U.S. Federal Labor Relations Authority

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17:0759(105)NG - NFFE Local 561 and Army, Army Corps of Engineers, Mobile, AL -- 1985 FLRAdec NG

[ v17 p759 ]
The decision of the Authority follows:

 17 FLRA No. 105
                                            Case No. O-NG-728
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and raises issues
 concerning the negotiability of the following Union proposal.
               Government-Furnished Subsistence and Quarters
          Employees required to travel in locations where
       Government-furnished subsistence and quarters are available will
       be paid as provided by Joint Travel Regulations.  Although use of
       Government quarters by Unit employees is not mandatory,
       nonutilization of available adequate Government quarters can
       result in forfeiture of the quarters portion of the per diem
       allowance.  Adequate Government quarters shall be decent, safe and
       sanitary;  comparable to rooms furnished by national chain
       hotels/motels priced within the allowance quarters portions of the
       prevailing per diem rate.  Prior to requiring that a traveler stay
       in Government quarters, those quarters will be evaluated by the
       Employer against a mutually established set of criteria to
       determine adequacy.  The Union will be provided a copy of the list
       of installations with adequate quarters and supporting data for
       purposes of negotiations thereon prior to adoption or changes of
       list.  The Employer shall initiate development of this list within
       6 months of effective date of this contract.  Use of Government
       quarters will not be required until they are determined to be
       adequate.  The list of adequate Government quarters shall be
       updated as needed based on feedback of using employees.  No
       quarters shall be considered adequate unless confirmed
       reservations can be granted by the supplying facility.  (Only
       those underlined portions of the Union's proposal are in dispute.)
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 /1/ The Union's proposal concerns negotiated standards of adequacy for
 government temporary duty.  The Agency contends, among other things,
 that the proposal is inconsistent with Agency regulations for which a
 compelling need exists and, therefore, is not within the duty to bargain
 under section 7117(a)(2) of the Statute.  /2/ The Union, however,
 disputes the Agency's contention claiming that a conflict does not exist
 between its proposal and the Agency's regulations and that, in the event
 that a conflict does exist, there is no compelling need for the Agency's
    The Agency claims a compelling need exists for provisions of the
 Department of Defense Civilian Personnel, Volume 2, Joint Travel
 Regulations (JTR), /3/ and the Department of Defense Instruction
 4165.47, Adequacy, Assignment, Utilization, and Inventory of
 Unaccompanied Personnel Housing (DoD Instruction).  /4/ The relevant
 provisions of the JTR state that while an employee is not required to
 utilize government quarters, when "adequate" government quarters are not
 used by an employee on temporary duty, the quarters portion of the per
 diem will not be paid in the absence of a statement of nonavailability
 or nonutilization.  The JTR also provides that the standards to
 determine the adequacy of government quarters will be prescribed by the
 Office of the Secretary of Defense (OSD).  These standards are
 prescribed in DoD Instruction 4165.47, in question herein, and are the
 basis upon which a determination is made as to whether certificates of
 nonavailability should be issued.
    The record indicates that these Agency regulations were promulgated
 in response to section 853 of the Department of Defense Appropriation
 Act of 1978 (Appropriation Act), /5/ which prohibited the disbursement
 of funds for lodging for employees while on temporary duty when
 "adequate government quarters" are available but not occupied.  Congress
 incorporated section 853 within the Appropriation Act in order to ensure
 significant savings to the Federal government by providing an economic
 disincentive to employees who fail to use government quarters when these
 quarters are adequate and available.  While the provision initially
 resulted in savings to the government, numerous complaints were raised
 concerning the lack of uniformity in the implementation of the
 provision.  As a consequence, some opposition emerged to its
 continuation in the subsequent Appropriation Act.  The Agency, itself,
 requested elimination of the provision.  In response to these complaints
 and statements of opposition, the House Appropriations Committee (House
 Committee) conducted a review of the implementation of Section 853.  In
 a report containing its findings, the House Committee found that it was
 necessary to continue the provision in the 1979 Appropriation Act and,
 in addition, to (1) provide detailed guidance as to what constitutes
 adequate quarters and (2) require uniform and reasonable application of
 the provision.  /6/ Specifically, the report reflected the House
 Committee's concern that although the DoD Instruction prescribed the
 minimum standards of adequacy, it did not provide for the uniform
 application of the standards by these various activities.  /7/
    Thus, to ensure uniformity in the application of the provision, the
 House Committee included within its report the following directive to
 the Agency:
          The Committee expects the Department of Defense to establish
       policies which will:
          Assure that a civilian employee on TDY would get no lesser
       accommodations than a private room with a bath shared by no more
       than one other person.
                                .  .  .  .
          Establish uniform reservation procedures using the DoD autovon
       system and issue uniform rules for non-availability certificates.
 Congress, by issuing such a directive to the Agency, mandated the Agency
 to provide accommodations which, at least, would meet the above
 standards and to issue uniform rules governing the issuance of
 non-availability certificates.
    In view of the foregoing, the Authority finds, contrary to the
 Union's contention, that the proposal is inconsistent with the JTR and
 the DoD Instruction.  /8/ That is, the record herein and the legislative
 history of the Appropriation Acts clearly require a finding that as long
 as the minimum standards prescribed in the House's directive to the
 Agency are met, employees on temporary duty are required to utilize
 those quarters or lose a portion of their per diem allowance.
 Furthermore, as noted previously, the legislative history is replete
 with evidence indicating that Congress intended the Agency to issue
 uniform rules for determining whether to grant certificates of
 nonavailability.  Accordingly, to the extent that the issuance of
 certificates of nonavailability are based upon whether the quarters
 involved meet the standards of adequacy specified in the DoD
 Instructions, these standards must be uniformly applied in order to
 comply with Congress' mandate.  Therefore, contrary to the Union's
 contention, the DoD Instruction prescribes standards of adequacy which
 must be uniformly applied in determining whether funds can be disbursed
 for lodging.  To the extent that the Union's proposal exceeds the
 standards set forth in the DoD Instruction, the proposal is inconsistent
 with the regulation.
    Similarly, the proposal is inconsistent with provisions of the JTR.
 These provisions reiterate the mandate of the Appropriation Act that
 funds not be disbursed to employees who fail to use "adequate government
 quarters" as prescribed in the DoD Instruction unless, among other
 things, a certificate of nonavailability is issued.  Accordingly, to the
 extent that the Union's proposal would permit disbursement of funds to
 employees for lodging who fail to use "adequate government quarters" as
 prescribed in the DoD Instruction, the proposal is inconsistent with the
    Finding the proposal inconsistent with the Agency's regulations, the
 Authority must now address the issue of whether a compelling need exists
 for these regulations so as to bar negotiation over the Union's proposal
 as claimed by the Agency.  In agreement with the Agency, therefore, the
 Authority finds that a compelling need exists for the JTR and DoD
 Instruction 4165.47 pursuant to section 2424.11(c) of the Authority's
 Rules and Regulations.  /9/ That is, the Agency was placed under a
 mandate from Congress to prescribe uniform rules for nonavailability
 certificates.  /10/ As previously detailed herein, the provisions of the
 JTR and the DoD Instruction in question reflect this nondiscretionary
 mandate.  Hence, the Agency's regulatory scheme implements a
 nondiscretionary mandate of law and outside authority.  In this
 connection, the Authority has previously held a Conference Committee
 report to constitute an "outside authority" within the meaning of
 section 2424.11(c) of the Authority's Rules and Regulations.  See
 National Federation of Federal Employees, Local 1669 and Arkansas Air
 National Guard, 13 FLRA 176 (1983), enforced sub nom. National
 Federation of Federal Employees, Local 1669 v. Federal Labor Relations
 Authority, 745 F.2d 705 (D.C. Cir. 1984).  Likewise, the Authority
 concludes herein that the House Committee report, which clearly reflects
 Congress' intent as to the manner in which the relevant provision of the
 Appropriation Act is to be implemented, constitutes "outside authority"
 under section 2424.11(c) of the Authority's Rules and Regulations.  /11/
    Inasmuch as the Union's proposal conflicts with the JTR and DoD
 Instruction, Agency regulations for which a compelling need exists, the
 proposal is not within the duty to bargain under section 7117(a)(2) of
 the Statute.  /12/
    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., May 7, 1985
                                       Henry B.Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ The Agency's request to dismiss the appeal because the proposal
 is not sufficiently specific and delimited to permit the Authority to
 issue a negotiability determination is denied.  The specific language of
 the proposal permits the Authority to reach a determination as to
 whether the proposal is inconsistent with Federal law, rule or
 regulation and, thus, its negotiability under the Statute.  See American
 Federation of Government Employees, AFL-CIO, Local 1395 and Social
 Security Administration, Great Lakes Program Center, Chicago, Illinois,
 14 FLRA 408 (1984), and the case cited therein.
    /2/ Section 7117(a)(2) of the Statute provides:
          Sec. 7117.  Duty to bargain in good faith;  compelling need;
       duty to consult
          (a)(2) The duty to bargain in good faith shall, to the extent
       not inconsistent with Federal law or any Government-wide rule or
       regulation, extend to matters which are the subject of any agency
       rule or regulation referred to in paragraph (3) of this subsection
       only if the Authority has determined under subsection (b) of this
       section that no compelling need (as determined under regulations
       prescribed by the Authority) exists for the rule or regulation.
    /3/ The JTR provides in pertinent part as follows:
          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 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;
                                .  .  .  .
          2.  EFFECT OF ABSENCE OF STATEMENT.  In the absence of a
       statement issued under the provisions of subpart. I 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 (see subpars. 3 and 4) indicating that
       such quarters were not available or not utilized on that date. . .
          3.  COMMANDING OFFICER'S STATEMENT.  If the length of temporary
       duty or delay is for a period of 24 hours or more . . . , a
       statement by the commanding officer . . . , is required . . . , as
       to the nonavailability of adequate Government quarters.  Such a
       statement is not required under the conditions outlined in subpar.
       I or in any case where the nonavailability of adequate Government
       quarters can be ascertained by reference to a publication issued
       by the Uniformed Service concerned.
                                .  .  .  .
          Appendix D.  Glossary of Terms
          GOVERNMENT QUARTERS.  Sleeping accommodations in a facility
       (other than a mode of transportation) operated under United States
       Government control or supervision;  or furnished by a foreign
       government under agreement or on a complimentary basis. . . .
       Government quarters include guest houses, officers clubs,
       operation hotels, bachelor officers quarters, visiting officers
       quarters, or similar quarters facilities located at a military
       activity;  . . . Standards of adequacy are prescribed by Office,
       Secretary of Defense, and implemented by appropriate regulations
       of the Service concerned.
    /4/ DoD Instruction 4165.47 provides in pertinent part as follows:
          1.  General
                                .  .  .  .
          b.  The minimum standards of adequacy shall apply worldwide,
       except for shipboard or field duty and for specific foreign areas,
       as determined by the Head of the Component concerned. . . .
                                .  .  .  .
          D.2 Minimum Standards of Adequacy
                                .  .  .  .
          e.  Furnishings.  Criteria and allowances for furnishings shall
       be as specified in DoD Instruction 4165.43 (reference (i)).
       However, the following basic items are required in all
       room-configured units for unaccompanied transient personnel:  bed,
       bed linens, pillow, blanket, chair, closet or wardrobe, dresser or
       chest of drawers for each person, window coverings, lock and keys
       for doors to all rooms, and inside and outside locks or latches on
       all bathroom or kitchen facilities between rooms.
          f.  Services and Supplies.  The following services and supplies
       are required in all room-configured units used for unaccompanied
       transient personnel:
          1.  Twenty-four hour check-in or check out service and 24 hour
       wake-up service, or issue of an alarm clock;
          2.  Custodial service in all common-use areas;
          3.  Daily maid service, which includes bed-making, cleaning of
       bathroom, emptying of trash containers and ashtrays, dusting and
       vacuuming, change of towel, washcloth, and drinking glass;
          4.  Change of bed linens when guests have departed, and at
       least weekly for long-term guests;  and,
          5.  At least one towel, washcloth, bar of soap, and drinking
       glass per person.
          g.  Application.  The minimum standards of adequacy for the
       existing inventory are contained in enclosures 3 and 4 for
       permanent party and transient personnel.  The latter, together
       with the requirements specified in subparagraphs D.2.e and f.,
       above, shall be used for determining when certification of
       nonavailability may be issued to personnel on TDY.
    /5/ Section 853 of the Department of Defense Appropriation Act of
 1978 provided:
          None of the funds appropriated by this Act or available in any
       working capital fund of the Department of Defense shall be
       available to pay the expenses attributable to lodging of any
       person on official business away from his designated post of duty,
       or in the case of an individual described under section 5703 of
       title 5, United States Code, his home or regular place of duty,
       when adequate government quarters are available, but not occupied
       by such person.
    /6/ The report, which accompanied the Appropriation Act of 1979, H.R.
 Rep. No. 95-1398, 95th Cong., 2d Sess. 161, 164 (1978), stated:
          The Committee has again considered this matter and has
       concluded that Section 853 should remain in the Defense
       Appropriations Bill.  However, it is apparently necessary to
       provide detailed guidance to the Department of Defense as to what
       constitute adequate quarters and ensure that other procedures are
       uniform and reasonable.
    /7/ The House Committee in its report noted the following:
          While OSD prescribes minimum standards of adequacy for
       transient quarters, each service has its own ideas about the
       adequacy of the standards.  Further, within each service, there
       are sharp differences of opinion about whether quarters considered
       adequate for the military are also necessarily adequate for
       civilian personnel.
                                .  .  .  .
          In practice, each of the military services has interpreted and
       applied these standards in its own way.  Navy, in the past, has
       disregarded them altogether and established its own square footage
       requirements which were less than the DOD minimums.  The
       discrepancy was attributed to lack of funds for bringing quarters
       up to DOD minimum levels of adequacy.  Navy is now reportedly
       inventorying its facilities for transient personnel and is
       committed to discontinue using substandard quarters by October
          Army and Air Force have also gone in different directions in
       applying the DOD criteria.  Army has interpreted the standard to
       mean that nothing more is required in excess of what the
       regulation specifies in order to make quarters "adequate." Air
       Force, on the other hand, has set its own unwritten but higher
       standard of adequacy which requires more of the comforts and
       amenities usually associated with a commercial lodging facility.
       As a result, the difference between Army and Air Force
       accommodations of similar age and configuration can be striking.
       H.R. Rep. No. 95-1398, 95th Cong., 2d Sess. 161, 163 (1978).
    /8/ The Agency contends, and the Union concedes, that both the JTR
 and the DoD Instruction 4165.47 are Agency regulations.
    /9/ Section 2424.11(c) of the Authority's Rules and Regulations
          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
    /10/ This mandate is reflected in Congress' directive to the Agency
 as stated in the House report and which can be found on pages 7 and 8,
    /11/ As to the Union's claim that the Appropriation Act is no longer
 in effect and therefore not binding, the Authority notes that section
 853 has appeared, with little modification, in all subsequent
 Appropriation Acts under various sections including the Department of
 Defense Appropriation Act of 1985.
    /12/ In view of the decision herein, the Authority finds it
 unnecessary to address the remaining contentions of the Agency as to the
 negotiability of the proposal.