15:0270(58)NG - AFGE Local 3004 and Army and Air Force, NG Bureau -- 1984 FLRAdec NG

 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.