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U.S. Federal Labor Relations Authority

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13:0176(37)NG - NFFE Local 1669 and Arkansas Air NG -- 1983 FLRAdec NG

[ v13 p176 ]
The decision of the Authority follows:

 13 FLRA No. 37
                                            Case No. O-NG-575
    This petition for review comes before the Federal Labor Relations
 Authority (the Authority) pursuant to section 7105(a)(2)(D) and (E) of
 the Federal Service Labor-Management Relations Statute (the Statute) and
 raises the question of the negotiability of two Union proposals.  Upon
 careful consideration of the entire record, including the parties'
 contentions, the Authority makes the following determinations.
                             Union Proposal 1
          Military uniforms are not required to be worn by technician
       employees while traveling in a civilian TDY status.
    The Agency disputes the negotiability of this proposal only to the
 extent that it would apply to aircrew members on military aircraft who
 are required to wear the military uniform.  The Union states, consistent
 with the language of the proposal, that it is intended to apply only to
 passengers and not to crew members.  Accordingly, the Authority views
 the dispute between the parties with respect to Union Proposal 1 as
 having been rendered moot.
                             Union Proposal 2
          Orders will reflect only civilian grade of the employee on all
       civilian travel orders.
    The Union states without contradiction that the precise purpose and
 practical effect of the proposal is to assure that technicians are
 assigned quarters based on their civilian grade as contrasted to their
 military grade because it will result in more desirable assignments.
    The Agency states that two National Guard Bureau (NGB) regulations--
 Technician Personnel Regulation (TPR) 900(935.1) /1/ and Air National
 Guard Regulation (ANGR) 90-1 /2/ -- require such assignments to quarters
 to be based on military grade.  The Agency further asserts that a
 compelling need exists for these regulations inasmuch as they implement
 a legal mandate /3/ in an essentially nondiscretionary manner.
    In its report accompanying the "Department of Defense Appropriations
 Bill, 1982," the House Committee on Appropriations included a directive
 to the Department of Defense to the effect that National Guard
 technicians in travel status would occupy government quarters based on
 their military grade, /4/ which directive was agreed upon by the
 Committee of Conference.  /5/ By these actions, the Agency was placed
 under a mandate from Congress requiring that technicians be assigned
 government quarters based on military grade as contrasted to civilian
 grade when in travel status.  The provisions of TPR 900(935.1) reflect
 this nondiscretionary mandate.  Thus, TPR 900(935.1) meets the criterion
 for determining compelling need for agency rules and regulations.  /6/
 Inasmuch as Union Proposal 2, by its purpose and effect, conflicts with
 TPR 900(935.1) it is not within the duty to bargain.  /7/
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  Issued, Washington, D.C., September 29, 1983
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ TPR 900(935-1), issued by the National Guard Bureau, provides in
 relevant part:
                               1-2.  POLICY
          Because of the military role of the technician, when a
       technician is performing temporary duty at Army, Air Force or
       other Department of Defense installations, the use of
       officer-level facilities will be restricted to officer
       technicians, and the use of enlisted-level facilities will be
       restricted to enlisted technicians.  The use of government
       facilities, other than sleeping accommodations, will be subject to
       the established policies of the visited installation.
    /2/ The Agency neither provided a copy of ANGR 90-1 nor did it quote
 from it.  However, it contends that ANGR 90-1, similarly to TPR
 900(935.1), requires quarters assignment on the basis of military grade.
  The Authority in deciding this case has relied only on TPR 900(935.1),
 a copy of which was submitted.
    /3/ The law to which the Agency refers is the "Department of Defense
 Appropriation Act, 1982," Pub. L. No. 97-114, 95 Stat. 1565 (1981).
    /4/ The Committee Report provided, in relevant part:
          The Committee conducted an extensive hearing on the Guard and
       Reserve technician conversion program and includes the following
       direction to the Department.
                                .  .  .  .
          Military technicians will occupy government quarters based on
       military grade when in a travel status.
          H.R. REP. No. 97-333, 97th Cong., 1st Sess. 42 (1981).
    /5/ The Conference Report provided in relevant part:
          The following language items represent the agreement of the
       conferees.  Specific dollar amounts by military service are
       reflected under each summary table.  Language contained in the
       report of only one body and not addressed below should be
       considered the agreement of the conferees.
          H.R. REP. No. 97-410, 97th Cong., 1st Sess. 9 (1981).
    /6/ In this regard, the Authority's Rules and Regulations provide:
          Sec. 2424.11 Illustrative criteria.
          A compelling need exists for an agency rule or regulation
       concerning any condition of employment when the agency
       demonstrates that the rule or regulation meets one or more of the
       following illustrative criteria:
                                .  .  .  .
          (c) The rule or regulation implements a mandate to the agency
       or primary national subdivision under law or other outside
       authority, which implementation is essentially nondiscretionary in
    /7/ In view of this decision, the Authority finds it unnecessary to
 address the remaining contentions of the Agency as to the negotiability
 of the proposal.