14:0191(40)CA - DOD Dependents Schools and Overseas Education Association -- 1984 FLRAdec CA
[ v14 p191 ]
14:0191(40)CA
The decision of the Authority follows:
14 FLRA No. 40 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS Respondent and OVERSEAS EDUCATION ASSOCIATION Charging Party Case No. 3-CA-1952 DECISION AND ORDER This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the Federal Labor Relations Authority" in accordance with section 2429.1(a) of the Authority's Rules and Regulations. Upon consideration of the entire record in this case, including the stipulation of facts and the contentions of the parties, /1/ and including the amicus curiae brief filed by the Office of Personnel Management, /2/ the Authority finds: The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) when it failed to comply with section 7131(a) of the Statute by denying official time and reimbursement for travel and per diem expenses incurred by an employee on the Union negotiating team during ground rules negotiations. The ground rules negotiations for a new collective bargaining agreement were conducted on April 30 and May 1, 1979. The record indicates that the employee, Union President Hal Mosher, requested official time and reimbursement for his travel expenses and per diem in connection with the ground rules negotiations in a letter dated August 6, 1980, and that the Respondent denied the request by letter dated September 15, 1980. Respondent granted the employee official time for the actual ground rules negotiations, but refused to authorize official time for his related travel or to grant reimbursement for his travel and per diem expenses incurred in connection with such negotiations. Procedurally, the Respondent contends that the unfair labor practice charge herein was filed untimely under section 7118(a)(4)(A) of the Statute, /3/ inasmuch as the charge was filed on February 3, 1981, more than six months after the completion of the ground rules negotiations for which official time and reimbursement of travel and per diem expenses were sought, and therefore the complaint should be dismissed. The same position was taken by the Respondent and considered by the Authority with respect to a previous unfair labor practice case involving similar facts. Department of Defense Dependents Schools, 9 FLRA 769(1982). For the reasons stated in Department of Defense Dependents Schools, the Authority concludes that, as the charge was filed within six months of the Respondent's denial of the requested reimbursement, it was timely filed. The complaint herein alleges that the Respondent's violative conduct was related specifically to ground rules negotiations. The Respondent contends essentially that the entitlement to official time and related travel and per diem expenses under section 7131(a) of the Statute does not apply to such "ground rule" negotiations. /4/ In this regard, the Respondent argues that official time for ground rules negotiations is covered by the provisions of section 7131(d) of the Statute, rather than section 7131(a), and is thus a negotiable matter rather than a matter of statutory entitlement. Cited in support of this position were negotiability decisions of the Authority which held generally that the granting of official time to prepare for negotiations is a negotiable matter under section 7131(d) of the Statute. /5/ However, those cases are clearly distinguishable. Thus, as viewed by the Authority, preparation for negotiations involves the unilateral act of one party in anticipation of bilateral negotiations, while the negotiation of ground rules involves the bilateral participation of the parties and is part of the good faith negotiating process leading to agreement. In performing their mutual obligation to bargain in good faith, the parties ordinarily would need to make certain preliminary arrangements such as the scheduling of the time, place, length and agenda of the meetings. This is a necessary step in meeting "at reasonable times and convenient places" as required by section 7114 of the Statute. /6/ The fact that some parties mutually agree to set such preliminary arrangements apart and call them ground rules negotiations does not separate them from the collective bargaining process and the parties' mutual obligation to bargain in good faith. Therefore, the Authority concludes that such negotiations are encompassed within the meaning of section 7131(a), and that employees designated by the exclusive representative to engage in such negotiations are entitled to official time. Accordingly, the Respondent's denial of official time for travel incurred by an employee on the Union negotiating team in connection with ground rules negotiations for a new collective bargaining agreement constitutes a failure to comply with section 7131(a) of the Statute in violation of section 7116(a)(1) and (8). Florida National Guard, 5 FLRA 365(1980), reversed as to other matters sub nom. Florida National Guard v. Federal Labor Relations Authority, 699 F.2d 1082 (11th Cir. 1983) cert. denied, 52 U.S.L.W. 3440 (U.S. Dec. 6, 1983). However, with respect to the Respondent's denial of reimbursement of Mosher's travel and per diem expenses, the threshold issue involved is the same as the threshold issue decided in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104 S.Ct. 439(1983) wherein the United States Supreme Court concluded that the obligation of an agency under section 7131(a) of the Statute to provide official time to its employees representing an exclusive representative in the negotiation of a collective bargaining agreement does not encompass the payment of travel expenses and per diem allowances. Pursuant to that decision and for the reasons set forth by the Court, the Authority concludes herein that the Respondent did not fail or refuse to comply with the provisions of section 7131(a) of the Statute by its refusal to pay travel expenses and a per diem allowance herein. Therefore, it follows that the Respondent did not violate section 7116(a)(1) and (8) of the Statute in this regard. ORDER Pursuant to section 2423.29 of the Rules and Regulations of the Federal Labor Relations Authority and section 7118 of the Federal Service Labor-Management Relations Statute, the Authority hereby orders that the Department of Defense Dependents Schools shall: 1. Cease and desist from: (a) Failing and refusing to grant official time, pursuant to section 7131(a) of the Federal Service Labor-Management Relations Statute, to employee Hal Mosher for his time spent in a travel status on April 29 and May 2, 1979, as the designated representative of the Overseas Education Association, the exclusive representative of its employees, in connection with ground rules negotiations for a new collective bargaining agreement conducted on April 30 and May 1, 1979. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. 2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute: (a) Grant official time to employee Hal Mosher for his time spent in a travel status on April 29 and May 2, 1979, as the designated representative of the Overseas Education Association, the exclusive representative of its employees, in connection with ground rules negotiations for a new collective bargaining agreement conducted on April 30 and May 1, 1979. (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 an authorized representative of the Respondent and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such 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. IT IS FURTHER ORDERED that the remaining allegation of the complaint in Case No. 3-CA-1952 be, and it hereby is, dismissed. Issued, Washington, D.C., April 6, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, 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 WE HEREBY NOTIFY OUR EMPLOYEES THAT: WE WILL NOT fail or refuse to grant official time, pursuant to section 7131(a) of the Federal Service Labor-Management Relations Statute, to employee Hal Mosher for his time spent in a travel status on April 29 and May 2, 1979, as the designated representative of the Overseas Education Association, our employees' exclusive representative, in connection with ground rules negotiations for a new collective bargaining agreement conducted on April 30 and May 1, 1979. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute. WE WILL grant official time to employee Hal Mosher for his time spent in a travel status on April 29 and May 2, 1979, as the designated representative of the Overseas Education Association, our employees' exclusive representative, in connection with ground rules negotiations for a new collective bargaining agreement conducted on April 30 and May 1, 1979. (Agency or Activity) Dated: By: (Signature) This Notice must remain posted for 60 consecutive days from the date of 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, Region III, Federal Labor Relations Authority, whose address is: 1111 18th Street, Room 700, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8456. --------------- FOOTNOTES$ --------------- /1/ The Respondent has moved to strike "statements and charges raised for the first time in the General Counsel's memorandum." 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. In view of the above, the Respondent's motion is denied. General Services Administration, 6 FLRA 430(1981). See also Department of Defense Dependents Schools, 9 FLRA 769(1982), at n. 1. /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 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. /4/ Unlike the Respondent, the Office of Personnel management (OPM) concedes in its brief at page 13 "that ground rules bargaining is part of the negotiation process . . . " /5/ American Federation of Government Employees, AFL-CIO, Local 1692 and Headquarters, 323rd Flying Training Wing (ATC), Mather Air Force Base, California, 3 FLRA 304(1980). See also Division of Military and Naval Affairs, State of New York, Albany, New York, 7 FLRA 321(1981). /6/ Section 7114(b)(3) provides: Sec. 7114. Representation rights and duties * * * * (b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation-- * * * * (3) to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays(.)