[ v17 p759 ]
17:0759(105)NG
The decision of the Authority follows:
17 FLRA No. 105
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 561
Union
and
DEPARTMENT OF THE ARMY,
U.S. ARMY CORPS OF
ENGINEERS, MOBILE, ALABAMA
Agency
Case No. O-NG-728
DECISION AND ORDER ON NEGOTIABILITY ISSUES
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
regulations.
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
JTR.
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
Chairman
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:
C1055 USE OF GOVERNMENT QUARTERS
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:
D. POLICY AND PROCEDURES
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
1978.
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
provides:
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.
/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,
infra.
/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.