U.S. Federal Labor Relations Authority

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17:1052(141)NG - NFFE Local 29 and Kansas City District, Corps of Engineers, Kansas City, MO -- 1985 FLRAdec NG

[ v17 p1052 ]
The decision of the Authority follows:

 17 FLRA No. 141
                                            Case No. 0-NG-841
    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
 regarding the negotiability of the following Union proposal:  /1/
                              Union Proposal
          1.  GENERAL:  The use of Government quarters during temporary
       (TDY) assignments to military posts, camps, stations or depots
       owned and operated by the United States (installation) may be
       required under certain conditions.  Use of Government quarters by
       Unit employees is not mandatory. However, non-utilization of
       'available,' 'adequate' Government quarters can result in
       forfeiture of the quarters portion (50%) of the per diem
       Government quarters shall:
          (a) be of size outlined in Joint Travel regulations;
          (b) have a private entrance and bath, and provide for double or
       single occupancy at employee's option;
          (c) have daily maid service, including fresh linens daily and
       water cups;
          (d) have adequate eating facilities (available to general
       public) within walking distance for all meals, seven days a week,
       open from 6 a.m. to 10 p.m. at a minimum;
          (e) have adequate laundry and dry cleaning service within
       walking distance;
          (f) be properly air conditioned, heated, and ventilated;
          (g) be properly working television in room;
          (h) have alarm clock available or alternative wake-up service;
          (i) have commercial transportation (bus/taxi) available for use
       after non-duty hours;
          (j) be clean and neat with attractive decor.
       Government quarters shall:
          (a) fulfill the 'adequacy' definition;
          (b) be open for occupancy upon arrival of employee at the TDY
          (c) have been booked by the Employer, at request of employee,
       at least a week prior to the employee's arrival.
 The Employer (order issuing official) will, prior to employee being
 issued travel orders, determine if the TDY is to a Government
 installation.  The following action will apply if:
          (a) the TDY is to a Government installation, and 'adequate'
       Government quarters are available, then:
          (1) the Employer will advise the employee of the availability
       of adequate Government quarters and that the non-use of them will
       result in the forfeiture of the quarters portion (50%) of the per
       diem allowance unless the employee secures a non-availability
       certificate from the installation Commander;  and
          (2) the Employer will record "Reimbursement limited to the use
       of Government quarters unless statement of non-availability and
       lodging receipts are furnished" in the remarks section of travel
       order;  . . . (Only the underlined portions are in dispute.)
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 The disputed portions of the Union's proposal would establish standards
 of adequacy for government quarters utilized by civilian employees as
 accommodation while on temporary duty and would define the term
 "available" to include only those quarters which are adequate.  The
 Agency refuses to negotiate over the proposal contending, among other
 things, that it is inconsistent with Agency regulations /2/ for which a
 compelling need exists and, therefore, is not within the duty to bargain
 under section 7117(a)(2) of the Statute.  /3/ The Union, however,
 disputes the Agency's contention claiming that a conflict does not exist
 between its proposal and the Agency's regulations and, in the event that
 a conflict does exist, there is no compelling need for the Agency's
 regulations.  Thus, the proposal and arguments raised by the parties in
 the instant petition are identical in effect to those at issue in
 National Federation of Federal Employees, Local 561 and Department of
 the Army, U.S. Army Corps of Engineers, Mobile, Alabama, 17 FLRA No. 105
 (1985), wherein the Authority ruled that the proposal conflicted with
 Agency regulations for which a compelling need existed.  Hence, for the
 reasons stated and the case cited in Department of Army, U.S. Army Corps
 of Engineers, Mobile, Alabama, the Authority concludes that the Union's
 proposal conflicts with Agency regulations for which a compelling need
 exists.  Therefore, based upon the arguments of the parties, the
 Authority concludes that the proposal is outside the duty to bargain
 under the Statute.  /4/
    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 13, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ In its Statement of Position in response to the Union's appeal,
 the Agency contends for the first time that two additional sections of
 the Union's proposal, sections 3(b) and (c) are outside the duty to
 bargain.  These sections were not appealed by the Union and, therefore,
 are not before the Authority at this time.  See section 7117(c)(3) of
 the Statute and section 2424.1 of the Authority's Rules and Regulations.
    /2/ The regulations which the Agency contends that the proposal is
 inconsistent therewith include the Department of Defense Civilian
 Personnel, Volume 2, Joint Travel Regulations and the Department of
 Defense Instruction 4165.47, Adequacy, Assignment, Utilization, and
 Inventory of Unaccompanied Personnel Housing.
    /3/ Section 7117(a)(2) of the Statute provides as follows:
          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.
    /4/ 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.