NFFE Local 29 and Corps of Engineers, Kansas City District (Authority decision, May 13, 1985)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority on a negotiability petition. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

NFFE Local 29 proposed standards for when government lodging would count as adequate and available during temporary duty assignments. The Corps of Engineers objected that the standards conflicted with agency travel and housing regulations. Relying on an earlier ruling about an equivalent proposal, the Authority found a conflict with agency regulations supported by a compelling need. It dismissed the union's negotiability petition.

Decision snapshot

• Authority: Agency regulation compelling need rule under 5 U.S.C. § 7117(a)(2).
• Outcome: Government quarters proposal outside the duty to bargain.
• Key point: The proposed lodging standards conflicted with agency regulations for which the Authority found a compelling need.

Full text (FLRA public release)

[ v17 p1052 ]

17:1052(141)NG

The decision of the Authority follows:

17 FLRA No. 141

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 29
Union

and

KANSAS CITY DISTRICT
CORPS OF ENGINEERS,
KANSAS CITY, MISSOURI
Agency

Case No. 0-NG-841

DECISION AND ORDER ON NEGOTIABILITY ISSUES

The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute), and raises issues regarding the negotiability of the following Union proposal: /1/

Union Proposal

1. GENERAL: The use of Government quarters during temporary
   (TDY) assignments to military posts, camps, stations or depots owned and operated by the United States (installation) may be required under certain conditions. Use of Government quarters by Unit employees is not mandatory. However, non-utilization of 'available,' 'adequate' Government quarters can result in forfeiture of the quarters portion (50%) of the per diem allowance.

2. DEFINITION of 'ADEQUATE' GOVERNMENT QUARTERS: Adequate
   Government quarters shall:

(a) be of size outlined in Joint Travel regulations;

(b) have a private entrance and bath, and provide for double or single occupancy at employee's option;

(c) have daily maid service, including fresh linens daily and water cups;

(d) have adequate eating facilities (available to general public) within walking distance for all meals, seven days a week, open from 6 a.m. to 10 p.m. at a minimum;

(e) have adequate laundry and dry cleaning service within walking distance;

(f) be properly air conditioned, heated, and ventilated;

(g) be properly working television in room;

(h) have alarm clock available or alternative wake-up service;

(i) have commercial transportation (bus/taxi) available for use after non-duty hours;

(j) be clean and neat with attractive decor.

3. DEFINITION OF 'AVAILABLE' GOVERNMENT QUARTERS: Available
   Government quarters shall:

(a) fulfill the 'adequacy' definition;

(b) be open for occupancy upon arrival of employee at the TDY station;

(c) have been booked by the Employer, at request of employee, at least a week prior to the employee's arrival.

4. UTILIZATION OF GOVERNMENT QUARTERS DETERMINATION:

The Employer (order issuing official) will, prior to employee being issued travel orders, determine if the TDY is to a Government installation. The following action will apply if:

(a) the TDY is to a Government installation, and 'adequate' Government quarters are available, then:

(1) the Employer will advise the employee of the availability of adequate Government quarters and that the non-use of them will result in the forfeiture of the quarters portion (50%) of the per diem allowance unless the employee secures a non-availability certificate from the installation Commander; and

(2) the Employer will record "Reimbursement limited to the use of Government quarters unless statement of non-availability and lodging receipts are furnished" in the remarks section of travel order; . . . (Only the underlined portions are in dispute.)

Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. The disputed portions of the Union's proposal would establish standards of adequacy for government quarters utilized by civilian employees as accommodation while on temporary duty and would define the term "available" to include only those quarters which are adequate. The Agency refuses to negotiate over the proposal contending, among other things, that it is inconsistent with Agency regulations /2/ for which a compelling need exists and, therefore, is not within the duty to bargain under section 7117(a)(2) of the Statute. /3/ The Union, however, disputes the Agency's contention claiming that a conflict does not exist between its proposal and the Agency's regulations and, in the event that a conflict does exist, there is no compelling need for the Agency's regulations. Thus, the proposal and arguments raised by the parties in the instant petition are identical in effect to those at issue in National Federation of Federal Employees, Local 561 and Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama, 17 FLRA No. 105 (1985), wherein the Authority ruled that the proposal conflicted with Agency regulations for which a compelling need existed. Hence, for the reasons stated and the case cited in Department of Army, U.S. Army Corps of Engineers, Mobile, Alabama, the Authority concludes that the Union's proposal conflicts with Agency regulations for which a compelling need exists. Therefore, based upon the arguments of the parties, the Authority concludes that the proposal is outside the duty to bargain under the Statute. /4/

Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., May 13, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY

--------------- FOOTNOTES$ ---------------

/1/ In its Statement of Position in response to the Union's appeal, the Agency contends for the first time that two additional sections of the Union's proposal, sections 3(b) and (c) are outside the duty to bargain. These sections were not appealed by the Union and, therefore, are not before the Authority at this time. See section 7117(c)(3) of the Statute and section 2424.1 of the Authority's Rules and Regulations.

/2/ The regulations which the Agency contends that the proposal is inconsistent therewith include the Department of Defense Civilian Personnel, Volume 2, Joint Travel Regulations and the Department of Defense Instruction 4165.47, Adequacy, Assignment, Utilization, and Inventory of Unaccompanied Personnel Housing.

/3/ Section 7117(a)(2) of the Statute provides as follows:

Sec. 7117. Duty to bargain in good faith; compelling need; duty to consult

(a)(2) The duty to bargain in good faith shall, to the extent not inconsistent with Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any agency rule or regulation referred to in paragraph (3) of this subsection only if the Authority has determined under subsection (b) of this section that no compelling need (as determined under regulations prescribed by the Authority) exists for the rule or regulation.

/4/ In view of the decision herein, the Authority finds it unnecessary to address the remaining contentions of the Agency as to the negotiability of the proposal.