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13:0176(37)NG
The decision of the Authority follows:
13 FLRA No. 37
NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1669
Union
and
ARKANSAS AIR NATIONAL GUARD
Agency
Case No. O-NG-575
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 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:
GUARD AND RESERVE TECHNICIAN CONVERSION PROGRAM
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
nature.
/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.