
FLRA 451 (1980).
We determined in conjunction with Proposal 1, that the DSSRs restrict
the circumstances under which "local hires" may receive a living
quarters allowances. Thus, insofar as Proposal 5 would require that
"local hires" must be provided with a living quarters allowance without
regard for those restrictions, it conflicts with Government-wide
regulations.
We reject, for the reasons expressed in conjunction with Proposal 1
above, the Agency's argument that Proposal 5 does not concern conditions
of employment insofar as it relates to an employee's election to live in
"local economy" housing. Under the circumstances involved, the manner
and extent to which employees will be provided access to housing
concerns conditions of employment.
Thus, we find that the first sentence of Proposal 5 is within the
duty to bargain. The second sentence, however, is not negotiable
because it conflicts with law and Government-wide regulations.
VI. Proposal 6
B. Unit employees who live in government housing and opt to
move to economy housing shall have the moving expenses paid by the
government. Unit employees who live in economy housing and opt to
move to government housing shall have their moving expenses paid
by the government. (Only the underscored portions are in
dispute.)
A. Positions of the Parties
The Agency asserts that this proposal conflicts with law and
Government-wide regulation because it would require payment of moving
expenses in circumstances where a move was the result of an employee's
personal desires as opposed to the requirements of the Government.
Moreover, it contends that the proposal does not concern conditions of
employment.
The Union contends that neither law nor Government-wide regulation
preclude the negotiation of this proposal.
B. Analysis and Conclusions
Proposal 6 would require that the Agency pay moving expenses where an
employee, at his/her option, moves between government housing and local
economy housing at the same duty station. Payment of expenses for
transportation of household goods and personal effects of employees is
governed by 5 U.S.C. Sections 5721-5734. As relevant here, those
provisions authorize agencies to pay such expenses from appropriated
funds only in circumstances where a change in duty station is involved
or where a new appointee is reporting to a duty station overseas. With
respect to the former type of move, payment is expressly prohibited
where the transfer involved is primarily for the convenience or benefit
of the employee. 5 U.S.C. Section 5724(h). Nowhere in these provisions
is payment for moves such as those contemplated by the proposal
authorized. Consequently, we conclude that the proposal is inconsistent
with Federal statute. /9/ See National Treasury Employees Union and
Department of the Treasury, Internal Revenue Service, 6 FLRA 508 (1981)
(Proposal 1).
The proposal also conflicts with a Government-wide regulation.
Chapter 2 of the FTRs implements, among other things, the provisions of
5 U.S.C. Sections 5721-34. It reflects the limitations prescribed by
those legal provisions on the circumstances under which relocation
expenses may be paid from Government funds. Inasmuch as the proposal
exceeds those limitations it is inconsistent with the FTRs. Chapter 2
of the FTRs is issued by the Administrator of General Services pursuant
to 5 U.S.C. Sections 5721-34 and 20 U.S.C. Section 905(a) and is
applicable to Federal civilian employees, with minor exceptions, insofar
as the subject of relocation allowances are concerned. FTRs, 2-1.1 and
2-1.2. By their terms, these regulations apply to, and are binding on,
the Federal workforce as a whole. As such they are Government-wide
regulations within the meaning of section 7117(a). See American
Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home
Loan Bank Board, New York District Office, 13 FLRA 446 (1983) (Proposal
1).
We also agree with the Agency that this proposal does not concern
conditions of employment. Earlier in this decision we ruled that, under
the circumstances, the manner and extent to which employees whose
residence abroad is attributable to their employment will be provided
housing, concerns their conditions of employment. However, this
proposal is not limited to those circumstances in which an employee's
decision to move is related to the employment relationship. Rather, the
proposal as drafted extends to employees' decisions to move which are
based on purely personal considerations. Consequently, we conclude that
while the move may involve housing which is related to the employment
situation, no relationship to the employment situation has been
established with respect to the move itself. See Antilles Consolidated
Education Association and Antilles Consolidated School System, 22 FLRA
No. 23 (1986).
Based on the foregoing reasons, we find that the disputed portions of
Proposal 6 are not within the duty to bargain.
VII. Proposal 7
Section 5
In no case shall unit employees be required to share housing
with other than their own dependents.
A. Positions of the Parties
The Agency argues only that the proposal is nonnegotiable because it
concerns a matter which is controlled by the military departments and,
therefore, beyond its control. The Union contends that the proposal
concerns a condition of employment which is within the Agency's control.
B. Analysis and Conclusion
As discussed in conjunction with Proposal 1, we find that, under the
circumstances present here, housing provided by the Agency to employees
involves a condition of employment. Therefore, we find that the manner
and extent to which such housing is provided concerns conditions of
employment. Moreover, we have rejected the Agency's argument that its
obligation to negotiate over conditions of employment does not apply
where control over the facilities or services which are the subject of a
proposal rests with other components of the Department of Defense. It
is rejected here for the same reasons expressed previously. The Agency
has provided neither a specific assertion nor any showing that this
proposal conflicts with military department regulations for which a
compelling need exists. See American Federation of Government
Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air
Development Center, Warminster, Pennsylvania, 2 FLRA 451 (1980). We
conclude that this proposal is within the duty to bargain.
VIII. Proposal 8
Section 6
When a unit employee, entitled to housing at government
expense, is requested to pay fees for the care and maintenance of
common areas, such fees shall be reimbursed to the unit employee.
A. Positions of the Parties
The Agency argues only that the proposal, which relates to on-base
housing, does not concern conditions of employment. The Union contends
that the proposal does concern conditions of employment.
B. Analysis and Conclusion
The Union indicates that this proposal is directed at fees charged to
bargaining unit employees living in quarters on military bases. As
previously discussed, employee occupancy of Government quarters is a
matter which concerns their conditions of employment. The Agency's
argument here to the contrary is rejected for the reasons stated in
conjunction with Proposal 1. This proposal is, therefore, negotiable.
IX. Proposal 9
Section 8
Unit employees who are converted by ODE from a Not To Exceed
status to a definite status shall receive a living quarters
allowance at the unit employee's option.
A. Positions of the Parties
The Agency contends that because "Not To Exceed" (NTE) employees are
local hires the proposal conflicts with the DSSR -- Government-wide
regulations. The Union, relying on the argument which it made in
conjunction with Proposal 1, contends that conflict with DSSRs does not
bar negotiation of the proposal.
B. Analysis and Conclusion
Inasmuch as this proposal would require that payment of a living
quarters allowance to "local hires" without regard to whether their
residence abroad was attributable to their employment, it is to the same
effect as sentence 3 of Proposal 1. For the reasons discussed and case
cited with respect to that portion of Proposal 1, we find that this
proposal conflicts with the DSSRs, which are Government-wide
regulations, and is nonnegotiable.
X. Proposal 10
Section 9
When a unit employee entitled to housing at government expense
is required to pay fees for the care or cleaning of the assigned
housing, such fees shall be reimbursed to the unit employee.
(Only the underlined portion is in dispute.)
A. Positions of the Parties
The Agency asserts that the proposal is not limited to on-base
housing. Because it relates to private quarters it does not concern
conditions of employment. It also conflicts with the DSSRs provisions
concerning quarters allowances.
The Union asserts that by its reference to "assigned" housing the
proposal is limited to on-base housing and to fees which the employee is
"required" to pay by Department of Defense. The Union further argues
that because quarters allowances do not apply to employees occupying
Government quarters, the DSSRs provisions relating to quarters
allowances are inapplicable to the proposal.
B. Analysis and Conclusions
The Union's explanation of the proposal is compatible with its
language and we adopt it for the purpose of this decision. Under that
interpretation we find that this proposal, like Proposal 8 is directed
at employees living in quarters on military bases. For the same reasons
relied upon as to Proposal 8, we reject the Agency's assertion that this
proposal does not concern conditions of employment. In view of the fact
that the proposal concerns government quarters, it does not concern
quarters allowances and the provisions of the DSSRs relied upon by the
Agency do not apply. We find that this proposal is negotiable.
XI. Proposal 11
Section 10
If substandard housing is accepted by a unit employee, the unit
employee will be reimbursed the difference between the rental of
the substandard housing and the fair market rental of standard
housing. (Only the underlined portion is in dispute.)
A. Positions of the Parties
The Agency contends that the statutory provisions which govern
quarters and quarters allowances do not extend to making the payments
contemplated by this proposal, so that it lacks legal authority to make
the payments. The Union contends that what is proposed is common
practice in the military departments.
B. Analysis and Conclusions
As noted in conjunction with Proposal 5, under 20 U.S.C. Section 905
teachers are entitled to quarters or quarters allowances equal to those
granted other civilian employees. 5 U.S.C. Section 5923, which governs
the payment of quarters allowances to civilian employees in foreign
areas, provides that, when government owned or rented quarters are not
provided without charge an employee may be granted one or more of the
following quarters allowances: /10/
(1) a temporary lodging allowance for the reasonable cost of
temporary quarters;
(2) a living quarters allowances for rent, heat, light, fuel,
gas, electricity and water, and
(3) under specified and unusual circumstances, payment for
extraordinary, necessary and reasonable expenses incurred in
initial repairs, alterations and improvements to privately leased
residences.
As discussed with respect to Proposal 5, employees are entitled to a
quarters allowance as an alternative to being provided quarters without
charge. As to the legal authorities governing quarters allowances,
there is no provision for payment of "partial rent allowances and rent
differentials" /11/ such as those proposed by the Union. By contrast,
there is a specific legal provision authorizing payments for military
personnel similar to those which the Union seeks for bargaining unit
employees in this proposal. /12/ Inasmuch as this proposal seeks
payments beyond those authorized by 20 U.S.C. Section 905 and 5 U.S.C.
Section 5923, we find that it is inconsistent with Federal law. See
National Treasury Employees Union and Department of the Treasury,
Internal Revenue Service, 6 FLRA 508 (1981) (Proposal 1). Proposal 11
therefore is not within the duty to bargain.
XII. Proposal 12
Section 11
Government quarters for a single unit employee will in no event
be less than 600 square feet and contain a private bath and
private cooking facility. (Only the underlined portion is in
dispute.)
A. Positions of the Parties
The Agency asserts that the proposal does not concern conditions of
employment and that it concerns matters which are controlled by the
military departments. The Union contends that the proposal concerns a
matter which is within the Agency's control.
B. Analysis and Conclusion
As discussed in conjunction with Proposal 1, in view of the
circumstances involved, quarters provided to bargaining unit employees
pursuant to 20 U.S.C. Section 905 are matters which concern conditions
of employment. Also, as discussed in conjunction with Proposal 1, the
Agency's argument regarding military control of the facilities involved
does not present a basis for finding that an otherwise negotiable
proposal is nonnegotiable. Thus, we reject the Agency's arguments as to
this proposal for the same reasons expressed earlier and find that
Proposal 12 is within the duty to bargain.
XIII. Proposal 13
Article 44 -- Travel
Section 1 -- Use of POV on Official Business
In the event an employee is required to travel in the
performance of assigned duties, the Employer shall arrange
transportation at government expense, or the employee shall be
authorized the option of using his/her privately owned vehicles
(POV) and/or commercial travel, and shall be reimbursed for travel
costs in accordance with the Federal Travel Regulations. (Only
the underlined portion is in dispute.)
A. Positions of the Parties
The Agency asserts that this proposal conflicts with the FTRs and the
JTRs. The Union contends that the proposal is consistent with the FTRs.
B. Analysis and Conclusion
As explained by the Union, this proposal would allow employees the
option of having the Government arrange transportation or of using
privately owned vehicles or commercial transportation with reimbursement
made in accordance with the FTRs. Contrary to the Agency's assertion,
we do not interpret the FTRs as absolutely prohibiting employees who are
travelling on official business from using methods of transportation
other than those which have been determined to result in the greatest
advantage to the Government. /13/ However, where an employee elects to
use an alternative method of transportation the extent to which they may
be reimbursed for costs is subject to the limitations specified in the
FTRs. See FTRs, 1-2.2.b-1 and 1-2.2.d. The proposal explicitly
recognizes that reimbursement for costs is to be made in accordance with
the FTRs. Thus, the Agency's assertion that this proposal conflicts
with the FTRs cannot be sustained. Also, as stated in conjunction with
Proposal 2, the Agency's contention that this proposal conflicts with
the JTRs does not present a basis for finding it nonnegotiable.
Department of Defense Office of Dependents Schools, 22 FLRA No. 34
(1986) (Proposal 10).
Based on the foregoing, we find this proposal to be within the duty
to bargain.
XIV. Proposal 14
Section 3
Government transportation and transient government facilities
shall be provided for employee attendance at workshops sponsored
by the Association. The Employer shall also provide government
transportation and transient government facilities for employee
attendance at a meeting of a technical, professional, scientific,
or other similar organization for which an employee has been
authorized by the Employer to attend in a duty or non-duty status.
(Only the underlined portion is in dispute.)
A. Positions of the Parties
The Agency asserts that insofar as this proposal concerns Union
sponsored meetings and meetings which employees attend in nonduty status
based on their personal desires, it does not concern conditions of
employment. Insofar as it concerns access to Government transportation
and transient facilities, it relates to facilities and services which
are controlled by the military departments, not the Agency.
Additionally, the Agency asserts that the proposal would have an impact
on nonbargaining unit employees. Based on these reasons the Agency
contends that the proposal is nonnegotiable.
The Union contends that the proposal is intended to obtain access to
facilities and services for employees attending Union-sponsored meetings
and workshops relating to labor relations and collective bargaining or
other approved meetings of technical, professional, scientific or
similar organizations. Additionally, the Union contends that the Agency
does have control over employee access to the facilities and services
involved.
B. Analysis and Conclusions
As to the first sentence of the proposal, neither party suggests that
it would involve workshops or meetings relating to "internal union
business"; nor does the language of the proposal require such a
conclusion. Therefore, for purposes of this decision, we interpret the
proposal as not encompassing meetings of that nature. The Authority has
previously found that use of agency facilities and services, for
example, telephone systems, by Union representatives for the purpose of
negotiating and administering collective bargaining agreements concerns
a matter related to conditions of employment. American Federation of
Government Employees, AFL-CIO, and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 609-10 (1980),
enforced as to other matters 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). The Authority has also
found that proposals allowing official time for employee attendance at
union-sponsored training are within the duty to bargain. National
Federation of Federal Employees, Local 951 and Department of the
Interior, Bureau of Reclamation, Mid-Pacific Office, Sacramento,
California, 3 FLRA 884 (1980). Since the record indicates that the
Union-sponsored workshops involved in the proposal are for
labor-management relations purposes, that aspect of the proposal
concerns matters related to conditions of employment. By extension, use
of Government facilities and services for the purpose of attendance at
such workshops is a matter directly related to conditions of employment.
The second sentence is limited to meetings which the Agency has
authorized an employee to attend. In view of this authorization we
conclude that the meetings have some relationship to employment with the
Agency and, thus, attendance is a matter related to conditions of
employment.
For the reasons relied upon with respect to Proposal 1, above, we
reject the Agency's assertion that this proposal is not within the duty
to bargain because the services and facilities involved are under the
control of DOD components other than the Agency. Its argument that this
proposal would affect nonbargaining unit employees is essentially the
same as that which we rejected in conjunction with Proposal 1. It is
rejected here for the same reason.
Based on the foregoing, we find that Proposal 14 is within the duty
to bargain.
XV. Proposal 15
Section 4 -- Medical Evacuation
During the time when an employee requires medical evacuation
from and back to his/her duty station, he/she shall be entitled to
transportation at government expense. Modes of transportation
shall include, but not be limited to, the following:
A. Med/Evac. aircraft.
B. Mac aircraft.
C. Charter Aircraft.
D. Commercial aircraft.
E. Military vehicles other than aircraft.
F. Commercial vehicles other than aircraft.
G. POV.
(Only the underlined portions are in dispute.)
A. Positions of the Parties
Although the Agency contends that medical evacuation, in general, is
not a condition of employment it alleges that this proposal is outside
the duty to bargain only insofar as it concerns an employee's return to
his/her duty station after medical evacuation. Insofar as the proposal
would involve payment of travel expenses relating to use of privately
owned vehicles and commercial transportation, the Agency contends that
there is no authorization in controlling statutes for such payments.
Insofar as it would involve employee access to military transportation
it concerns a matter which is not within the Agency's control and which
would have an impact upon nonbargaining unit employees.
The Union contends that return transportation after medical
evacuation is a condition of employment and a matter over which the
Agency has control. It also contends that any impact which the proposal
would have on nonunit employees is speculative, indirect and does not
render the proposal nonnegotiable.
B. Analysis and Conclusions
We find that the proposal concerns conditions of employment. As
noted in conjunction with Proposal 1, DOD Directive Number 1400.6
effectively establishes as a condition of employment for DOD civilian
employees in overseas areas, among other things, the provision of
adequate medical and transportation facilities and services to meet
health and decency standards. National Federation of Federal Employees,
Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA
139 (1980). The Agency acknowledges that it currently provides medical
evacuation, one way, to employees when determined necessary by medical
authority. It also acknowledges that employees are allowed to use
military transportation facilities and services on a space available
basis for purposes of returning to their duty station after medical
evacuation. Agency Brief at 24-25. On the basis of these facts and
circumstances we conclude that access to adequate medical treatment for
employees whose residence overseas is attributable to their employment
is directly connected to the employment relationship and is a condition
of employment. Moreover, we conclude that access to such medical
treatment reasonably encompasses the employee's ability to return to
his/her post of duty following the treatment as well as the ability to
get to the treatment.
The Agency's arguments that this proposal is nonnegotiable because it
relates to facilities and services controlled by the military
departments and because of its impact on nonbargaining unit employees
are the same as those raised in conjunction with Proposal 1. They are
rejected here for the same reasons as expressed in relation to that
proposal.
Insofar as the proposal would require payment of employee
transportation expenses relating to use of commercial and privately
owned vehicles, it is inconsistent with Federal law. In this regard,
chapter 57 of title 5 of the U.S. Code is the basic authority for use of
appropriated funds for payment of travel and transportation expenses
incurred by Federal employees in general. As to travel expenses
relating to illness, these statutory provisions authorize only:
(1) return travel to a designated post of duty, home, or
regular place of business when an employee who is traveling on
business away from such becomes incapacitated by illness or injury
not due to his/her own misconduct (5 U.S.C. Section 5702(b));
(2) subsistence without charge while an employee or dependent
is being evacuated as a patient by U.S. military aircraft (5
U.S.C. Section 5709); and
(3) transportation of the remains of an employee when death
occurred while the employee was in travel status or performing
official duties outside the United States (5 U.S.C. Section 5742).
The provisions of chapter 57 which authorize payment of travel
expenses do not include the types of expenses addressed by this
proposal. Therefore, we find that those portions of the proposal which
relate to payment of expenses incurred in the use of commercial
transportation and privately owned vehicles are inconsistent with
chapter 57 of title 5, U.S. Code. /14/
Based on the foregoing, we find that to the extent that the proposal
addresses use of military transportation it is within the duty to
bargain. However, to the extent that it addresses payment for use of
commercial transportation and privately owned vehicles it conflicts with
law and is not within the duty to bargain.
XVI. Proposal 16
Section 5 -- Travel to Emergencies
A. An employee shall be granted leave to attend to personal
emergencies that result from such events as death of relatives,
possible death of relatives, disability sicknesses, legal
proceedings. etc. (Only the underlined portions are in dispute.)
A. Positions of the Parties
The Agency asserts and the Union disputes that the proposal conflicts
with statute, specifically 20 U.S.C. Section 904. The Union states that
this proposal contractually guarantees the right to take leave for
personal emergencies and enumerates some of the situations which
constitute personal emergencies.
B. Analysis and Conclusions
We do not view the proposal as inconsistent with 20 U.S.C. Section
904. That section provides among other things, that teachers may use
the leave to which that section entitles them "in the event of any
personal emergency." Nowhere in section 904 or in the other provisions
of the Department of Defense Overseas Teachers Pay and Personnel
Practices Act is "personal emergency" defined. In our view the types of
events specified in the proposal could reasonably result in a personal
emergency. Thus, we reject the Agency's contention that this proposal
conflicts with 20 U.S.C. Section 904.
However, we find that this proposal is nonnegotiable for a different
reason. By its language and the Union's stated intent, this proposal
would require the Agency to grant leave requests under the specified
circumstances. It is materially identical to Proposal 1 in American
Federation of Government Employees, AFL-CIO, International Council of
Marshals Service Locals and U.S. Marshals Service, 15 FLRA 333 (1984),
which the Authority found violated management's right under section
7106(a)(2)(B) to assign work. For the reasons expressed in U.S.
Marshals Service, we find that Proposal 16 is not within the duty to
bargain.
XVII. Proposal 17
B. When an employee is excused from duty to travel to a point
separate from his/her point of work to attend to personal
emergencies, said employee shall be authorized travel through
military transportation systems. (Only the underlined portion is
in dispute.)
A. Positions of the Parties
The Agency contends that the manner in which employees travel to
attend to personal emergencies is not a condition of employment. It
asserts that the proposal is nonnegotiable for the additional reasons
that the military transportation systems are not within its control and
that it would impact on nonbargaining unit employees. The Union
contends that this proposal is negotiable "for the reasons stated" in
conjunction with Proposals 14 and 15.
B. Analysis and Conclusion
DOD Directive Number 1400.6 includes as a consideration in recruiting
employees from the U.S. for assignment to overseas duty stations the
ability to ensure adequate transportation facilities and services. See
discussion of Proposal 1 above. We view this regulatory provision as
establishing a direct connection between the employment relationship and
employee access to adequate transportation where associated with
overseas assignments within the Department of Defense. As this proposal
addresses the extent and manner in which the Agency will ensure employee
access to adequate transportation, we find that it concerns conditions
of employment. National Federation of Federal Employees, Local 1363 and
Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA 139 (1980).
The Agency's arguments that the proposal is nonnegotiable because it
relates to facilities and services controlled by the military
departments and because of its impact on nonbargaining unit employees
are the same as those which we rejected in conjunction with Proposal 1.
We reject them here for the same reasons.
Based on the foregoing, we find that this proposal is within the duty
to bargain.
XVIII. Proposals 18 and 19
(Proposal 18)
Section 6
A. Employees who are eligible for Renewal Agreement Travel
(RAT) shall have the option of:
(1) Receiving a travel advance for the estimated amount;
(2) Circuitous route travel;
(3) Delays in route with no fee for deplaning MAC aircraft;
(4) Traveling on MAC aircraft, MAC chartered aircraft, or
commercial carriers;
(5) Unaccompanied travel for dependents; and
(6) Space-available travel on MAC carrier worldwide.
(Proposal 19)
B. Before an employee shall be required to travel on orders in
the performance of official business, he/she shall be granted an
advance of funds if he/she so requests. (Only the underlined
portions are in dispute.)
A. Positions of the Parties
The Agency contends that these two proposals are nonnegotiable for
the following reasons. Inasmuch as Renewal Agreement Travel (RAT)
occurs during the school recess periods when teachers are in nonduty
status, the subject is not a condition of employment. Further, the
specific provisions of Proposal 18 conflict with Government-wide
regulations -- the FTRs, and agency regulations -- the JTRs and military
department regulations. The proposal also concerns matters under the
control of the military departments. Proposal 19 conflicts with law and
Government-wide regulations.
The Union contends that RAT is a condition of employment. It denies
that the proposals conflict with law or Government-wide regulations.
Moreover, it asserts that the JTRs and military department regulations
are agency regulations and that the Agency failed to demonstrate with
respect to them that: (1) in some cases, there is any conflict with
Proposal 18; and (2) in all cases, they are supported by a compelling
need.
B. Analysis and Conclusions
1. Conditions of Employment
Renewal Agreement Travel (RAT) is authorized by 5 U.S.C. Section
5728. /15/ Those provisions allow eligible employees to receive
allowances for travel and transportation expenses for purposes of
returning home to take leave between tours of duty overseas. The
legislative history of this provision indicates that Congress considered
that providing for RAT would yield substantial savings for the
Government as a consequence of reduced employee turnover resulting from
permitting such payments. /16/ Hence a primary intent underlying this
statutory provision is encouraging workforce stabilization at overseas
stations. This intent is underscored by the provision that conditions
entitlement to the payments on completion of an agreed upon period of
service overseas and written agreement to serve another tour at an
overseas post. This legal authority establishes a direct connection
between RAT and the employment relationship. Thus, we find, that RAT is
a condition of employment.
2. Proposal 18, subsection 1
This subsection would allow employees eligible for RAT to receive a
travel advance. Chapter 2 of the FTRs prohibits travel advances for per
diem and mileage allowances where RAT is involved. /17/ As noted in our
discussion of Proposal 6 above, chapter 2 of the FTRs is a
Government-wide regulation. We therefore find that this subsection of
the proposal is nonnegotiable because it conflicts with a
Government-wide regulation. However, for the same reasons which we
stated in conjunction with Proposal 2, we reject the Agency's argument
that this subsection is nonnegotiable because of its alleged conflict
with the JTRs.
3. Proposal 18, subsection 2
The Agency asserts that this subsection, which would allow circuitous
route travel, conflicts with the FTRs, 1-2.5.b. That provision of the
FTRs states that, when a person for his/her own convenience travels by
an indirect route or interrupts travel by a direct route, "the extra
expense shall be borne by him/her." /18/ It is applicable where RAT is
involved. /19/ The Union states that the proposal is not intended to
relieve employees of any obligation to pay additional costs incurred as
a result of circuitous route travel. This interpretation is compatible
with the language of the proposal and we adopt it for purposes of this
decision. Based on it, we reject the Agency's argument that this
subsection is inconsistent with the FTRs.
The Agency also asserts that this subsection conflicts with 5 U.S.C.
Section 5733 which requires, essentially, that employees must travel by
the most expeditious means of transportation practicable. /20/ The
legislative history of this provision contains the following statement:
/21/
The committee also believes that agencies should utilize the
most expeditious means of transportation practicable, commensurate
with the nature and purpose of an employee's duties. To require
an employee to ride the bus 200 or 500 or 1,000 miles to attend a
meeting simply because it is the cheapest form of transportation
is a false economy and archaic practice.
In our view the Congressional intent of this statutory provision is
to authorize use of faster means of transportation commensurate with the
nature and purpose of an employee's duties even where a slower, although
less costly, means is available. Given this intent, the provision is
not applicable to the circumstances involved in this proposal:
employees who are traveling in nonduty status during summer recess and
who are personally bearing any additional costs resulting from
alternative routing. Hence, we find that section 5733 does not apply.
Based on these reasons we reject the Agency's arguments and find that
subsection 2 is negotiable.
4. Proposal 18, subsection 3
Subsection 3 would allow delays in route with exception from fees for
deplaning MAC (Military Aircraft Command) aircraft. The Agency asserts
that it conflicts with FTRs 1-2.5 (note 18) which requires employees to
pay any additional costs resulting from indirect travel. Additionally
it asserts that deplaning fees are determined by regulations of MAC over
which it has no control. Agency Brief at 27-28. The Union states that
the intention of this proposal is to allow interrupted travel unless
there is actual additional expense incurred by the Government. This
interpretation is compatible with the language of the proposal and we
adopt it for purposes of this decision. In view of this interpretation,
we find that subsection 3 does not conflict with the provisions of the
FTRs which require that additional expenses incurred in interrupted
travel be borne by the traveller rather than the Government. Rather
subsection 3 only exempts employees from the deplaning fees which are
controlled by MAC.
Moreover, the Agency's argument that it has no control over deplaning
fees is essentially the same as that which we discussed and rejected in
conjunction with proposal 1 above. It is rejected here for the same
reasons.
Based on these reasons, we find that subsection 3 is within the
duty to bargain.
5. Proposal 18, subsection 4
This subsection gives employees the option of travelling by aircraft
provided by the military, or by commercial aircraft. In its statement
as to the intent of this proposal the Union specified that this option
would be "in accordance with the Federal Travel Regulations." The Agency
argues that this subsection conflicts with provisions of the JTRs which
are "in accordance with" FTRs, 1-2.2.b.
As noted in our discussion of Proposal 13, FTRs, 1-2.2.b, generally
requires that employees travelling on official business use the method
of transportation which will result in the greatest advantage to the
Government. However, where an employee uses an alternative method
he/she is responsible for any resulting additional costs. Under FTRs,
2-1.5.h(2)(b) and 2-2.1 and 2-2.2 (note 19), these restrictions are
applicable to RAT. Inasmuch as subsection 4 does not prevent the Agency
from requiring an employee to pay any additional costs resulting from an
election as to method of transportation, we find that it is not
inconsistent with the FTRs. We reject the Agency's argument that
conflict with the JTRs bars negotiation of this subsection for the same
reasons which we stated in ruling on Department of Defense Office of
Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 10).
Based on these reasons we find that inasmuch as subsection 4 does not
require the Agency to pay any expenses which do not accord with
requirements and limitations prescribed by the FTRs, it is within the
duty to bargain.
6. Proposal 18, subsections 5 and 6
These subsections would allow unaccompanied travel by dependents and
space-available travel on MAC carriers. The Agency argues only that
these subsections concern matters which are controlled by MAC
regulations over which the Agency has no control. We rejected this
argument here for the reasons stated in conjunction with Department of
Defense Office of Dependents School, 22 FLRA No. 34 (Proposal 5). These
subsections are within the duty to bargain.
7. Proposal 19
This proposal would allow employees travelling on official business
to receive a travel advance at their request. The Union intends this
proposal to apply to employees travelling on RAT. Union Reply Brief at
36-37. The Agency asserts that the proposal conflicts with the FTRs and
5 U.S.C. Section 5705.
For the reasons expressed above as to Proposal 18, subsection 1, we
find that this proposal conflicts with the FTRs -- a Government-wide
regulation. However, contrary to the Agency's argument we find that 5
U.S.C. Section 5705 does not apply to RAT. By its terms section 5705
applies to travel expenses authorized under subchapter I of chapter 57.
The provisions relating to RAT are contained in subchapter II of chapter
57. Hence, we reject the Agency's argument that this proposal conflicts
with statute.
We conclude that Proposal 19 is nonnegotiable because it conflicts
with FTRs, 2-2.4, a Government-wide regulation.
C. Summary
Proposal 18 is within the duty to bargain except for subsection 1.
Proposal 19 is not within the duty to bargain.
XIX. Proposal 20
The FLRA Members disagree as to the negotiability of this proposal.
The decision and order on Proposal 20 and Chairman Calhoun's dissent
immediately follow this decision.
XX. Proposal 21
Section 8 -- Non-duty Travel
An employee not entitled to government travel at his/her home
of record in the United States at the close of the school year
shall be issued travel orders at his/her request to his/her home
of record at the close of the school year in the same manner as if
he/she were entitled provided he/she reimburses the government for
the cost of such travel. (Only the underscored portion is in
dispute.)
A. Positions of the Parties
The Agency contends that this proposal does not concern conditions of
employment and conflicts with Government-wide regulations. The Union
states that this proposal is designed to allow employees to travel at
reduced rates on commercial airlines and on MAC scheduled flights. It
asserts that such travel should help to reduce employee turnover and
increase morale.
B. Analysis and Conclusion
Based on the Union's explanation, which is compatible with the
language of this proposal, its purpose is to facilitate the travel of
teachers to their homes in the United States during summers when they
are not eligible for RAT.
For the following reasons we find, contrary to the Agency's
assertion, that the proposal concerns conditions of employment of
bargaining unit employees. As a general matter, the employment
circumstances of civilians assigned overseas include many features which
are unique to them and which are based on their employment overseas.
For example, by law and regulation, those civilians whose residence
overseas is attributable to their employment overseas receive many
benefits which are related to their living conditions such as quarters
or quarters allowances and various other allowances and differentials
associated with living costs and conditions. Moreover, the Department
of Defense, by Department of Defense Directive Number 1400.6 (see our
discussion of Proposal 1), has recognized a relationship between
employment overseas and the employer's ability to assure adequate living
conditions. Consequently, many matters which concern living conditions
and which in other circumstances have little or no relationship to the
employment situation become conditions of employment in the context of
overseas assignment.
We find that this proposal to facilitate the travel of teachers to
their homes in the U.S. during summer vacation meets the Antilles test
for determining what constitutes a condition of employment. It is
undisputed that the proposal is focused on bargaining unit employees.
As to the second criterion we noted in conjunction with Proposals 18 and
19 that Congress, in passing the legal provisions governing RAT,
recognized a correlation between facilitating the ability of employees
assigned overseas to travel to their homes in the U.S. on vacation and
their willingness to continue their employment overseas. Moreover, one
of the things which Department of Defense Directive Number 1400.6
requires to be considered prior to recruiting civilians from the U.S.
for overseas assignment is availability of adequate transportation
services. We conclude that facilitating employee access to
transportation for purposes of returning to their homes in the U.S. is a
matter which directly relates to the Agency's recruitment and
maintenance of a sufficient and stable workforce overseas. See
Department of the Air Force, Eielson Air Force Base, Alaska, 23 FLRA No.
83 (1986). It is therefore a condition of employment insofar as
employees whose residence is attributable to their employment there.
Although the Agency makes an assertion that this proposal is contrary
to Government-wide regulations, it has neither cited a particular
Government-wide regulation nor supported its argument. Absent any
showing that law or applicable regulation proscribe the use of travel
orders in the manner proposed, and inasmuch as the proposal concerns
conditions of employment of bargaining unit employees, we find that
Proposal 21 is within the duty to bargain.
XXI. Proposal 22
Section 9 -- Travel for Retired Employees
Upon retirement, ODE/DODDS employees shall be authorized
space-available travel on military and military contracted
aircrafts. (Only the underscored section of the proposal is in
dispute.)
A. Positions of the Parties
The Agency argues that inasmuch as this proposal would apply to a
time when employees are no longer members of the bargaining unit, it
does not concern conditions of employment. The Union asserts that the
proposal is negotiable because it seeks a "delayed" benefit for
"current" bargaining unit members.
B. Analysis and Conclusion
Under the Antilles test (see our discussion of Proposal 1 above) we
conclude that this proposal does not concern conditions of employment.
While it meets the first factor to this test, it does not meet the
second factor. As to first factor, the proposal is principally focused
on bargaining unit employees. There is no indication that the Union
proposal seeks a benefit for current retirees; rather, it is limited to
seeking a benefit for current employees upon their retirement.
As to the second factor, it has not been demonstrated that the matter
proposed would serve to increase employee retention or to contribute to
the ability of the employer to maintain a stable and sufficient
workforce overseas. Other than providing promise of a benefit during
their retirement, the proposal has no relationship to the working
conditions of bargaining unit employees. Based on the limited nature
and extent to which this proposal would relate to the working conditions
or employment relationship of bargaining unit employees, we conclude
that it does not concern conditions of employment.
We find that the disputed portion of this proposal is not within the
duty to bargain.
XXII. Proposals 23-27
Article 67 -- Overseas Allowances
Section 1 -- Eligibility for Living Quarters Allowance and Post
Differential
(Proposal 23)
A. In order to implement 20 U.S.C. Section 905(a), and to
retain qualified and experienced employees, each employee in the
bargaining unit shall be entitled, in addition to basic
compensation to quarters, quarters allowance, storage, post
differential, and post allowances. This provision applies to all
such unit employees, including JROTC instructors to the extent
permitted by law and to those employees who are assigned classes
for less than a full instructional day, and without regard to the
employee's point of hire.
(Proposal 24)
B. Each employee in the bargaining unit will be eligible to
receive a post differential and living quarters allowance for the
rental or purchase of privately owned quarters regardless of the
availability of government quarters so long as the employee elects
not to occupy government quarters.
(Proposal 25)
D. A bargaining unit employee who sells his/her privately
owned quarters at any time and moves into different rental
quarters is entitled to indefinite living quarters allowance for
rental purposes.
(Proposal 26)
E. An employee who resigns during the course of the school
year shall be entitled to receive LQA up until the time of his/her
departure from the post or no later than the first day of the next
school year.
(Proposal 27)
F. The rates for overseas allowances and differentials shall
be determined jointly between the parties within rates permissible
by the United States Code during an annual negotiations session.
Rates shall be fixed, at a minimal flat rate, at the beginning of
each school year. Adjustments in fixed rates shall be done only
once a year.
(Only the underscored portions of these proposals are in
dispute.)
A. Positions of the Parties
The Agency takes the position that these proposals conflict with
various legal provisions which address overseas allowances and
differentials and/or Government-wide regulations -- the DSSRs. The
Union contends that these proposals do not conflict with law and that
the DSSRs are not Government-wide regulations. More specifically with
respect to Proposals 23 and 24 the Union contends that because teachers
who teach only part of the instructional day are not "part-time"
employees within existing legal definitions, these proposals are not
inconsistent with any legal or regulatory prohibitions on receipt of
allowances and differentials by part-time employees.
B. Analysis and Conclusions
1. Proposal 23
As explained by the Union, this proposal is not intended to entitle
employees to quarters allowances and storage simultaneously but to allow
employees, as opposed to the Agency, to chose among available options.
This interpretation is compatible with the language of the proposal and
we adopt it for purposes of this decision. In view of this we reject
the Agency's argument that this proposal is nonnegotiable for the reason
that it would entitle employees to receive quarters, storage and
quarters allowances, simultaneously. Similarly, we reject the Agency's
argument that this proposal conflicts with 10 U.S.C. Section 2301(d)(1)
/22/ insofar as JROTC instructors are concerned. The specific language
of the proposal limits the entitlement of JROTC instructors to the
designated allowances and differentials "to the extent permitted by
law." Consequently, we cannot agree with the Agency that the proposal
would circumvent the provisions of title 10.
However, for the reasons expressed in conjunction with Proposal 5
earlier in this decision we find that, insofar as the proposal would
entitle an employee to choose to receive a quarters allowance when
Government quarters are available, it conflicts with law and
Government-wide regulation. Moreover, inasmuch as it provides blanket
entitlement to each unit employee to receive allowances and post
differentials it conflicts with the DSSRs -- Government-wide
regulations. Sections 031.12 (note 3), 031.2, /23/ and 031.5 (note 5)
of the DSSRs contain various restrictions on the payment of allowances
and differentials to part-time employees and "local hires." For these
reasons we find that Proposal 23 is not within the duty to bargain.
2. Proposal 24
For the reasons expressed in conjunction with Proposal 5, we find
that insofar as this proposal would allow employees to receive a living
quarters allowance even though Government quarters are available it
conflicts with law and Government-wide regulation. Also, for the reason
discussed in conjunction with Proposal 1 we find that it conflicts with
the DSSRs in that it would permit all "local hires" in the bargaining
unit to receive a living quarters allowance.
As to post differentials, the Agency asserts that the proposal would
require paying differentials to all bargaining unit employees despite
restrictions in the DSSRs on paying them: (1) to part-time employees;
(2) to certain "non-spouse" dependent employees; and (3) at certain
posts of duty. The Union tacitly concedes that the proposal is intended
to apply to all unit employees without regard to the restrictions in the
DSSRs cited by the Agency.
Under section 031.5 (note 5) of the DSSRs, part-time employees may
not be granted post differentials. /24/ Under section 031.3 they may
not be granted to certain non-spouse dependent employees. /25/ Under
Chapter 500 of the DSSRs, payment of post differentials is restricted to
certain posts of duty. /26/ This proposal is inconsistent with these
restrictions; it is therefore inconsistent with a Government-wide
regulation.
Based on the foregoing we find that because Proposal 24 would
expressly apply to each employee in the bargaining unit, it is not
within the duty to bargain.
3. Proposal 25
The Agency asserts that this proposal conflicts with section 136 of
the DSSRs which limits the payment of living quarters allowances in
circumstances where an employee has purchased quarters. /27/ The Union
tacitly concedes that the proposal conflicts with the DSSRs in this
respect as well as in regard to restrictions as to payment of living
quarters allowances to "local hires" (section 031.12 -- note 3) and
part-time employees (section 031.5 -- note 5). The Union argues solely
that the DSSRs are not Government-wide regulations.
As we ruled earlier in Department of Defense Office of Dependents
Schools, 22 FLRA No. 34 (1986) (Proposal 2), the DSSRs are
Government-wide regulations. Inasmuch as this proposal conflicts with
them, it is not within the duty to bargain.
4. Proposal 26
The Agency argues that insofar as proposal 26 would entitle "local
hires" and part-time employees to a living quarters allowance, it
conflicts with the DSSRs. We do not view this proposal as creating an
entitlement to a living quarters allowance for any category of employee
which currently is excluded under the DSSRs. Rather, we interpret it as
seeking to extend the duration of existing entitlements beyond the point
at which an entitled employee resigns. Under this interpretation the
proposal conflicts with section 132.42 of the DSSRs which requires
termination of a living quarters allowance at the end of the last day of
employment when an employee is separated. /28/ In view of this we find
that proposal 26 is not within the duty to bargain.
However, we find that the Agency's argument that the proposal also
conflicts with provisions relating to payment of a living quarters
allowance while an employee is in a nonpay status does not apply. An
employee who has resigned is distinguishable from an employee who is in
a nonpay status.
5. Proposal 27
This proposal seeks to have the amounts of the various overseas
differentials and allowances determined through negotiations between the
parties. 5 U.S.C. Section 5922(c) provides that overseas allowances and
differentials are to be paid under regulations prescribed by the
President governing, among other things, the rates at which the payments
are to be made. /29/ The regulations to which that provision refers are
the DSSRs. See Overseas Education Association, Inc. and Department of
Defense Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal
2). The DSSRs prescribe specific methods for determining the rate of
payment of the allowances and differentials and/or specific rates. /30/
Although there are limited, specific circumstances under which the DSSRs
allow agencies to take administrative action to adjust rates, /31/ they
do not grant discretion to generally establish rates different from
those set forth in the DSSRs.
We conclude that, inasmuch as this proposal would require rates to be
established in a manner other than that contemplated by 5 U.S.C. 5922
and the DSSRs, it conflicts with law and Government-wide regulation and
is not within the duty to bargain.
XXIII. Proposal 28
Section 2 -- Living Quarters Allowance Rate
A. Only the number of an employee's dependents, and not
his/her marital status, will determine a bargaining unit
employee's living quarters allowance. A locally acquired family
or family member will be considered as a dependent without
discrimination in determining an employee's living quarters
allowance rate.
A. Positions of the Parties
The Agency asserts that this proposal conflicts with the DSSRs. The
Union contends that the DSSRs are not Government-wide regulations which
can bar negotiations. Additionally, it argues that there is no conflict
in any event between the second sentence of the proposal and the DSSRS.
B. Analysis and Conclusions
The DSSRs are Government-wide regulations. Department of Defense
Office of Dependent Schools, 22 FLRA No. 34 (1986) (Proposal 2). The
Agency asserts, and the Union does not dispute, that the first sentence
of this proposal conflicts with section 134.13 of the DSSRs which
governs the living quarters allowance rates to be paid married couples.
/32/ The first sentence would require that an employee be paid a living
quarters allowance based solely on number of dependents and without
regard to marital status and the impact that a spouse's entitlements may
have on the employee's entitlements. We find that this is inconsistent
with the limitations placed on the rates which married couples may
receive by section 134.13.
The Agency asserts that the second sentence of this proposal
conflicts with the definition of "family" which appears in the DSSRs.
In its petition the Union indicates that the phrase "locally acquired
family or family member" in the proposal refers to children who are
adopted by an employee in the host country. The definition of family
which is contained in the DSSRs encompasses step and adopted children as
well as those children under the legal guardianship of the employee or
his/her spouse. /33/ The definition contains no restrictions based on
where these children are "acquired." In view of this, we reject the
Agency's contention that this sentence conflicts with the DSSRs.
Based on the foregoing, we find that the first sentence of this
proposal conflicts with a Government-wide regulation and is not within
the duty to bargain. However, the second sentence does not conflict
with a Government-wide regulation and is within the duty to bargain.
XXIV. Proposal 29
B. If both spouses at a post are eligible for LQA and decide
to share the costs as the basis for each receiving LQA, each
employee spouse shall be entitled to receive 100% of the maximum
payable to them based on their individual eligibility and the
resultant LQA. Payment for the two spouses shall not be limited
to 150% of the maximum payable to the eligible employee spouse.
This provision applies if both spouses are employees or if one
spouse is an eligible employee and the other spouse is an eligible
member of the military or other eligible employee of the United
States. (Only the underlined portion is in dispute.)
A. Positions of the Parties
The Agency contends that this proposal conflicts with section 134.13
of the DSSRs. The Union asserts that there is no conflict between the
proposal and the DSSRs.
B. Analysis and Conclusions
The plain terms of the proposal require that where both spouses in a
"married couple" are eligible for a living quarters allowance, each
spouse will receive the maximum to which they would be entitled on an
individual basis. Section 134.13 of the DSSRs (note 32) permits this
where there are no dependents involved. However where there are
dependents, only one spouse would be entitled to receive the "with
family" living quarters allowance rate. The other would be limited to
the "without family" rate. Moreover, a further adjustment would occur
in determining the increment for additional family members. This
proposal does not distinguish between those married couples with
dependents and those without. As written, it would conflict with the
limitations which the DSSRs place on the living quarters allowances
rates which may be paid to married couples. Based on this conflict with
the DSSRs, Government-wide regulations, the proposal is nonnegotiable.
XXV. Proposal 30
C. The rule which limits annual rent to one-tenth of the
purchase price or appraised value of a residence owned by an
employee or the employee's spouse shall not apply when an employee
resides in quarters owned by a family member other than a spouse.
A. Positions of the Parties
The Agency asserts that this proposal conflicts with section 136 of
the DSSRs. In its petition the Union indicates that this proposal is
intended to apply to those circumstances where an employee rents
quarters from a family member other than a spouse. This interpretation
is compatible with the language of the proposal and is adopted for
purposes of this decision.
B. Analysis and Conclusions
Section 136 of the DSSRs (note 27) limits the amount which may be
paid as a living quarters allowance for quarters which are occupied by
an employee only when the quarters are owned by the employee and/or the
spouse. There is no support for the Agency's position that this
limitation applies as well in circumstances where the quarters are owned
by a family member other than a spouse. Consequently, the Agency has
not established that this proposal conflicts with section 136 of the
DSSRs. We find that this proposal is within the duty to bargain.
XXVI. Proposal 31
Section 3 -- Continuation of Allowances During Nonpay Status
A. A bargaining unit employee may appeal to his/her principal
for a continuation, in the public interest, of Living Quarters
Allowance and Post Differential during an employee's nonpay
status. The affected employee of the Association may appeal the
principal's determination to the appropriate regional director.
A. Positions of the Parties
The Agency asserts that this proposal conflicts with the DSSRS which
require suspending the payment of post differential to an employee who
is in a nonpay status. The Union claims that the proposal merely
establishes a procedure by which employees may seek to have a "public
interest" exception, which is provided for by the DSSRs, applied to
them.
B. Analysis and Conclusions
The DSSRs explicitly provide that payment of post differential shall
be suspended while an employee is in a nonpay status. /34/ As to
allowances, the DSSRs allow them to continue during periods when an
employee is in a nonpay status not in excess of 14 calendar days at any
one time. For periods in nonpay status in excess of 14 calendar days,
no payment is to be made for any part of the nonpay period unless
otherwise specifically provided for in the DSSRs. /35/ More
particularly as to living quarters allowances, the DSSRs allow
continuation of payment where the head of the agency determines that
continuation is in the public interest while an employee is in nonpay
status not in excess of 30 calendar days at any one time. /36/
Thus, the DSSRs absolutely require an agency to discontinue a post
differential while an employee is in a nonpay status but they provide
for a limited continuation of a living quarters allowance if the agency
determines that it would be in the public interest. Consequently, we
find that insofar as the proposal relates to seeking a continuation of a
post differential it is inconsistent with the DSSRs which are
Government-wide regulations. Insofar as the proposal relates to seeking
limited continuation of a living quarters allowance, however, it is
consistent with those regulations. In regard to living quarters
allowances, the Union's contention that the proposal is limited to
providing a procedure for employees to seek the public interest
determination allowed by the DSSRs is compatible with the language of
the proposal and is adopted for the purposes of this decision. Thus, we
do not read the proposal as seeking a continuation of living quarters
allowances beyond the time limit at which the DSSRs require termination.
Therefore, the proposal is not negotiable as to post differentials and
is negotiable as to living quarters allowances.
XXVII. Proposals 32-34
(Proposal 32)
B. Notwithstanding the provisions of Section 3A, supra, it is
agreed that:
(1) Because the process of collective bargaining, including the
administration of a collective bargaining agreement, is in the
public interest, an employee's living quarters allowance and
differential shall not be terminated if he/she is on leave without
pay due to service as an officer or representative of the
Association.
(Proposal 33)
(2) When an employee in the bargaining unit is using leave
pending disability retirement or after an application has been
submitted for optional retirement in lieu of disability
retirement, the employee's allowances and differential shall not
be terminated prior to ninety (90) days after approval of
retirement by the Office of Personnel Management or prior to the
beginning of the next school year, whichever is later.
(Proposal 34)
(3) The grant of living quarters allowance and differential
will continue for employees in the bargaining unit in nonpay
status, not in excess of thirty (30) calendar days, if that thirty
day period encompasses an official school recess period other than
the summer recess period.
(Only the underscored portions are in dispute.)
A. Positions of the Parties
The Agency contends that these proposals conflict with provisions of
the DSSRs -- Government-wide regulations. It additionally asserts that
Proposal 33 does not concern conditions of employment of bargaining unit
employees.
The Union contends that the DSSRs are not Government-wide regulations
and it disputes the Agency's assertion that Proposal 33 does not concern
conditions of employment of bargaining unit employees. As to Proposal
34, the Union contends that even assuming that the DSSRs are
Government-wide regulation this proposal does not conflict with them.
B. Analysis and Conclusions
1. Proposal 32
Insofar as the proposal relates to post differentials, it is
inconsistent with section 052.2 of the DSSRs, which requires the Agency
to terminate post differentials of employees in a nonpay status.
Insofar as it relates to living quarters allowances, the Agency asserts
and the Union tacitly concedes that the proposal seeks continuation of
the allowances without regard to the time limitations set forth in
section 051.2 and 132.2 of the DSSRs. See notes 35 and 36. In view of
this, we find that the proposal also conflicts with the DSSRs as to the
living quarters allowances.
Based on these reasons we find that Proposal 32 is not within the
duty to bargain.
2. Proposal 33
The Agency asserts that this proposal would effectively require
payment of allowances and differentials to former employees after they
have been separated by reason of their retirement. /37/ The Union does
not dispute this. With minor exceptions, the DSSRs authorize payment of
allowances and differentials to "employees." For example, see sections
031.1 (note 3), 031.2 (note 23) 031.3 (note 25), 051 (note 30). Under
the DSSRs a retiree is not an "employee." /38/ Moreover, section 132.42
of the DSSRs expressly requires termination of a separated employee's
living quarters allowance at the end of last day of his/her employment.
See note 28. Consequently, we conclude that this proposal is
inconsistent with the DSSRs -- Government-wide regulations -- and is
nonnegotiable.
3. Proposal 34
Insofar as this proposal would require continuation of post
differentials while an employee is in nonpay status, it conflicts with
section 052.2 of the DSSRs, which requires those payments to be
suspended while an employee is in a nonpay status. See note 34.
Consequently, that aspect of the proposal is inconsistent with a
Government-wide regulation and is nonnegotiable.
Insofar as the proposal relates to continuation of living quarters
allowances, however, we find that it is negotiable. The Agency contends
that this aspect of the proposal conflicts with the DSSRs because it
would preclude a determination required in section 132.2 that
continuation of living quarters allowance during periods of up to 30
days when an employee is in a nonpay status is in the public interest.
The Union explains the proposal as effectively seeking a determination
that continuation of a living quarters allowance while an employee is in
a nonpay status is, under the specified circumstances, in the public
interest. The Authority has held that where a determination as to
whether a matter concerning a condition of employment is in the public
interest is within the Agency's discretion, the exercise of that
discretion is subject to bargaining. That is, of course, unless it is
demonstrated that the discretion is intended to be sole and exclusive.
See, for example, American Federation of Government Employees, AFL-CIO,
Local 3525 and United States Department of Justice, Board of Immigration
Appeals, 10 FLRA 61 (1982) (Proposal 1). There is no demonstration here
that the Agency's discretion under section 132.2 to determine that the
payments in question are in the "public interest" is sole and exclusive.
We therefore reject the Agency's argument that this aspect of the
proposal is inconsistent with the DSSRs.
We find that insofar as Proposal 34 applies to post differentials it
is nonnegotiable. Insofar as it applies to living quarters allowances
it is negotiable.
XXVIII. Proposal 35
Section 4. -- Transportation Agreements
A. Bargaining unit employees shall be entitled to return
transportation for locally acquired dependents.
A. Positions of the Parties
The Agency asserts that to the extent that this proposal would
require granting transportation agreements to local hires and part-time
employees it conflicts with the FTRs and the JTRs. The Union states
that the intent of this proposal is to overcome a distinction which the
Agency currently makes between an employee's dependents who are
"acquired" stateside and those "acquired" while overseas. It states
that the proposal does not seek to expand eligibility for transportation
agreements to types of employees not already eligible.
B. Analysis and Conclusion
The Union's explanation of the proposal is compatible with the
proposed language and we adopt it for the purpose of this decision.
Hence, we find that the proposal does not conflict with provisions of
the FTRs, or JTRs, which restrict granting transportation agreements to
either local hires or part-time employees. As explained by the Union,
the proposal would only apply to those employees who are already
eligible for transportation agreements. Thus, insofar as local hires
and part-time employees are not eligible for transportation agreements
they are not covered by this proposal. As to eligible employees, it
only is concerned with which of their dependents would receive return
transportation. In view of this interpretation of the proposal, the
Agency's argument that it conflicts with the FTRs and JTRs is rejected.
By extension, its allegation that this proposal is nonnegotiable has not
been sustained.
XXIX. Proposal 36
B. Bargaining unit employees shall be entitled to enter into a
transportation agreement when their sponsoring spouse retires,
resigns or otherwise leaves the employment or service of the
United States.
A. Positions of the Parties
The Agency makes the same argument here as it made with respect to
Proposal 35, that insofar as the proposal would apply to local hires and
part-time employees, it conflicts with the FTRs and the JTRs. The Union
indicates that this proposal is directed at those employees who at the
time of their hire are not entitled to a transportation agreement
because of their status as a dependent of someone who is entitled to
one. Under this proposal, these employees would become entitled to a
transportation agreement, in their own right, when the sponsoring spouse
retires, resigns or otherwise leaves the employment or service of the
United States.
B. Analysis and Conclusion
A transportation agreement covers, among other things, Renewal
Agreement Travel (RAT) which was discussed in conjunction with Proposals
18 and 19 above. See, for example, Janet L. Acker v. United States, 6
Cl. Ct. 503 (Cl. Ct. 1984). Moreover the Union's statement of intent
accompanying its petition in this case, indicates that this proposal is
intended to encompass RAT. Under the FTRs, a local hire whose presence
overseas is a consequence of marriage to, among others, an employee of
the Foreign Service, a member of the uniformed services, or a private
individual is not eligible for RAT. /39/ Inasmuch as Proposal 36, by
its language and intent, would entitle bargaining unit employees,
including local hires, to RAT without regard to whether their presence
in the geographical area is attributable to their marital status, the
proposal is inconsistent with the FTRs. In conjunction with proposal 6
we ruled that Chapter 2 of the FTRs are Government-wide regulations.
Consequently, Proposal 36 is not within the duty to bargain.
As discussed in conjunction with Proposal 2, the Agency has not
demonstrated that a compelling need exists for the JTRs. Therefore, its
argument that the JTRs bar negotiations on this allegedly conflicting
proposal is not supported.
XXX. Proposals 37 and 38
(Proposal 37)
Section 5 -- Special Incentive Differential
A. All bargaining unit employees shall be entitled to a
special incentive differential when stationed at a hardship post.
Employees on temporary duty at such posts shall also be entitled
to a special incentive differential.
(Proposal 38)
B. The locations at which bargaining unit employees shall be
entitled to special incentive differentials shall be subject to
negotiations and agreed upon by the Association and the Employer.
A. Positions of the Parties
The Agency asserts that these two proposals are nonnegotiable because
they conflict with the DSSRs. The Union contends that the DSSRs do not
bar negotiation of inconsistent proposals because they are not
Government-wide regulations.
B. Analysis and Conclusions
The Special Incentive Differentials to which these proposals refer is
authorized by 5 U.S.C. Section 5925(b). /40/ It may be paid to
employees assigned to a post determined to have especially adverse
conditions of environment. It may be paid under regulations prescribed
by the President governing, among other things, the rates of payment,
and the foreign areas, groups of positions and categories of employees
to which the rates apply. /41/ Under Executive Order 10903, as amended,
the President delegated his authority in this regard to the Secretary of
State. /42/ The Secretary of State has typically exercised this
authority through issuance of the DSSRs. See Overseas Education
Association, Inc. and Department of Defense, Office of Dependents
Schools, 22 FLRA No. 34 (1986) (Proposal 2). References to Special
Incentive Differentials occur in various portions of the DSSRs and the
index to the DSSRs indicates that Chapter 570, entitled "Special
Incentive Differential," is to be inserted at a later date.
As to the Agency's assertion that these two proposals are in conflict
with various portions of the DSSRs, we find that based on the current
DSSRs the contention can be sustained only as it relates to local hires
and part-time employees. Section 031.2 (note 23) specifically limits
payment of Special Incentive Differentials to employees who are eligible
for quarters allowances under section 031.1. That section (note 3)
limits the circumstances under which local hires may receive quarters
allowances. Section 031.5 (note 5) precludes payment of Special
Incentive Differentials to part-time employees. Because the first
sentence of Proposal 37 would require payment to local hires and
part-time employees without regard to these restrictions, it is
inconsistent with the DSSRs. As noted in conjunction with Department of
Defense Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal
2), the DSSRs are Government-wide regulations. Sentence 1 of Proposal
37 is therefore not within the duty to bargain.
The Agency has not established that either the second sentence of
Proposal 37 or Proposal 38 conflicts with the DSSRs and no conflict is
otherwise apparent to us. However, we note that under 5 U.S.C. Section
5922(c) and implementing Executive Order E.O. 10903, as amended,
authority over where, to whom, and the rate at which Special Incentive
Differentials will be paid has been vested in the Secretary of State.
We conclude that the Agency has no independent discretion to determine
these matters and that its discretion therefore is limited to making
recommendations to the Secretary of State. The Agency's obligation to
bargain over these matters is limited to the extent to which it has
discretion, even if its discretion is limited to making such requests
and/or recommendations. See American Federation of State, County and
Municipal Employees, AFL-CIO and Library of Congress, Washington, D.C.,
7 FLRA 578 (1982) (Proposals XI-XVI), enf'd sub nom. Library of Congress
v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). Of course, insofar as the
Secretary of State has final authority under law, agreement between the
parties herein cannot bind the Secretary.
Based on these reasons and those expressed more fully in Library of
Congress we conclude that Proposal 37, sentence 2 and proposal 38 are in
the context of the described circumstances within the duty to bargain.
XXXI. Proposal 39
Section 6 -- Danger Pay Allowance
All bargaining unit employees in Korea and at other locations
designated as danger pay posts by the Secretary of State or agreed
to from time to time based on changed circumstances by the
Association and the Employer shall be entitled to a Danger Pay
Allowance.
A. Positions of the Parties
The Agency contends that this proposal is nonnegotiable because it
conflicts with the DSSRs. The Union argues that the DSSRS are not
Government-wide regulations.
B. Analysis and Conclusions
Danger pay is authorized by 5 U.S.C. Section 5928 for employees
serving in foreign areas subject to civil insurrection, civil war,
terrorism or wartime conditions. /43/ Authority to determine the
specific rates and locations at which it may be paid has been vested in
the Secretary of State. See notes 41 and 42. The Secretary of State
has exercised this authority through the DSSRs. /44/ As noted in
conjunction with Department of Defense Office of Dependent Schools, 22
FLRA No. 34 (1986) (Proposal 2), the DSSRs are Government-wide
regulations. As Proposal 39 would require payment of danger pay at
posts which have not been designated as danger pay posts by the
Secretary of State and the DSSRs, it is inconsistent with a
Government-wide regulation and is not within the duty to bargain.
XXXII. Proposals 40-44
(Proposal 40)
Section 7 -- Education Allowance
(1) All employees in the bargaining unit shall be entitled to
enroll their dependent children in tuition-fee schools of their
choice in foreign areas at government expense and shall be
reimbursed by the government for the transportation of their
children to such schools if one or more of the following
conditions exist:
A. Service-operated schools are operating at maximum capacity;
B. Daily commuting distance to a Service-operated school is
unreasonable;
C. Traffic hazards or other conditions would involve undue
hardships for the children concerned if they were required to
attend a Service-operated school; or
D. Adequate educational facilities are not available at the
Service-operated school for "exceptional children" (e.g. those who
are handicapped or who suffer from a learning disability).
(Proposal 41)
(2) No employee will be compelled or asked to relocate his/her
residence in order to alleviate an unreasonable commuting distance
or commuting conditions which would involve hardships for the
dependent child, and no employee shall lose eligibility for this
tuition entitlement due to his/her unwillingness to change his/her
residence.
(Proposal 42)
(3) Employees shall be authorized roundtrip transportation
(twice per calendar year) at government expense for each dependent
attending an educational institution for higher learning.
(Proposal 43)
(4) Any unit employee, upon retirement, shall be entitled to
space-required, tuition-free education for all dependents, if the
employee continues to reside overseas.
(Proposal 44)
(5) Dependents of unit employees who are authorized attendance
in an ODE/DODDS dependents school or an approved non-ODE/DODDS
school may complete their education requirements if the sponsor
dies or leaves the area and dependents remain overseas.
A. Positions of the Parties
The Agency asserts that these proposals do not concern conditions of
employment. As to Proposal 42, the Agency additionally argues that it
conflicts with law and the DSSRs. The Union argues that the proposals
do concern conditions of employment.
B. Analysis and Conclusions
1. Background
Under 20 U.S.C. Section 906 and 5 U.S.C. Section 5924(4), teachers
may receive payments to assist them with the expenses associated with
providing an adequate education for their dependents. /45/ Among the
stated Congressional purposes underlying the provisions authorizing such
payments were compensation of employees for additional expenses and
hardships incident to duty overseas and facilitation of recruitment, and
retention of employees for service overseas. /46/ Moreover, the
payments were viewed as an alternative to the availability of adequate,
educational facilities at a particular post of duty. /47/ In view of
the existence of, and the purposes underlying, these legal provisions
relating to education allowances, we conclude, generally, that insofar
as these proposals relate to providing an adequate education to
dependents of employees while they are assigned to overseas posts of
duty they meet the second criterion for determining whether proposals
concern conditions of employment which the Authority articulated in
Antilles Consolidated School System. See our discussion of Proposal 1.
2. Proposal 40
Proposal 40 sets forth circumstances under which employees would be
allowed the option of using educational facilities other than dependents
schools. This proposal principally focuses on bargaining unit employees
and, as just discussed, there is a direct connection between the
proposal and the work situation or employment relationship of bargaining
unit employees. Therefore, we conclude that this proposal concerns
conditions of employment. See Department of the Air Force, Eielson Air
Force Base, Alaska, 23 FLRA No. 83 (1986). The Agency makes no
assertion nor is there any other reason apparent for concluding that
this proposal conflicts with the provisions of law which govern payment
of education allowances. See notes 45 and 47. Based on these reasons,
Proposal 40 is within the duty to bargain.
3. Proposal 41
Proposal 41 is principally focused on bargaining unit employees and
is directly connected to the work situation or employment relationship
of those employees. It, too, is within the duty to bargain.
4. Proposal 42
Like Proposals 40 and 41, this proposal concerns conditions of
employment. However, it is inconsistent with Federal law.
Specifically, 5 U.S.C. Section 5924(4)(B) authorizes payment of travel
expenses for only one annual trip each way for each dependent to obtain
an American secondary or undergraduate college education. See note 45.
Inasmuch as the DSSRs mirror this limitation, /48/ the proposal is also
inconsistent with a Government-wide regulation. Proposal 42 is not
within the duty to bargain.
5. Proposal 43
This proposal is like Proposal 22 in that it would apply to former
employees who have retired. For the reasons expressed in conjunction
with Proposal 22, we find that this proposal does not concern conditions
of employment of bargaining unit employees and is, consequently, not
within the duty to bargain.
6. Proposal 44
This proposal would permit dependents to complete their education
requirements overseas in the event that the sponsoring employee dies or
leaves the overseas area. As noted earlier, the purpose of the legal
provisions which form the basis for finding that proposals relating to
dependents' education concern conditions of employment is compensating
employees for hardships and additional expenses incident to their
service overseas as well as facilitating recruitment and retention of
employees in overseas posts of duty. Given the circumstances specified
in this proposal -- that an employee is no longer serving in an overseas
post of duty -- any relationship to this purpose or to the legal
provisions is not apparent. Moreover, the Union has provided no
evidence and the record does not otherwise provide a basis for
concluding that there is a direct connection between allowing a
dependent continued access to overseas educational facilities after the
employee's assignment overseas has terminated and service overseas. See
Antilles Consolidated School System, 22 FLRA No. 23 (1986). Thus,
Proposal 44 does not concern conditions of employment and is outside the
Agency's obligation to bargain.
XXXIII. Proposal 45
Section 8 -- Storage of Goods
A bargaining unit employee shall be permitted storage of
household goods until he/she is offered or acquires housing at
his/her new duty location without a limitation period.
(Only the underscored portion of the proposal is in dispute.)
A. Positions of the Parties
The Agency asserts that this proposal conflicts with the FTRs which
place a time limitation on temporary storage of household goods and
which preclude local hires from shipping and storing household goods.
The Union acknowledges that, while time limits exist on temporary
storage of household goods, none apply to nontemporary storage which is
authorized under the FTRs. Thus, it contends that this proposal is
consistent with the FTRs.
B. Analysis and Conclusions
The provisions of the FTRs which govern the payment of expenses for
shipment and storage of household goods in conjunction with employee
assignments to posts of duty outside the United States contain the
following definition at FTRs, 2-1.4.e and f:
e. Temporary storage. Storage of household goods for a
limited period of time at origin, destination, or en route in
connection with transportation to, from, or between official
stations or posts of duty or authorized alternate points.
f. Nontemporary storage. Storage of household goods while an
employee is assigned to or is at an official station or post of
duty to which he/she will not or cannot transport such household
goods.
Specifically, as to temporary storage the FTRs provide at FTRs
2-8.2.c:
c. Temporary storage time limit. The time allowable for
temporary storage in connection with an authorized shipment of
household goods shall not exceed a period of 90 days. This time
period also applies when an employee returns to his/her place of
actual residence for leave before serving a new tour of duty
outside the conterminous United States either at a different post
of duty or at the same post of duty if the storage is provided
instead of furnished quarters or a quarters allowance. However,
upon an employee's written request, the initial 90-day period may
be extended an additional period not to exceed 90 days under
certain conditions if approved by the agency head or his/her
designee. Justification for an additional storage period may
include but is not limited to the following reasons:
(1) An intervening temporary duty or long-term training
assignment;
(2) Nonavailability of suitable housing;
(3) Completion of residence under construction;
(4) Serious illness of employee or illness or death of a
dependent; or
(5) Strikes, acts of God, or other circumstances beyond the
control of the employee.
The type of storage to which this proposal refers falls within the
definition of "temporary storage" -- that which occurs in conjunction
with shipment of household goods -- as opposed to nontemporary storage
-- that which occurs in lieu of shipment. We conclude that the
regulatory provisions which govern temporary storage apply. As noted
above, the FTRs limit the amount of time during which temporary storage
may be allowed. The proposal conflicts with those limitations. As
discussed in conjunction with Proposal 6, chapter 2 of the FTRs is a
Government-wide regulation. Therefore, this proposal is not within the
Agency's duty to bargain. In view of this conclusion, we find it
unnecessary to address the Agency's argument as to local hires.
XXXIV. Proposals 46-49
Section 10 -- Shipment of Goods
(Proposal 46)
A. All unit employees shall be authorized the maximum weight
allowance permitted by statute for the shipment of household and
professional goods. A maximum of 1,000 lbs. per family member
shall be authorized for the shipment of unaccompanied baggage.
(Proposal 47)
B. The shipment of goods shall be authorized from a unit
employee's initial point of hire or official residence to his/her
duty station. Return shipment shall be authorized from the
employee's duty station to his/her point of hire or official
residence.
(Proposal 48)
C. Transportation of goods shall be authorized between duty
stations when unit employees are reached for reassignment.
Partial shipments shall be authorized to a place of storage.
(Proposal 49)
D. Unit employees shall be authorized partial shipment of
goods to and from a place of storage to and from their duty
station or home of record as long as the shipments do not exceed
their total statutorily authorized weight allowances.
A. Positions of the Parties
The Agency argues that all four proposals conflict with FTRs,
2-1.5.h(3)(h), which it asserts precludes local hires from shipping and
storing household goods. As to Proposal 46, the Agency asserts that it
conflicts with FTRs, 2-82.4.b, which requires a reduction in weight
allowance where furnished or partially furnished quarters are provided.
Additionally, it asserts that the baggage conflicts with the JTRs and
is, consequently, outside the duty to bargain. As to Proposal 47, the
Agency argues that it conflicts with statutory (5 U.S.C. Section 5722)
and implementing regulatory provisions which limit shipment of household
goods to "place of actual residence." As to Proposal 49, the Agency
argues that it conflicts with provisions of the FTRs which it describes
as limiting shipments of household goods to the times at which an
employee is appointed to, transferred to or from, or separated after
completion of an established period of service at an overseas post of
duty.
In response to the Agency's overall contention as to the
nonnegotiability of these proposals, the Union asserts that the Agency's
reliance on FTRs, 2-1.5.h(3)(b) is misplaced because that provision
applies only to Renewal Agreement Travel. In response to the Agency's
argument on Proposal 46, the Union contends that the FTRs grant agencies
discretion, as opposed to mandating that they reduce weight allowances
when furnished or partially furnished quarters are provided.
Additionally, the Union asserts that the Agency has not demonstrated
that a compelling need exists for the JTR provisions with which Proposal
46 purportedly conflicts. In response to the Agency's arguments on
Proposal 49, the Union contends that the FTRs do not place any
limitations on partial shipments of household goods where nontemporary
storage is involved as it asserts is involved in this proposal.
B. Analysis and Conclusions
1. FTRs, 2-1.5h(3)(b) Does Not Bar Negotiation of These
Proposals
As the Union points out, FTRs, 2-1.5.h(3)(b) applies only to Renewal
Agreement Travel. See note 39. Consequently, it has no relevance to
transportation and/or storage of household goods. See note 15. It is
inapplicable to these proposals and does not present a basis for finding
them nonnegotiable.
2. Proposal 46
The FTRs require, where furnished or partially furnished quarters are
provided, that agencies shall make an appropriate reduction in the
weight of household goods to be authorized for shipment at Government
expense. /49/ The language of the regulati