National Federation of Federal Employees, Local 1669 and Arkansas Air National Guard (Authority decision, September 29, 1983)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. Under 5 U.S.C. § 7123(a), an aggrieved person may generally seek judicial review in an appropriate United States court of appeals within 60 days after issuance. A review petition does not itself stay the order.

Plain-English summary

NFFE Local 1669 challenged the Arkansas Air National Guard’s objections to two travel proposals. The Authority treated the military uniform proposal as moot after the union clarified that it covered passengers, not crew members. It held the second proposal outside the duty to bargain because assigning quarters by civilian grade conflicted with a National Guard rule implementing a congressional directive to use military grade. The petition was dismissed on those different grounds. The outcome is mixed because one proposal ended without a merits ruling and the other was held nonnegotiable.

Decision snapshot

• Authority: 5 U.S.C. § 7105(a)(2)(E).
• Outcome: Uniform proposal dismissed as moot; quarters proposal held nonnegotiable.
• Key point: A proposal conflicting with a rule that implemented a nondiscretionary congressional direction was outside the duty to bargain.

Full text (FLRA public release)

[ v13 p176 ]

13:0176(37)NG

The decision of the Authority follows:

13 FLRA No. 37

NATIONAL FEDERATION OF
FEDERAL EMPLOYEES, LOCAL 1669
Union

and

ARKANSAS AIR NATIONAL GUARD
Agency

Case No. O-NG-575

DECISION AND ORDER ON NEGOTIABILITY ISSUES

This petition for review comes before the Federal Labor Relations Authority (the Authority) pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and raises the question of the negotiability of two Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations.

Union Proposal 1

Military uniforms are not required to be worn by technician employees while traveling in a civilian TDY status.

The Agency disputes the negotiability of this proposal only to the extent that it would apply to aircrew members on military aircraft who are required to wear the military uniform. The Union states, consistent with the language of the proposal, that it is intended to apply only to passengers and not to crew members. Accordingly, the Authority views the dispute between the parties with respect to Union Proposal 1 as having been rendered moot.

Union Proposal 2

Orders will reflect only civilian grade of the employee on all civilian travel orders.

The Union states without contradiction that the precise purpose and practical effect of the proposal is to assure that technicians are assigned quarters based on their civilian grade as contrasted to their military grade because it will result in more desirable assignments.

The Agency states that two National Guard Bureau (NGB) regulations-- Technician Personnel Regulation (TPR) 900(935.1) /1/ and Air National Guard Regulation (ANGR) 90-1 /2/ -- require such assignments to quarters to be based on military grade. The Agency further asserts that a compelling need exists for these regulations inasmuch as they implement a legal mandate /3/ in an essentially nondiscretionary manner.

In its report accompanying the "Department of Defense Appropriations Bill, 1982," the House Committee on Appropriations included a directive to the Department of Defense to the effect that National Guard technicians in travel status would occupy government quarters based on their military grade, /4/ which directive was agreed upon by the Committee of Conference. /5/ By these actions, the Agency was placed under a mandate from Congress requiring that technicians be assigned government quarters based on military grade as contrasted to civilian grade when in travel status. The provisions of TPR 900(935.1) reflect this nondiscretionary mandate. Thus, TPR 900(935.1) meets the criterion for determining compelling need for agency rules and regulations. /6/ Inasmuch as Union Proposal 2, by its purpose and effect, conflicts with TPR 900(935.1) it is not within the duty to bargain. /7/

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., September 29, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY

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

/1/ TPR 900(935-1), issued by the National Guard Bureau, provides in relevant part:

1-2. POLICY

Because of the military role of the technician, when a technician is performing temporary duty at Army, Air Force or other Department of Defense installations, the use of officer-level facilities will be restricted to officer technicians, and the use of enlisted-level facilities will be restricted to enlisted technicians. The use of government facilities, other than sleeping accommodations, will be subject to the established policies of the visited installation.

/2/ The Agency neither provided a copy of ANGR 90-1 nor did it quote from it. However, it contends that ANGR 90-1, similarly to TPR 900(935.1), requires quarters assignment on the basis of military grade. The Authority in deciding this case has relied only on TPR 900(935.1), a copy of which was submitted.

/3/ The law to which the Agency refers is the "Department of Defense Appropriation Act, 1982," Pub. L. No. 97-114, 95 Stat. 1565 (1981).

/4/ The Committee Report provided, in relevant part:

GUARD AND RESERVE TECHNICIAN CONVERSION PROGRAM

The Committee conducted an extensive hearing on the Guard and Reserve technician conversion program and includes the following direction to the Department.

. . . .

Military technicians will occupy government quarters based on military grade when in a travel status.

H.R. REP. No. 97-333, 97th Cong., 1st Sess. 42 (1981).

/5/ The Conference Report provided in relevant part:

The following language items represent the agreement of the conferees. Specific dollar amounts by military service are reflected under each summary table. Language contained in the report of only one body and not addressed below should be considered the agreement of the conferees.

H.R. REP. No. 97-410, 97th Cong., 1st Sess. 9 (1981).

/6/ In this regard, the Authority's Rules and Regulations provide:

Sec. 2424.11 Illustrative criteria.

A compelling need exists for an agency rule or regulation concerning any condition of employment when the agency demonstrates that the rule or regulation meets one or more of the following illustrative criteria:

. . . .

(c) The rule or regulation implements a mandate to the agency or primary national subdivision under law or other outside authority, which implementation is essentially nondiscretionary in nature.

/7/ In view of this decision, the Authority finds it unnecessary to address the remaining contentions of the Agency as to the negotiability of the proposal.