[ v15 p270 ]
The decision of the Authority follows:
15 FLRA No. 58 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO LOCAL 3004 Union and DEPARTMENT OF THE ARMY AND AIR FORCE, NATIONAL GUARD BUREAU Agency Case No. O-NG-712 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 the following Union proposal. /1/ Article 13 Technician Travel Section a. Employees on temporary duty in a technician status away from their designated duty station are required to utilize adequate government quarters when available based on their civilian grade. Section j. A certificate of non-availability will be requested from the billeting officer if adequate quarters, commensurate with civilian pay grade, are not available. If denied, such denial shall be requested in writing. If written denial is not issued, employees should contact their immediate supervisor or a management official at their home station for guidance and/or assistance. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. In agreement with the Agency, the Authority finds that the Union's proposal is not within the duty to bargain. The disputed portions of the proposal require that employees on temporary duty in a technician status away from their regular duty station shall be assigned quarters based on their civilian grade as contrasted with their military grade. Thus, the proposal is substantively identical in effect to Union Proposal 2 which was before the Authority in National Federation of Federal Employees, Local 1669 and Arkansas Air National Guard, 13 FLRA No. 37 (1983), appeal docketed sub nom. NFFE Local 1669 v. FLRA, Case No. 83-2229 (D.C. Cir. 1983). In that case, the Authority held the proposal outside the duty to bargain because the Agency regulation, TPR 900 (935.1), met the criterion for establishing compelling need for agency rules and regulations under section 2424.11(c) of the Authority's Rules and Regulations. In that regard, based upon the report accompanying the "Department of Defense Appropriations Bill, 1982," which 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, the Authority found that the Agency was placed under a mandate from Congress. Hence, based on the Arkansas Air National Guard decision and the reasons stated therein, the instant proposal is outside the duty to bargain since it is inconsistent with an Agency regulation (TPR 900 (935.1)) for which there is a compelling need. /2/ 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., July 17, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union's petition for review originally contained 7 proposals. However, during the pendency of this appeal, the parties reached agreement on all but the disputed portions of Article 13. The Authority hereby grants the Union's request to withdraw the other 6 proposals. Further, the Agency's contention that the Union's petition for review should be dismissed for inadequate service and/or untimeliness cannot be sustained. In this regard, the Authority finds that the Union's service of its petition upon the Agency's disapproving official is adequate service pursuant to section 2424.4(a)(4)(b) of the Authority's Rules and Regulations, and, insofar as it appears from the record, the Union filed its appeal within the appropriate time period prescribed by sections 2424.3 and 2429.22 of the Authority's Rules and Regulations. Finally, the Authority concludes, contrary to the Agency's assertion, that the Union's statement that the "intent of (its) proposals are clear on their face" is accurate and thus constitutes sufficient compliance with section 2424.4(a)(2) of the Authority's Rules and Regulations. /2/ In view of its decision herein, the Authority finds it unnecessary to address the Agency's additional contention regarding the nonnegotiability of the proposals.