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22:0921(94)CA
The decision of the Authority follows:
22 FLRA No. 94
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Respondent
and
NATIONAL COUNCIL OF EEOC LOCALS, NO. 216,
AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES,
AFL-CIO
Charging Party
Case Nos. 3-CA-40202
and 3-CA-40462
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority in accordance
with section 2429.1(a) of the Authority's Rules and Regulations, based
on a stipulation of facts by the parties. The issue is whether the
Respondent violated section 7116(a)(1) and (5) of the Federal Service
Labor-Management Relations Statute (the Statute) when it (1) refused to
authorize payments for travel and per diem for negotiators of the
Charging Party (the Union) as required by the terms of the parties'
negotiated agreements and (2) when it refused to negotiate over a change
in the site of negotiations being held pursuant to certain of those
agreements.
II. Background Facts
The Respondent and the Charging Party were parties to a collective
bargaining agreement effective from August 29, 1981, to August 29, 1984,
the mandatory provisions of which have continued in full force and
effect, and to ground rules agreements pertaining to the implementation
of a field reorganization, mid-term negotiations regarding certain
specified matters and implementation of EEOC Order 131, each of which
provided for the payment of travel and per diem expenses for Union
representatives at negotiations held pursuant to the provisions of those
agreements. Since December 1983, the Respondent has refused to
authorize payments for travel and per diem expenses as provided for by
those agreements. Since January 1984, the Respondent refused to bargain
with the Charging Party over a change in the site of negotiations held
pursuant to the ground rules agreements applied to the negotiations at
issue.
III. Positions of the Parties
The Respondent contends that the provisions in the parties'
agreements authorizing the payment of travel and per diem were "for
informational purposes only" pursuant to the Authority's Interpretation
and Guidance, 2 FLRA 265 (1979), rather than a result of negotiations.
Respondent further argues that its subsequent refusal to authorize
payments was a result of the United States Supreme Court's decision in
Bureau of Alcohol, Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89
(1983), wherein the Court found that section 7131(a) of the Statute does
not entitle employees on official time to the payment of travel and per
diem expenses. Moreover, Respondent contends that the payment of travel
and per diem is not a negotiable condition of employment and was not
appropriate under applicable law and regulation (Travel Expense Act, 5
U.S.C. Section 5702 and implementing regulations of the Office of
Personnel Management).
As to its refusal to negotiate on changes in the sites of
negotiations, Respondent contends that the sites were mutually agreed to
by the parties and that there was no obligation to negotiate changes in
those agreements.
The General Counsel contends that travel and per diem is a mandatory
subject of bargaining which when in an agreement may not be lawfully
rejected or unilaterally altered, and that Respondent made the
determination required by applicable law and regulation when it included
the provisions in the agreement.
As to the refusal to negotiate a change in the site of negotiations,
the General Counsel argues that changed circumstances, i.e., the Supreme
Court's decision in BATF, obligates the Respondent to negotiate,
notwithstanding the existence of an agreement, on where the negotiations
would occur. The General Counsel seeks as a remedy, reimbursement to
Union representatives for their travel and per diem expenses.
IV. Analysis
As to the Respondent's reliance on the United States Supreme Court's
decision in BATF, following that decision the Authority decided in
National Treasury Employees Union and Department of the Treasury, U.S.
Customs Service, 21 FLRA No. 2 (1986), slip op. at pp. 6-7, petition for
review filed sub nom., Department of the Treasury, U.S. Customs Service
v. FLRA, No. 85-1198, (D.C. Cir., March 27, 1986), that a union's
proposal which would require an agency to pay travel and per diem
expenses incurred by employees using official time, while not an
entitlement under the Statute, is within the duty to bargain as it is
not inconsistent with law or Government-wide regulation. To refuse to
give effect to such provisions in a collective bargaining agreement is
violative of section 7116(a)(5) of the Statute. See Department of
Defense Dependents School System, 21 FLRA No. 125 (1986). The
Respondent's contention that the provisions were in the agreement "for
informational purposes" is not a basis for a different conclusion. The
provisions authorizing travel and per diem expenses had been
incorporated into the terms of the parties' collective bargaining
agreement and the record in this case does not support a conclusion that
the parties intended the provisions to encompass the payment of the
expenses only as long as the Respondent was required to pay them under
the Authority's Interpretation and Guidance. Since the provisions
negotiated by the parties do not violate law or government-wide
regulation, the parties were therefore obligated to adhere to those
provisions during the term of their agreement which the parties
stipulated continued in full force and effect. Accordingly, the
Respondent's unilateral refusal to comply with agreed-upon provisions
for the payment of travel and per diem was inconsistent with the good
faith bargaining obligation and constitutes a violation of the Statute.
We do not however, believe that the Respondent's refusal to negotiate
on changes in the sites of the negotiations was violative of the
Statute. As the parties describe in their briefs, the sites of the
negotiations were established in the respective agreements of the
parties. While those agreements presupposed that the Respondent would
be paying travel and per diem expenses, the refusal to pay such expenses
does not create a circumstance where the Respondent was obligated to
bargain on a change in the agreement.
V. Conclusion
The Authority finds that the Respondent's refusal to comply with the
parties' collective bargaining agreement and ground rules agreements
providing for the payment of travel and per diem is violative of section
7116(a)(1) and (5) of the Statute. To remedy this unfair labor
practice, we shall order the Respondent to abide by the terms of the
agreements at issue and to pay travel and per diem to all bargaining
unit employees who previously submitted or who submit appropriate claims
for such payments under the terms of the agreement. Such payments must
be consistent, not only with the terms of the parties' agreements, but
also with law and regulation, including the Federal Travel Regulations.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
ordered that the Equal Employment Opportunity Commission shall:
1. Cease and desist from:
(a) Refusing to comply with the terms of collective bargaining
agreements negotiated with the National Council of EEOC, Locals No. 216,
American Federation of Government Employees, AFL-CIO, the exclusive
representative of its employees, which provide for the payment of travel
and per diem expenses, thereby failing and refusing to bargain in good
faith.
(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 Statute:
(a) Comply with collective bargaining agreements negotiated with the
National Council of EEOC Locals, No. 216, American Federation of
Government Employees, AFL-CIO, which provide for the payment of travel
and per diem expenses to its representatives.
(b) Pay travel and per diem expenses to all bargaining unit employees
who previously submitted or who submit appropriate claims for such
payments under the terms of collective bargaining agreements, to the
extent that such payments are consistent with the terms of the
collective bargaining agreement and law and regulation, including the
Federal Travel Regulations.
(c) Post at its faciliites where bargaining unit employees
represented by the National Council of EEOC Locals, No. 216, American
Federation of Government Employees, AFL-CIO, are located, 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, or a designee, 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 ensure that such
Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations Authortity, in writing, within 30 days from the date of this
Order, as to what steps have been taken to comply with it.
Issued, Washington, D.C. July 30, 1986.
/s/ JERRY L. CALHOUN
Jerry L. Calhoun, Chairman
/s/ HENRY B. FRAZIER III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
APPENDIX
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 refuse to comply with the terms of collective bargaining
agreements negotiated with the National Council of EEOC Locals, No. 216,
American Federation of Government Employees, AFL-CIO, the exclusive
representative of our employees, which provide for the payment of travel
and per diem expenses.
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
Statute.
WE WILL comply with collective bargaining agreements negotiated with
the National Council of EEOC Locals, No. 216, American Federation of
Government Employees, AFL-CIO, which provide for the payment of travel
and per diem expenses to its representatives.
WE WILL pay travel and per diem expenses to all bargaining unit
employees who previously submitted or who submit appropriate claims for
such payments under the terms of collective bargaining agreements, to
the extent that such payments are consistent with the terms of the
collective bargaining agreements and law and regulation, including the
Federal Travel Regulations.
(Activity)
Dated:
By: (Signature) (Title)
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, 1111 18th
Street, N.W., Room 700 (P.O. Box 33758), Washington, D.C. 20033-0758,
and whose telephone number is: (202) 653-8500.