09:0769(96)CA - DOD Dependents Schools and Overseas Education Association, NEA -- 1982 FLRAdec CA
[ v09 p769 ]
09:0769(96)CA
The decision of the Authority follows:
9 FLRA No. 96 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS Respondent and OVERSEAS EDUCATION ASSOCIATION, NEA Charging Party Case No. 3-CA-1205 DECISION AND ORDER THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2429.1(A)). UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, BRIEFS SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, /1/ AND THE AMICUS CURIAE BRIEF FILED BY THE OFFICE OF PERSONNEL MANAGEMENT, /2/ THE AUTHORITY FINDS: THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) /3/ BY REFUSING TO REIMBURSE EMPLOYEES SERVING AS MEMBERS OF THE UNION NEGOTIATING TEAM FOR TRAVEL AND PER DIEM EXPENSES INCURRED WHILE NEGOTIATING A NEW COLLECTIVE BARGAINING AGREEMENT, CONTRARY TO THE REQUIREMENTS OF SECTION 7131(A) OF THE STATUTE. /4/ THE RESPONDENT CONCEDES THAT IT HAS DENIED REQUESTS FOR REIMBURSEMENT OF THE EMPLOYEES' TRAVEL AND PER DIEM EXPENSES, BUT ARGUES THAT THE UNFAIR LABOR PRACTICE CHARGE WAS UNTIMELY FILED HEREIN, AND THAT IN ANY EVENT IT IS NOT OBLIGATED TO MAKE SUCH PAYMENTS UNDER THE STATUTE. THE PARTIES STIPULATE THAT THEY ENGAGED IN NEGOTIATIONS FOR A NEW COLLECTIVE BARGAINING AGREEMENT FROM ON OR ABOUT JULY 23, 1979, UNTIL ON OR ABOUT DECEMBER 6, 1979. FROM ON OR ABOUT AUGUST 20, 1979, UNTIL THE TERMINATION OF NEGOTIATIONS, THE RESPONDENT'S EMPLOYEES WHO ARE MEMBERS OF THE UNION NEGOTIATING TEAM WERE GRANTED OFFICIAL TIME WHILE ENGAGED IN NEGOTIATIONS. HOWEVER, THEY HAVE BEEN REFUSED PAYMENT FOR TRAVEL AND PER DIEM EXPENSES INCURRED DURING THE TIME IN WHICH THE PARTIES WERE ENGAGED IN NEGOTIATIONS. THE RESPONDENT ARGUES THAT THE CHARGE WAS UNTIMELY FILED UNDER SECTION 7118(A)(4)(A) OF THE STATUTE /5/ INASMUCH AS IT WAS FILED ON JUNE 10, 1980, MORE THAN SIX MONTHS AFTER THE END OF NEGOTIATIONS ON DECEMBER 6, 1979. HOWEVER, MEMBERS OF THE UNION NEGOTIATING TEAM SOUGHT REIMBURSEMENT FOR TRAVEL AND PER DIEM EXPENSES ON JANUARY 9, MARCH 28 AND JUNE 12, 1980. THE RESPONDENT DENIED THE JANUARY 9 REQUEST ON JANUARY 23, 1980, AND DID NOT REPLY TO THE OTHERS. THUS, THE FILING OF THE CHARGE ON JUNE 10, 1980, WAS WITHIN SIX MONTHS OF THE RESPONDENT'S REFUSAL TO REIMBURSE THE EMPLOYEES FOR SUCH EXPENSES, A REFUSAL WHICH THE RESPONDENT CONTINUES TO THIS DATE. ACCORDINGLY, THE AUTHORITY CONCLUDES THAT THE UNFAIR LABOR PRACTICE CHARGE HEREIN WAS NOT UNTIMELY FILED AS ALLEGED BY THE RESPONDENT. ON THE MERITS, THE AUTHORITY HAS PREVIOUSLY FOUND THAT EMPLOYEES REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE STATUTE ARE ENTITLED TO PAYMENT FROM AGENCIES FOR TRAVEL AND PER DIEM EXPENSES. SEE INTERPRETATION AND GUIDANCE, 2 FLRA 264(1979). SEE ALSO BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40(1980), ENFORCED, 672 F.2D 732 (9TH CIR. 1982). THEREFORE, FOR THE REASONS STATED THEREIN, THE AUTHORITY FINDS THAT THE RESPONDENT VIOLATED SECTION 7116(A)(1) AND (8) OF THE STATUTE BY REFUSING TO PAY TRAVEL AND PER DIEM EXPENSES TO EMPLOYEES ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE STATUTE WHILE REPRESENTING THE UNION IN THE NEGOTIATION OF THE PARTIES' NEW COLLECTIVE BARGAINING AGREEMENT. /6/ ORDER PURSUANT TO SECTION 2423.29 OF THE RULES AND REGULATIONS OF THE FEDERAL LABOR RELATIONS AUTHORITY AND SECTION 7118 OF THE STATUTE, THE AUTHORITY HEREBY ORDERS THAT THE DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS SHALL: 1. CEASE AND DESIST FROM: (A) FAILING AND REFUSING TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED TRAVEL AND PER DIEM EXPENSES INCURRED BY ITS EMPLOYEES AS A RESULT OF THEIR PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE STATUTE AS DULY DESIGNATED REPRESENTATIVES OF THE OVERSEAS EDUCATION ASSOCIATION, NEA, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED CONTRACT NEGOTIATIONS. (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE STATUTE. 2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE PURPOSES AND POLICIES OF THE STATUTE: (A) PROVIDE PAYMENT TO ANY OF ITS EMPLOYEES WHO SUBMIT A PROPERLY DOCUMENTED VOUCHER FOR TRAVEL AND PER DIEM EXPENSES INCURRED AS THE RESULT OF PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE STATUTE AS THE DULY DESIGNATED REPRESENTATIVES OF THE OVERSEAS EDUCATION ASSOCIATION, NEA, IN THE NEGOTIATION OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT. (B) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE ON FORMS TO BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY. UPON RECEIPT OF SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR OF THE DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS AND SHALL BE POSTED AND MAINTAINED BY HIM FOR 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. (C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION III, FEDERAL LABOR RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH. ISSUED, WASHINGTON, D.C., AUGUST 4, 1982 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY NOTICE TO ALL EMPLOYEES PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS 0WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT FAIL OR REFUSE TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED TRAVEL AND PER DIEM EXPENSES INCURRED BY OUR EMPLOYEES AS A RESULT OF THEIR PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE STATUTE AS DULY DESIGNATED REPRESENTATIVES OF THE OVERSEAS EDUCATION ASSOCIATION, NEA, OUR EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED CONTRACT NEGOTIATIONS. WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN, OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS AS ASSURED BY THE STATUTE. WE WILL PROVIDE PAYMENT TO ANY OF OUR EMPLOYEES WHO SUBMIT A PROPERLY DOCUMENTED VOUCHER FOR TRAVEL AND PER DIEM EXPENSES INCURRED AS A RESULT OF PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE STATUTE AS THE DULY DESIGNATED REPRESENTATIVES OF THE OVERSEAS EDUCATION ASSOCIATION, NEA, OUR EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED CONTRACT NEGOTIATIONS. (AGENCY OR ACTIVITY) DATED: BY: (SIGNATURE) (TITLE) THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE OF THIS POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY OTHER MATERIAL. IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION III, WHOSE ADDRESS IS 1111 18TH STREET, NW., SUITE 700, WASHINGTON, D.C., 20036 AND WHOSE TELEPHONE NUMBER IS (202) 653-8452. --------------- FOOTNOTES$ --------------- /1/ THE RESPONDENT HAS MOVED TO STRIKE TWO STATEMENTS IN THE GENERAL COUNSEL'S BRIEF ON THE GROUNDS THAT THOSE STATEMENTS ARE UNSUPPORTED BY THE STATUTE OR CASE LAW AND DIRECTLY CONTRADICT THE STIPULATION. IN ANY MATTER SUBMITTED DIRECTLY TO THE AUTHORITY FOR DECISION BASED UPON A STIPULATION OF FACTS, THE AUTHORITY WILL CONSIDER ONLY FACTS CONTAINED IN THE STIPULATION. ACCORDINGLY, THE RESPONDENT'S MOTION IS DENIED. SEE GENERAL SERVICES ADMINISTRATION, 6 FLRA NO. 77(1981). /2/ THE OFFICE OF PERSONNEL MANAGEMENT WAS GRANTED PERMISSION TO PARTICIPATE IN THIS PROCEEDING AS AMICUS CURIAE PURSUANT TO SECTION 2429.9 OF THE AUTHORITY'S RULES AND REGULATIONS. /3/ SECTION 7116(A)(1) AND (8) OF THE STATUTE PROVIDES: SEC. 7116. UNFAIR LABOR PRACTICES (A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR PRACTICE FOR AN AGENCY-- (1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE EXERCISE BY THE EMPLOYEE OF ANY RIGHT UNDER THIS CHAPTER; * * * * (8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS CHAPTER. /4/ SECTION 7131(A) OF THE STATUTE PROVIDES: SEC. 7131. OFFICIAL TIME (A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF A COLLECTIVE BARGAINING AGREEMENT UNDER THIS CHAPTER SHALL BE AUTHORIZED OFFICIAL TIME FOR SUCH PURPOSES, INCLUDING ATTENDANCE AT IMPASSE PROCEEDING, DURING THE TIME THE EMPLOYEE OTHERWISE WOULD BE IN DUTY STATUS. THE NUMBER OF EMPLOYEES FOR WHOM OFFICIAL TIME IS AUTHORIZED UNDER THIS SUBSECTION SHALL NOT EXCEED THE NUMBER OF INDIVIDUALS DESIGNATED AS REPRESENTING THE AGENCY FOR SUCH PURPOSES. /5/ SECTION 7118(A)(4)(A) PROVIDES: SEC. 7118. PREVENTION OF UNFAIR LABOR PRACTICES * * * * (A)(4)(A) EXCEPT AS PROVIDED IN SUBPARAGRAPH (B) OF THIS PARAGRAPH, NO COMPLAINT SHALL BE ISSUED BASED ON ANY ALLEGED UNFAIR LABOR PRACTICE WHICH OCCURRED MORE THAN 6 MONTHS BEFORE THE FILING OF THE CHARGE WITH THE AUTHORITY. /6/ BECAUSE THE ENTITLEMENT TO TRAVEL AND PER DIEM EXPENSES APPLIES ONLY TO EMPLOYEES ON OFFICIAL TIME, AS DESCRIBED ABOVE, NO SUCH ENTITLEMENT APPLIES TO THE PERIOD JULY 23, 1979, TO AUGUST 20, 1979, WHEN NEGOTIATIONS WERE BEING CONDUCTED BUT EMPLOYEES NEGOTIATING FOR THE UNION WERE NOT ON OFFICIAL TIME.