17:1052(141)NG - NFFE Local 29 and Kansas City District, Corps of Engineers, Kansas City, MO -- 1985 FLRAdec NG
[ v17 p1052 ]
17:1052(141)NG
The decision of the Authority follows:
17 FLRA No. 141
NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 29
Union
and
KANSAS CITY DISTRICT
CORPS OF ENGINEERS,
KANSAS CITY, MISSOURI
Agency
Case No. 0-NG-841
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
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
allowance.
2. DEFINITION of 'ADEQUATE' GOVERNMENT QUARTERS: Adequate
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.
3. DEFINITION OF 'AVAILABLE' GOVERNMENT QUARTERS: Available
Government quarters shall:
(a) fulfill the 'adequacy' definition;
(b) be open for occupancy upon arrival of employee at the TDY
station;
(c) have been booked by the Employer, at request of employee,
at least a week prior to the employee's arrival.
4. UTILIZATION OF GOVERNMENT QUARTERS DETERMINATION:
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
Chairman
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.