43:1526(122)NG - - NAGE Local R1-34 and Navy, Naval Underwater Systems Center, Newport, RI - - 1992 FLRAdec NG - - v43 p1526



[ v43 p1526 ]
43:1526(122)NG
The decision of the Authority follows:


43 FLRA No. 122

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

SERVICE EMPLOYEES INTERNATIONAL UNION

LOCAL R1-34

(Union)

and

U.S. DEPARTMENT OF THE NAVY

NAVAL UNDERWATER SYSTEMS CENTER

NEWPORT, RHODE ISLAND

(Agency)

0-NG-1962

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

February 13, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(D) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal.

For the following reasons, we find that the proposal is nonnegotiable under section 7117(a)(2) of the Statute because it is inconsistent with an Agency regulation for which there is a compelling need.

II. Proposal

6.2. OCCUPANCY EXEMPTIONS

a. "Utilization of Government Quarters Determined Not to be Mission Essential.

When pursuant to 5 U.S.C. 5911(e) it has been determined that the use of available Government-furnished quarters is not unequivocally essential to the TDY [temporary duty] mission, an employee using other suitable accommodations, despite the availability of suitable Government quarters, shall be authorized the full quarters portion of the per diem or actual expense in excess of the rate he/she would have been paid had he/she resided in Government quarters.

III. Positions of the Parties

1. Agency

The Agency claims that the proposal is nonnegotiable because "it is inconsistent with the DOD [Department of Defense] Civilian JTR [Joint Travel Regulation][,]" an Agency regulation for which the Authority has determined that a compelling need exists under section 7117(a)(2) of the Statute and section 2424.11(c) of the Authority's Rules and Regulations. Agency Statement at 2. Specifically, the Agency argues that, because the proposal provides for "full quarters allowances to activity employees on travel for temporary duty assignments and housed in government quarters unless the agency can prove that such accommodations are unequivocally essential to the temporary duty mission[,]" the proposal "is contrary to DOD Civilian JTR, Part 2, Chapter 267, paragraph C1055, subparagraph 1." Id. (emphasis in original). See Appendix attached to this decision for the text of DOD Civilian JTR, Part 2, Chapter 267, paragraph C1055, subparagraph 1.

In support of its claim that the proposal is nonnegotiable under section 7117(a)(2) of the Statute, the Agency cites cases in which the Authority held that proposals regarding Government-furnished living quarters were nonnegotiable because the proposals were inconsistent with provisions of the JTRs, an agency regulation for which there existed a compelling need. The Agency cites American Federation of Government Employees, AFL-CIO, Local 1808 and Department of the Army, Sierra Army Depot, 30 FLRA 1236, 1255-58 (1988) (Sierra Army Depot) (provision established criteria governing the quality of Government-furnished living quarters for employees on temporary duty); National Federation of Federal Employees, Local 29 and Kansas City District Corps of Engineers, Kansas City, Missouri, 17 FLRA 1052 (1985) (Kansas City District), affirmed mem. sub nom. National Federation of Federal Employees, Local 29 v. FLRA, No. 85-1398 (D.C. Cir. Apr. 1, 1986) (per curiam) (proposal established criteria for the adequacy of Government-furnished quarters); and National Federation of Federal Employees, Local 561 and Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama, 17 FLRA 759 (1985) (Corps of Engineers) (proposal established criteria for the adequacy of Government-furnished quarters).

According to the Agency, Congress intended "to ensure significant savings to the Federal Government by providing an economic disincentive to employees who failed to use Government quarters when those quarters were adequate and available." Agency Statement at 4 (quoting Sierra Army Depot, 30 FLRA at 1257). The Agency interprets the proposal as an attempt by the Union to eliminate this disincentive. In particular, the Agency claims that, because the proposal would require management to pay an employee the full per diem or actual expense reimbursement even when Government quarters are available unless the Agency can demonstrate that the use of those quarters is unequivocally necessary to the TDY mission, the proposal would prevent the Agency from complying with the JTRs. The Agency cites National Federation of Federal Employees, Local 405 and U.S. Army Aviation Systems Command and U.S. Army Troop Support Command, 33 FLRA 604, 612-15 (1988) (Troop Support Command), in which the Authority held that a provision providing that unit employees would not use Government quarters when management officials on the same mission at the same site are not required to use Government quarters was nonnegotiable under section 7117(a)(2) of the Statute.

2. Union

The Union notes that applicable law, 5 U.S.C. § 5911(e), provides that an agency may not require an employee to occupy Government-furnished quarters unless occupancy is necessary for the performance of the mission or the protection of Government property. The Union also notes that the JTRs provide that, when Government quarters are available, an employee may not receive the quarters portion of the per diem allowance or actual expense allowance that is in excess of the cost of the Government quarters.

According to the Union, the Comptroller General has ruled that DOD civilian employees on TDY are not required to occupy available Government-furnished quarters, even if those quarters are available without cost. See 44 Comp. Gen. 626 (1965). The Union notes that the Agency's proposed Travel Instruction provides that Government-furnished quarters will be presumed to be available unless the employee furnishes a travel order or travel voucher to the contrary and that, in the absence of such an order or voucher, the quarters portion of the per diem allowance or actual expense allowance will not be paid. The Union concludes, citing unpublished Comptroller General decision B-170618 (Oct. 15, 1970), that the effect of the reduced rates provided employees who use other accommodations when Government-furnished quarters are available is to coerce employees to use Government-furnished quarters in violation of 5 U.S.C. § 5911(e).

IV. Analysis and Conclusions

The issue in this case is whether the proposal is nonnegotiable under section 7117(a)(2) of the Statute because it is inconsistent with an Agency regulation for which a compelling need exists under section 2424.11(c) of our Rules and Regulations. For the following reasons, we find that the proposal is nonnegotiable.

In order to demonstrate that a proposal is nonnegotiable under section 7117(a)(2) because it is barred by an agency regulation for which a compelling need exists, an agency must: "(1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need with reference to the Authority's standards set forth in section 2424.11 of its regulations." American Federation of State, County and Municipal Employees, Local 3097 and U.S. Department of Justice, Justice Management Division, 42 FLRA 412, 466 (1991), petition for review filed sub nom. U.S. Department of Justice, Justice Management Division, No. 91-1582 (D.C. Cir. November 26, 1991).

As to the first of these requirements, the Agency has identified DOD Civilian JTR, Part 2, Chapter 267, paragraph C1055, subparagraph 1 (the regulation) as the Agency-wide regulation with which the proposal is inconsistent. The Union does not dispute that the regulation is an Agency-wide regulation.

As to the second requirement, we find that the proposal conflicts with the regulation. Specifically, the regulation provides that an employee on TDY may not be paid the quarters portion of the per diem or actual expense allowance when Government quarters are available and the employee does not use those quarters, unless, among other possible exceptions, the agency determines that use of Government quarters would adversely affect the performance of the assigned mission. In short, an employee on TDY can receive the full quarters portion of the per diem or actual expense allowance, even though the employee did not use available Government quarters, if the agency determines that use of the quarters would adversely affect the employee's mission.

The proposal establishes a different criterion for payment of the full quarters portion of the per diem or expense allowance where the use of Government-furnished quarters is at issue. Under the proposal, an employee would receive the full quarters allowance, even though the employee did not use available Government-furnished quarters, if the Agency determines that use of Government quarters is "not unequivocally necessary" to the TDY mission. We conclude that, under the proposal, the Agency would be required to pay the full quarters portion of the per diem or actual expense allowance to employees who did not use Government-furnished quarters in circumstances where, under the regulation, the Agency would not be required to pay the full portion of those allowances. Therefore, we conclude that there is a conflict between the proposal and the regulation. See Troop Support Command, 33 FLRA at 614. Compare National Federation of Federal Employees, Local 405 and U.S. Department of the Army, Army Information Systems Command, St. Louis, Missouri, 42 FLRA 1112, 1149-50 (1991) (proposal prescribing allocation of Government quarters for personnel on the same or similar missions at temporary duty station when there are insufficient Government quarters to accommodate all personnel held not to conflict with the JTRs).

As to the third and final requirement, we find that there is a compelling need under section 2424.11(c) of the Authority's Rules and Regulations for the regulation. Section 2424.11(c) provides that a compelling need may be found to exist for an agency regulation that implements a mandate to the agency, under law or other outside authority, which implementation is essentially nondiscretionary in nature.

As the Agency points out, the Authority has previously determined that there is a compelling need for DOD Civilian JTR, Part 2, Chapter 267, paragraph C1055, subparagraph 1 under section 2424.11(c) of the Authority's Rules and Regulations. See Corps of Engineers, Kansas City District, Sierra Army Depot, Troop Support Command. In those cases, the Authority found that the portions of the DOD civilian JTRs pertaining to the living quarters allowance for employees on TDY, including the regulation involved in this case, were issued to comply with a provision of the Defense

Appropriation Acts of 1978 and 1979. Based on the legislative history of those Acts, including particularly the conference committee report accompanying the 1979 Act, the Authority found that the provision was intended to require "DOD to issue uniform rules for the use of Government quarters." Troop Support Command, 33 FLRA at 615 (emphasis in original).(*)

The Authority also concluded that the Congressional mandate that DOD issue uniform regulations for the use of Government quarters was nondiscretionary in nature, and that, to the extent the mandate was found in Congressional reports, those reports constituted an "outside authority" within the meaning of section 2424.11(c) of the Authority's Rules and Regulations. See Troop Support Command, 33 FLRA at 614-15; Corps of Engineers, 17 FLRA at 766-67. Those findings and conclusions have been affirmed by the U.S. Court of Appeals for the District of Columbia Circuit and are undisputed here. See National Federation of Federal Employees, Local 29 v. FLRA, No. 85-1398 (D.C. Cir. Apr. 1, 1986) (per curiam), affirming Kansas City District. See also Troop Support Command, 33 FLRA at 615.

The regulation at issue in this case, DOD Civilian JTR, Part 2, Chapter 267, paragraph C1055, subparagraph 1, is the same regulation that was at issue in Corps of Engineers, Kansas City District, Sierra Army Depot, and Troop Support Command. The Congressional mandate that is involved in this case, namely, that the regulations governing the use of available Government quarters by all civilian employees of the Department of Defense must be uniform, is the same Congressional mandate that was involved in those cases. We conclude, therefore, consistent with Corps of Engineers, Kansas City District, Sierra Army Depot, and Troop Support Command, that a compelling need exists, under section 2424.11(c) of our Rules and Regulations, for the regulation to bar negotiation of the proposal at issue in this case. Consequently, we conclude that the proposal is nonnegotiable under section 7117(a)(2) of the Statute.

We note the Union's argument that the disincentive provided in the regulation is contrary to the prohibition in 5 U.S.C. § 5911(e) against requiring employees to use Government-furnished quarters. The Union's argument, in essence, questions the validity of the regulation. The Authority will not, in a negotiability appeal under the Statute, assess the validity of an agency regulation. See National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046, 1069-69 (1988), decision on remand National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 33 FLRA 436 (1988), rev'd in part and remanded sub nom. Department of the Army, U.S. Army Aberdeen Proving Ground v. FLRA, 890 F.2d 467 (D.C. Cir. 1989), decision on remand National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 35 FLRA 936 (1990). See also American Federation of Government Employees v. FLRA, 794 F.2d 1013, 1015 (5th Cir. 1986), enforcing American Federation of Government Employees, AFL-CIO, National Council of Grain Inspection Locals and U.S. Department of Agriculture, Federal Grain Inspection Service, 18 FLRA 530 (1985). We also note that the Comptroller General decisions relied on by the Union were issued before the Defense Appropriation Acts of 1978 and 1979 and the promulgation of the regulation at issue in this case.

V. Order

The petition for review is dismissed.

APPENDIX

DOD Civilian JTR, Part 2, Chapter 267, paragraph C1055 provides, in relevant part, as follows:

C1055 USE OF GOVERNMENT QUARTERS

1. GENERAL. Although an employee may not be required to utilize Government quarters, when adequate Government quarters are available but not used, the payment of the quarters portion of the per diem or actual expense allowances of any employee on temporary duty away from his designated post of duty may not be made except under the following conditions:

1. when the order-issuing authority, either prior to or subsequent to the travel involved, issues a statement to the effect that the utilization of Government quarters at the temporary duty station or delay point would adversely affect the performance of the assigned mission (this exception is not applicable to personnel attending training courses at an installation of the Uniformed Services);

2. when, prior to the travel involved, the order issuing authority, as a result of direct communication with the commanding officer (or designated representative) responsible for Government quarters at the temporary duty or delay point concerned, issues a statement to the effect that adequate Government quarters at the temporary duty station or delay point will not be available;

3. when the commanding officer (or designated representative) responsible for Government quarters at the temporary duty or delay point furnishes a statement to the effect that utilization of Government quarters was impracticable;

4. when it is determined by the DOD component concerned that an employee's duties will require official travel in excess of 50% of the total number of the employee's basic administrative work weeks during the current fiscal year . . . ; or

5. when, prior to 1 October 1977, the employee entered into a commitment for quarters which cannot be canceled without a financial penalty to the employee.

2. EFFECT OF ABSENCE OF STATEMENT

In the absence of a statement issued under the provisions of subpar. 1 or unless the nonavailability of adequate Government quarters can be ascertained by reference to a publication issued by the Uniformed Service concerned, it shall be assumed that adequate Government quarters were available on any day for which the employee fails to submit an appropriate statement . . . indicating that such quarters were not available or not utilized on that date. A statement, issued under the provisions of subpar. 1, that the utilization of Government quarters would adversely affect the performance of the employee's assigned mission or that their utilization was impracticable or not in the best interests of the Government shall have the effect of a statement of nonavailability. Endorsements on orders are acceptable in lieu of separate statements in those Uniformed Services which endorse orders.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ We note that the relevant provision of the Defense Appropriation Acts of 1978 and 1979 was also contained in subsequent Defense Appropriation Acts. We also note that, as a part of the Department of Defense Authorization Act, 1985 (the 1985 Act), Pub. L. 95-525, 98 Stat. 2492, 2618, the provision was codified in title 10 of the United States Code. See 10 U.S.C. § 1589(a). The legislative history of the 1985 Act contain