27:0492(71)NG - Overseas Education Ass'n, Inc. and DOD, Office of Dependents Schools -- 1987 FLRAdec NG
[ v27 p492 ]
27:0492(71)NG
The decision of the Authority follows:
27 FLRA No. 71 OVERSEAS EDUCTION ASSOCIATION, INC. Union and DEPARTMENT OF DEFENSE, OFFICE OF DEPENDENTS SCHOOLS Agency Case No. 0-NG-840 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case (Footnotes appear in the appendix to this decision) The petition for review in this case is before us because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute). It raises issues concerning the negotiability of 49 proposals. The Union requests that the Authority sever "any parts, subparts, sentences, phrases or words" of proposals which are found to be nonnegotiable and "declare negotiable so much of the proposals which are negotiable." We grant the Union's request to the limited extent that we will rule separately upon those portions of the proposals which, as submitted, we view as being able to stand independently of the rest of the proposal and which have been specifically addressed by the parties. /1/ The Department of Defense, Office of Dependents Schools (the Agency) is a field activity within the Office of the Secretary of Defense which is responsible for providing an education for eligible dependents of military and civilian personnel stationed overseas. It operates a system of schools overseas which are typically located on or near U.S. military bases. Consequently, many of the facilities and services which the Agency utilizes and to which some of the proposals at issue in this case relate are controlled by the military departments or other components of the Department of Defense. Based on their overseas employment, employees of the Agency are eligible for certain allowances and differentials which are governed by regulations issued by the Secretary of State. Based on their overseas employment, they are also eligible for certain transportation and travel allowances which are governed by regulations issued by the General Services Administration. Given these circumstances, many of the proposals at issue in this case relate to matters which are not directly or completely within the Agency's control. II. Proposal 1 Article 43 -- Housing and Housing Allowances Section 1 The Employer shall assure adequate housing, subsistence, medical, commissary, exchange, laundry, and other essential facilities and services for unit employees, equivalent to stateside standards, are available. The Employer shall not send unit employees to a particular work site unless and until such facilities are provided to the extent of meeting reasonable standards of health and decency. Unit employees shall be entitled to housing at government expense or to a living quarters allowance. If assigned housing at government expense, a unit employee shall not be required to vacate the housing because of the passage of time or government need. A. Positions of the Parties The Agency contends that this entire proposal is nonnegotiable for the following reasons. The first two sentences: (1) do not concern conditions of employment but are limited to matters of personal interest to employees; and (2) relate to matters which are not within the control of the Agency but, are controlled by the military departments. The second sentence, additionally, interferes with management's rights under section 7106(a)(2) to direct employees and assign work. The third sentence conflicts with Government-wide rules or regulations -- the Department of State Standardized Regulations (DSSRs). The fourth sentence relates to matters which are not within the control of the Agency but are controlled by the military departments; and would affect employees outside of the bargaining unit. The Union argues as follows: The first two sentences concern conditions of employment within the control of the Agency and are intended to contractually guarantee provisions of Department of Defense regulations which relate to the living standards of employees assigned overseas. The third sentence would entitle all bargaining unit employees to living quarters or a living quarters allowance regardless of their point of hire. The DSSRs are not a bar to negotiation of the proposal because they are not Government-wide regulations. In any event, the proposal, unlike the DSSRs, is consistent with the Overseas Teachers Pay and Personnel Practices Act. Alternatively, even assuming that the DSSRs are Government-wide regulations, there is no conflict between them and the third sentence insofar as it would require the Agency to provide quarters (as opposed to a living quarters allowance) for "local hires," that is, employees recruited outside of the United States. The Union contends that the matters proposed in sentence 4 are within the control of the Agency. B. Analysis and Conclusions 1. Conditions of Employment In Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23 (1986), the Authority set forth two basic factors which it would consider in deciding whether a proposal involves a condition of employment. (1) Whether the matter proposed to be bargained pertains to bargaining unit employees. (2) The nature and extent of the effect of the matters proposed to be bargained on working conditions of those employees. By its terms, this proposal is limited to bargaining unit employees. The only argument which the Agency makes to the contrary is that sentence four would impact on nonbargaining unit employees "because the housing policies of military departments are applied equally to employees not in the (Union's) unit of recognition." The Agency appears to be arguing that, because its housing resources are finite, what it provides to one individual or group necessarily results in denial to another. It is well settled that matters which are conditions of employment of employees in a bargaining unit and are within the discretion of the agency involved are within the duty to bargain. For example, National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 759-60 1980). Proposals which directly determine, that is prescribe, the conditions of employment of nonunit employees may be outside the duty to bargain. However, otherwise negotiable proposals which directly determine conditions of employment of bargaining unit employees are not rendered nonnegotiable simply because they also effect conditions of employment outside of the bargaining unit to a limited degree or in an indirect way. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 22 FLRA No. 49 (1986), petition for review filed sub nom. American Federation of Government Employees, Local 32 v. Federal Labor Relations Authority, No. 86-1447 (D.C. Cir. Aug. 11, 1986). This proposal does not prescribe what housing the Agency would provide to nonbargaining unit employees. Consequently, we conclude that the proposal's effect on nonbargaining unit employees is not sufficient to render it outside the duty to bargain on that basis. Moreover, we believe the argument is basically flawed. Much of collective bargaining entails the distribution of finite resources. The Agency's argument seems to presume that Congress intended to establish a system in which the duty to bargain arises only where infinite resources are available to it. Compare American Federation of Government Employees v. Federal Labor Relations Authority, 785 F.2d 333, 337-8, (D.C. Cir. 1986) in which the Court noted that under the Statute an agency was not released from its duty to bargain whenever it had suffered economic hardship. We find that this proposal meets the first factor set forth in Antilles Consolidated School System. For the reasons which follow, we find that the proposal also meets the second factor insofar as employees whose residence abroad is attributable to their employment are concerned. The first sentence of this proposal reflects the provisions of Department of Defense Directive Number 1400.6, dated February 15, 1980, entitled "DOD Civilian Employees in Overseas Areas" which provides: 4. In making a determination of numbers and types of U.S. employees for overseas areas, the Military Service Commander shall consider the ability of the command to ensure adequate housing; subsistence; and medical, commissary, exchange, laundry, transportation, and other essential facilities and services. Except when required to meet unexpected emergency conditions, an overseas commander shall not request recruitment from the United States unless the command can provide such facilities to meet health and decency standards. Furthermore, various laws address housing or housing allowances for employees assigned to overseas posts of duty. /2/ One purpose underlying these legal provisions is to compensate Federal employees for the extra costs and hardships incidental to their assignment overseas. See Acker v. United States, 620 F.2d 802 (Ct. Cl. 1980). These laws and regulatory provisions establish a direct connection between the facilities and services which are the subject of this proposal and the employment relationship insofar as employees whose residence overseas is attributable to their employment or who were recruited from the United States are concerned. Therefore, we find that the proposal, which addresses the extent and manner to which such employees will be provided these facilities and services, concerns conditions of employment. See National Federation of Federal Employees Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA 139 (1980). However, the record does not establish a similar relationship with regard to employees whose residence abroad is not attributable to their employment. See Acker, 620 F.2d 802. 2. Management Rights The second sentence of this proposal prohibits the Agency under specified circumstances from assigning employees to a particular post of duty. It is materially to the same effect as Proposal 1 in National Federation of Federal Employees, Local 1650 and U.S. Forest Service, Angeles National Forest, 12 FLRA 611 (1983). In that case the Authority found that the proposal, which placed substantive restrictions on the agency's discretion to assign employees to duty stations, prevented the agency from exercising its right under section 7106(a)(2)(A) to assign employees. For the reasons relied upon in Angeles National Forest, we reach the same conclusion as to the second sentence of this proposal. In view of this conclusion, we find it unnecessary to rule on the Agency's argument that this sentence also conflicts with the Agency's rights to direct employees and to assign work. 3. Government-wide Rules and Regulations In Overseas Education Association, Inc., and Department of Defense Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 2) petition for review filed sub nom. Overseas Education Association, Inc., v. FLRA, No. 86-1491 (D.C. Cir. Sept. 3, 1986) we ruled that the DSSRs are Government-wide regulations which will bar the negotiation of conflicting proposals. Section 031 of the DSSRs restricts the circumstances under which a "local hire" may receive a living quarters allowance. /3/ Therefore, in agreement with the Agency, we conclude that insofar as sentence three would create a blanket entitlement of bargaining unit employees, regardless of their point of hire, to a living quarters allowance, it conflicts with Government-wide regulations. 4. Effect of Military Control on Duty to Bargain The Agency's argument that it has no duty to bargain over matters, such as the services and facilities addressed by this proposal, because they are controlled by other components of the Department of Defense is rejected here for the same reasons we expressed in Department of Defense Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 5). As noted in that decision, where a union holds exclusive recognition in a component of an agency, that component is obligated to bargain over conditions of employment despite the fact that control over a particular condition of employment rests with a different organizational component in the same overall agency. The only limits on an agency's obligation to bargain over conditions of employment, in that circumstance, are those placed on its discretion by provisions of law, Government-wide rule or regulation or agency regulations for which a compelling need exist. 5. Summary and Conclusions Insofar as the proposal relates to employees whose residence overseas is attributable to their employment, the proposal concerns conditions of employment. Sentence two, however, conflicts with the Agency's right to assign employees. Insofar as sentence three is expressly intended to obtain living quarters allowances for all "local hires," it conflicts with a Government-wide regulation. /4/ Insofar as that sentence is expressly intended to obtain quarters for all "local hires" it does not concern conditions of employment. Control of the facilities and services which are the subject of the proposal by components of the Department of Defense other than the Agency does not present a basis for finding a proposal nonnegotiable. We therefore find the proposal negotiable with the exception of sentences two and three which are not within the Agency's duty to bargain. III. Proposal 2 Section 2 At the end of each school year, each unit employee who is either serving under a transportation agreement or who agrees in writing to return to duty the following school year shall be authorized for the recess period immediately preceding such next school year at the option of the unit employee either housing or a living quarters allowance or storage of his/her household goods. (Only the underscored portions of the proposal are in dispute.) A. Positions of the Parties The Agency asserts that because this proposal is intended to obtain a living quarters allowance for local hires and part-time employees it conflicts with Government-wide regulations -- the DSSRs; because the proposal concerns matters relating to the summer recess, when employees are not in duty status, it does not relate to conditions of employment; and because it would allow employees a choice of housing, quarters allowance or storage it conflicts with the Joint Travel Regulations (JTRs). The Union contends that the DSSRs are not Government-wide regulations or, even assuming that they are, the proposal does not conflict with them; the proposal concerns a personnel policy or practice and, consequently, conditions of employment; and the Agency has not demonstrated either that a compelling need exists for the JTRs or even that the proposal conflicts with the JTRs. B. Analysis and Conclusion 1. Conflict with the DSSRs As stated in connection with Proposal 1, the DSSRs, are Government-wide regulations and bar the negotiation of proposals which are inconsistent with them. This proposal conflicts with the DSSRs inasmuch as it seeks to extend to all "local hires" and part-time bargaining unit employees the option of receiving a quarters allowance during the summer recess. As noted earlier, section 031 (see note 3) limits the circumstances under which a "local hire" may receive a quarters allowance. This proposal is inconsistent with those limitations prescribed by the DSSRs. Section 031.5 of the DSSRs states that part-time employees shall not be granted, among other things, a living quarters allowance. /5/ We are unpersuaded by the Union's argument that, because "part-time" teachers may actually work more than 32 hours a week since the demands of their profession require work beyond time spent in the classroom, they cannot be viewed as part-time employees within the meaning of the DSSRs. We find that a straightforward reading of section 031.5 leads to the conclusion that, insofar as teachers are concerned, a part-time employee is simply an employee who is scheduled to work less than a full-time employee. /6/ Clearly the intent of the DSSRs is to deny quarters allowances to part-time employees. Based on the language of the proposal and the Union's explanation of it, we conclude that it seeks to circumvent this restriction. The proposal is, therefore, inconsistent with the DSSRs. 2. Conditions of Employment We reject the Agency's argument that, because the proposal concerns matters which occur during the summer recess, it does not concern conditions of employment. The Department of Defense Overseas Teachers Pay and Personnel Practices Act specifically entitles certain teachers to quarters, quarters allowances or storage of household effects during the recess period. Their entitlement is specifically conditioned upon agreement, and fulfillment of the agreement, to continue their employment the following school year. 20 U.S.C. Section 905(c) and (d). In our view this legal authority establishes, for those teachers to whom it applies, a direct relationship between quarters, quarters allowances and storage of household goods during summer recess and the employment relationship. Based on this circumstance, we find that the proposal meets the second factor of the Antilles test, discussed in conjunction with Proposal 1, insofar as the teachers to whom 20 U.S.C. Section 905 applies are concerned. See Acker v. U.S., 620 F.2d 802 (Ct. Cl. 1980). 3. The Joint Travel Regulations The Agency's argument here that the proposal is nonnegotiable because of conflict with the JTRs is the same as that raised in conjunction with Proposal 10 in Department of Defense Office of Dependents Schools, 22 FLRA No. 34 (1986). That is: the Agency asserts that pursuant to two Comptroller General decisions it is required to apply the JTRs uniformly to unit and nonunit employees. The argument continues that the proposal would require it to either "waive" conflicting JTR provisions for unit employees or to apply the terms of the proposal to nonunit employees. The Agency contends that the first alternative would be inconsistent with the Comptroller General decisions which it contends are Government-wide rules and regulation as well as a nondiscretionary mandate of an outside authority which establishes a compelling need for the JTRs. It contends that the second alternative would extend beyond its duty to bargain. We reject this argument here for the same reasons expressed in Department of Defense, Office of Dependents Schools, 22 FLRA No. 34 which stated, in relevant part: Section 7117(a) of the Statute specifically provides that the duty to bargain extends to matters which are the subject of an agency regulation where there is no compelling need for the regulation. This allows negotiations over proposed conditions of employment of bargaining unit employees which may differ from unilaterally established conditions of employment set forth in agency regulations. The Agency's strained interpretation of the Comptroller Generals's decisions deprives the compelling need provisions of the Statute of their intended meaning and is not supportable. Those decisions addressed the question of whether agencies could arbitrarily waive regulatory provisions in individual cases. This question is distinguishable from that presented by this case which is whether parties have a statutory right to negotiate conditions of employment applying to bargaining unit employees which differ from those set forth in agency regulations. This proposal, by merely seeking to negotiate over matters covered by JTRs, does not conflict with the cited Comptroller General decisions themselves, or with any requirements they may place on the manner in which the JTRs are administered. Additionally, the Authority finds that nothing in the cited Comptroller General decisions would require that any provisions negotiated be applied to nonunit employees. (Footnotes deleted.) 4. Summary and Conclusions The disputed portions of the proposal as written and explained by the Union conflict with a Government-wide rule or regulation and are, therefore, not within the duty to bargain. However, we reject the Agency's contentions that the proposal does not concern conditions of employment and that the proposal conflicts with the JTRs. IV. Proposals 3 and 4 Section 3 (Proposal 3) A. When a unit employee has been assigned to a new duty station, the Employer shall make available to said employee the availability of both government and economy housing prior to the issuance of travel orders and ODE (Office of Dependent's Education) shall be bound by such information. (Proposal 4) B. The Employer will also make available to each such employee information concerning the availability of furniture and appliances at the new duty station. If this information is incorrect or subsequently altered after shipment of household goods, the Employer shall accommodate the adversely affected unit employee by storage of household goods, provision of appliances and/or furniture, or partial shipment of household goods. (Only the underscored portions are in dispute.) A. Positions of the Parties The Agency contends that both of these proposals are nonnegotiable because they do not concern conditions of employment. Additionally, the Agency contends that, insofar as the proposals concern Government housing, the proposals concern matters within the control of the military departments and are outside its duty to bargain. Insofar as the proposals concern housing obtained on the "local economy," they relate to matters over which it has no control. The Union disputes the Agency's contention that the proposals are outside its duty to bargain. B. Analysis and Conclusion These two proposals concern conditions of employment. As noted earlier, the Department of Defense Overseas Teachers Pay and Personnel Practices Act entitles teachers to, among other things, quarters or quarters allowances. The record shows that where quarters are provided, they are in some instances provided with some or all furnishings and appliances. Agency Brief at 16. As to shipment of household goods, 5 U.S.C. Section 5724 authorizes agencies to pay for transportation and storage of household goods when an employee has transferred in the interest of the Government from one official station to another. However, where furnished or partly furnished quarters are provided, agencies are required to make an "appropriate reduction in the weight of household goods which may be authorized for shipment at Government expense." Federal Travel Regulations (FTRs), 2-8.4.b. The proposal relates to bargaining unit employees whose change of residence is a result of a change in their official duty station. In view of this circumstance and the above-cited legal and regulatory provisions, we conclude that these proposals concern matters which are directly connected to the employment relationship and affect the working conditions of bargaining unit employees. The Agency's contention that the proposals are nonnegotiable because the military departments control the Government quarters referred to is rejected for the same reasons expressed in Department of Defense Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 5). The Agency's argument that the proposals are nonnegotiable because it has no control over matters relating to local economy housing does not present a basis for finding a proposal nonnegotiable. It is related to the merits of the proposals, not to whether the proposals concern conditions of employment, or are inconsistent with applicable law and regulation. Based on the foregoing, we find that Proposals 3 and 4 are within the duty to bargain. V. Proposal 5 Section 4 A. Unit employees shall have the option to live in government housing or in economy housing. Unit employees living in economy housing shall be authorized a living quarters allowance. (Only the underlined portions are in dispute.) A. Positions of the Parties The Agency claims that the first sentence is nonnegotiable because it concerns a matter within the control of the military departments and conflicts with the regulations of those departments concerning the assignment of military housing resources. It claims that insofar as it seeks a living quarters allowance for "local hires," the second sentence conflicts with the DSSRs; insofar as it seeks a living quarters allowance for employees to whom Government housing has been made available, it conflicts with law and Government-wide regulations; and insofar as it relates to an employee's election to occupy "local economy" housing as opposed to Government housing, it does not concern conditions of employment. The Union contends that Proposal 5 is intended to allow employees, as opposed to the Agency, to determine whether they live in Government housing or in local economy housing. It disputes the Agency's contentions that it has no control over Government housing and that the proposal conflicts with law or Government-wide regulation. B. Analysis and Conclusions Under 20 U.S.C. Section 905 teachers are entitled to quarters or quarters allowances equal to those granted to other civilian employees. See Acker v. United States, 620 F. 2d 806 (Ct. Cl. 1980). 5 U.S.C. Section 5923, which governs grants of quarters allowances to civilian employees, in general, in foreign areas, provides that quarters allowances may be granted "when Government owned or rented quarters are not provided without charge." The DSSRs, which implement both 5 U.S.C. Section 5923 and 20 U.S.C. Section 905, provide that living quarters allowance shall cease when Government quarters are made available to an employee. /7/ We conclude that quarters allowances are authorized only when quarters are not made available without charge to, although not necessarily occupied by, an employee. /8/ Accord, Unpublished Decision of the Comptroller General, B-160195, October 27, 1966. Inasmuch as proposal 5 would obligate the Agency to authorize a living quarters allowance despite the availability of Government quarters, it conflicts with law and Government-wide regulation. For the same reasons expressed in Department of Defense Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 5), we reject the Agency's contention that proposal 5 is not within the duty to bargain simply because the Government housing involved is within the control of the military department. That decision, relying on an earlier Authority decision, noted that where a union holds exclusive recognition in a component of an agency, the component is obligated to bargain over conditions of employment despite the fact that control over a particular condition of employment rests with a different organizational component in the same overall agency. The only limits on an agency's obligation to bargain over conditions of employment, in that circumstance, are those placed on its discretion by provisions of law, Government-wide rule or regulation or agency regulations for which a compelling need exists. Furthermore, although the Agency has asserted that Proposal 5 conflicts with the regulations of the military departments relating to the assignment of housing, it makes no claim or showing that a compelling need exists for those regulations. Thus it has presented no support for a finding that those regulations bar negotiations. American Federation of Government Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 451 (1980). We determined in conjunction with Proposal 1, that the DSSRs restrict the circumstances under which "local hires" may receive a living quarters allowances. Thus, insofar as Proposal 5 would require that "local hires" must be provided with a living quarters allowance without regard for those restrictions, it conflicts with Government-wide regulations. We reject, for the reasons expressed in conjunction with Proposal 1 above, the Agency's argument that Proposal 5 does not concern conditions of employment insofar as it relates to an employee's election to live in "local economy" housing. Under the circumstances involved, the manner and extent to which employees will be provided access to housing concerns conditions of employment. Thus, we find that the first sentence of Proposal 5 is within the duty to bargain. The second sentence, however, is not negotiable because it conflicts with law and Government-wide regulations. VI. Proposal 6 B. Unit employees who live in government housing and opt to move to economy housing shall have the moving expenses paid by the government. Unit employees who live in economy housing and opt to move to government housing shall have their moving expenses paid by the government. (Only the underscored portions are in dispute.) A. Positions of the Parties The Agency asserts that this proposal conflicts with law and Government-wide regulation because it would require payment of moving expenses in circumstances where a move was the result of an employee's personal desires as opposed to the requirements of the Government. Moreover, it contends that the proposal does not concern conditions of employment. The Union contends that neither law nor Government-wide regulation preclude the negotiation of this proposal. B. Analysis and Conclusions Proposal 6 would require that the Agency pay moving expenses where an employee, at his/her option, moves between government housing and local economy housing at the same duty station. Payment of expenses for transportation of household goods and personal effects of employees is governed by 5 U.S.C. Sections 5721-5734. As relevant here, those provisions authorize agencies to pay such expenses from appropriated funds only in circumstances where a change in duty station is involved or where a new appointee is reporting to a duty station overseas. With respect to the former type of move, payment is expressly prohibited where the transfer involved is primarily for the convenience or benefit of the employee. 5 U.S.C. Section 5724(h). Nowhere in these provisions is payment for moves such as those contemplated by the proposal authorized. Consequently, we conclude that the proposal is inconsistent with Federal statute. /9/ See National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA 508 (1981) (Proposal 1). The proposal also conflicts with a Government-wide regulation. Chapter 2 of the FTRs implements, among other things, the provisions of 5 U.S.C. Sections 5721-34. It reflects the limitations prescribed by those legal provisions on the circumstances under which relocation expenses may be paid from Government funds. Inasmuch as the proposal exceeds those limitations it is inconsistent with the FTRs. Chapter 2 of the FTRs is issued by the Administrator of General Services pursuant to 5 U.S.C. Sections 5721-34 and 20 U.S.C. Section 905(a) and is applicable to Federal civilian employees, with minor exceptions, insofar as the subject of relocation allowances are concerned. FTRs, 2-1.1 and 2-1.2. By their terms, these regulations apply to, and are binding on, the Federal workforce as a whole. As such they are Government-wide regulations within the meaning of section 7117(a). See American Federation of Government Employees, AFL-CIO, Local 3483 and Federal Home Loan Bank Board, New York District Office, 13 FLRA 446 (1983) (Proposal 1). We also agree with the Agency that this proposal does not concern conditions of employment. Earlier in this decision we ruled that, under the circumstances, the manner and extent to which employees whose residence abroad is attributable to their employment will be provided housing, concerns their conditions of employment. However, this proposal is not limited to those circumstances in which an employee's decision to move is related to the employment relationship. Rather, the proposal as drafted extends to employees' decisions to move which are based on purely personal considerations. Consequently, we conclude that while the move may involve housing which is related to the employment situation, no relationship to the employment situation has been established with respect to the move itself. See Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23 (1986). Based on the foregoing reasons, we find that the disputed portions of Proposal 6 are not within the duty to bargain. VII. Proposal 7 Section 5 In no case shall unit employees be required to share housing with other than their own dependents. A. Positions of the Parties The Agency argues only that the proposal is nonnegotiable because it concerns a matter which is controlled by the military departments and, therefore, beyond its control. The Union contends that the proposal concerns a condition of employment which is within the Agency's control. B. Analysis and Conclusion As discussed in conjunction with Proposal 1, we find that, under the circumstances present here, housing provided by the Agency to employees involves a condition of employment. Therefore, we find that the manner and extent to which such housing is provided concerns conditions of employment. Moreover, we have rejected the Agency's argument that its obligation to negotiate over conditions of employment does not apply where control over the facilities or services which are the subject of a proposal rests with other components of the Department of Defense. It is rejected here for the same reasons expressed previously. The Agency has provided neither a specific assertion nor any showing that this proposal conflicts with military department regulations for which a compelling need exists. See American Federation of Government Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 451 (1980). We conclude that this proposal is within the duty to bargain. VIII. Proposal 8 Section 6 When a unit employee, entitled to housing at government expense, is requested to pay fees for the care and maintenance of common areas, such fees shall be reimbursed to the unit employee. A. Positions of the Parties The Agency argues only that the proposal, which relates to on-base housing, does not concern conditions of employment. The Union contends that the proposal does concern conditions of employment. B. Analysis and Conclusion The Union indicates that this proposal is directed at fees charged to bargaining unit employees living in quarters on military bases. As previously discussed, employee occupancy of Government quarters is a matter which concerns their conditions of employment. The Agency's argument here to the contrary is rejected for the reasons stated in conjunction with Proposal 1. This proposal is, therefore, negotiable. IX. Proposal 9 Section 8 Unit employees who are converted by ODE from a Not To Exceed status to a definite status shall receive a living quarters allowance at the unit employee's option. A. Positions of the Parties The Agency contends that because "Not To Exceed" (NTE) employees are local hires the proposal conflicts with the DSSR -- Government-wide regulations. The Union, relying on the argument which it made in conjunction with Proposal 1, contends that conflict with DSSRs does not bar negotiation of the proposal. B. Analysis and Conclusion Inasmuch as this proposal would require that payment of a living quarters allowance to "local hires" without regard to whether their residence abroad was attributable to their employment, it is to the same effect as sentence 3 of Proposal 1. For the reasons discussed and case cited with respect to that portion of Proposal 1, we find that this proposal conflicts with the DSSRs, which are Government-wide regulations, and is nonnegotiable. X. Proposal 10 Section 9 When a unit employee entitled to housing at government expense is required to pay fees for the care or cleaning of the assigned housing, such fees shall be reimbursed to the unit employee. (Only the underlined portion is in dispute.) A. Positions of the Parties The Agency asserts that the proposal is not limited to on-base housing. Because it relates to private quarters it does not concern conditions of employment. It also conflicts with the DSSRs provisions concerning quarters allowances. The Union asserts that by its reference to "assigned" housing the proposal is limited to on-base housing and to fees which the employee is "required" to pay by Department of Defense. The Union further argues that because quarters allowances do not apply to employees occupying Government quarters, the DSSRs provisions relating to quarters allowances are inapplicable to the proposal. B. Analysis and Conclusions The Union's explanation of the proposal is compatible with its language and we adopt it for the purpose of this decision. Under that interpretation we find that this proposal, like Proposal 8 is directed at employees living in quarters on military bases. For the same reasons relied upon as to Proposal 8, we reject the Agency's assertion that this proposal does not concern conditions of employment. In view of the fact that the proposal concerns government quarters, it does not concern quarters allowances and the provisions of the DSSRs relied upon by the Agency do not apply. We find that this proposal is negotiable. XI. Proposal 11 Section 10 If substandard housing is accepted by a unit employee, the unit employee will be reimbursed the difference between the rental of the substandard housing and the fair market rental of standard housing. (Only the underlined portion is in dispute.) A. Positions of the Parties The Agency contends that the statutory provisions which govern quarters and quarters allowances do not extend to making the payments contemplated by this proposal, so that it lacks legal authority to make the payments. The Union contends that what is proposed is common practice in the military departments. B. Analysis and Conclusions As noted in conjunction with Proposal 5, under 20 U.S.C. Section 905 teachers are entitled to quarters or quarters allowances equal to those granted other civilian employees. 5 U.S.C. Section 5923, which governs the payment of quarters allowances to civilian employees in foreign areas, provides that, when government owned or rented quarters are not provided without charge an employee may be granted one or more of the following quarters allowances: /10/ (1) a temporary lodging allowance for the reasonable cost of temporary quarters; (2) a living quarters allowances for rent, heat, light, fuel, gas, electricity and water, and (3) under specified and unusual circumstances, payment for extraordinary, necessary and reasonable expenses incurred in initial repairs, alterations and improvements to privately leased residences. As discussed with respect to Proposal 5, employees are entitled to a quarters allowance as an alternative to being provided quarters without charge. As to the legal authorities governing quarters allowances, there is no provision for payment of "partial rent allowances and rent differentials" /11/ such as those proposed by the Union. By contrast, there is a specific legal provision authorizing payments for military personnel similar to those which the Union seeks for bargaining unit employees in this proposal. /12/ Inasmuch as this proposal seeks payments beyond those authorized by 20 U.S.C. Section 905 and 5 U.S.C. Section 5923, we find that it is inconsistent with Federal law. See National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA 508 (1981) (Proposal 1). Proposal 11 therefore is not within the duty to bargain. XII. Proposal 12 Section 11 Government quarters for a single unit employee will in no event be less than 600 square feet and contain a private bath and private cooking facility. (Only the underlined portion is in dispute.) A. Positions of the Parties The Agency asserts that the proposal does not concern conditions of employment and that it concerns matters which are controlled by the military departments. The Union contends that the proposal concerns a matter which is within the Agency's control. B. Analysis and Conclusion As discussed in conjunction with Proposal 1, in view of the circumstances involved, quarters provided to bargaining unit employees pursuant to 20 U.S.C. Section 905 are matters which concern conditions of employment. Also, as discussed in conjunction with Proposal 1, the Agency's argument regarding military control of the facilities involved does not present a basis for finding that an otherwise negotiable proposal is nonnegotiable. Thus, we reject the Agency's arguments as to this proposal for the same reasons expressed earlier and find that Proposal 12 is within the duty to bargain. XIII. Proposal 13 Article 44 -- Travel Section 1 -- Use of POV on Official Business In the event an employee is required to travel in the performance of assigned duties, the Employer shall arrange transportation at government expense, or the employee shall be authorized the option of using his/her privately owned vehicles (POV) and/or commercial travel, and shall be reimbursed for travel costs in accordance with the Federal Travel Regulations. (Only the underlined portion is in dispute.) A. Positions of the Parties The Agency asserts that this proposal conflicts with the FTRs and the JTRs. The Union contends that the proposal is consistent with the FTRs. B. Analysis and Conclusion As explained by the Union, this proposal would allow employees the option of having the Government arrange transportation or of using privately owned vehicles or commercial transportation with reimbursement made in accordance with the FTRs. Contrary to the Agency's assertion, we do not interpret the FTRs as absolutely prohibiting employees who are travelling on official business from using methods of transportation other than those which have been determined to result in the greatest advantage to the Government. /13/ However, where an employee elects to use an alternative method of transportation the extent to which they may be reimbursed for costs is subject to the limitations specified in the FTRs. See FTRs, 1-2.2.b-1 and 1-2.2.d. The proposal explicitly recognizes that reimbursement for costs is to be made in accordance with the FTRs. Thus, the Agency's assertion that this proposal conflicts with the FTRs cannot be sustained. Also, as stated in conjunction with Proposal 2, the Agency's contention that this proposal conflicts with the JTRs does not present a basis for finding it nonnegotiable. Department of Defense Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 10). Based on the foregoing, we find this proposal to be within the duty to bargain. XIV. Proposal 14 Section 3 Government transportation and transient government facilities shall be provided for employee attendance at workshops sponsored by the Association. The Employer shall also provide government transportation and transient government facilities for employee attendance at a meeting of a technical, professional, scientific, or other similar organization for which an employee has been authorized by the Employer to attend in a duty or non-duty status. (Only the underlined portion is in dispute.) A. Positions of the Parties The Agency asserts that insofar as this proposal concerns Union sponsored meetings and meetings which employees attend in nonduty status based on their personal desires, it does not concern conditions of employment. Insofar as it concerns access to Government transportation and transient facilities, it relates to facilities and services which are controlled by the military departments, not the Agency. Additionally, the Agency asserts that the proposal would have an impact on nonbargaining unit employees. Based on these reasons the Agency contends that the proposal is nonnegotiable. The Union contends that the proposal is intended to obtain access to facilities and services for employees attending Union-sponsored meetings and workshops relating to labor relations and collective bargaining or other approved meetings of technical, professional, scientific or similar organizations. Additionally, the Union contends that the Agency does have control over employee access to the facilities and services involved. B. Analysis and Conclusions As to the first sentence of the proposal, neither party suggests that it would involve workshops or meetings relating to "internal union business"; nor does the language of the proposal require such a conclusion. Therefore, for purposes of this decision, we interpret the proposal as not encompassing meetings of that nature. The Authority has previously found that use of agency facilities and services, for example, telephone systems, by Union representatives for the purpose of negotiating and administering collective bargaining agreements concerns a matter related to conditions of employment. American Federation of Government Employees, AFL-CIO, and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 609-10 (1980), enforced as to other matters sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). The Authority has also found that proposals allowing official time for employee attendance at union-sponsored training are within the duty to bargain. National Federation of Federal Employees, Local 951 and Department of the Interior, Bureau of Reclamation, Mid-Pacific Office, Sacramento, California, 3 FLRA 884 (1980). Since the record indicates that the Union-sponsored workshops involved in the proposal are for labor-management relations purposes, that aspect of the proposal concerns matters related to conditions of employment. By extension, use of Government facilities and services for the purpose of attendance at such workshops is a matter directly related to conditions of employment. The second sentence is limited to meetings which the Agency has authorized an employee to attend. In view of this authorization we conclude that the meetings have some relationship to employment with the Agency and, thus, attendance is a matter related to conditions of employment. For the reasons relied upon with respect to Proposal 1, above, we reject the Agency's assertion that this proposal is not within the duty to bargain because the services and facilities involved are under the control of DOD components other than the Agency. Its argument that this proposal would affect nonbargaining unit employees is essentially the same as that which we rejected in conjunction with Proposal 1. It is rejected here for the same reason. Based on the foregoing, we find that Proposal 14 is within the duty to bargain. XV. Proposal 15 Section 4 -- Medical Evacuation During the time when an employee requires medical evacuation from and back to his/her duty station, he/she shall be entitled to transportation at government expense. Modes of transportation shall include, but not be limited to, the following: A. Med/Evac. aircraft. B. Mac aircraft. C. Charter Aircraft. D. Commercial aircraft. E. Military vehicles other than aircraft. F. Commercial vehicles other than aircraft. G. POV. (Only the underlined portions are in dispute.) A. Positions of the Parties Although the Agency contends that medical evacuation, in general, is not a condition of employment it alleges that this proposal is outside the duty to bargain only insofar as it concerns an employee's return to his/her duty station after medical evacuation. Insofar as the proposal would involve payment of travel expenses relating to use of privately owned vehicles and commercial transportation, the Agency contends that there is no authorization in controlling statutes for such payments. Insofar as it would involve employee access to military transportation it concerns a matter which is not within the Agency's control and which would have an impact upon nonbargaining unit employees. The Union contends that return transportation after medical evacuation is a condition of employment and a matter over which the Agency has control. It also contends that any impact which the proposal would have on nonunit employees is speculative, indirect and does not render the proposal nonnegotiable. B. Analysis and Conclusions We find that the proposal concerns conditions of employment. As noted in conjunction with Proposal 1, DOD Directive Number 1400.6 effectively establishes as a condition of employment for DOD civilian employees in overseas areas, among other things, the provision of adequate medical and transportation facilities and services to meet health and decency standards. National Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA 139 (1980). The Agency acknowledges that it currently provides medical evacuation, one way, to employees when determined necessary by medical authority. It also acknowledges that employees are allowed to use military transportation facilities and services on a space available basis for purposes of returning to their duty station after medical evacuation. Agency Brief at 24-25. On the basis of these facts and circumstances we conclude that access to adequate medical treatment for employees whose residence overseas is attributable to their employment is directly connected to the employment relationship and is a condition of employment. Moreover, we conclude that access to such medical treatment reasonably encompasses the employee's ability to return to his/her post of duty following the treatment as well as the ability to get to the treatment. The Agency's arguments that this proposal is nonnegotiable because it relates to facilities and services controlled by the military departments and because of its impact on nonbargaining unit employees are the same as those raised in conjunction with Proposal 1. They are rejected here for the same reasons as expressed in relation to that proposal. Insofar as the proposal would require payment of employee transportation expenses relating to use of commercial and privately owned vehicles, it is inconsistent with Federal law. In this regard, chapter 57 of title 5 of the U.S. Code is the basic authority for use of appropriated funds for payment of travel and transportation expenses incurred by Federal employees in general. As to travel expenses relating to illness, these statutory provisions authorize only: (1) return travel to a designated post of duty, home, or regular place of business when an employee who is traveling on business away from such becomes incapacitated by illness or injury not due to his/her own misconduct (5 U.S.C. Section 5702(b)); (2) subsistence without charge while an employee or dependent is being evacuated as a patient by U.S. military aircraft (5 U.S.C. Section 5709); and (3) transportation of the remains of an employee when death occurred while the employee was in travel status or performing official duties outside the United States (5 U.S.C. Section 5742). The provisions of chapter 57 which authorize payment of travel expenses do not include the types of expenses addressed by this proposal. Therefore, we find that those portions of the proposal which relate to payment of expenses incurred in the use of commercial transportation and privately owned vehicles are inconsistent with chapter 57 of title 5, U.S. Code. /14/ Based on the foregoing, we find that to the extent that the proposal addresses use of military transportation it is within the duty to bargain. However, to the extent that it addresses payment for use of commercial transportation and privately owned vehicles it conflicts with law and is not within the duty to bargain. XVI. Proposal 16 Section 5 -- Travel to Emergencies A. An employee shall be granted leave to attend to personal emergencies that result from such events as death of relatives, possible death of relatives, disability sicknesses, legal proceedings. etc. (Only the underlined portions are in dispute.) A. Positions of the Parties The Agency asserts and the Union disputes that the proposal conflicts with statute, specifically 20 U.S.C. Section 904. The Union states that this proposal contractually guarantees the right to take leave for personal emergencies and enumerates some of the situations which constitute personal emergencies. B. Analysis and Conclusions We do not view the proposal as inconsistent with 20 U.S.C. Section 904. That section provides among other things, that teachers may use the leave to which that section entitles them "in the event of any personal emergency." Nowhere in section 904 or in the other provisions of the Department of Defense Overseas Teachers Pay and Personnel Practices Act is "personal emergency" defined. In our view the types of events specified in the proposal could reasonably result in a personal emergency. Thus, we reject the Agency's contention that this proposal conflicts with 20 U.S.C. Section 904. However, we find that this proposal is nonnegotiable for a different reason. By its language and the Union's stated intent, this proposal would require the Agency to grant leave requests under the specified circumstances. It is materially identical to Proposal 1 in American Federation of Government Employees, AFL-CIO, International Council of Marshals Service Locals and U.S. Marshals Service, 15 FLRA 333 (1984), which the Authority found violated management's right under section 7106(a)(2)(B) to assign work. For the reasons expressed in U.S. Marshals Service, we find that Proposal 16 is not within the duty to bargain. XVII. Proposal 17 B. When an employee is excused from duty to travel to a point separate from his/her point of work to attend to personal emergencies, said employee shall be authorized travel through military transportation systems. (Only the underlined portion is in dispute.) A. Positions of the Parties The Agency contends that the manner in which employees travel to attend to personal emergencies is not a condition of employment. It asserts that the proposal is nonnegotiable for the additional reasons that the military transportation systems are not within its control and that it would impact on nonbargaining unit employees. The Union contends that this proposal is negotiable "for the reasons stated" in conjunction with Proposals 14 and 15. B. Analysis and Conclusion DOD Directive Number 1400.6 includes as a consideration in recruiting employees from the U.S. for assignment to overseas duty stations the ability to ensure adequate transportation facilities and services. See discussion of Proposal 1 above. We view this regulatory provision as establishing a direct connection between the employment relationship and employee access to adequate transportation where associated with overseas assignments within the Department of Defense. As this proposal addresses the extent and manner in which the Agency will ensure employee access to adequate transportation, we find that it concerns conditions of employment. National Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA 139 (1980). The Agency's arguments that the proposal is nonnegotiable because it relates to facilities and services controlled by the military departments and because of its impact on nonbargaining unit employees are the same as those which we rejected in conjunction with Proposal 1. We reject them here for the same reasons. Based on the foregoing, we find that this proposal is within the duty to bargain. XVIII. Proposals 18 and 19 (Proposal 18) Section 6 A. Employees who are eligible for Renewal Agreement Travel (RAT) shall have the option of: (1) Receiving a travel advance for the estimated amount; (2) Circuitous route travel; (3) Delays in route with no fee for deplaning MAC aircraft; (4) Traveling on MAC aircraft, MAC chartered aircraft, or commercial carriers; (5) Unaccompanied travel for dependents; and (6) Space-available travel on MAC carrier worldwide. (Proposal 19) B. Before an employee shall be required to travel on orders in the performance of official business, he/she shall be granted an advance of funds if he/she so requests. (Only the underlined portions are in dispute.) A. Positions of the Parties The Agency contends that these two proposals are nonnegotiable for the following reasons. Inasmuch as Renewal Agreement Travel (RAT) occurs during the school recess periods when teachers are in nonduty status, the subject is not a condition of employment. Further, the specific provisions of Proposal 18 conflict with Government-wide regulations -- the FTRs, and agency regulations -- the JTRs and military department regulations. The proposal also concerns matters under the control of the military departments. Proposal 19 conflicts with law and Government-wide regulations. The Union contends that RAT is a condition of employment. It denies that the proposals conflict with law or Government-wide regulations. Moreover, it asserts that the JTRs and military department regulations are agency regulations and that the Agency failed to demonstrate with respect to them that: (1) in some cases, there is any conflict with Proposal 18; and (2) in all cases, they are supported by a compelling need. B. Analysis and Conclusions 1. Conditions of Employment Renewal Agreement Travel (RAT) is authorized by 5 U.S.C. Section 5728. /15/ Those provisions allow eligible employees to receive allowances for travel and transportation expenses for purposes of returning home to take leave between tours of duty overseas. The legislative history of this provision indicates that Congress considered that providing for RAT would yield substantial savings for the Government as a consequence of reduced employee turnover resulting from permitting such payments. /16/ Hence a primary intent underlying this statutory provision is encouraging workforce stabilization at overseas stations. This intent is underscored by the provision that conditions entitlement to the payments on completion of an agreed upon period of service overseas and written agreement to serve another tour at an overseas post. This legal authority establishes a direct connection between RAT and the employment relationship. Thus, we find, that RAT is a condition of employment. 2. Proposal 18, subsection 1 This subsection would allow employees eligible for RAT to receive a travel advance. Chapter 2 of the FTRs prohibits travel advances for per diem and mileage allowances where RAT is involved. /17/ As noted in our discussion of Proposal 6 above, chapter 2 of the FTRs is a Government-wide regulation. We therefore find that this subsection of the proposal is nonnegotiable because it conflicts with a Government-wide regulation. However, for the same reasons which we stated in conjunction with Proposal 2, we reject the Agency's argument that this subsection is nonnegotiable because of its alleged conflict with the JTRs. 3. Proposal 18, subsection 2 The Agency asserts that this subsection, which would allow circuitous route travel, conflicts with the FTRs, 1-2.5.b. That provision of the FTRs states that, when a person for his/her own convenience travels by an indirect route or interrupts travel by a direct route, "the extra expense shall be borne by him/her." /18/ It is applicable where RAT is involved. /19/ The Union states that the proposal is not intended to relieve employees of any obligation to pay additional costs incurred as a result of circuitous route travel. This interpretation is compatible with the language of the proposal and we adopt it for purposes of this decision. Based on it, we reject the Agency's argument that this subsection is inconsistent with the FTRs. The Agency also asserts that this subsection conflicts with 5 U.S.C. Section 5733 which requires, essentially, that employees must travel by the most expeditious means of transportation practicable. /20/ The legislative history of this provision contains the following statement: /21/ The committee also believes that agencies should utilize the most expeditious means of transportation practicable, commensurate with the nature and purpose of an employee's duties. To require an employee to ride the bus 200 or 500 or 1,000 miles to attend a meeting simply because it is the cheapest form of transportation is a false economy and archaic practice. In our view the Congressional intent of this statutory provision is to authorize use of faster means of transportation commensurate with the nature and purpose of an employee's duties even where a slower, although less costly, means is available. Given this intent, the provision is not applicable to the circumstances involved in this proposal: employees who are traveling in nonduty status during summer recess and who are personally bearing any additional costs resulting from alternative routing. Hence, we find that section 5733 does not apply. Based on these reasons we reject the Agency's arguments and find that subsection 2 is negotiable. 4. Proposal 18, subsection 3 Subsection 3 would allow delays in route with exception from fees for deplaning MAC (Military Aircraft Command) aircraft. The Agency asserts that it conflicts with FTRs 1-2.5 (note 18) which requires employees to pay any additional costs resulting from indirect travel. Additionally it asserts that deplaning fees are determined by regulations of MAC over which it has no control. Agency Brief at 27-28. The Union states that the intention of this proposal is to allow interrupted travel unless there is actual additional expense incurred by the Government. This interpretation is compatible with the language of the proposal and we adopt it for purposes of this decision. In view of this interpretation, we find that subsection 3 does not conflict with the provisions of the FTRs which require that additional expenses incurred in interrupted travel be borne by the traveller rather than the Government. Rather subsection 3 only exempts employees from the deplaning fees which are controlled by MAC. Moreover, the Agency's argument that it has no control over deplaning fees is essentially the same as that which we discussed and rejected in conjunction with proposal 1 above. It is rejected here for the same reasons. Based on these reasons, we find that subsection 3 is within the duty to bargain. 5. Proposal 18, subsection 4 This subsection gives employees the option of travelling by aircraft provided by the military, or by commercial aircraft. In its statement as to the intent of this proposal the Union specified that this option would be "in accordance with the Federal Travel Regulations." The Agency argues that this subsection conflicts with provisions of the JTRs which are "in accordance with" FTRs, 1-2.2.b. As noted in our discussion of Proposal 13, FTRs, 1-2.2.b, generally requires that employees travelling on official business use the method of transportation which will result in the greatest advantage to the Government. However, where an employee uses an alternative method he/she is responsible for any resulting additional costs. Under FTRs, 2-1.5.h(2)(b) and 2-2.1 and 2-2.2 (note 19), these restrictions are applicable to RAT. Inasmuch as subsection 4 does not prevent the Agency from requiring an employee to pay any additional costs resulting from an election as to method of transportation, we find that it is not inconsistent with the FTRs. We reject the Agency's argument that conflict with the JTRs bars negotiation of this subsection for the same reasons which we stated in ruling on Department of Defense Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 10). Based on these reasons we find that inasmuch as subsection 4 does not require the Agency to pay any expenses which do not accord with requirements and limitations prescribed by the FTRs, it is within the duty to bargain. 6. Proposal 18, subsections 5 and 6 These subsections would allow unaccompanied travel by dependents and space-available travel on MAC carriers. The Agency argues only that these subsections concern matters which are controlled by MAC regulations over which the Agency has no control. We rejected this argument here for the reasons stated in conjunction with Department of Defense Office of Dependents School, 22 FLRA No. 34 (Proposal 5). These subsections are within the duty to bargain. 7. Proposal 19 This proposal would allow employees travelling on official business to receive a travel advance at their request. The Union intends this proposal to apply to employees travelling on RAT. Union Reply Brief at 36-37. The Agency asserts that the proposal conflicts with the FTRs and 5 U.S.C. Section 5705. For the reasons expressed above as to Proposal 18, subsection 1, we find that this proposal conflicts with the FTRs -- a Government-wide regulation. However, contrary to the Agency's argument we find that 5 U.S.C. Section 5705 does not apply to RAT. By its terms section 5705 applies to travel expenses authorized under subchapter I of chapter 57. The provisions relating to RAT are contained in subchapter II of chapter 57. Hence, we reject the Agency's argument that this proposal conflicts with statute. We conclude that Proposal 19 is nonnegotiable because it conflicts with FTRs, 2-2.4, a Government-wide regulation. C. Summary Proposal 18 is within the duty to bargain except for subsection 1. Proposal 19 is not within the duty to bargain. XIX. Proposal 20 The FLRA Members disagree as to the negotiability of this proposal. The decision and order on Proposal 20 and Chairman Calhoun's dissent immediately follow this decision. XX. Proposal 21 Section 8 -- Non-duty Travel An employee not entitled to government travel at his/her home of record in the United States at the close of the school year shall be issued travel orders at his/her request to his/her home of record at the close of the school year in the same manner as if he/she were entitled provided he/she reimburses the government for the cost of such travel. (Only the underscored portion is in dispute.) A. Positions of the Parties The Agency contends that this proposal does not concern conditions of employment and conflicts with Government-wide regulations. The Union states that this proposal is designed to allow employees to travel at reduced rates on commercial airlines and on MAC scheduled flights. It asserts that such travel should help to reduce employee turnover and increase morale. B. Analysis and Conclusion Based on the Union's explanation, which is compatible with the language of this proposal, its purpose is to facilitate the travel of teachers to their homes in the United States during summers when they are not eligible for RAT. For the following reasons we find, contrary to the Agency's assertion, that the proposal concerns conditions of employment of bargaining unit employees. As a general matter, the employment circumstances of civilians assigned overseas include many features which are unique to them and which are based on their employment overseas. For example, by law and regulation, those civilians whose residence overseas is attributable to their employment overseas receive many benefits which are related to their living conditions such as quarters or quarters allowances and various other allowances and differentials associated with living costs and conditions. Moreover, the Department of Defense, by Department of Defense Directive Number 1400.6 (see our discussion of Proposal 1), has recognized a relationship between employment overseas and the employer's ability to assure adequate living conditions. Consequently, many matters which concern living conditions and which in other circumstances have little or no relationship to the employment situation become conditions of employment in the context of overseas assignment. We find that this proposal to facilitate the travel of teachers to their homes in the U.S. during summer vacation meets the Antilles test for determining what constitutes a condition of employment. It is undisputed that the proposal is focused on bargaining unit employees. As to the second criterion we noted in conjunction with Proposals 18 and 19 that Congress, in passing the legal provisions governing RAT, recognized a correlation between facilitating the ability of employees assigned overseas to travel to their homes in the U.S. on vacation and their willingness to continue their employment overseas. Moreover, one of the things which Department of Defense Directive Number 1400.6 requires to be considered prior to recruiting civilians from the U.S. for overseas assignment is availability of adequate transportation services. We conclude that facilitating employee access to transportation for purposes of returning to their homes in the U.S. is a matter which directly relates to the Agency's recruitment and maintenance of a sufficient and stable workforce overseas. See Department of the Air Force, Eielson Air Force Base, Alaska, 23 FLRA No. 83 (1986). It is therefore a condition of employment insofar as employees whose residence is attributable to their employment there. Although the Agency makes an assertion that this proposal is contrary to Government-wide regulations, it has neither cited a particular Government-wide regulation nor supported its argument. Absent any showing that law or applicable regulation proscribe the use of travel orders in the manner proposed, and inasmuch as the proposal concerns conditions of employment of bargaining unit employees, we find that Proposal 21 is within the duty to bargain. XXI. Proposal 22 Section 9 -- Travel for Retired Employees Upon retirement, ODE/DODDS employees shall be authorized space-available travel on military and military contracted aircrafts. (Only the underscored section of the proposal is in dispute.) A. Positions of the Parties The Agency argues that inasmuch as this proposal would apply to a time when employees are no longer members of the bargaining unit, it does not concern conditions of employment. The Union asserts that the proposal is negotiable because it seeks a "delayed" benefit for "current" bargaining unit members. B. Analysis and Conclusion Under the Antilles test (see our discussion of Proposal 1 above) we conclude that this proposal does not concern conditions of employment. While it meets the first factor to this test, it does not meet the second factor. As to first factor, the proposal is principally focused on bargaining unit employees. There is no indication that the Union proposal seeks a benefit for current retirees; rather, it is limited to seeking a benefit for current employees upon their retirement. As to the second factor, it has not been demonstrated that the matter proposed would serve to increase employee retention or to contribute to the ability of the employer to maintain a stable and sufficient workforce overseas. Other than providing promise of a benefit during their retirement, the proposal has no relationship to the working conditions of bargaining unit employees. Based on the limited nature and extent to which this proposal would relate to the working conditions or employment relationship of bargaining unit employees, we conclude that it does not concern conditions of employment. We find that the disputed portion of this proposal is not within the duty to bargain. XXII. Proposals 23-27 Article 67 -- Overseas Allowances Section 1 -- Eligibility for Living Quarters Allowance and Post Differential (Proposal 23) A. In order to implement 20 U.S.C. Section 905(a), and to retain qualified and experienced employees, each employee in the bargaining unit shall be entitled, in addition to basic compensation to quarters, quarters allowance, storage, post differential, and post allowances. This provision applies to all such unit employees, including JROTC instructors to the extent permitted by law and to those employees who are assigned classes for less than a full instructional day, and without regard to the employee's point of hire. (Proposal 24) B. Each employee in the bargaining unit will be eligible to receive a post differential and living quarters allowance for the rental or purchase of privately owned quarters regardless of the availability of government quarters so long as the employee elects not to occupy government quarters. (Proposal 25) D. A bargaining unit employee who sells his/her privately owned quarters at any time and moves into different rental quarters is entitled to indefinite living quarters allowance for rental purposes. (Proposal 26) E. An employee who resigns during the course of the school year shall be entitled to receive LQA up until the time of his/her departure from the post or no later than the first day of the next school year. (Proposal 27) F. The rates for overseas allowances and differentials shall be determined jointly between the parties within rates permissible by the United States Code during an annual negotiations session. Rates shall be fixed, at a minimal flat rate, at the beginning of each school year. Adjustments in fixed rates shall be done only once a year. (Only the underscored portions of these proposals are in dispute.) A. Positions of the Parties The Agency takes the position that these proposals conflict with various legal provisions which address overseas allowances and differentials and/or Government-wide regulations -- the DSSRs. The Union contends that these proposals do not conflict with law and that the DSSRs are not Government-wide regulations. More specifically with respect to Proposals 23 and 24 the Union contends that because teachers who teach only part of the instructional day are not "part-time" employees within existing legal definitions, these proposals are not inconsistent with any legal or regulatory prohibitions on receipt of allowances and differentials by part-time employees. B. Analysis and Conclusions 1. Proposal 23 As explained by the Union, this proposal is not intended to entitle employees to quarters allowances and storage simultaneously but to allow employees, as opposed to the Agency, to chose among available options. This interpretation is compatible with the language of the proposal and we adopt it for purposes of this decision. In view of this we reject the Agency's argument that this proposal is nonnegotiable for the reason that it would entitle employees to receive quarters, storage and quarters allowances, simultaneously. Similarly, we reject the Agency's argument that this proposal conflicts with 10 U.S.C. Section 2301(d)(1) /22/ insofar as JROTC instructors are concerned. The specific language of the proposal limits the entitlement of JROTC instructors to the designated allowances and differentials "to the extent permitted by law." Consequently, we cannot agree with the Agency that the proposal would circumvent the provisions of title 10. However, for the reasons expressed in conjunction with Proposal 5 earlier in this decision we find that, insofar as the proposal would entitle an employee to choose to receive a quarters allowance when Government quarters are available, it conflicts with law and Government-wide regulation. Moreover, inasmuch as it provides blanket entitlement to each unit employee to receive allowances and post differentials it conflicts with the DSSRs -- Government-wide regulations. Sections 031.12 (note 3), 031.2, /23/ and 031.5 (note 5) of the DSSRs contain various restrictions on the payment of allowances and differentials to part-time employees and "local hires." For these reasons we find that Proposal 23 is not within the duty to bargain. 2. Proposal 24 For the reasons expressed in conjunction with Proposal 5, we find that insofar as this proposal would allow employees to receive a living quarters allowance even though Government quarters are available it conflicts with law and Government-wide regulation. Also, for the reason discussed in conjunction with Proposal 1 we find that it conflicts with the DSSRs in that it would permit all "local hires" in the bargaining unit to receive a living quarters allowance. As to post differentials, the Agency asserts that the proposal would require paying differentials to all bargaining unit employees despite restrictions in the DSSRs on paying them: (1) to part-time employees; (2) to certain "non-spouse" dependent employees; and (3) at certain posts of duty. The Union tacitly concedes that the proposal is intended to apply to all unit employees without regard to the restrictions in the DSSRs cited by the Agency. Under section 031.5 (note 5) of the DSSRs, part-time employees may not be granted post differentials. /24/ Under section 031.3 they may not be granted to certain non-spouse dependent employees. /25/ Under Chapter 500 of the DSSRs, payment of post differentials is restricted to certain posts of duty. /26/ This proposal is inconsistent with these restrictions; it is therefore inconsistent with a Government-wide regulation. Based on the foregoing we find that because Proposal 24 would expressly apply to each employee in the bargaining unit, it is not within the duty to bargain. 3. Proposal 25 The Agency asserts that this proposal conflicts with section 136 of the DSSRs which limits the payment of living quarters allowances in circumstances where an employee has purchased quarters. /27/ The Union tacitly concedes that the proposal conflicts with the DSSRs in this respect as well as in regard to restrictions as to payment of living quarters allowances to "local hires" (section 031.12 -- note 3) and part-time employees (section 031.5 -- note 5). The Union argues solely that the DSSRs are not Government-wide regulations. As we ruled earlier in Department of Defense Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 2), the DSSRs are Government-wide regulations. Inasmuch as this proposal conflicts with them, it is not within the duty to bargain. 4. Proposal 26 The Agency argues that insofar as proposal 26 would entitle "local hires" and part-time employees to a living quarters allowance, it conflicts with the DSSRs. We do not view this proposal as creating an entitlement to a living quarters allowance for any category of employee which currently is excluded under the DSSRs. Rather, we interpret it as seeking to extend the duration of existing entitlements beyond the point at which an entitled employee resigns. Under this interpretation the proposal conflicts with section 132.42 of the DSSRs which requires termination of a living quarters allowance at the end of the last day of employment when an employee is separated. /28/ In view of this we find that proposal 26 is not within the duty to bargain. However, we find that the Agency's argument that the proposal also conflicts with provisions relating to payment of a living quarters allowance while an employee is in a nonpay status does not apply. An employee who has resigned is distinguishable from an employee who is in a nonpay status. 5. Proposal 27 This proposal seeks to have the amounts of the various overseas differentials and allowances determined through negotiations between the parties. 5 U.S.C. Section 5922(c) provides that overseas allowances and differentials are to be paid under regulations prescribed by the President governing, among other things, the rates at which the payments are to be made. /29/ The regulations to which that provision refers are the DSSRs. See Overseas Education Association, Inc. and Department of Defense Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 2). The DSSRs prescribe specific methods for determining the rate of payment of the allowances and differentials and/or specific rates. /30/ Although there are limited, specific circumstances under which the DSSRs allow agencies to take administrative action to adjust rates, /31/ they do not grant discretion to generally establish rates different from those set forth in the DSSRs. We conclude that, inasmuch as this proposal would require rates to be established in a manner other than that contemplated by 5 U.S.C. 5922 and the DSSRs, it conflicts with law and Government-wide regulation and is not within the duty to bargain. XXIII. Proposal 28 Section 2 -- Living Quarters Allowance Rate A. Only the number of an employee's dependents, and not his/her marital status, will determine a bargaining unit employee's living quarters allowance. A locally acquired family or family member will be considered as a dependent without discrimination in determining an employee's living quarters allowance rate. A. Positions of the Parties The Agency asserts that this proposal conflicts with the DSSRs. The Union contends that the DSSRs are not Government-wide regulations which can bar negotiations. Additionally, it argues that there is no conflict in any event between the second sentence of the proposal and the DSSRS. B. Analysis and Conclusions The DSSRs are Government-wide regulations. Department of Defense Office of Dependent Schools, 22 FLRA No. 34 (1986) (Proposal 2). The Agency asserts, and the Union does not dispute, that the first sentence of this proposal conflicts with section 134.13 of the DSSRs which governs the living quarters allowance rates to be paid married couples. /32/ The first sentence would require that an employee be paid a living quarters allowance based solely on number of dependents and without regard to marital status and the impact that a spouse's entitlements may have on the employee's entitlements. We find that this is inconsistent with the limitations placed on the rates which married couples may receive by section 134.13. The Agency asserts that the second sentence of this proposal conflicts with the definition of "family" which appears in the DSSRs. In its petition the Union indicates that the phrase "locally acquired family or family member" in the proposal refers to children who are adopted by an employee in the host country. The definition of family which is contained in the DSSRs encompasses step and adopted children as well as those children under the legal guardianship of the employee or his/her spouse. /33/ The definition contains no restrictions based on where these children are "acquired." In view of this, we reject the Agency's contention that this sentence conflicts with the DSSRs. Based on the foregoing, we find that the first sentence of this proposal conflicts with a Government-wide regulation and is not within the duty to bargain. However, the second sentence does not conflict with a Government-wide regulation and is within the duty to bargain. XXIV. Proposal 29 B. If both spouses at a post are eligible for LQA and decide to share the costs as the basis for each receiving LQA, each employee spouse shall be entitled to receive 100% of the maximum payable to them based on their individual eligibility and the resultant LQA. Payment for the two spouses shall not be limited to 150% of the maximum payable to the eligible employee spouse. This provision applies if both spouses are employees or if one spouse is an eligible employee and the other spouse is an eligible member of the military or other eligible employee of the United States. (Only the underlined portion is in dispute.) A. Positions of the Parties The Agency contends that this proposal conflicts with section 134.13 of the DSSRs. The Union asserts that there is no conflict between the proposal and the DSSRs. B. Analysis and Conclusions The plain terms of the proposal require that where both spouses in a "married couple" are eligible for a living quarters allowance, each spouse will receive the maximum to which they would be entitled on an individual basis. Section 134.13 of the DSSRs (note 32) permits this where there are no dependents involved. However where there are dependents, only one spouse would be entitled to receive the "with family" living quarters allowance rate. The other would be limited to the "without family" rate. Moreover, a further adjustment would occur in determining the increment for additional family members. This proposal does not distinguish between those married couples with dependents and those without. As written, it would conflict with the limitations which the DSSRs place on the living quarters allowances rates which may be paid to married couples. Based on this conflict with the DSSRs, Government-wide regulations, the proposal is nonnegotiable. XXV. Proposal 30 C. The rule which limits annual rent to one-tenth of the purchase price or appraised value of a residence owned by an employee or the employee's spouse shall not apply when an employee resides in quarters owned by a family member other than a spouse. A. Positions of the Parties The Agency asserts that this proposal conflicts with section 136 of the DSSRs. In its petition the Union indicates that this proposal is intended to apply to those circumstances where an employee rents quarters from a family member other than a spouse. This interpretation is compatible with the language of the proposal and is adopted for purposes of this decision. B. Analysis and Conclusions Section 136 of the DSSRs (note 27) limits the amount which may be paid as a living quarters allowance for quarters which are occupied by an employee only when the quarters are owned by the employee and/or the spouse. There is no support for the Agency's position that this limitation applies as well in circumstances where the quarters are owned by a family member other than a spouse. Consequently, the Agency has not established that this proposal conflicts with section 136 of the DSSRs. We find that this proposal is within the duty to bargain. XXVI. Proposal 31 Section 3 -- Continuation of Allowances During Nonpay Status A. A bargaining unit employee may appeal to his/her principal for a continuation, in the public interest, of Living Quarters Allowance and Post Differential during an employee's nonpay status. The affected employee of the Association may appeal the principal's determination to the appropriate regional director. A. Positions of the Parties The Agency asserts that this proposal conflicts with the DSSRS which require suspending the payment of post differential to an employee who is in a nonpay status. The Union claims that the proposal merely establishes a procedure by which employees may seek to have a "public interest" exception, which is provided for by the DSSRs, applied to them. B. Analysis and Conclusions The DSSRs explicitly provide that payment of post differential shall be suspended while an employee is in a nonpay status. /34/ As to allowances, the DSSRs allow them to continue during periods when an employee is in a nonpay status not in excess of 14 calendar days at any one time. For periods in nonpay status in excess of 14 calendar days, no payment is to be made for any part of the nonpay period unless otherwise specifically provided for in the DSSRs. /35/ More particularly as to living quarters allowances, the DSSRs allow continuation of payment where the head of the agency determines that continuation is in the public interest while an employee is in nonpay status not in excess of 30 calendar days at any one time. /36/ Thus, the DSSRs absolutely require an agency to discontinue a post differential while an employee is in a nonpay status but they provide for a limited continuation of a living quarters allowance if the agency determines that it would be in the public interest. Consequently, we find that insofar as the proposal relates to seeking a continuation of a post differential it is inconsistent with the DSSRs which are Government-wide regulations. Insofar as the proposal relates to seeking limited continuation of a living quarters allowance, however, it is consistent with those regulations. In regard to living quarters allowances, the Union's contention that the proposal is limited to providing a procedure for employees to seek the public interest determination allowed by the DSSRs is compatible with the language of the proposal and is adopted for the purposes of this decision. Thus, we do not read the proposal as seeking a continuation of living quarters allowances beyond the time limit at which the DSSRs require termination. Therefore, the proposal is not negotiable as to post differentials and is negotiable as to living quarters allowances. XXVII. Proposals 32-34 (Proposal 32) B. Notwithstanding the provisions of Section 3A, supra, it is agreed that: (1) Because the process of collective bargaining, including the administration of a collective bargaining agreement, is in the public interest, an employee's living quarters allowance and differential shall not be terminated if he/she is on leave without pay due to service as an officer or representative of the Association. (Proposal 33) (2) When an employee in the bargaining unit is using leave pending disability retirement or after an application has been submitted for optional retirement in lieu of disability retirement, the employee's allowances and differential shall not be terminated prior to ninety (90) days after approval of retirement by the Office of Personnel Management or prior to the beginning of the next school year, whichever is later. (Proposal 34) (3) The grant of living quarters allowance and differential will continue for employees in the bargaining unit in nonpay status, not in excess of thirty (30) calendar days, if that thirty day period encompasses an official school recess period other than the summer recess period. (Only the underscored portions are in dispute.) A. Positions of the Parties The Agency contends that these proposals conflict with provisions of the DSSRs -- Government-wide regulations. It additionally asserts that Proposal 33 does not concern conditions of employment of bargaining unit employees. The Union contends that the DSSRs are not Government-wide regulations and it disputes the Agency's assertion that Proposal 33 does not concern conditions of employment of bargaining unit employees. As to Proposal 34, the Union contends that even assuming that the DSSRs are Government-wide regulation this proposal does not conflict with them. B. Analysis and Conclusions 1. Proposal 32 Insofar as the proposal relates to post differentials, it is inconsistent with section 052.2 of the DSSRs, which requires the Agency to terminate post differentials of employees in a nonpay status. Insofar as it relates to living quarters allowances, the Agency asserts and the Union tacitly concedes that the proposal seeks continuation of the allowances without regard to the time limitations set forth in section 051.2 and 132.2 of the DSSRs. See notes 35 and 36. In view of this, we find that the proposal also conflicts with the DSSRs as to the living quarters allowances. Based on these reasons we find that Proposal 32 is not within the duty to bargain. 2. Proposal 33 The Agency asserts that this proposal would effectively require payment of allowances and differentials to former employees after they have been separated by reason of their retirement. /37/ The Union does not dispute this. With minor exceptions, the DSSRs authorize payment of allowances and differentials to "employees." For example, see sections 031.1 (note 3), 031.2 (note 23) 031.3 (note 25), 051 (note 30). Under the DSSRs a retiree is not an "employee." /38/ Moreover, section 132.42 of the DSSRs expressly requires termination of a separated employee's living quarters allowance at the end of last day of his/her employment. See note 28. Consequently, we conclude that this proposal is inconsistent with the DSSRs -- Government-wide regulations -- and is nonnegotiable. 3. Proposal 34 Insofar as this proposal would require continuation of post differentials while an employee is in nonpay status, it conflicts with section 052.2 of the DSSRs, which requires those payments to be suspended while an employee is in a nonpay status. See note 34. Consequently, that aspect of the proposal is inconsistent with a Government-wide regulation and is nonnegotiable. Insofar as the proposal relates to continuation of living quarters allowances, however, we find that it is negotiable. The Agency contends that this aspect of the proposal conflicts with the DSSRs because it would preclude a determination required in section 132.2 that continuation of living quarters allowance during periods of up to 30 days when an employee is in a nonpay status is in the public interest. The Union explains the proposal as effectively seeking a determination that continuation of a living quarters allowance while an employee is in a nonpay status is, under the specified circumstances, in the public interest. The Authority has held that where a determination as to whether a matter concerning a condition of employment is in the public interest is within the Agency's discretion, the exercise of that discretion is subject to bargaining. That is, of course, unless it is demonstrated that the discretion is intended to be sole and exclusive. See, for example, American Federation of Government Employees, AFL-CIO, Local 3525 and United States Department of Justice, Board of Immigration Appeals, 10 FLRA 61 (1982) (Proposal 1). There is no demonstration here that the Agency's discretion under section 132.2 to determine that the payments in question are in the "public interest" is sole and exclusive. We therefore reject the Agency's argument that this aspect of the proposal is inconsistent with the DSSRs. We find that insofar as Proposal 34 applies to post differentials it is nonnegotiable. Insofar as it applies to living quarters allowances it is negotiable. XXVIII. Proposal 35 Section 4. -- Transportation Agreements A. Bargaining unit employees shall be entitled to return transportation for locally acquired dependents. A. Positions of the Parties The Agency asserts that to the extent that this proposal would require granting transportation agreements to local hires and part-time employees it conflicts with the FTRs and the JTRs. The Union states that the intent of this proposal is to overcome a distinction which the Agency currently makes between an employee's dependents who are "acquired" stateside and those "acquired" while overseas. It states that the proposal does not seek to expand eligibility for transportation agreements to types of employees not already eligible. B. Analysis and Conclusion The Union's explanation of the proposal is compatible with the proposed language and we adopt it for the purpose of this decision. Hence, we find that the proposal does not conflict with provisions of the FTRs, or JTRs, which restrict granting transportation agreements to either local hires or part-time employees. As explained by the Union, the proposal would only apply to those employees who are already eligible for transportation agreements. Thus, insofar as local hires and part-time employees are not eligible for transportation agreements they are not covered by this proposal. As to eligible employees, it only is concerned with which of their dependents would receive return transportation. In view of this interpretation of the proposal, the Agency's argument that it conflicts with the FTRs and JTRs is rejected. By extension, its allegation that this proposal is nonnegotiable has not been sustained. XXIX. Proposal 36 B. Bargaining unit employees shall be entitled to enter into a transportation agreement when their sponsoring spouse retires, resigns or otherwise leaves the employment or service of the United States. A. Positions of the Parties The Agency makes the same argument here as it made with respect to Proposal 35, that insofar as the proposal would apply to local hires and part-time employees, it conflicts with the FTRs and the JTRs. The Union indicates that this proposal is directed at those employees who at the time of their hire are not entitled to a transportation agreement because of their status as a dependent of someone who is entitled to one. Under this proposal, these employees would become entitled to a transportation agreement, in their own right, when the sponsoring spouse retires, resigns or otherwise leaves the employment or service of the United States. B. Analysis and Conclusion A transportation agreement covers, among other things, Renewal Agreement Travel (RAT) which was discussed in conjunction with Proposals 18 and 19 above. See, for example, Janet L. Acker v. United States, 6 Cl. Ct. 503 (Cl. Ct. 1984). Moreover the Union's statement of intent accompanying its petition in this case, indicates that this proposal is intended to encompass RAT. Under the FTRs, a local hire whose presence overseas is a consequence of marriage to, among others, an employee of the Foreign Service, a member of the uniformed services, or a private individual is not eligible for RAT. /39/ Inasmuch as Proposal 36, by its language and intent, would entitle bargaining unit employees, including local hires, to RAT without regard to whether their presence in the geographical area is attributable to their marital status, the proposal is inconsistent with the FTRs. In conjunction with proposal 6 we ruled that Chapter 2 of the FTRs are Government-wide regulations. Consequently, Proposal 36 is not within the duty to bargain. As discussed in conjunction with Proposal 2, the Agency has not demonstrated that a compelling need exists for the JTRs. Therefore, its argument that the JTRs bar negotiations on this allegedly conflicting proposal is not supported. XXX. Proposals 37 and 38 (Proposal 37) Section 5 -- Special Incentive Differential A. All bargaining unit employees shall be entitled to a special incentive differential when stationed at a hardship post. Employees on temporary duty at such posts shall also be entitled to a special incentive differential. (Proposal 38) B. The locations at which bargaining unit employees shall be entitled to special incentive differentials shall be subject to negotiations and agreed upon by the Association and the Employer. A. Positions of the Parties The Agency asserts that these two proposals are nonnegotiable because they conflict with the DSSRs. The Union contends that the DSSRs do not bar negotiation of inconsistent proposals because they are not Government-wide regulations. B. Analysis and Conclusions The Special Incentive Differentials to which these proposals refer is authorized by 5 U.S.C. Section 5925(b). /40/ It may be paid to employees assigned to a post determined to have especially adverse conditions of environment. It may be paid under regulations prescribed by the President governing, among other things, the rates of payment, and the foreign areas, groups of positions and categories of employees to which the rates apply. /41/ Under Executive Order 10903, as amended, the President delegated his authority in this regard to the Secretary of State. /42/ The Secretary of State has typically exercised this authority through issuance of the DSSRs. See Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 2). References to Special Incentive Differentials occur in various portions of the DSSRs and the index to the DSSRs indicates that Chapter 570, entitled "Special Incentive Differential," is to be inserted at a later date. As to the Agency's assertion that these two proposals are in conflict with various portions of the DSSRs, we find that based on the current DSSRs the contention can be sustained only as it relates to local hires and part-time employees. Section 031.2 (note 23) specifically limits payment of Special Incentive Differentials to employees who are eligible for quarters allowances under section 031.1. That section (note 3) limits the circumstances under which local hires may receive quarters allowances. Section 031.5 (note 5) precludes payment of Special Incentive Differentials to part-time employees. Because the first sentence of Proposal 37 would require payment to local hires and part-time employees without regard to these restrictions, it is inconsistent with the DSSRs. As noted in conjunction with Department of Defense Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 2), the DSSRs are Government-wide regulations. Sentence 1 of Proposal 37 is therefore not within the duty to bargain. The Agency has not established that either the second sentence of Proposal 37 or Proposal 38 conflicts with the DSSRs and no conflict is otherwise apparent to us. However, we note that under 5 U.S.C. Section 5922(c) and implementing Executive Order E.O. 10903, as amended, authority over where, to whom, and the rate at which Special Incentive Differentials will be paid has been vested in the Secretary of State. We conclude that the Agency has no independent discretion to determine these matters and that its discretion therefore is limited to making recommendations to the Secretary of State. The Agency's obligation to bargain over these matters is limited to the extent to which it has discretion, even if its discretion is limited to making such requests and/or recommendations. See American Federation of State, County and Municipal Employees, AFL-CIO and Library of Congress, Washington, D.C., 7 FLRA 578 (1982) (Proposals XI-XVI), enf'd sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). Of course, insofar as the Secretary of State has final authority under law, agreement between the parties herein cannot bind the Secretary. Based on these reasons and those expressed more fully in Library of Congress we conclude that Proposal 37, sentence 2 and proposal 38 are in the context of the described circumstances within the duty to bargain. XXXI. Proposal 39 Section 6 -- Danger Pay Allowance All bargaining unit employees in Korea and at other locations designated as danger pay posts by the Secretary of State or agreed to from time to time based on changed circumstances by the Association and the Employer shall be entitled to a Danger Pay Allowance. A. Positions of the Parties The Agency contends that this proposal is nonnegotiable because it conflicts with the DSSRs. The Union argues that the DSSRS are not Government-wide regulations. B. Analysis and Conclusions Danger pay is authorized by 5 U.S.C. Section 5928 for employees serving in foreign areas subject to civil insurrection, civil war, terrorism or wartime conditions. /43/ Authority to determine the specific rates and locations at which it may be paid has been vested in the Secretary of State. See notes 41 and 42. The Secretary of State has exercised this authority through the DSSRs. /44/ As noted in conjunction with Department of Defense Office of Dependent Schools, 22 FLRA No. 34 (1986) (Proposal 2), the DSSRs are Government-wide regulations. As Proposal 39 would require payment of danger pay at posts which have not been designated as danger pay posts by the Secretary of State and the DSSRs, it is inconsistent with a Government-wide regulation and is not within the duty to bargain. XXXII. Proposals 40-44 (Proposal 40) Section 7 -- Education Allowance (1) All employees in the bargaining unit shall be entitled to enroll their dependent children in tuition-fee schools of their choice in foreign areas at government expense and shall be reimbursed by the government for the transportation of their children to such schools if one or more of the following conditions exist: A. Service-operated schools are operating at maximum capacity; B. Daily commuting distance to a Service-operated school is unreasonable; C. Traffic hazards or other conditions would involve undue hardships for the children concerned if they were required to attend a Service-operated school; or D. Adequate educational facilities are not available at the Service-operated school for "exceptional children" (e.g. those who are handicapped or who suffer from a learning disability). (Proposal 41) (2) No employee will be compelled or asked to relocate his/her residence in order to alleviate an unreasonable commuting distance or commuting conditions which would involve hardships for the dependent child, and no employee shall lose eligibility for this tuition entitlement due to his/her unwillingness to change his/her residence. (Proposal 42) (3) Employees shall be authorized roundtrip transportation (twice per calendar year) at government expense for each dependent attending an educational institution for higher learning. (Proposal 43) (4) Any unit employee, upon retirement, shall be entitled to space-required, tuition-free education for all dependents, if the employee continues to reside overseas. (Proposal 44) (5) Dependents of unit employees who are authorized attendance in an ODE/DODDS dependents school or an approved non-ODE/DODDS school may complete their education requirements if the sponsor dies or leaves the area and dependents remain overseas. A. Positions of the Parties The Agency asserts that these proposals do not concern conditions of employment. As to Proposal 42, the Agency additionally argues that it conflicts with law and the DSSRs. The Union argues that the proposals do concern conditions of employment. B. Analysis and Conclusions 1. Background Under 20 U.S.C. Section 906 and 5 U.S.C. Section 5924(4), teachers may receive payments to assist them with the expenses associated with providing an adequate education for their dependents. /45/ Among the stated Congressional purposes underlying the provisions authorizing such payments were compensation of employees for additional expenses and hardships incident to duty overseas and facilitation of recruitment, and retention of employees for service overseas. /46/ Moreover, the payments were viewed as an alternative to the availability of adequate, educational facilities at a particular post of duty. /47/ In view of the existence of, and the purposes underlying, these legal provisions relating to education allowances, we conclude, generally, that insofar as these proposals relate to providing an adequate education to dependents of employees while they are assigned to overseas posts of duty they meet the second criterion for determining whether proposals concern conditions of employment which the Authority articulated in Antilles Consolidated School System. See our discussion of Proposal 1. 2. Proposal 40 Proposal 40 sets forth circumstances under which employees would be allowed the option of using educational facilities other than dependents schools. This proposal principally focuses on bargaining unit employees and, as just discussed, there is a direct connection between the proposal and the work situation or employment relationship of bargaining unit employees. Therefore, we conclude that this proposal concerns conditions of employment. See Department of the Air Force, Eielson Air Force Base, Alaska, 23 FLRA No. 83 (1986). The Agency makes no assertion nor is there any other reason apparent for concluding that this proposal conflicts with the provisions of law which govern payment of education allowances. See notes 45 and 47. Based on these reasons, Proposal 40 is within the duty to bargain. 3. Proposal 41 Proposal 41 is principally focused on bargaining unit employees and is directly connected to the work situation or employment relationship of those employees. It, too, is within the duty to bargain. 4. Proposal 42 Like Proposals 40 and 41, this proposal concerns conditions of employment. However, it is inconsistent with Federal law. Specifically, 5 U.S.C. Section 5924(4)(B) authorizes payment of travel expenses for only one annual trip each way for each dependent to obtain an American secondary or undergraduate college education. See note 45. Inasmuch as the DSSRs mirror this limitation, /48/ the proposal is also inconsistent with a Government-wide regulation. Proposal 42 is not within the duty to bargain. 5. Proposal 43 This proposal is like Proposal 22 in that it would apply to former employees who have retired. For the reasons expressed in conjunction with Proposal 22, we find that this proposal does not concern conditions of employment of bargaining unit employees and is, consequently, not within the duty to bargain. 6. Proposal 44 This proposal would permit dependents to complete their education requirements overseas in the event that the sponsoring employee dies or leaves the overseas area. As noted earlier, the purpose of the legal provisions which form the basis for finding that proposals relating to dependents' education concern conditions of employment is compensating employees for hardships and additional expenses incident to their service overseas as well as facilitating recruitment and retention of employees in overseas posts of duty. Given the circumstances specified in this proposal -- that an employee is no longer serving in an overseas post of duty -- any relationship to this purpose or to the legal provisions is not apparent. Moreover, the Union has provided no evidence and the record does not otherwise provide a basis for concluding that there is a direct connection between allowing a dependent continued access to overseas educational facilities after the employee's assignment overseas has terminated and service overseas. See Antilles Consolidated School System, 22 FLRA No. 23 (1986). Thus, Proposal 44 does not concern conditions of employment and is outside the Agency's obligation to bargain. XXXIII. Proposal 45 Section 8 -- Storage of Goods A bargaining unit employee shall be permitted storage of household goods until he/she is offered or acquires housing at his/her new duty location without a limitation period. (Only the underscored portion of the proposal is in dispute.) A. Positions of the Parties The Agency asserts that this proposal conflicts with the FTRs which place a time limitation on temporary storage of household goods and which preclude local hires from shipping and storing household goods. The Union acknowledges that, while time limits exist on temporary storage of household goods, none apply to nontemporary storage which is authorized under the FTRs. Thus, it contends that this proposal is consistent with the FTRs. B. Analysis and Conclusions The provisions of the FTRs which govern the payment of expenses for shipment and storage of household goods in conjunction with employee assignments to posts of duty outside the United States contain the following definition at FTRs, 2-1.4.e and f: e. Temporary storage. Storage of household goods for a limited period of time at origin, destination, or en route in connection with transportation to, from, or between official stations or posts of duty or authorized alternate points. f. Nontemporary storage. Storage of household goods while an employee is assigned to or is at an official station or post of duty to which he/she will not or cannot transport such household goods. Specifically, as to temporary storage the FTRs provide at FTRs 2-8.2.c: c. Temporary storage time limit. The time allowable for temporary storage in connection with an authorized shipment of household goods shall not exceed a period of 90 days. This time period also applies when an employee returns to his/her place of actual residence for leave before serving a new tour of duty outside the conterminous United States either at a different post of duty or at the same post of duty if the storage is provided instead of furnished quarters or a quarters allowance. However, upon an employee's written request, the initial 90-day period may be extended an additional period not to exceed 90 days under certain conditions if approved by the agency head or his/her designee. Justification for an additional storage period may include but is not limited to the following reasons: (1) An intervening temporary duty or long-term training assignment; (2) Nonavailability of suitable housing; (3) Completion of residence under construction; (4) Serious illness of employee or illness or death of a dependent; or (5) Strikes, acts of God, or other circumstances beyond the control of the employee. The type of storage to which this proposal refers falls within the definition of "temporary storage" -- that which occurs in conjunction with shipment of household goods -- as opposed to nontemporary storage -- that which occurs in lieu of shipment. We conclude that the regulatory provisions which govern temporary storage apply. As noted above, the FTRs limit the amount of time during which temporary storage may be allowed. The proposal conflicts with those limitations. As discussed in conjunction with Proposal 6, chapter 2 of the FTRs is a Government-wide regulation. Therefore, this proposal is not within the Agency's duty to bargain. In view of this conclusion, we find it unnecessary to address the Agency's argument as to local hires. XXXIV. Proposals 46-49 Section 10 -- Shipment of Goods (Proposal 46) A. All unit employees shall be authorized the maximum weight allowance permitted by statute for the shipment of household and professional goods. A maximum of 1,000 lbs. per family member shall be authorized for the shipment of unaccompanied baggage. (Proposal 47) B. The shipment of goods shall be authorized from a unit employee's initial point of hire or official residence to his/her duty station. Return shipment shall be authorized from the employee's duty station to his/her point of hire or official residence. (Proposal 48) C. Transportation of goods shall be authorized between duty stations when unit employees are reached for reassignment. Partial shipments shall be authorized to a place of storage. (Proposal 49) D. Unit employees shall be authorized partial shipment of goods to and from a place of storage to and from their duty station or home of record as long as the shipments do not exceed their total statutorily authorized weight allowances. A. Positions of the Parties The Agency argues that all four proposals conflict with FTRs, 2-1.5.h(3)(h), which it asserts precludes local hires from shipping and storing household goods. As to Proposal 46, the Agency asserts that it conflicts with FTRs, 2-82.4.b, which requires a reduction in weight allowance where furnished or partially furnished quarters are provided. Additionally, it asserts that the baggage conflicts with the JTRs and is, consequently, outside the duty to bargain. As to Proposal 47, the Agency argues that it conflicts with statutory (5 U.S.C. Section 5722) and implementing regulatory provisions which limit shipment of household goods to "place of actual residence." As to Proposal 49, the Agency argues that it conflicts with provisions of the FTRs which it describes as limiting shipments of household goods to the times at which an employee is appointed to, transferred to or from, or separated after completion of an established period of service at an overseas post of duty. In response to the Agency's overall contention as to the nonnegotiability of these proposals, the Union asserts that the Agency's reliance on FTRs, 2-1.5.h(3)(b) is misplaced because that provision applies only to Renewal Agreement Travel. In response to the Agency's argument on Proposal 46, the Union contends that the FTRs grant agencies discretion, as opposed to mandating that they reduce weight allowances when furnished or partially furnished quarters are provided. Additionally, the Union asserts that the Agency has not demonstrated that a compelling need exists for the JTR provisions with which Proposal 46 purportedly conflicts. In response to the Agency's arguments on Proposal 49, the Union contends that the FTRs do not place any limitations on partial shipments of household goods where nontemporary storage is involved as it asserts is involved in this proposal. B. Analysis and Conclusions 1. FTRs, 2-1.5h(3)(b) Does Not Bar Negotiation of These Proposals As the Union points out, FTRs, 2-1.5.h(3)(b) applies only to Renewal Agreement Travel. See note 39. Consequently, it has no relevance to transportation and/or storage of household goods. See note 15. It is inapplicable to these proposals and does not present a basis for finding them nonnegotiable. 2. Proposal 46 The FTRs require, where furnished or partially furnished quarters are provided, that agencies shall make an appropriate reduction in the weight of household goods to be authorized for shipment at Government expense. /49/ The language of the regulation is plainly mandatory and the Union provides no basis for concluding that it grants discretion to agencies in this connection. That portion of Proposal 46 which requires that the statutory maximum weight allowance be permitted notwithstanding the availability of furnished or partially furnished quarters therefore conflicts with the FTRs which, as we have ruled previously, are Government-wide regulations. As to the second sentence we find, as we discussed in conjunction with Proposal 2, that the Agency has not established that a compelling need exists for the JTRs. Thus, no basis exists for finding that this portion of the proposal is nonnegotiable based on its alleged conflict with the JTRs. Based on these reasons, we find that the first sentence of Proposal 46 is nonnegotiable and the second sentence is negotiable. 3. Proposal 47 As explained by the Union, Proposal 47 would permit, at the option of the employee, shipment of household goods between an overseas post of duty and his/her initial point of hire or "current official residence." Under governing statutory and regulatory provisions, employees are authorized shipment of household goods between their overseas post of duty and their place of actual residence at the time of appointment or assignment to a position overseas. /50/ The FTRs authorize shipment involving an alternate origin or destination, but limit payment of the costs to that which would have been incurred had shipment been between duty station and actual place of residence. The Union does not explain precisely what "current official residence" means. On its face it does not appear to be necessarily synonymous with "place of actual residence" at the time of appointment or assignment overseas. Moreover, in allowing employees to choose an alternative destination, that is, current official residence or "initial point of hire," the proposal does not allow for recognition of the regulatory requirement that payments must be limited to that which would have been incurred had shipment been to "place of actual residence" at the time of assignment overseas. We conclude that, as written, Proposal 47 is inconsistent with statute -- 5 U.S.C. Sections 5722, 5724 -- and Government-wide regulations -- FTRs, 2-1.5.g. It is not within the duty to bargain. 4. Proposal 48 The only assertion which the Agency makes as to this proposal -- that it is inconsistent with FTRs, 2-1.5.h(3)(h) -- was discussed and rejected in subsection B(1) above. Absent any other apparent basis for finding otherwise, this proposal is within the duty to bargain. 5. Proposal 49 By its terms, this proposal would allow employees partial shipment of household goods to and from place of storage, their duty station, or home of record subject only to statutory weight limitations. It is inconsistent with the FTRs in two respects. First, the FTRs require that where both transportation and nontemporary storage of goods are involved the weight of the goods stored plus the weight of those shipped shall not exceed the maximum allowable weight allowance. /51/ The proposal would allow employees to exceed this limitation by permitting shipment of goods up to the maximum weight allowance notwithstanding the fact they also had goods in nontemporary storage. Second, the FTRs limit Government payment of costs associated with transportation of household goods to the cost of transporting the property in one lot. /52/ The proposal would allow employees to exceed this limitation by permitting multiple shipments of goods subject only to a weight limitation. Based on these reasons, we find that Proposal 49 conflicts with Government-wide regulations and is not within the duty to bargain. XXXV. Order The Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Proposals 1 (sentences 1 and 4); 3; 5 (sentence 1); 7; 10; 12; 13; 14; 15 (insofar as it concerns use of military transportation); 17; 18 (except subsection 1); 21; 28 (sentence 2); 30; 31 (insofar as it concerns living quarters allowance); 34 (insofar as it concerns living quarters allowance); 35; 37 (sentence 2); 38; 40; 41; 46 (sentence 2); and 48. /53/ The Union's petition for review is dismissed as to Proposals 1 (sentences 2 and 3); 2; 5 (sentence 2); 6; 8; 9; 11; 15 (insofar as it concerns payment for use of commercial transportation); 16; 18 (subsection 1); 19; 22; 23; 24; 25; 26; 27; 28 (sentence 1); 29; 31 (insofar as it concerns post differential); 32; 33; 34 (insofar as it concerns post differential); 36; 37 (sentence 1); 39; 42; 43; 44; 45; 46 (sentence 1); 47; and 49. Issued, Washington, D.C., June 24, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY DECISION AND ORDER ON PROPOSAL 20 Section 7 -- Duty Travel An employee shall be paid the normal daily pay rate while traveling at the direction of government orders. An employee traveling from his/her home of record in the United States at the direction of government to his/her overseas place of duty shall be paid the normal daily pay rate from the start of travel up to, but not including, the first day of the school year. Saturdays, Sundays, and holidays will not be pay days unless in actual travel status on those days. An employee entitled to government travel to the United States to his/her home of record at the close of the school year shall, in addition to the normal daily rate of pay for travel days, be entitled to daily pay for each day after the school year ends that the employee's return to his/her home of record in the United States is delayed through no fault of the employee. A. Positions of the Parties The Agency argues that this proposal is not within the duty to bargain because it concerns a matter which is specifically provided for by statute -- that is, salary practices of overseas teachers are governed by 20 U.S.C. Section 903. Further, because it concerns travel to and from an employee's home of record, which is not required by the Agency and occurs when the employee is in non-pay status, the Agency claims that the proposal does not concern a condition of employment. Insofar as it would apply to newly recruited teachers who are not "formally" employees, it does not concern conditions of employment within the bargaining unit. The Union contends that the proposal concerns conditions of employment and that it does not concern a matter specifically provided for by the Department of Defense Overseas Teachers Pay and Personnel Practices Act. B. Analysis and Conclusions 1. This Proposal Does Not Concern a Matter Which Is Specifically Provided for by Statute The Department of Defense Overseas Teachers Pay and Personnel Practices Act governs, among other things, the compensation of teachers. It requires that basic compensation be fixed at rates equal to the average of the range of rates of basic compensation for similar positions in urban school jurisdictions in the United States of 100,000 or more population. 20 U.S.C. Section 903. It also requires that the Secretary of Defense implement regulations governing, among other things, the fixing of basic compensation of teachers subject to the above-described provisions set forth in 20 U.S.C. Section 903; the entitlement of teachers to compensation; and the payment of compensation to teachers and "additional compensation" for teachers. 20 U.S.C. Section 902. Thus, while the statutory provisions relating to overseas teachers dictate certain constraints within which basic compensation of teachers must be set, it also vests the Department of Defense with discretion as to other matters relating to teachers' compensation. See March v. United States, 506 F.2d 1306 (D.C. Cir. 1974); and Overseas Education Association and Department of Defense Dependents Schools, 3 FLRA 676 (1980). We find that this proposal does not relate to the specific requirements as to the computation of basic compensation rates for teachers contained in the Overseas Teachers Pay and Personnel Practices Act. Rather, it concerns the matters which the law leaves to the discretion of the Department of Defense -- such as the entitlement of teachers to, and payment of, compensation and the provision of additional compensation. See March v. U.S., 506 F.2d 1306 at 1319 and DODDS, 3 FLRA 676. We reject the Agency's argument that this proposal concerns a matter which is specifically provided for by Federal statute. 2. As to Employees This Proposal Concerns Conditions of Employment This proposal is expressly limited to those employees travelling "at the direction of Government orders." Moreover, the Union's statement of intent indicates that this proposal is to apply to travel which is subject to "government travel regulations." Petition at 15. Additionally, the proposal itself and the Union's explanation indicate that it applies to travel between an employee's legal residence and overseas duty station. Union Reply Brief at 38. Given these circumstances, we conclude that this proposal is limited to circumstances where travel between the teachers' place of actual residence and duty station has been authorized by the employer in the context of the employment relationship. Moreover, we note that several legal provisions authorize payment by the Agency of employee expenses incurred in travel between their place of actual residence and overseas post of duty. For example, 5 U.S.C. Section 5722 authorizes payment of such expenses for new appointees; 5 U.S.C. Section 5724 authorizes payment of such expenses for employees transferring to an overseas post of duty; and 5 U.S.C. Section 5728 authorizes payment of such expenses relating to RAT (see discussion of Proposals 18 and 19). In view of these legal authorities, we conclude that the proposal, which concerns the periods during which travel directly relating to the employment relationship is accomplished, is directly connected to the employment relationship and concerns conditions of employment insofar as "employees" are concerned. 3. As to "New Appointees" the Record is Insufficient to Determine Whether or Not They Are "Employees" The Agency contends that the application of this proposal to new appointees is not within the duty to bargain because it does not concern conditions of employment of employees. That is, these individuals who have not yet formally entered in to the Agency's employ. Relying on a "workshop report" generated by the Agency's Pacific Region, the Union asserts that because a new hire's effective date of "appointment" is the date he/she enters into travel status the proposal concerns conditions of employment within the bargaining unit. This aspect of the proposal relates to individuals who are travelling under authority of 5 U.S.C. Section 5722 as "new appointees" to an overseas post of duty. The question is whether they are "employees." There is a difference between being an appointee and an employee. Typically the courts draw the line using the criteria set out in 5 U.S.C. Section 2105(a) which provides: Section 2105. Employee (a) For the purpose of this title, "employee", except as otherwise provided by this section or when specifically modified, means an officer and an individual who is -- (1) appointed in the civil service by one of the following acting in an official capacity -- (A) the President; (B) a Member or Members of Congress, or the Congress; (C) A member of a uniformed service; (D) an individual who is an employee under this section; (E) the head of a Government controlled corporation; or (F) an adjutant general designated by the Secretary concerned under section 709(c) of title 32; (2) engaged in the performance of a Federal function under authority of law or an Executive act; and (3) subject to the supervision of an individual named by paragraph (1) of this subsection while engaged in the performance of the duties of his position. They also have generally held that all three criteria of this statutory definition must be met to qualify as a Federal employee as opposed to an appointee. See McCarley v. Merit System Protection Board, 757 F.2d 278 (Fed. Cir. 1985); and National Treasury Employees Union v. Reagan, 663 F.2d 239 (D.C. Cir. 1981). The definition of "employee" set forth in section 7103(a)(2) of the Statute does not require that an "appointee," who does not meet these three criteria, must be considered an "employee" for the purpose of inclusion in a bargaining unit. The document on which the Union relies to support its assertions as to "effective date of appointment" does not provide an adequate basis on which to conclude that "new appointees" are actually "employees" while enroute to their post of duty. Nor has the Agency provided adequate support for its assertion that they are not "employees" at such time. Thus, there is no basis in the record of this case for concluding whether or not newly recruited teachers traveling under authority of 5 U.S.C. Section 5722 are "employees" while enroute between their place of actual residence at the time of appointment and their overseas place of employment. Consequently, we are unable to conclude whether or not this proposal, insofar as it relates to newly recruited teachers travelling under authority of 5 U.S.C. Section 5722, concerns conditions of employment of bargaining unit employees. We reiterate that the parties are responsible for creating the record upon which we will resolve negotiability disputes. National Federation of Federal Employees, Local 1677 v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir. 1982). A party failing to assume this burden acts at its peril. Moreover, we cannot conclude that even if the new recruits are not employees, the proposal is still sufficiently related to employment in the bargaining unit positions so as to bring it within the duty to bargain. This aspect of the proposal relates solely to the pay status of new recruits while they are enroute to their first post of duty. Its applicability and effect are limited to that period. It is, in our view, distinguishable from the Authority's decisions in other cases as to proposals which, while having some applicability to individuals who are not employees, nevertheless directly relate to employment in bargaining unit positions. Compare American Federation of Government Employees, AFL-CIO, Local 2024 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 11 FLRA 125 (1983). In that decision the Authority found negotiable a proposal which related to setting rates of pay for members of the bargaining unit in the event they were released from employment and then subsequently reemployed. In finding the proposal negotiable the Authority noted that it would apply only if and when reemployment in a bargaining unit position occurred. Also, compare Overseas Education Association, Inc. and Department of Defense Office of Dependent Schools, 22 FLRA No. 34 (1986) (Proposal 1) petition for review filed sub nom. Overseas Education Association, Inc. v. FLRA, No. 86-1491 (D.C. Cir. Sept. 3, 1986). In that decision the Authority found a proposal negotiable which related to distributing orientation materials to prospective employees. In doing so, the Authority noted that despite the fact that the individuals involved were not employees at the time, the proposal directly related to employment in bargaining unit positions. C. Order The Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Proposal 20 insofar as it concerns individuals who are employees. Issued, Washington, D.C., June 24, 1987. /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY Separate Opinion of Chairman Calhoun on Proposal 20 Proposal 20 concerns whether and to what extent teachers will be compensated during periods which precede and follow the normal school year. In my view the Congress had ample opportunity to express its intent that pay and the fixing of compensation are appropriate subjects of bargaining for teachers employed by the Department of Defense Dependents School System. To this date it has not. Rather the Congress elected to give authority to the Secretary of Defense under 20 U.S.C. Section 902 to issue regulations governing among other things (1) fixing of basic compensation for teachers, (2) the entitlement of teachers to compensation, (3) the payment of compensation, and (4) the length of the school year. The Secretary's discretion is circumscribed only by the standards set forth in that section. See March v. United States, 506 F.2d 1306, 1318 n.56 (D.C. Cir. 1974). See also Overseas Federation of Teachers v. United States, 674 F.2d 34 (D.C. Cir. 1982). It is my view that the Secretary's discretion is exclusive and not subject to negotiations absent a clear expression of Congressional intent to the contrary. See my opinion in American Federation of Government Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1986). I am unable to discover such an expression in this case. To the extent that Proposal 20 concerns "new appointees," I concur with my colleagues that the record is not sufficient to determine whether the proposal concerns conditions of employment of bargaining unit employees. See McCarley v. MSPB, 757 F.2d 278 (Fed. Cir. 1985); and National Treasury Employees Union v. Reagan, 663 F.2d 239 (D.C. Cir. 1981). Issued, Washington, D.C., June 24, 1987. /s/ Jerry L. Calhoun, Chairman FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) By its Order dated June 30, 1986, the Authority denied the Agency's motion to consolidate Case Nos. 0-NG-840, 0-NG-850, 0-NG-950, 0-NG-1115 and 0-NG-1227. (2) For example, those emanating from the Department of Defense Overseas Teachers Pay and Personnel Practices Act, 93 Stat. 213 (1959) and the Overseas Differentials and Allowances Act, 74 Stat. 792 (1960). (3) Section 031 of the DSSRs provides in relevant part: 031. United States Citizen Employees 031.1 Quarters Allowances *031.11 Employees Recruited in the United States Quarters allowances prescribed in Chapter 100 may be granted to employees who were recruited by the employing government agency in the United States, the Commonwealth of Puerto Rico, and the possessions of the United States. In the case of married couples see section 134.13. *031.12 Employees Recruited Outside the United States Quarters allowances prescribed in Chapter 100 may be granted to employees recruited outside the United States, provided that a. the employee's actual place of residence in the place to which the quarters allowance applies at the time of receipt thereof shall be fairly attributable to his/her employment by the United States Government; and b. prior to appointment, the employee was recruited in the United States, the Commonwealth of Puerto Rico, the former Canal Zone, or a possession of the United States, by (1) the United States Government, including its Armed Forces; (2) a United States firm, organization, or interest; (3) an international organization in which the United States Government participates; or (4) a foreign government; and has been in substantially continuous employment by such employer under conditions which provided for his/her return transportation to the United States, the Commonwealth of Puerto Rico, the former Canal Zone, or a possession of the United States; or c. as a condition of employment by a Government agency, the employee was required by that agency to move to another area, in cases specifically authorized by the head of . agency. Subsection 031.12b may be waived by the head of agency under determination that unusual circumstances in an individual case justify such action. An employee who was determined to be eligible to be granted a living quarters allowance under former section 031.12d, last effective March 25, 1971 and last published in TL:SR-174 dated August 11, 1968, may continue to be eligible for and be granted a living quarters allowance while continuously employed in a foreign area and while he/she is otherwise eligible for such allowance. (4) In finding that this portion of the proposal is inconsistent with the DSSRs, we express no opinion as to whether the regulatory provisions involved are inconsistent with the Department of Defense Overseas Teachers Pay and Personnel Practices Act as the Union suggests. The Statute does not authorize us to rule on the legality or validity of Government-wide regulations. See American Federation of Government Employees, AFL-CIO, National Council of Grain Inspection Locals v. Federal Labor Relations Authority, 794 F.2d 1013 (5th Cir. 1986). However, we are aware that an identical contention has been rejected by the U.S. Court of Claims. Acker v. United States, 620 F.2d 802 (Ct. Cl. 1980). (5) Section 031.5 of the DSSRs provides: *031.5 Part-time Employees Part-time employees (FPM-Chapter 316, sub-Chapter 4) shall not be granted allowances, post differential, special incentive differential, or advances of pay, but may be granted danger pay allowance, prescribed in Chapter 650 and compensatory time off prescribed in Chapter 800. (6) See Federal Personnel Manual, FPM Supplement 296-33, Subchapter 35, 35-7, which contains the following definitions: PART-TIME SERVICE or PART-TIME EMPLOYMENT-Service when employee works on a part-time work schedule. PART-TIME WORK SCHEDULE-A schedule that requires an employee to work less than full-time, but for a specific number of hours (usually 16-32 hours per administrative work week) on a prearranged scheduled tour of duty. We recognize that these definitions may not be applicable to teachers in a literal sense given the realities of the teaching profession. However, we believe that the basic concept is applicable -- that is, a part-time employee is someone scheduled to work less than a full-time employee. (7) Section 132.43 of the DSSRs provides: 132.43 Occupancy of Government Quarters When an employee to whom an LQA has been granted is furnished Government-owned or -leased quarters at no personal cost, the grant shall terminate on the date immediately proceeding that on which the Government quarters are made available to him or her, unless he or she occupies Government-owned or -leased quarters only during the temporary absence of the regular occupant and at the same time is obliged to maintain his or her own quarters. (8) We also note that under 5 U.S.C. Section 5911(e) agencies are generally prohibited from requiring employees to occupy Government-owned or leased quarters in the United States on a rental basis. However, no similar prohibition has been attached to 5 U.S.C. Section 5912 which provides that an employee permanently stationed in a foreign country may be furnished, without cost, living quarters in Government-owned or rented buildings. (9) Accord 52 Comp. Gen. 293 (1972) in which the Comptroller General held that payment for moving expenses pursuant the title 5 provisions upon which we rely could only be made when an employee is transferred or assigned to a new official station. However the Comptroller General held, in circumstances involving a local move and no change in station, payment of moving expenses may be made as an administrative expense of operating an installation where the move has resulted from the Government having ordered the move for the Government's convenience. Even under this interpretation, the proposal would not be negotiable inasmuch as the discretion allowed an agency to pay moving expenses does not extend to circumstances where the move is for the convenience or benefit of the employee. (10) 5 U.S.C. Section 5923 provides: Section 5923. Quarters allowances When Government owned or rented quarters are not provided without charge for an employee in a foreign area, one or more of the following quarters allowances may be granted when applicable: (1) A temporary lodging allowance for the reasonable cost of temporary quarters incurred by the employee and his family -- (A) for a period not in excess of 3 months after first arrival at a new post of assignment in a foreign area or a period ending with the occupation of residence quarters, whichever is shorter; and (B) for a period of not more than 1 month immediately before final departure from the post after the necessary evacuation of residence quarters. (2) A living quarters allowance for rent, heat, light, fuel, gas, electricity, and water, without regard to section 3324(a) and (b) of title 31. (3) Under unusual circumstances, payment or reimbursement for extraordinary, necessary, and reasonable expenses, not otherwise compensated for, incurred in initial repairs, alterations, and improvements to the privately leased residence of an employee at a post of assignment in a foreign area, if -- (A) the expenses are administratively approved in advance; and (B) the duration and terms of the lease justify payment of the expenses by the Government. (11) Union Reply Brief at 26. (12) 10 U.S.C. Section 2830 provides: Section 2830. Occupancy of substandard family housing units (a)(1) A member of the uniformed services with dependents may, without loss of the member's basic allowance for quarters, occupy a substandard family housing unit under the jurisdiction of the Secretary of a military department. (2) Occupancy of a family housing unit under paragraph (1) shall be subject to a charge against the member's basic allowance for quarters in the amount of the fair rental value of the housing unit. However, such a charge may not be made in an amount in excess of 75 percent of the amount of such allowance. (b) Subject to regulations prescribed by the Secretary of Defense, the Secretary of a military department may lease substandard family housing units to members of any of the uniformed services for occupancy by such members. (c) In this section, "uniformed services" means the armed forces and the commissioned corps of the Public Health Service and of the National Oceanic and Atmospheric Administration. (13) The FTRs provide in relevant part: 1-2.2. Methods of transportation. a. Authorized methods. Methods of transportation authorized for official travel include railroads, airlines, helicopter service, ships, buses, streetcars, subways, and taxicabs; Government-furnished and contract rental automobiles and airplanes; and any other necessary means of conveyance. b. Selecting method of transportation to be used. Travel on official business shall be by the method of transportation which will result in the greatest advantage to the Government, cost and other factors considered. In selecting a particular method of transportation to be used, consideration shall be given to energy conservation and to the total cost to the Government, including costs of per diem, overtime, lost worktime, and actual transportation costs. Additional factors to be considered are the total distance of travel the number of points visited, and the number of travelers. As cited in 5 U.S.C. 5733, "The travel of an employee shall be by the most expeditious means of transportation practicable and shall be commensurate with the nature and purpose of the duties of the employee requiring such travel." b-1. Traveler's cost liability when selected method is not used. The traveler shall use the method of transportation administratively authorized or approved by the agency as most advantageous to the Government. (See 1-2.2b.) Any additional cost resulting from use of a method of transportation other than that specifically authorized, approved, or required by regulation, e.g., contract air service (see 1-2.2c(1)(b)(i), below), shall be the traveler's responsibility. . . . . . . . d. Permissive use of a privately owned conveyance. When an employee uses a privately owned conveyance as a matter of personal preference and such use is compatible with the performance of official business, although not determined to be advantageous to the Government under 1-2.2c(3), such use may be authorized or approved provided that reimbursement is limited in accordance with the provisions of 1-4. (14) Accord. Unpublished Decision of the Comptroller General, B-191190, March 16, 1979; Unpublished Decision of the Comptroller General, B-168202, December 2, 1969. (15) 5 U.S.C. Section 5728 provides in relevant part: Section 5728. Travel and transportation expenses; vacation leave (a) Under such regulations as the President may prescribe, an agency shall pay from its appropriations the expenses of round-trip travel of an employee, and the transportation of his immediate family, but not household goods, from his post of duty outside the continental United States, Alaska, and Hawaii to the place of his actual residence at the time of appointment or transfer to the post of duty, after he has satisfactorily completed an agreed period of service outside the continental United States, Alaska, and Hawaii and is returning to his actual place of residence to take leave before serving another tour of duty at the same or another post of duty outside the continental United States, Alaska, and Hawaii under a new written agreement made before departing from the post of duty. (16) S. Rep. No. 1944, 83rd Cong., 2d Sess., reprinted in 1954 U.S. Code Cong. & Ad. News 3573. (17) FTRs, 2-2.4 provides: 2-2.4. Advance of funds. Advance of funds may be made for per diem and mileage allowances as provided in 2-2.1, 2-2.2b, and 2-2.3 except in connection with employees assigned to posts of duty outside the conterminous United States performing authorized or approved overseas tour renewal agreement travel. Such advances may also be made upon return to the place of residence for the purpose of separation under the policies and procedures prescribed in 2-1.6a. (18) FTRs, 1-2.5b. provides: b. Indirect-route or interrupted travel. When a person for his/her own convenience travels by an indirect route or interrupts travel by direct route, the extra expense shall be borne by him/her. Reimbursement for expenses shall be based only on such charges as would have been incurred by a usually traveled route. When transportation requests are used, they shall be issued only for that portion of the expense properly chargeable to the Government, and the employee shall pay the additional personal expense, including the Federal transportation tax. (See 1-11.5a(3).) (19) Chapter 2 of the FTRs provides in relevant part: CHAPTER 2. RELOCATION ALLOWANCES PART 1. APPLICABILITY AND GENERAL RULES . . . . . . . 2-1.5 Eligibility and conditions . . . . . . . h. Overseas tour renewal agreement travel. Employees may be eligible to receive allowances for travel and transportation expenses for the purpose of returning home to take leave between tours of duty overseas as provided herein. . . . . . . . (2) Allowable travel and transportation . . . . . . . (b) Allowances. These allowances are payable in accordance with the provisions of Chapter 1 and are limited to per diem instead of subsistence and transportation costs for the employee and transportation costs (but not per diem instead of subsistence) for his/her immediate family. (See 2-2.1.) If a transfer is also involved, family per diem may be paid as authorized by 2-2.2b to the extent such per diem is payable incident to direct travel between posts of duty. (c) Alternative destination. An employee and his/her family may travel to a location in the United States, its territories or possessions, Puerto Rico, or another country in which the place of actual residence is located other than the location of the place of actual residence; however, an employee whose actual residence is in the United States must spend a substantial amount of time in the United States, its territories or possessions, or Puerto Rico incident to travel under 2-1.5h to be entitled to the allowance authorized. The amount allowed for travel and transportation expenses when travel is to an alternate location shall not exceed the amount which would have been allowed for travel over a usually traveled route from the post of duty to the place of actual residence and for return to the same or a different post of duty outside the conterminous United States as the case may be. . . . . . . . PART 2. ALLOWANCES FOR SUBSISTENCE AND TRANSPORTATION 2-2.1. For the employee. Except as specifically provided in these regulations, per diem instead of subsistence expenses, transportation costs, and other travel expenses of the employee shall be allowed in accordance with the provisions of 5 U.S.C. 5701-5709 and Chapter 1; the maximum per diem rate allowable for travel within CONUS shall be the standard CONUS rate prescribed under 1-7.2 (see also 1-7.5a). Within CONUS, the prohibition on paying per diem for travel of less than 10 hours will apply to change of official station travel; outside CONUS, then 10-hour exclusion does not apply (see 1-7.4b). This part applies to travel of transferred employees, new appointees (including those covered in 2-1.5f), and employees assigned to posts of duty outside the conterminous United States in connection with either overseas tour renewal agreement travel or return travel to places of residence for the purpose of separation. 2-2.2. For members of an employee's immediate family. a. Transportation. Except as specifically provided in these regulations, allowable travel expenses for the employee's immediate family, including transportation, are governed by Chapter 1. Travel of the immediate family may begin at the employee's old official station or some other point, or partially at both, or may end at the new official station or some other place selected by the employee, or partially at both. However, the cost to the Government for transportation of the immediate family shall not exceed the allowable cost by the usually traveled route between the employee's old and new official stations. (20) 5 U.S.C. Section 5733 provides: Section 5733. Expeditious travel The travel of an employee shall be by the most expeditious means of transportation practicable and shall be commensurate with the nature and purpose of the duties of the employee requiring such travel. (21) S. Rep. No. 801, 90th Cong., 1st Sess., reprinted in 1967 U.S. Code Cong. & Ad. News, 2258, 2288. (22) 10 U.S.C. Section 2301(d) provides in relevant part: (d) Instead of, or in addition to, detailing officers and noncommissioned officers on active duty under subsection (c)(1), the Secretary of the military department concerned may authorize qualified institutions to employ, as administrators and instructors in the program, retired officers and noncommissioned officers, and members of the Fleet Reserve and Fleet Marine Corps Reserve, whose qualifications are approved by the Secretary and the institution concerned and who request such employment, subject to the following: (1) Retired members so employed are entitled to receive their retired or retainer pay and an additional amount of not more than the difference between their retired pay and the active duty pay and allowances which they would receive if ordered to activde duty, and one-half of that additional amount shall be paid to the institution concerned by the Secretary of the military department concerned from funds appropriated for that purpose. (23) Section 031.23 of the DSSRs provides: *031.2 Other Allowances Post allowances prescribed in subchapter 220, danger pay allowance prescribed in Chapter 650, and the compensatory time off prescribed in Chapter 800 may be granted to employees defined in section 040i. Other cost-of-living allowances (supplementary post allowances, transfer allowances, home service transfer allowances, separate maintenance allowances, education allowances, and educational travel) and special incentive differential prescribed in subchapters 230, 240, 250, 260, 270, 280, and Chapter 570, respectively, may be granted subject to exceptions contained in the foregoing chapters, only to those employees who are eligible for quarters allowances under section 031.1. Employees of the Peace Corps shall not be eligible for allowances mentioned in this paragraph except as may be expressly authorized by the Director of the Peace Corps in amounts determined by him/her not in excess of those determined in accordance with the relevant provisions of Chapters 200, 570 and 650. (24) The Union's argument that teachers who teach less than a full instructional day are not "part-time" employees is rejected here for the same reasons expressed in conjunction with Proposal 2. (25) Section 031.3 of the DSSRs provides in relevant part: 031.3 Post Differential Post differential prescribed in Chapter 500 may be granted to employees who are described in sections 031.11 and 031.12, including married employees, and to employees officially stationed in the United States who are on extended detail (Sec. 541) in a foreign area, except that: a. Post differential may not be granted to a non-spouse dependent employee who is a member of the household of another employee or of a member of the U.S. Armed Forces(.) (26) Chapter 500 of the DSSRs provides in relevant part: CHAPTER 500 POST DIFFERENTIAL 510 GENERAL 511 Definitions For the purpose of this chapter a. "Post Differential" means the additional compensation of 10, 15, 20, or 25 percent over basic compensation granted pursuant to Title II, Part D, of the Overseas Differentials and Allowances Act (Public Law 86-707) and provisions of this chapter to employees (Secs. 031.3 and 040i) at differential posts. b. "Differential post" means (1) a place listed individually in section 920 (of the DSSRs) for which a post differential rate other than zero is shown in column 7; or (2) a place which is not listed individually in section 920 but which is located in a country or area for which a post differential rate other than zero is shown in column 7 of section 920. . . . . . . . 512 Scope Post differential is designed to provide additional compensation to employees for service at places in foreign areas where conditions of environment differ substantially from conditions of environment in the continental United States and warrant additional compensation as a recruitment and retention incentive. 513 Basis for Post Differential 513.1 Classification A post differential is established for any place when, and only when, the place involves extraordinarily difficult living conditions, excessive physical hardship, or notably unhealthful conditions affecting the majority of employees officially stationed or detailed at that place. Living costs are not considered in differential determination. (27) Section 136 of the DSSRs provides: *136 Personally Owned Quarters a. When quarters occupied by an employee are owned by the employee or the spouse, or both, an amount up to 10 percent of original purchase price of such quarters shall be considered the annual rate of his/her estimated expenses for rent. Only the expenses for heat, light, fuel (including gas and electricity), water and in rare cases land rent, may be added to determine the amount of the employee's quarters allowance in accordance with section 134. The payment of the rental portion of the allowance (up to 10 percent of purchase price) is limited to a period not to exceed ten years at which time the employee will be entitled only to the above utility expenses, plus land rent. b. The following transactions shall not be considered to meet the intent of these regulations so as to warrant payment of the rental portion of living quarters allowance beyond the initial ten years period specified in Part a.: (1) sale or gift of quarters owned by the employee or the spouse, or both with employee remaining in the same quarters, or (2) the purchase or exchange and move to other quarters in daily commuting distance of the same post. Payment for utilities and (if necessary) land rent may be continued beyond the 10-year period. The head of agency may waive provisions in Part b. in unusual circumstances. (28) Section 132.42 of the DSSRs provides: *132.42 Separation When an employee is separated (Sec. 040r) while assigned to a post at which he/she has been granted an LQA, such grant shall terminate at the end of the last day of his/her employment (except as provided in sec. 132.2b(3). Section 040r provides: r. "Separation" means termination of an employee's services with a government agency (including termination by resignation, retirement, or death). (29) See S. Rep. No. 1647, 86th Cong. 2d sess., reprinted in 1960 U.S. Code Cong. & Ad. News 3338 which accompanied the Overseas Differentials and Allowances Act. In discussing the provisions for payment of a living quarters allowance stated at 3339: The quarters allowance is paid as a reimbursement of allowable costs incurred up to established ceilings. (Emphasis supplied.) (30) For example, the DSSRs provide in relevant part: 051 Allowance Payments 051.1 Determining Rate Methods for determining the rate of payment of each allowance granted to an employee in accordance with Chapters 100-300, 600 and 850 are prescribed in subchapters dealing with each allowance. (As to living quarters allowance:) 134 Determination of Rate Except as otherwise prescribed in sections 134, 136, and 137, an employee shall receive an allowance of his or her allowable quarters costs for items listed in sections 131.2 and 131.3, or the maximum rate for his or her post (sec. 040m) indicated in sections 920 and 932, whichever is less, unless the rate is revised by administrative action in accordance with sections 134.2, 136 and 137. (As post differentials:) 511. Definitions . . . . . . . b. "Differential post" means (1) a place listed individually in section 920 for which a post differential rate other than zero is shown in column 7 (.) (As to danger pay allowances:) 652 Scope . . . . . . . e. Unless otherwise specified, the amount of the danger pay allowance shall be the maximum rate of 25 percent of basic compensation. Also Chapter 920 of the DSSRs sets forth specific rates for many overseas differentials and allowances. (31) For example, agencies are required to pay less than the full amount of the living quarters allowance, or withhold payment altogether when an employee lets or sublets his/her quarters or when there is a significant devaluation in the rate of exchange. DSSRs, 134.2. Similarly an adjustment in the living quarters allowance is required in circumstances where the quarters occupied are owned by the employee or the spouse, or both. DSSRs, 136. (32) Section 134.13 of the DSSRs provides: 134.13 Married Couples Rates a. The following rates of quarters allowances may be granted to married couples residing together: (1) If both are civilian employees of the United States Government eligible for a quarters allowance (Secs. 031.11 and 031.12) and have members of family (Sec. 040m), one employee at his or her option may receive the basic "with family" allowance rate plus increments for additional family members. The other employee may receive the "without family" rate. In determining the increment for additional family members both employees should be excluded. Where the couple has no additional members of family each employee may be granted the "without family" rate. (2) If only one of the married couple is eligible for a quarters allowance from the United States Government, the "with family" rate may be granted to that employee plus increments for additional members of the family. (3) An employee eligible for a quarters allowance who is married to, and residing at the post with, a member of the military service of the United States may be granted the "without family" rate if the spouse in the military service draws a quarters allowance, the employee may be granted the "with family" rate plus increments for additional members of the family, except that no payment shall be made to the spouse of a member of the military service if the spouse resides with the member of the military service in Government-owned or leased quarters. (33) Section 040m provides in relevant part: m. "Family" means one or more of the following relatives of an employee residing at his post, or who would normally reside with him at the post except for the existence of circumstances cited in section 262.1 warranting the grant of a separate maintenance allowance, but who does not receive from the Government an allowance similar to that granted to the employee and who is not deemed to be a dependent or a member of the family of another employee for the purpose of determining the amount of a similar allowance: (1) Spouse, excluding a spouse entitled to and receiving a similar allowance; (2) Children who are unmarried and under 21 years of age or, regardless of age, are incapable of self-support. The term shall include, in addition to natural offspring, step and adopted children and those under legal guardianship of the employee or the spouse when such children are expected to be under such legal guardianship at least until they reach 21 years of age and when dependent upon and normally residing with the guardian. (See subchapters 270 and 280 on education allowances and educational travel.) (34) Section 052.2 of the DSSRs provides: 052.2 Employees in Non-Pay Status Payment of post differential shall be suspended while an employee is in non-pay status. (35) Section 051.2 of the DSSRs provides: 051.2 Employees in Non-Pay Status All allowances granted under these regulations may continue during periods while the employee is in non-pay status not in excess of 14 calendar days at any one time. For periods in non-pay status longer than 14 calendar days, payments under allowance grants are to be suspended as of the day the employee enters the non-pay status, and payment is not to be made for any part of such period, unless otherwise specifically provided in these regulations (Sec. 132.3b(2)). (36) Section 132.2 of the DSSRs provides in relevant part: 132.2 Continuance of Grant The LQA grant may continue, provided the employee maintains and pays for his/her quarters at the post: . . . . . . . b. When the head of agency determines that continuance of the grant would be in the public interest . . . . . . . (2) while the employee is in non-pay status not in excess of 30 calendar days at any one time. For periods in non-pay status longer than 30 calendar days, payment shall be suspended as of the day the employee enters such status, and payment is not to be made for any part of such period. (37) Under 20 U.S.C. Section 904 not more than 75 days of leave may accumulate to the credit of a teacher at any one time. (38) Section 040i provides: i. "Employee" means an individual employed in the civilian service of a government agency (including ambassadors, ministers, and members of the Foreign Service of the United States under the Department of State) who is (1) a citizen of the United States; (except under sec. 312); (2) officially stationed in a foreign area, except as otherwise specifically provided in these regulations; (3) receiving basic compensation (See Sec. 040c) and (4) eligible for allowances or differential under sub-chapter 030. No sex discrimination is implied or intended through use of male pronouns which may appear in these regulations. (39) FTRs, 2-1.5.h provides in relevant part: h. Overseas tour renewal agreement travel. Employees may be eligible to receive allowances for travel and transportation expenses for the purpose of returning home to take leave between tours of duty overseas as provided herein. The provisions of 2-1.5h are applicable to employees serving tours of duty at posts of duty outside the United States. These provisions are also applicable to employees serving tours of duty in Alaska or Hawaii but only under the conditions specified in 2-1.5h(1)(b) and (c), below. (Reference: Pub. L. 97-253 approved September 8, 1982, and Pub. L. 97-346 approved October 15, 1982.) . . . . . . . (2) Allowable travel and transportation . . . . . . . (b) Allowances. These allowances are payable in accordance with the provisions of Chapter 1 and are limited to per diem instead of subsistence and transportation costs for the employee and transportation costs (but not per diem instead of subsistence) for his/her immediate family. (See 2-2.1.) If a transfer is also involved, family per die may be paid as authorized by 2-2.2b to the extent such per diem is payable incident to direct travel between posts of duty. . . . . . . . (3) Limitations (b) Local hires not eligible. (1) Married persons in area with spouse. An employee hired locally is not eligible for allowances under 2-1.5h if he/she is married and is in the immediate geographic area because his/her spouse is in the area as a member of the Foreign Service, a member of the uniformed services (as defined in title 37 U.S.C.), a private individual, or an employee of a private individual or a non-Federal organization. (40) 5 U.S.C. Section 5925 provides: Section 5925. Post differentials (a) A post differential may be granted on the basis of conditions of environment which differ substantially from conditions of environment in the continental United States and warrant additional pay as a recruitment and retention incentive. A post differential may be granted to an employee officially stationed in the United States who is on extended detail in a foreign area. A post differential under this subsection may not exceed 25 percent of the rate of basic pay. (b) Any employee granted a differential under subsection (a) of this section may be granted an additional differential for an assignment to a post determined to have especially adverse conditions of environment which warrant additional pay as a recruitment and retention incentive for the filling of positions at that post. An additional differential for any employee under this subsection -- (1) may be paid for each assessment to a post determined to have such conditions; (2) may be paid periodically or in a lump sum; and (3) may not exceed 15 percent of the rate of basic pay of that employee for the period served under that assignment. (41) 5 U.S.C. Section 5922(c) provides: (c) The allowances and differentials authorized by this subchapter shall be paid under regulations prescribed by the President governing -- (1) payments of the allowances and differentials and the respective rates at which the payments are made; (2) the foreign areas, the groups of positions, and the categories of employees to which the rates apply; and (3) other related matters. (42) Executive Order No. 10903, as amended, provides in relevant part: By virtue of the authority vested in me by section 301 of title 3 of the United States Code (section 301 of Title 3, The President), and various provisions of law cited in the body of this order, and as President of the United States, it is hereby ordered as follows: Section 1. The Secretary of State is hereby designated and empowered to perform the following-described functions without the approval, ratification, or other action of the President: (a) The authority vested in the President by section 5921(3) of Title 5, United States Code (par. (3) of this section), to prescribe regulations defining the term "employee". (b) The authority vested in the President by subchapter III of Chapter 59 of title 5 of the United States Code (this subchapter), to prescribe regulations, including the regulations referred to in sections 5922(b), 5922(c), and 5925(4)(B) of that title (sections 5922(b), 5922(c), and 5924(4)(B) of this title) (governing, respectively, (1) certain waivers of recovery, (2) the payment of allowances and differentials authorized by said subchapter and certain other matters, and (3) travel expenses for dependents of certain employees.) (43) 5 U.S.C. Section 5928 provides: Section 5928. Danger pay allowance An employee serving in a foreign area may be granted a danger pay allowance on the basis of civil insurrection, civil war, terrorism, or wartime conditions which threaten physical harm or imminent danger to the health or well-being of the employee. A danger pay allowance may not exceed 25 percent of the basic pay of the employee, except that if an employee is granted an additional differential under section 5925(b) of this title with respect to an assignment, the sum of that additional differential and any danger pay allowance granted to the employee with respect to that assignment may not exceed 25 percent of the basic pay of the employee. The presence of nonessential personnel or dependents shall not preclude payment of an allowance under this section. In each instance where an allowance under this section is initiated or terminated, the Secretary of State shall inform the Speaker of the House of Representatives and the Committee on Foreign Relations of the Senate of the action taken and the circumstances justifying it. (44) Chapter 650 of the DSSRs provides in relevant part: CHAPTER 650 DANGER PAY ALLOWANCE 651 Definitions For the purpose of this chapter . . . . . . . b. "Danger Pay Post" means: 1. A place listed individually in Section 920 which has been so designated by the Secretary of State. 2. A place which is not listed individually in Section 920 but which is located in a country or area which has been so designated by the Secretary of State. (45) 20 U.S.C. Section 906 provides in relevant part: Section 906. Cost-of-living allowances and post differential (a) Under regulations which shall be prescribed by or under authority of the President, each teacher (other than a teacher employed in a substitute capacity) shall be entitled, in addition to basic compensation, to -- (1) cost-of-living allowances equal to those authorized by section 5924 of Title 5 . . . . 5 U.S.C. Section 5924(4) provides: Section 5924. Cost-of-living allowances The following cost-of-living allowances may be granted, when applicable, to an employee in a foreign area: . . . . . . . (4) An education allowance or payment of travel costs to assist an employee with the extraordinary and necessary expenses, not otherwise compensated for, incurred because of his service in a foreign area or foreign areas in providing adequate education for his dependents, as follows: (A) An allowance not to exceed the cost of obtaining such kindergarten, elementary and secondary educational services as are ordinarily provided without charge by the public schools in the United States, plus, in those cases when adequate schools are not available at the post of the employee, board and room, and periodic transportation between that post and the nearest locality where adequate schools are available, without regard to section 3324(a) and (b) of title 31. The amount of the allowance granted shall be determined on the basis of the educational facility used. (B) The travel expenses of dependents of an employee to and from a school in the United States to obtain an American secondary or undergraduate college education, not to exceed one annual trip each way for each dependent. An allowance payment under subparagraph (A) of this paragraph (4) may not be made for a dependent during the 12 months following his arrival in the United States for secondary education under authority contained in this subparagraph (B). Notwithstanding section 5921(6) of this title, travel expenses, for the purpose of obtaining undergraduate college education, may be authorized under this subparagraph (B), under such regulations as the President may prescribe, for dependents of employees who are citizens of the United States stationed in the Canal Zone. (46) The stated purpose of the Overseas Differentials and Allowances Act, which continued the existing authority for payment of education allowances was as follows: TITLE I -- PURPOSE AND DEFINITIONS PART A -- PURPOSE Sec. 101. The Congress hereby declares that it is the purpose of this Act to improve and strengthen the administration of overseas activities of the Government by -- (1) providing a means for more effectively compensating Government employees for the extra costs and hardships incident to their assignments overseas. (2) providing for the uniform treatment of Government employees stationed overseas to the extent justified by relative conditions of employment, (3) establishing the basis for the more efficient and equitable administration of the laws compensating Government employees for the extra costs and hardships incident to their assignments overseas, and (4) facilitating for the Government the recruitment and retention of the best qualified personnel for civilian service overseas. (Overseas Differentials and Allowances Act, Pub. L. No. 86-707 Section 101, 74 Stat. 792 (1960)) Additionally, the Senate Report which accompanied the bill which became that Act stated: The importance of sound and effective personnel policies in the conduct of our overseas programs is well recognized. The success of such programs depends largely upon the employees engaged in carrying them out. The effectiveness of their performance is directly related to the fairness and wisdom inherent in the policies under which personnel are employed. To this end, this bill advances the recognized principle that its civilian employees should be adequately reimbursed for additional expenses necessarily incurred because of their overseas services; that they should be compensated for hardship, inconveniences, or other environmental and working conditions not encountered in the United States; and that, insofar as practicable, these overseas employees should be compensated upon the basis of the same criteria without regard to the identity of the employing Federal agency. (S. Rep. No. 1647, 86th Cong., 2d Sess., reprinted in 1960 U.S. Code & Ad. News 3338, 3339. (47) In discussing education allowances, the Senate Report accompanying the bill which became the Overseas Differentials and Allowances Act stated: Education allowances are granted only at those posts where the costs of adequate schooling in grades 1 through 12 are in excess of the costs that would be incurred for a child in a U.S. public school. If adequate schools are available at the post, no allowance is established for a school away from the post. If no adequate school exists at a post, an allowance rate is established that is based on the costs of attending the nearest and least expensive adequate school. If a U.S. Military Dependents' School is available at a post, no education allowance is paid for a child to attend any other school in a foreign country, unless special circumstances of illness or distance prevent attendance. (S. Rep. No. 1647, 86th Cong. 2d Sess., reprinted in 1960 U.S. Code & Ad. News 3338, 3344. (48) Chapter 280 of the DSSRs provides in relevant part: 280 EDUCATIONAL TRAVEL 281 Definitions For the purpose of this subchapter: . . . . . . . e. "Annual trip" means one round trip between post and school in the United States within one 12-month period of the defendant's schooling. The round trip may be taken at any time in each 12-month period. Round trips or portions thereof not taken in each 12-month period cannot accumulate to a subsequent period. 282 Scope Educational travel permits payment of travel expenses for a child to a school in the United States from the employee's post for secondary or college education and return to the post, once each way annually for each type of education except as otherwise provided in section 284. Under certain conditions prescribed in section 284 such travel is authorized in addition to any other travel authorized for the child in connection with travel authorized for the employee. No education allowance may be granted for certain periods following the child's arrival in the United States via educational travel. (See Sec. 276.2). 283 Standards for Authorization Subject to the conditions in section 284, the head of agency may authorize payment or reimbursement to the employee for travel expenses for a child to a school in the United States from the employee's foreign post for secondary or college education and return to the post, once each way annually for each type of education. The first educational travel trip for obtaining each type of education (secondary or college) must originate outside the United States except as otherwise provided in section 284. Column V (2). Subsequent round trips may originate in the United States. (49) FTRs, 2-8.4 provides in relevant part: 2-8.4. Transportation outside the conterminous United States. a. Coverage. This paragraph contains the special rules which are applicable to the transportation of household goods at Government expense to, from, and between points outside the conterminous United States. Individual eligibility is covered in 2-1.2 and 2-1.5. b. Weight limitation. The maximum weights specified in 2-8.2 are applicable; however, where furnished or partly furnished quarters are to be provided outside the conterminous United States (in the case of a transfer to such a station) or have been provided (in the case of a return to the conterminous United States), agencies shall make an appropriate reduction in the weight of household goods which may be authorized for shipment at Government expense. (50) 5 U.S.C. Section 5722 provides in relevant part: Section 5722. Travel and transportation expenses of new appointees; posts of duty outside the continental United States. (a) Under such regulations as the President may prescribe and subject to subsections (b) and (c) of this section, an agency may pay from its appropriations -- (1) travel expenses of a new appointee and transportation expenses of his immediate family and his household goods and personal effects from the place of actual residence at the time of appointment to the place of employment outside the continental United States; and (2) these expenses on the return of an employee from his post of duty outside the continental United States to the place of his actual residence at the time of assignment to duty outside the United States. 5 U.S.C. Section 5724 provides in relevant part: (d) When an employee transfers to a post of duty outside the continental United States, his expenses of travel and transportation to and from the post shall be allowed to the same extent and with the same limitations prescribed for a new appointee under section 5722 of this title. FTRs, 2-1.5.g provides in relevant part: g. Overseas assignment and return. (1) Transferees. Employees transferred to, from, and between official stations outside the conterminous United States are eligible for many of the benefits provided by these regulations, and employees transferred to such stations are eligible for return transportation under the conditions and limitations contained in 2-1.5g(3) through (6). Specific eligibility provisions and applicable limitations are contained in the parts of these regulations relating to the benefits provided. (2) New appointees. (a) Residence at time of appointment. A new appointee to a position outside the conterminous United States is eligible for certain travel and transportation benefits under these regulations if his/her residence at the time of appointment is in an area other than the area in which his/her official station is located. Under this rule "area" means a foreign country, the conterminous United States, Alaska, Hawaii, the Commonwealth of Puerto Rico, or a territory or possession of the United States. . . . . . . . (d) Alternate origin or destination. Travel and transportation benefits authorized are from the employee's residence at time of appointment to his/her official station. If alternate origins or destinations are involved, the cost which will be paid by the Government may not exceed the cost that would have been incurred for the travel or transportation in question between the residence and the official station. . . . . . . . (4) Return for separation. When an employee is eligible for return travel and transporation to his/her place of actual residence upon separation after completion of the period of service specified in an agreement executed under 2-1.5a(1)(b) or is separated for reasons beyond his/her control and acceptable to the agency concerned, he/she may receive travel and transportation to an alternate location, provided the cost to the Government shall not exceed the cost of travel and transportation to his/her residence at the time he/she was assigned to an overseas station. However, under decisions of the Comptroller General, ordinarily an employee is entitled to travel and transportation expenses upon separation only to the country of actual residence at the time of assignment to such duty. (51) The FTRs provide in relevant part: PART 8. TRANSPORTATION AND TEMPORARY STORAGE OF HOUSEHOLD GOODS AND PROFESSIONAL BOOKS, PAPERS, AND EQUIPMENT 2-8.1. Applicability. Employees covered by these regulations who have complied with the general requirements as contained in 2-1.2 and 2-1.5 are eligible for transportation and temporary storage of their household goods subject to the provisions of this part when they are transferred, regardless of whether the official stations involved are within or outside the conterminous United States, are appointed to positions in which Government transportation to the first official station is allowable, or are separated after completion of a period of service overseas. 2-8.2. General limitations. a. Maximum weight allowance. The maximum weight of household goods that may be transported or stored in connection therewith at Government expense is limited to 18,000 pounds net weight for all employees. The total weight of household goods stored under 2-9.2 plus the weight of household goods transported under this Part 8 shall not exceed the above maximum weight allowance. . . . . . . . PART 9. ALLOWANCES FOR NONTEMPORARY STORAGE OF HOUSEHOLD GOODS 2-9.2. Nontemporary storage during assignment outside the conterminous United States. . . . . . . . c. Allowable storage . . . . . . . (3) Partial storage. The employee or new appointee may be authorized to have a portion of his/her goods transported to the official station unless it is a station to which he/she is not authorized to take or at which he/she is unable to use any of the goods. However, the weight of the goods stored plus the weight of the goods transported shall not exceed the maximum applicable weight allowance for which the employee is eligible. (52) FTRs, 2-8.2.d provides: (d) Origin and destination. Cost of transportation of household goods may be paid by the Government whether the shipment originates at the employee's last official station or place of residencde or at some other point, or if part of the shipment originates at the last official station and the remainder at one or more other points. Similarly, these expenses are allowable whether the point of destination is the new official station or some other point selected by the employee, or if the destination for part of the property is the new official station and the remainder is shipped to one or more other points. However, the total amount which may be paid or reimbursed by the Government shall not exceed the cost of transporting the property in one lot by the most economical route from the last official station of the transferring employee (or the place of actual residence of the new appointee at time of appointment) to the new official station. In connection with return from overseas for separation, see 2-1.5g(4). No property acquired by the employee enroute between old and new official stations shall be eligible for transportation under this part. (53) In finding these proposals negotiable, we make no judgments as to their merits.