27:0586(72)CA - DOD Dependents Schools, Alexandria, Virginia and OFT -- 1987 FLRAdec CA
[ v27 p586 ]
27:0586(72)CA
The decision of the Authority follows:
27 FLRA No. 72
DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS (ALEXANDRIA, VIRGINIA)
Respondent
and
OVERSEAS FEDERATION OF TEACHERS,
AFT, AFL-CIO
Charging Party
Case Nos. 1-CA-40196
1-CA-40231
DECISION AND ORDER /1/
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority
on exceptions to the attached Administrative Law Judge's Decision filed
by the Respondent. The General Counsel filed cross-exceptions to the
Administrative Law Judge's Decision and an opposition to the
Respondent's exceptions. The consolidated complaint alleged that when
the Respondent disapproved four provisions of a local collective
bargaining agreement and thereby prevented implementation of the
provisions, the Respondent: violated section 7116(a)(1) and (5) of the
Federal Service Labor-Management Relations Statute (the Statute) by
interfering with the bargaining relationship between the parties at the
level of exclusive recognition; violated section 7116(a)(1) and (8) of
the Statute by failing and refusing to approve an agreement pursuant to
section 7114(c) of the Statute; /2/ and violated section 7116(a)(1) and
(6) of the Statute by failing and refusing to cooperate in impasse
procedures and decisions.
II. Background
The record before us indicates that the Charging Party represents a
unit of various school personnel employed by the Department of Defense
Dependents Schools, Mediterranean Region (DODDS Mediterranean or
Activity). During the course of bargaining between the Activity and the
Charging Party, the parties sought the assistance of the Federal Service
Impasses Panel (Panel) to aid in the resolution of a number of
outstanding issues. The Panel directed that mediation/arbitration be
conducted to resolve the impasse and designated its then Chairman to
first mediate the issues and to render a decision as an arbitrator on
any remaining unresolved issues.
On December 8, 1983, the arbitrator issued a Decision and Order in
which, as relevant to this case, he directed the parties to adopt two
provisions in their agreement. The provisions concerned academic
freedom for teachers and authorization of travel and per diem expenses
for union representatives at regional meetings. Additionally, the
arbitrator referred to the Panel for resolution a third provision
regarding entitlement to travel and per diem expenses for witnesses at
arbitration hearings. /3/ The Panel's Decision and Order as to that
matter, in Case No. 83 FSIP 102, was issued on February 24, 1984. The
fourth provision in dispute in this case concerns attendance by a union
representative at the opening of employee storage areas, which matter
was negotiated solely by the parties.
On or about January 4, 1984, the agreement was forwarded to the
agency head for review pursuant to section 7114(c) of the Statute.
Subsequently, on or about January 25, 1984, while the agreement was
still before the agency head, the Activity and the Charging Party
entered into a Memorandum of Understanding (MOU) in which they agreed to
implement the agreement effective February 4, 1984. The MOU allowed for
renegotiations or other action in the event the agency head disapproved
provisions of the agreement and also provided for implementation of
those provisions which were not disapproved.
Prior to the agreed-upon implementation date, the Respondent notified
the Activity on January 31, 1984, that there were outstanding issues
still before the Panel, that no final agreement had been completed, and
that therefore, the 30-day review period provided for in section 7114(c)
of the Statute had not yet commenced. The Respondent, however, went on
to specifically disapprove three provisions of the agreement that are
here in dispute. The disapproved provisions included the two which the
arbitrator directed the parties to include in their agreement and the
one that was negotiated by the parties themselves. At the same time,
the Activity indicated to the Charging Party that as a result of the
Respondent's action, the Activity would not implement the disapproved
provisions of the agreement. The other provisions of the agreement were
apparently implemented as the parties had agreed upon.
As indicated above, the Panel issued its Decision and Order on
February 24, 1984, in which it directed the parties to adopt a proposal
made by the Charging Party concerning travel and per diem expenses for
witnesses at arbitration hearings. On March 20, 1984, after receipt of
the Panel's decision, the Respondent notified the Activity and the
Charging Party that all outstanding issues had been resolved by the
Panel and that the Respondent was therefore completing its review of the
agreement as required by section 7114(c) of the Statute. The Respondent
disapproved various provisions of the parties' agreement, including the
four that are involved in this case.
As a result of the disapproval of the arbitrator-directed provision
dealing with authorization of travel and per diem expenses at regional
meetings, the Activity denied reimbursement for such meetings. The
Charging Party then assumed the costs which were estimated to be
somewhere between $7,700.00 and $13,000.00. As a result of the
disapproval of the Panel-directed provision regarding payment of travel
and per diem expenses for civilian and military employees attending
arbitration hearings, at least two civilian employee witnesses were
denied reimbursement for their expenses.
III. Administrative Law Judge's Decision
Initially, the Judge disposed of a number of procedural arguments
raised by the Respondent which are fully described in his Decision.
Among them, the Judge determined that the Respondent's January 31
communication constituted disapproval as to three of the provisions.
This disapproval was reiterated on March 20, 1984, at which time the
Respondent also disapproved the provision directed to be included in the
agreement by the Panel. As to the merits of the allegations, the Judge
determined that the issue in this case is essentially whether the
Respondent had properly disapproved the provisions of the parties'
agreement pursuant to section 7114(c) of the Statute. Examining each
provision separately, the Judge found that the provision concerning
academic freedom interfered with management's rights to direct and
assign employees within the meaning of section 7106(a)(2)(A) and (B) of
the Statute. The Judge therefore concluded that the Respondent properly
disapproved this provision and that such conduct was not violative of
the Statute.
As to the remaining three provisions, the Judge found that they were
not inconsistent with law, rule or regulation or the Statute.
Therefore, he found that the Respondent's disapproval of these
provisions constituted a violation of section 7116(a)(1), (5) and (8).
Additionally, he found that the improper disapproval of the two travel
and per diem provisions constituted a violation of section 7116(a)(1)
and (6) of the Statute.
To remedy the unfair labor practices, the Judge basically ordered the
Respondent to rescind its disapproval of the three provisions, authorize
the Activity to include the provisions in the agreement retroactive to
the implementation date of February 4, 1984, and authorize the Activity
to reimburse and make whole employees and the Charging Party for any
losses which they incurred as a result of the Respondent's disapproval.
IV. Positions of the Parties
The Respondent filed exceptions to the Judge's Decision and also
requested a stay of that Decision. Essentially, the Respondent agrees
with the Judge's conclusion as to the provision on academic freedom but
disagrees with his conclusions as to the other provisions. The
Respondent also objects to the Judge's ruling concerning the date on
which the agreement was before the Respondent for the section 7114(c)
review.
The General Counsel excepts to the Judge's conclusion as to the
academic freedom provision. The General Counsel also disagrees with the
bases on which the Judge found the two provisions on travel and per diem
were not inconsistent with law, rule or regulation, although agreeing
with the Judge's conclusion that they were improperly disapproved. The
General Counsel also excepts to the Judge's failure to specify that
holiday and vacation periods be excluded from the posting period of the
remedial unfair labor practice notice.
V. Analysis
This case raises a number of issues, including one of first
impression under the Statute. The issues are: (1) whether interest
arbitration awards are subject to agency head review under section
7114(c) of the Statute; (2) whether the provisions in dispute in this
case were appropriately before the Respondent for review under section
7114(c); (3) whether the Respondent's disapproval of the provisions was
violative of the Statute; and (4) whether the Judge correctly
determined the date on which the provisions were before the Respondent
for review.
A. Section 7114(c) Review and Interest Arbitration Awards
The Authority has previously addressed the role of an agency head in
reviewing provisions of an agreement which have been imposed by a final
order of the Panel. In Interpretation and Guidance, 15 FLRA 564 (1984),
affirmed sub nom. American Federation of Government Employees, AFL-CIO
v. FLRA, 778 F.2d 850 (D.C. Cir. 1985), the Authority determined that
under section 7114(c) of the Statute an agency head is authorized to
review for legal sufficiency provisions of a collective bargaining
agreement imposed by Panel decisions and orders rendered pursuant to
section 7119 of the Statute. The Authority reached this result by
reconciling the provisions of sections 7114(c) and 7119 in the absence
of any pertinent legislative history. The Authority also found that
review of an agency head's disapproval in such cases may be sought
either through the negotiability procedures of section 7117 of the
Statute or the unfair labor practice procedures available under section
7118 of the Statute.
The question here is whether an agency head is empowered under
section 7114(c) to review provisions directed to be included in an
agreement by an interest arbitration award. For the reasons set forth
below, we find that agency heads are not empowered under section 7114(c)
of the Statute to review interest arbitration awards.
It is well established that the appropriate mechanism for challenging
the propriety of interest arbitration awards, including those resulting
from a Panel-directed arbitration proceeding, is through the filing of
exceptions to the award pursuant to section 7122 of the Statute. /4/
United States Air Force, Air Force Logistics Command, Wright-Patterson
Air Force Base, Ohio, 15 FLRA 151 (1984), affirmed sub nom. Department
of the Air Force v. FLRA, 775 F.2d 727 (6th Cir. 1985). /5/ This
conclusion was compelled by the clear intent of Congress that the review
procedures of section 7122 apply to interest arbitration awards which
result from impasse proceedings before the Panel under section 7119(b)
of the Statute. More particularly, the House Committee on Post Office
and Civil Service, in reporting on the language ultimately enacted into
law as section 7122 of the Statute, determined:
Section 7122 sets forth the procedures under which a party may
obtain review by the Authority of an arbitrator's award. The
procedures apply in the case of either an award in an arbitration
resulting from an impasse proceeding under section 7119(b) . . .
or an award in a grievance proceeding under section 7121(.) /6/
The Authority also noted in Wright-Patterson that in addition to
providing a mechanism for challenging interest arbitration awards,
Congress also sought to ensure that such awards become final and
binding. As stated by the Committee on Conference in its Report
accompanying the bill as ultimately enacted and signed into law:
The House provides that if no exception to an arbitrator's
award is filed with the Authority, the award "shall be final and
binding" (section 7122(b)). The Senate contained no comparable
provision. The conferees adopted the House provision. The intent
of the House in adopting this provision was to make it clear that
the awards of arbitrators, when they become final, are not subject
to further review by any other authority or administrative body,
including the Comptroller General. /7/
Thus, where no exceptions to an award have been filed within the
prescribed time limit set forth in section 7122(b) of the Statute, the
award becomes final and binding and an agency's failure to take whatever
actions are necessary to implement the award will result in a finding of
a violation of the Statute. Wright-Patterson. /8/
In Department of the Air Force, Flight Test Center, Edwards Air Force
Base, California and Interdepartmental Local 3854, American Federation
of Government Employees, AFL-CIO, 21 FLRA No. 61 (1986), the Authority
reiterated the policy that challenges to interest arbitration awards
resulting from Panel-directed interest arbitration are to be resolved
through the mechanism of section 7122 of the Statute and resolved the
exceptions to the award. /9/ Among other things, the Authority also
determined that once the Panel directed the parties to interest
arbitration, the Panel no longer retained jurisdiction of the dispute,
so that the arbitrator's award was final and binding. It was also
determined that there was no basis for distinguishing between awards
rendered by Panel members serving as interest arbitrators, as occurred
in the case before us now, and awards directed by other interest
arbitrators in terms of their reviewability under section 7122(a) of the
Statute.
In reaching our conclusion that interest arbitration awards are not
subject to review by agency heads under section 7114(c) of the Statute
we recognize that there are two concerns that should be addressed:
namely, the effect of our conclusion on the resolution of negotiability
issues and on the scope of judicial review.
1. Review of Negotiability Issues
The Authority has held that negotiability disputes that arise between
an agency and an exclusive representative under section 7117(c) of the
Statute must be resolved by the Authority under section 7105(a)(2)(E).
Department of the Air Force, Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio and American Federation of
Government Employees, Council of Locals, No. 214, 18 FLRA 710 (1985);
Louis A. Johnson Veterans Administration Medical Center, Clarksburg,
West Virginia and American Federation of Government Employees, Local
2384, 15 FLRA 347 (1984). Interest arbitrators do not have the
authority to resolve duty to bargain questions and where an arbitrator
makes a negotiability decision, the award will be set aside. AFLC,
Wright-Patterson Air Force Base.
We recognize that there may be a concern, based on that line of
cases, that duty to bargain questions that arise during an interest
arbitration proceeding might not be resolved on the merits unless we
provide for agency head review of the award. To fully understand the
nature of that concern, it will be helpful to briefly describe the
circumstances under which negotiability issues are normally resolved.
Ordinarily, when parties negotiate an agreement, the executed
agreement is forwarded to the agency head for review. The agency head,
or someone designated by the agency head, /10/ has an opportunity to
determine whether the provisions that have been negotiated are
consistent with the Statute land any other law, rule and regulation.
Where a matter is disapproved on the basis that it is outside the duty
to bargain, that is, inconsistent with the Statute or any other law,
rule, or regulation, the union may file a petition for review of the
agency head's disapproval with the Authority under the procedures set
forth in section 7117. The Authority will then determine whether the
matter is within the duty to bargain. If it is, and the agency
therefore has improperly disapproved the provision, the agency will be
ordered to rescind its disapproval. See, for example, National
Federation of Federal Employees, Local 476 and Department of the Army,
U.S. Army Electronics Research and Development Command, Fort Monmouth,
New Jersey, 26 FLRA No. 28 (1987). Similarly, if the Panel directs
parties to adopt a provision in their agreement, the agency head may
appropriately review the provision under section 7114(c). A disapproval
may subsequently be challenged by the union through the filing of a
petition for review of the negotiability issue or in an unfair labor
practice proceeding. Interpretation and Guidance, supra. Once again,
the Authority will determine whether the agency properly or improperly
disapproved the matter. An improper disapproval will be remedied by
directing the agency to rescind its disapproval. See, for example,
Department of the Treasury and Internal Revenue Service, 22 FLRA No. 89
(1986), petition for review filed sub nom. Department of the Treasury,
Internal Revenue Service v. FLRA, No. 86-1475 (D.C. Cir. Aug. 25, 1986).
Where a provision is found to be nonnegotiable and properly
disapproved by the agency head, on the other hand, the parties are
obligated to return to the bargaining table "with a sincere resolve to
reach agreement." Department of the Interior, National Park Service,
Colonial National Historical Park, Yorktown, Virginia, 20 FLRA 537
(1985) at 541, affirmed sub nom. FLRA v. National Association of
Government Employees, Local R4-68, 802 F.2d 1484 (4th Cir. 1986).
In both circumstances, there are certain bargaining consequences.
Where the disapproval was improper, the agency is ordered to rescind its
disapproval, which has the effect of giving full force and effect to the
provision in the parties' agreement. Where the disapproval was proper,
the parties are required to return to the bargaining table to negotiate
and attempt to reach agreement. An open question until now has been the
resolution of duty to bargain issues which are raised in an interest
arbitration proceeding.
As noted, interest arbitrators do not have the authority to resolve
duty to bargain questions. If they do, the awards will be found
deficient and set aside. In Social Security Administration and National
Council of SSA Field Operations Locals (NCSSAFOL), American Federation
of Government Employees, AFL-CIO (AFGE), 25 FLRA No. 17 (1987), we
reiterated this holding. We stated that in cases involving allegations
of nonnegotiability made during an interest arbitration proceeding, we
will carefully examine the record in the case, including the
arbitrator's award, to determine whether the arbitrator made a
negotiability ruling. If so, the award will be set aside. However,
where the arbitrator has merely applied existing case law in resolving
the impasse, we will resolve any exceptions to the award on the merits.
The award will be sustained if the existing case law was correctly
applied.
In those instances where an award is set aside because an interest
arbitrator has improperly asserted jurisdiction over a duty to bargain
question, we will provide a meaningful course of action for the parties
to follow so that the matter is not left unresolved. In our view, the
appropriate course of action is to require the parties to return to the
bargaining table "with a sincere resolve to reach agreement." This
approach is consistent with the requirement in situations where an
agency head properly disapproves a provision under section 7114(c).
We also note that the parties can take measures to avoid the problem
of an award being set aside because an interest arbitrator improperly
asserted jurisdiction over a negotiability issue. One measure is for
the parties to refrain from presenting negotiability questions in an
interest arbitration proceeding and instead resolve them through other
means -- including presentation of the issue to the Authority in a
section 7117 negotiability case. Also, the parties should advise the
arbitrator that negotiability questions cannot be resolved in an
arbitration proceeding unless, as we indicated in Social Security
Administration, the arbitrator merely applies existing case law to
resolve the impasse. In this latter event, the parties should assist
the arbitrator by identifying the relevant case law to be applied.
2. Scope of Judicial Review
The second concern stemming from our determination that interest
arbitration awards are not subject to agency head review is the effect
on judicial review. Under section 7123 of the Statute, review of
arbitration awards is limited. /11/ See United States Marshals Service
v. FLRA, 708 F.2d 1417 (9th Cir. 1983) and United States Marshals
Service v. FLRA, 778 F.2d 1432 (9th Cir. 1985) (courts of appeal have no
jurisdiction to review decisions of the Authority on exceptions to
arbitration awards unless the Authority's final order also involves an
unfair labor practice. An unreviewable duty to bargain order in
exceptions to an arbitration award does not become reviewable after the
party seeking review failed to comply with that order and therefore
committed an unfair labor practice. Moreover, the court will not review
the merits of the original unfair labor practice order for possible
deficiencies under section 7122 but merely whether an unfair labor
practice was committed).
Judicial review of final orders of the Authority rendered in
negotiability and unfair labor practice proceedings is not so limited.
In these proceedings, judicial review of the underlying duty to bargain
question can be sought. See Marshals Service, 778 F.2d at 1435.
While our holding here might appear to have the effect of limiting
judicial review of negotiability issues, that is not the result. Since
interest arbitrators are not empowered to resolve negotiability issues
it is of little, if any, consequence that the scope of judicial review
is limited in arbitration cases. The only possible exception is where
an interest arbitrator applies existing negotiability case law in
resolving an impasse. In that event, the arbitrator's award can be
challenged through the filing of exceptions with the Authority under
section 7122(a) of the Statute. In resolving the exceptions, the
Authority will determine whether or not the arbitrator correctly applied
the existing case law. If not, the award will be modified or set aside.
Judicial review of the Authority's decision would only be available on
the limited basis set forth in section 7123 and would not involve a
review of the negotiability question on its merits.
While the exclusion of interest arbitration awards from section
7114(c) review affects the scope of judicial review in some situations,
we are convinced that the exclusion represents the most reasonable
construction of the Statute and practical approach to the issue before
us. As we have previously discussed, this approach is consistent with
express Congressional intent that section 7122 of the Statute is the
mechanism for challenging all arbitration awards, including interest
arbitration awards. It is also consistent with Congressional intent
that arbitration awards are to be final and binding unless found to be
deficient by the Authority on timely filed exceptions under section
7122. Moreover, this approach implicitly promotes interest arbitration
as an effective means of resolving negotiation impasses.
We turn next to the four provisions that were disapproved by the
Respondent in this case. We will determine whether the provisions were
appropriately before the Respondent for review under section 7114(c),
and whether the Respondent's conduct in disapproving the provisions was
violative of the Statute, as alleged.
B. Academic Freedom and Travel and Per Diem Expenses at
Regional Meetings
As noted, the provisions regarding academic freedom and travel and
per diem for union representatives at regional meetings were directed to
be included in the agreement by the interest arbitration award. In the
absence of timely filed exceptions, the award became final and binding.
The Respondent was not authorized to conduct a section 7114(c) review.
Therefore, Respondent's disapproval of these provisions violated section
7116(a)(1) and (8) of the Statute. As the Respondent's disapproval
caused the Activity not to implement such provisions, we find a further
violation of section 7116(a)(1) and (5) of the Statute because such
conduct interfered with the bargaining relationship of the parties at
the level of exclusive recognition. Finally, as the award resulted from
Panel-directed interest arbitration, we find that the Respondent's
conduct also violated section 7116(a)(1) and (6) of the Statute because
of the refusal to comply with impasse procedures as set forth in section
7119 of the Statute. /12/
C. Travel and Per Diem Expenses at Arbitration Hearings
Next, we turn to the provision regarding travel and per diem for
witnesses at arbitration hearings which the Panel directed the parties
to incorporate into their agreement. Based on the Authority's
Interpretation and Guidance, 15 FLRA 564, it was appropriate for the
Respondent to exercise its section 7114(c) review authority as to this
provision because it was imposed by a decision and order of the Panel.
For the reasons set forth below, we find that the provision is not
inconsistent with law, rule, or regulation. Therefore the Respondent's
disapproval was improper.
The provision stated:
All witnesses who are civilian and military employees and who
are deemed necessary by the arbitrator to the arbitration hearing
will be entitled to travel and per diem expenses if the incident
giving rise to the grievance occurred at a location other than the
location of the arbitration hearing.
This provision stems from one originally offered by the Union in an
attempt to ease the financial burden in bringing witnesses to
arbitration hearings and to lessen the disparity between its resources
and those of the Activity which, assertedly, was able to use special
rates and military planes in securing its witnesses. The Activity
opposed the provision on the basis that there would be no incentive for
limiting costs and that costs could be manipulated inasmuch as the
Activity did not solely determine the site of arbitration hearings. The
Activity also noted that in the past all the arbitration hearings had
been held at the grievants' worksites.
The Panel determined that the issue concerning the Activity's
obligation to pay the travel and per diem expenses of the Union's
witnesses required a balancing of interests in ensuring that hearings
were fair and full while maintaining a reasonable level of costs. On
this basis, the Panel determined that the issue could best be resolved
by adoption of the Charging Party's proposal along with the proviso that
the arbitrator be empowered to determine which employees are necessary
and, further, that the employer pay the travel expenses only when the
incident giving rise to the grievance occurred at a location other than
that of the arbitration hearing.
The Respondent disapproved the provision with respect to travel and
per diem for unit and non-unit civilian employees on the basis that the
Supreme Court in Bureau of Alcohol, Tobacco and Firearms (BATF) v. FLRA,
464 U.S. 89 (1983), found that such payments were not authorized by the
Statute. /13/ As to travel and per diem for military employees, the
Respondent argued that they were not employees within the meaning of
section 7103(a)(2) of the Statute /14/ so that the provision which would
confer a contractual benefit on them was inconsistent with the Statute.
The Judge found first that the decision in BATF did not preclude the
negotiation of this particular provision as to civilian employees and
that it was neither asserted nor shown to be inconsistent with the
Travel Expense Act, 5 U.S.C. Section 5702, or any other law, rule or
regulation. He also found that the provision established a procedure
for and facilitated the use of the grievance and arbitration procedure
negotiated under section 7121 of the Statute and therefore directly
affected conditions of employment of unit employees. The effect of the
provision, he added, was not to establish conditions of employment of
non-unit employees or military personnel but rather was to allocate
costs between the parties as to one aspect of the negotiated grievance
procedure. The Judge then found that where a proposal affects
conditions of employment of unit employees and is otherwise consistent
with law, rule or regulation, it is within the duty to bargain even if
it affects employees outside the unit, citing Association of Civilian
Technicians, Pennsylvania State Council and Pennsylvania Army and Air
National Guard, 14 FLRA 38 (1984).
In our view, the provision was designed to allocate costs between the
Union and the Activity to ensure that necessary witnesses would be in
attendance at arbitration hearings. It was not designed to confer a
contractual benefit on employees or other persons outside the unit. As
to the provision's effect on such employees, we note our Decision and
Order on Remand in American Federation of Government Employees, Local
32, AFL-CIO, 22 FLRA No. 49 (1986), petition for review filed sub nom.
American Federation of Government Employees, Local 32 v. FLRA, No.
86-1447 (D.C. Cir. Aug. 11, 1986). In that case, we held that in
determining whether proposals affecting unit and non-unit employees are
within the duty to bargain, we will balance the right of the union
involved to negotiate over the conditions of employment of unit
employees and the right of the agency to set conditions of employment of
employees outside the unit. In so doing, we will examine whether the
nature and degree of the proposal's impact is so intrinsically related
to the working conditions of employees outside the unit so as to invade
the purview of other unit representatives or require the agency to act
in a way that will have a significant effect on the rights of employees
who are not represented by the union involved.
In this case, after balancing the rights of the parties involved, we
find that such is not the case. Rather, the balance must be struck in
favor of finding the provision to be within the scope of bargaining.
First, nothing contained in the BATF decision precludes the
authorization of payment for travel and per diem expenses for witnesses
at arbitration hearings and in fact the Authority has found this matter
to be within the duty to bargain. See Department of Defense Dependents
Schools System, 21 FLRA No. 125 (1986) and National Treasury Employees
Union and Department of the Treasury, Internal Revenue Service, 21 FLRA
No. 19 (1986), petition for review filed sub nom. Department of the
Treasury, Internal Revenue Service v. FLRA, No. 86-1290 (D.C. Cir. May
19, 1986). Clearly, the participation of necessary witnesses is an
important element in the processing and resolution of grievances. The
Judge correctly noted that access to the grievance/arbitration procedure
is a fundamental statutory right. /15/ Any provision that advances and
promotes the use of and access to this fundamental statutory right, and
which does not violate law, rule, or regulation, in our view is within
the duty to bargain. This is so even where the matter would indirectly
affect employees outside the bargaining unit.
The record here indicates that non-unit employees, particularly
military personnel, have been called to arbitration hearings by the
Activity. The Union, in its submission to the Panel, stated without
contradiction that the Activity has brought in witnesses from various
countries and has used special rates and military planes in connection
with their attendance. Under these circumstances, and in view of the
Congressional mandate regarding the scope and effect of negotiated
grievance procedures, we find, on balance, that the provision is not
inconsistent with law, rule, or regulation. Therefore, the Respondent's
disapproval of this provision under section 7114(c) was improper and the
Respondent's conduct constituted a violation of section 7116(a)(1) and
(6) of the Statute. /16/
D. Opening of Employee Storage Areas
Finally, we turn to the Respondent's disapproval of the following
provision regarding union attendance at the opening of employee storage
areas which the Activity and the Charging Party negotiated on their own:
Security. Except in emergencies if it becomes necessary to
open employees' cabinets, desks, drawers or other storage areas
used exclusively by the employee, the Employer will notify the
Union representative who shall accompany the Employer when any of
the foregoing is opened.
The Respondent disapproved this provision on the basis that it
conflicted with management's right to determine its internal security
practices under section 7106(a)(1) of the Statute. The Respondent later
also argued that the provision violated management's section
7106(a)(2)(B) right to assign work. The Judge found that the provision
did not interfere with either of these management rights. Rather, he
concluded that the provision was indistinguishable from proposals
previously found negotiable by the Authority in other proceedings and
merely constituted a procedure which the Activity would observe in
exercising its right to determine internal security practices.
We agree with the Judge's findings and conclusions. /17/ It is by
now well established that a refusal to negotiate over a proposal
previously found negotiable by the Authority is a violation of the
Statute. See Department of the Treasury, Internal Revenue Service,
Memphis Service Center, 15 FLRA 829 (1984), and cases cited therein at
n. 2. Here, the Respondent's disapproval of a provision which is not
materially different from ones previously found to be within the duty to
bargain was improper and therefore a violation of section 7116(a)(1) and
(8) of the Statute. As the provision was not implemented because of
such disapproval, we find that the Respondent has violated section
7116(a)(1) and (5) of the Statute as well.
E. Respondent's Objection
The Respondent objects to the Judge's finding, as alleged, that
certain provisions were disapproved on January 31. It argues that, as
in fact they were not disapproved until March 20, the complaint should
be dismissed. There is no issue here of the timeliness of the charge;
only whether certain actions can be found to be an improper disapproval
of the various provisions. We find it unnecessary to decide whether the
Respondent's actions on January 31, which at least indicated its
intention to disapprove, amounted to a "final action" that would form
the basis for the filing of an unfair labor practice charge. The fact
remains that the Respondent disapproved. The question is whether that
disapproval violated the Statute. We find that for the most part it
did. We find no merit in the Respondent's objection.
VI. Remedy
To remedy the unfair labor practice conduct, we shall order the
Respondent to take the following action: revoke and rescind its
disapproval of the four provisions involved in this case; direct DODDS
Mediterranean to incorporate the provisions into its collective
bargaining agreement with the Charging Party retroactive to February 4,
1984, subject to any other agreement concerning such provisions the
parties may have reached, /18/ and until modified in a manner consistent
with the Statute; and make whole the Charging Party and bargaining unit
employees for any losses they incurred as a result of the unlawful
disapproval. As a part of the make whole remedy, we shall direct that
the Respondent reimburse the Charging Party for the expenses it incurred
in paying various travel and per diem expenses which otherwise would
have been paid had the Respondent not unlawfully disapproved the
provisions authorizing such payments and, further, to reimburse the
affected employees who either did not receive payments to which they
were entitled or were not compensated fully for such expenses, upon
their submission of properly documented claims for such payments. /19/
The make whole order is being directed against the Respondent, rather
than DODDS Mediterranean as the Judge had ordered, because the
Respondent is the party that violated the Statute. It should therefore
assume the costs of its unlawful conduct. See Department of the
Treasury and Internal Revenue Service, 22 FLRA No. 89 (1986), petition
for review filed sub nom. Department of the Treasury, Internal Revenue
Service v. FLRA, No. 86-1475 (D.C. Cir. Aug. 25, 1986).
As for the posting of the remedial notice, the General Counsel has
requested that school and holiday vacation periods be excluded from
computation of the 60-day posting period. We find merit to the General
Counsel's request. Therefore, and as we have done in previous
decisions, we shall order that the posting period exclude holiday and
vacation periods. See Department of Defense Dependents Schools,
Mediterranean Region, Naples American High School (Naples, Italy), 21
FLRA No. 103 (1986), and case cited therein at the footnote.
VII. Summary
The various circumstances involved in this unfair labor practice case
have demonstrated that there exists a multiplicity of forums for
reviewing and/or challenging provisions directed to be included in an
agreement or negotiated by the parties involved. For this reason, we
wish to summarize our holdings in this case.:
1. Where provisions are directed to be included in an
agreement as a result of Panel-directed interest arbitration, the
appropriate mechanism for challenging such provisions is through
the procedures set forth in section 7122 of the Statute. Agency
heads are not empowered to review such provisions under section
7114(c) of the Statute.
2. Where provisions are directed to be included in an
agreement by a Decision and Order of the Panel, review of such
provisions may be sought either through the negotiability
procedures of section 7117 of the Statute and Part 2424 of the
Authority's Rules and Regulations, or through the unfair labor
practice procedures of section 7118 of the Statute and Part 2423
of the Rules and Regulations.
3. Where parties have negotiated provisions and incorporated
them into their agreement, agency heads may properly exercise
review under section 7114(c) of the Statute. However, an agency
head risks committing an unfair labor practice by disapproving a
provision which is substantially identical to a matter previously
found negotiable by the Authority.
VIII. Conclusions
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Statute, the Authority has reviewed the rulings
of the Judge made at the hearing, finds no prejudicial error was
committed, and thus affirms those rulings. The Authority has considered
the Judge's Decision and the entire record in this case, and adopts the
Judge's findings, conclusions and recommended Order, as modified. We
find that the Respondent's disapproval of various contract provisions
violated section 7116(a)(1) and (8), section 7116(a)(1) and (6) and
section 7116(a)(1) and (5) of the Statute, as alleged. /20/
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, the
Department of Defense Dependents Schools (Alexandria, Virginia) shall:
1. Cease and desist from:
(a) Disapproving provisions of a collective bargaining agreement
between the Department of Defense Dependents Schools, Mediterranean
Region and the Overseas Federation of Teachers, AFT, AFL-CIO.
(b) Failing and refusing to cooperate in impasse procedures as
required by the Statute.
(c) Interfering with the bargaining relationship between the
Department of Defense Dependents Schools, Mediterranean Region and the
Overseas Federation of Teachers, AFT, AFL-CIO.
(d) In any like or related manner, interfering with, restraining or
coercing 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) Revoke and rescind its disapproval of provisions of the
collective bargaining agreement between the Department of Defense
Dependents Schools, Mediterranean Region and the Overseas Federation of
Teachers, AFT, AFL-CIO, concerning academic freedom, payment of travel
and per diem expenses for Union representatives attending Regional
meetings, payment of travel and per diem expenses for civilian and
military employees at arbitration hearings, and attendance of a Union
representative at the opening of employee storage areas.
(b) Direct the Department of Defense Dependents Schools,
Mediterranean Region to incorporate the above provisions into their
agreement with the Overseas Federation of Teachers, AFT, AFL-CIO,
retroactive to February 4, 1984, subject to any agreement which may have
been reached by the parties concerning such matters and until modified
in a manner consistent with the Statute.
(c) Make whole the Overseas Federation of Teachers, AFT, AFL-CIO and
any bargaining unit employees who incurred losses as a result of the
improper disapproval of the provisions in the agreement between the
Department of Defense Dependents Schools, Mediterranean Region and the
Overseas Federation of Teachers, AFT, AFL-CIO. This includes
reimbursement to the Overseas Federation of Teachers for the expenses it
incurred in paying various travel and per diem expenses which otherwise
would have been paid had the provisions authorizing such payment not
been disapproved. This also includes reimbursement to the affected
employees who either did not receive payments to which they were
entitled or were not compensated fully for such expenses, upon their
submission of properly documented claims for such payments.
(d) Post at all schools located in the Department of Defense
Dependents Schools, Mediterranean Region, 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 (Alexandria, Virginia), or a
designee, and shall be posted and maintained for 60 consecutive days
thereafter, excluding holiday and vacation periods, 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.
(e) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region I, Federal Labor
Relations Authority, 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., June 24, 1987.
/s/ Jerry A. Calhoun, Chairman
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Member Frazier, concurring in part and dissenting in part:
I concur in my colleagues' conclusion that the Respondent's
disapproval of various contract provisions violated section 7116(a) of
the Statute. I do so based on my agreement with their dispositive
finding that the agency failed to comply with the applicable rules
concerning the filing of exceptions in order to challenge the propriety
of an interest arbitration award under section 7122(b).
However, I cannot agree with the majority's conclusion that agency
heads are not empowered under section 7114(c) to review provisions
directed to be included in an agreement by an interest arbitration
award. Such a conclusion creates a conflict between sections of the
Statute where none need be found.
The legislative history cited by the majority clearly supports the
proposition that "Section 7122 sets forth the procedures under which a
party may obtain review by the Authority of an arbitrator's award." I
agree therefore that the only manner in which a party may obtain review
by the Authority of an interest arbitration award is by filing
exceptions under section 7122. I further agree that arbitration awards
are to be final and binding unless found to be deficient by the
Authority on timely filed exceptions under section 7122.
The requirement that interest arbitration awards be challenged only
through the procedures of section 7122 does not, however, answer the
question of whether an agency head is empowered under section 7114(c) to
review provisions directed to be included in an agreement by an interest
arbitration award. Section 7114(c) does not deal with "review by the
Authority of an arbitrator's award" which is the matter addressed by
section 7122 and the pertinent legislative history. Section 7114(c)
thus does not intrude on matters governed by section 7122. By the same
token, section 7122 does not address the different matters governed by
section 7114(c); namely, the authority of an agency head to disapprove
contract provisions where they are considered contrary to law (including
the Statute), rule or regulation. From the proposition that section
7122 is the sole procedure for seeking Authority review of an
arbitration award it simply does not follow that agency heads may not
review for legal sufficiency provisions of a collective bargaining
agreement imposed by an arbitrator acting under the auspices of the
Federal Service Impasses Panel. Agency head action under section
7114(c) does not constitute "review by the Authority of the arbitrator's
award." It simply constitutes review by the agency head of the contract
provision directed for inclusion in the collective bargaining agreement
to ensure that the provision is legally sufficient much as the agency
head would review the same provision in determining whether to file
exceptions to the award with the Authority pursuant to section 7122.
Nothing in the legislative history of the Statute specifically
addresses the issue here. In the absence of a specific indication of
congressional intent to the contrary, I believe that the two provisions
of the Statute, sections 7122 and 7114(c), should, if possible, be
reconciled. Such a reconciliation is possible. Conversely, it does not
appear necessary to me to take the "either/or" -- "all or nothing"
approach which the majority takes with respect to the interpretatin and
application of sections 7122 and 7114(c) in these circumstances.
Such a reconciliation is not without precedent. As noted by the
majority, in Interpretation and Guidance, 15 FLRA 564 (1984), aff'd sub
nom. American Federation of Government Employees v. FLRA, 778 F.2d 850
(D.C. Cir. 1985), the Authority determined that under section 7114(c) of
the Statute, an agency head is authorized to review for legal
sufficiency provisions of a collective bargaining agreement imposed by
decisions and orders of the Federal Service Impasses Panel under section
7119 of the Statute. The Authority reached this result by reconciling
the provisions of section 7114(c) and 7119 in the absence of any
pertinent legislative history. The Authority also found that review of
an agency head's disapproval in such cases may be sought either through
the negotiability procedures of section 7117 or the unfair labor
practice procedures available under section 7118 of the Statute.
Section 7119 authorizes the Panel in resolving negotiation impasses
to order or approve interest arbitration as an alternative procedure to
the procedures and final action of the Panel itself. Thus, interest
arbitration is, simply, one of a number of closely aligned procedures
for resolving impasses under section 7119. In my view, therefore, the
rationale supporting the Authority's conclusion that an agency head can
review a contract provision that resulted from one of those procedures
-- direct Panel action -- persuasively supports the same conclusion with
respect to the rest of those procedures -- including interest
arbitration which has been directed or approved by the Panel. By
concluding otherwise, the majority has elevated the status of the "stand
in" interest arbitrator who often is, and who indeed was in the facts of
this case, an agent of the Panel, to a position more favored than that
of the principal -- the Panel itself.
Furthermore, in the Interpretation and Guidance, the Authority
reached the conclusion that agency heads are empowered to review "all
provisions of collective bargaining agreements" in recognition of the
requirement that Panel decisions must be consistent with law and
regulation and in recognition of the general function of section 7114(c)
as a means by which the agency head reviews contract provisions for
legal sufficiency. 15 FLRA at 567 (emphasis in original). Under
section 7122(a) of the Statute, interest arbitration awards similarly
may be challenged for legal sufficiency.
In fact one of the most important purposes, if not the primary
purpose, of both section 7114(c) and section 7122(a) is to provide
procedures to ensure that labor-management relations in the Federal
sector is conducted in a manner consistent with "law, rule or
regulation." In the case of both interest arbitration awards and
grievance arbitration awards, either party may file exceptions with the
Authority alleging that an award is contrary to "law, rule or
regulation." In the case of provisions included in a collective
bargaining agreement the agency head may act to disapprove them if
contrary to "law, rule or regulation." Accordingly, my conclusion that
agency heads are empowered to review for legal sufficiency all
provisions of a collective bargaining agreement, including provisions
directed to be included in the agreement by an interest arbitration
award, is consistent with the general purpose of both section 7114(c)
and section 7122(a).
Having so concluded, some reconciliation of the two sections is
nevertheless required. Section 7114(c)(3) of the Statute provides that
an agreement which has not been approved or disapproved by the Agency
involved within 30 days after the date of its execution becomes
effective and binding on the parties on the 31st day, without the
approval of the agency, subject only to the requirements of the Statute
and any other applicable law, rule or regulation. Section 7122(b) of
the Statute, as amended, provides that if no exceptions to an
arbitrator's award are filed during the 30-day period beginning on the
date the award is served on the filing party, the award becomes final
and binding and the agency must take the action required by a final
award. In order to reconcile these provisions of the Statute, I would
conclude, as previously indicated and in agreement with the majority,
that the Agency must file timely exceptions to the arbitration award
under section 7122 or else the award becomes final and binding. This
preserves the full effectiveness of section 7122 in these sorts of
circumstances. Therefore, if the agency did not file timely exceptions
to an interest arbitration award, agency head action under section
7114(c) to disapprove a provision directed to be included in a
collective bargaining agreement by that award would have no effect.
I would further conclude, however, and in contrast to my colleagues,
that the filing of timely exceptions challenging the award as
inconsistent with applicable law and/or regulations operates as a
constructive disapproval by the agency under section 7114(c). Compare,
e.g., National Federation of Federal Employees, Local 1505 and
Department of the Interior, National Park Service, Roosevelt-Vanderbilt
National Historical Site, Hyde Park, New York, 7 FLRA 608 (1982);
American Federation of Government Employees, AFL-CIO, Local 2955 and
National Guard Bureau, Office of the Adjutant General, Des Moines, Iowa,
5 FLRA 617, 618 n.2 (1981). If the union then were to file a petition
for review of the negotiability issues raised by the disapproval, the
Authority would have before it for review both the exceptions to the
arbitration award filed by the agency and the appeal from the agency's
negotiability determination filed by the union. The Authority could
consolidate the related negotiability and arbitration appeals for
purposes of decision.
This approach to deciding issues concerning the consistency of
interest arbitration-ordered contract provisions with applicable law and
regulation leaves intact the option of either party, depending upon the
outcome, to attempt to obtain judicial review of the negotiability
decision of the Authority. Where the Authority issues a decision on a
negotiability determination made by an agency head pursuant to section
7114(c), those decisions have been held subject to judicial review.
E.g., National Federation of Federal Employees, Local 615 v. FLRA, 801
F.2d 477, 479 (D.C. Cir. 1986). As the majority points out, the filing
of exceptions under section 7122(a) of the Statute means that judicial
review would only be available in the limited circumstances set forth in
section 7123. However, under the view I espouse, it would be left to
the courts to determine the extent of judicial review to which the
parties may be entitled concerning negotiability decisions by the
Authority in these sorts of cases. Further, the approach I have taken
would not delay the resolution of the exceptions filed by the agency to
the arbitration award.
In sum, sections 7114 and 7122 of the Statute should be reconciled so
as to give each one force and effect. The views I have discussed
accomplish this reconciliation. Nothing in the Statute or its
legislative history indicates to me that Congress intended either
section to prevail over the other so as to render it nugatory in some
circumstances. For these reasons, I concur in the result, but
respectfully dissent from my colleagues' rationale in this case.
Issued, Washington, D.C., June 24, 1987.
/s/ Henry B. Frazier III, Member
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 disapprove provisions of a collective bargaining
agreement between the Department of Defense Dependents Schools,
Mediterranean Region and the Overseas Federation of Teachers, AFT,
AFL-CIO.
WE WILL NOT fail and refuse to cooperate in impasse procedures as
required by the Statute.
WE WILL NOT interfere with the bargaining relationship between the
Department of Defense Dependents Schools, Mediterranean Region and the
Overseas Federation of Teachers, AFT, AFL-CIO.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce employees in the exercise of their rights assured by the Statute.
WE WILL revoke and rescind our disapproval of provisions of the
collective bargaining agreement between the Department of Defense
Dependents Schools, Mediterranean Region and the Overseas Federation of
Teachers, AFT, AFL-CIO, concerning academic freedom, payment of travel
and per diem expenses for Union representatives attending regional
meetings, payment of travel and per diem expenses for civilian and
military employees at arbitration hearings, and attendance of a Union
representative at the opening of employee storage areas.
WE WILL direct the Department of Defense Dependents Schools,
Mediterranean Region to incorporate the above provisions into their
agreement with the Overseas Federation of Teachers, AFT, AFL-CIO,
retroactive to February 4, 1984, subject to any agreement which may have
been reached by the parties concerning such matters and until modified
in a manner consistent with the Statute.
WE WILL make whole the Overseas Federation of Teachers, AFT, AFL-CIO
and any bargaining unit employees who incurred losses as a result of our
improper disapproval of the provisions in the agreement between the
Department of Defense Dependents Schools, Mediterranean Region and the
Overseas Federation of Teachers, AFT, AFL-CIO. This includes
reimbursement to the Overseas Federation of Teachers for the expenses it
incurred in paying various travel and per diem expenses which otherwise
would have been paid had the provisions authorizing such payment not
been disapproved. This also includes reimbursement to the affected
employees who either did not receive payments to which they were
entitled or were not compensated fully for such expenses, upon their
submission of properly documented claims for such payments.
(Activity)
Dated: . . . By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, excluding holiday and vacation periods, 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 I, Federal Labor Relations Authority, whose address is:
10 Causeway Street, Room 1017, Boston, MA 02222-1046, and whose
telephone number is: (617) 565-7280.
-------------------- ALJ$ DECISION FOLLOWS --------------------
Case Nos. 1-CA-40196, 1-CA-40231
DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS (ALEXANDRIA, VIRGINIA)
Respondent
and
OVERSEAS FEDERATION OF TEACHERS, AFT, AFL-CIO
Charging Party
Mr. Martin L. Frantz
For the Respondent
Mr. Ernest J. Lehmann
For the Charging Party
Gerard M. Greene, Esquire
For the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
DECISION
Statement of the Case
This decision concerns a consolidated unfair labor practice complaint
issued by the Regional Director, Region I, Federal Labor Relations
Authority, Boston, Massachusetts, against the Department of the Defense
Dependents Schools, Alexandria, Virginia (Respondent), based on charges
filed by the Overseas Federation of Teachers, AFT, AFL-CIO (the Union).
The consolidated complaint alleged, in substance, that the Respondent
violated Sections 7116(a)(1), (5), (6) and (8) of the Federal Service
Labor-Management Relations Statute, 5 USC Section 7101 et seq. (the
Statute), by disapproving certain terms of a collective bargaining
agreement between the Union and the Department of Defense Dependents
Schools, Mediterranean Region (the Activity). More specifically, the
consolidated complaint alleged that on or about January 31, and on or
about March 20, 1984, the Respondent interfered with the bargaining
relationship between the Union and the Activity by disapproving contract
provisions concerning academic freedom, reimbursement of travel and per
diem expenses incurred by Union representatives attending regularly
scheduled union-management meetings, reimbursement of travel and per
diem expenses incurred by witnesses at arbitration hearings, and the
attendance of Union representatives when employees' storage areas are
opened by the Activity. The consolidated complaint also alleged that,
insofar as the first three provisions were included in the
collective-bargaining agreement as a result of proceedings before the
Federal Service Impasses Panel (FSIP, or the Panel), the Respondent
failed and refused to cooperate in impasse procedures and impasse
decisions by disapproving those provisions. Finally, the consolidated
complaint alleged that, insofar as all of the foregoing contract
provisions are in accordance with the Statute and any other applicable
law, rule or regulation, the Respondent failed and refused to comply
with Section 7114(c) of the Statute by disapproving those provisions.
The Respondent's Answer admitted the jurisdictional allegations as to
the Union, the Respondent, and the charges, but denied any violation of
the Statute. The Respondent's Answer admitted that the first three
provisions, described above, were directed to be included in the
collective-bargaining agreement by the FSIP, and that as a result of
Respondent's disapproval none of the foregoing provisions have been
implemented.
A hearing was held on March 7-8, 1985. The Respondent, Charging
Party, and the General Counsel were represented and afforded full
opportunity to be heard, adduce relevant evidence, examine and
cross-examine witnesses, and file post-hearing briefs. The Respondent
and General Counsel filed briefs on July 19, 1985. The proposed
findings have been adopted where found material and supported by the
record as a whole. Based on the entire record, including my observation
of the witnesses and their demeanor, I make the following findings of
fact, conclusions of law, and recommendations.
Findings of Fact
1. At all times material herein, pursuant to a certification of
representative issued in Case No. 3-RO-55 on June 22, 1982 the Union has
been the exclusive representative of the following unit of employees:
All nonsupervisory professional school-level personnel employed
by the Department of Defense Dependents Schools, Mediterranean
Region; excluding all nonprofessional employees, substitute
teachers, management officials, supervisors and employees
described in Section 7112(b)(2), (3), (4), (6) and (7) of the
Statute.
2. The bargaining unit is comprised of approximately 900 employees,
employed by the Activity at 32 schools located on military installations
at 21 different sites in six countries. The Activity's operations span
an extensive geographical area in the Mediterranean region from as far
west as the Azores to Bahrain in the Persian Gulf, encompassing four
time zones (Tr. 22-23).
3. In September 1983 Robert G. Howlett, Chairman, FSIP, conducted
mediation/arbitration proceedings in order to resolve impasses which had
arisen in contract negotiations between the Union and the Activity, and
subsequently issued an Arbitrator's Decision and Order, Case No. 83 FSIP
102, December 8, 1983. Howlett had been vested by the Panel with "the
authority to mediate with respect to the issues and to issue a binding
decision as an arbitrator on any issues that remained unresolved."
Howlett resolved all but two issues, which he referred to the full Panel
(ALJ Ex. 1).
4. On or about January 4, 1984 the Union notified the Activity that
its membership had ratified the collective-bargaining agreement, and
that it expected the agreement to be implemented at the expiration of a
30-day period (Tr. 29). At that period of time, Activity representative
Ronald Richards informed the Union's European Director Ernest Lehmann
that the agreement "was being submitted to headquarters for their
review" (Tr. 29). Submission of the agreement for review was consistent
with the ground rules established by the Union and the Activity (Tr.
194). The agreement which the Activity forwarded to the Respondent
included all of the provisions directed by Howlett (Tr. 31-32; 195;
G.C. Ex. 4). In the same period of time, in early January,
representatives of the Union and the Activity signed the agreement (Tr.
30-31), and the signature page was also forwarded to the Respondent (Tr.
195-200).
5. On or about January 25, 1984 the Union and the Activity concluded
a Memorandum of Understanding concerning implementation of the
collective-bargaining agreement (Tr. 29-30; 149-150; Res. Ex. 7).
This step was undertaken at the Activity's initiative (Tr. 148). As
Richards recalled, "We wanted to implement the agreement. The Union
seemed receptive to that idea." (Tr. 148, 197). At that time, there
remained outstanding the two issues which Chairman Howlett had referred
to the Panel, and the Activity also had not heard from headquarters
concerning the regulatory review. (Tr. 197). The agreement provided
that the "Union may request to renegotiate those disapproved provisions
or take action to the Federal Labor Relations Authority." (Res. Ex. 7).
The Activity made it clear to the Union "that there was the possibility
that part of it would maybe be declared non-negotiable, and we wouldn't
be able to implement that; but the parts that were not found to be in
conflict, we would implement." Notwithstanding that possibility, the
Activity was willing at the time to abide by the collective-bargaining
agreement, including the provisions directed by Chairman Howlett. (Tr.
198).
6. By message dated January 31, 1984, Respondent notified the
Activity that inasmuch as there were outstanding issues regarding the
agreement pending before the Federal Services Impasses Panel (FSIP), a
final agreement had not been completed and the 30-day period for review
would not commence running until the complete agreement was before it.
However, Respondent went on to state that it "specifically disapproved"
certain provisions of the collective bargaining agreement. A copy of
Respondent's message was furnished to the Union the following day. (Tr.
141, 199; Res. Ex. 3).
7. On February 29, 1984, Edward H. Passman, attorney for the Union,
advised Respondent that in view of Respondent's position that a final
agreement was not before it and that the 30 day review period was not
running, the Union had concluded that there was not an executed final
agreement which would set the time limits running for the filing of a
negotiability appeal. Passman requested that once FSIP ruled on the
outstanding items, Respondent furnish a copy of the "review of the
completed negotiated agreement under 5 U.S.C. 7114(c) for the purpose of
filing a negotiability appeal to the Federal Labor Relations Authority"
(Res. Ex. 9).
The Academic Freedom Provision
8. Respondent's January 31, 1984 message disapproved, as
inconsistent with management's statutory rights to direct employees and
to assign work under Sections 7102(a)(2)(A) and (B) of the Statute, the
following underlined portion of the agreement:
Article 6, EMPLOYEE RESPONSIBILITIES
Section 1. Employee Responsibilities. The Parties recognize
the standard applied to professionals and the obligations of
employees employed overseas on military installations. An
employee's responsibilities include, but are not limited to:
. . .
f. Performing their assigned duties consistent with academic
freedom and academic responsibility.
9. The academic freedom provision was included in the
collective-bargaining agreement at the direction of Chairman Howlett
during the mediation/arbitration proceedings held in September 1983 (ALJ
Ex. 1, p.3; Tr. 111, G.C. Ex. 1(E) (par. 7(a)); GC. Ex. 1(F) (par.
7(a)).
10. The academic freedom provision directed by Chairman Howlett
originated from a Union bargaining proposal. (Tr. 104, 175; Res. Ex.
13). The Union position was that management had the right to determine
the curriculum and to direct employees, but teachers had the right
within the discretion afforded them by academic freedom to decide
without undue interference which teaching methods would be used to teach
a prescribed curriculum (Tr. 225, 234, 300). The premise of the
proposal was that, within the prescribed curriculum, a teacher should
have the opportunity to teach within his subject area in the best way he
sees fit, that is, by using all of the methods and means he can to most
effectively get his information across to students. (Tr. 109, 112).
Union bargaining team member Colette Grillo, a mathematics teacher,
offered as an example her use of dice to teach rules of probability.
(Tr. 108). Absent Activity guidelines prohibiting specific material,
Grillo testified, a teacher's choice of methods and means depended upon
relevancy and the students' maturity. (Tr. 109, 110). Apart from
establishing the curriculum and recommended materials, the Activity does
not publish a list of materials prohibited from use in a classroom.
(Tr. 111, 242). Grillo testified that the academic freedom contract
article was designed, in the Union's view, to afford protection to
teachers in cases such as " . . . a principal coming into my room and
seeing my students rolling dice, and simply coming in and saying, 'You
may not roll dice in your classroom, because it looks to me like they
are gambling,' without trying to find out exactly what was going on, why
I was doing it, how effective it was, whether it was offensive to the
students, offensive to the parents, offensive to the rest of the
community, etc." (Tr. 115, 116). Activity representatives, witnesses
for the Respondent, acknowledged that teachers exercised some discretion
in teaching methods and in deciding the most appropriate intervention
and instructional means to guarantee that students will achieve learner
objectives established by a curriculum. (Tr. 235, 241, 242, 273, 278,
281). However, the Activity viewed the Union's proposal as "trying to
completely eliminate any responsible behavior in the classroom and give
teachers carte blanche to teach any concept any way they wanted."
Management saw the proposal as restricting management from assigning how
a subject should be taught or limiting how it could be taught. (Tr.
177). At one point in bargaining, an amendment of the Union's proposal
to include a reference to "academic responsibility" appeared to
alleviate management's concern that a principal might not be able to
direct a teacher in a particular way. (Tr. 225, 226, 227-228).
However, the Activity refrained from offering this as a proposal or
concluding an agreement on those terms (Tr. 107). The bargaining on
this matter took place in the presence of Chairman Howlett. (Tr. 105,
228). The provision ultimately directed by Chairman Howlett differed
from the Union's original proposal by deleting reference to the academic
freedom "in its broadest interpretation" and substituting "consistent
with . . . academic responsibility."
The Provision Dealing with the Opening of Employees' Storage Area
11. Respondent's January 31, 1984 message also disapproved, as
inconsistent with management's statutory right to determine internal
security practices, and as interference with the exercise of other
retained rights, under Sections 7106(a)(1) and (2) of the Statute, the
following provision:
Security. Except in emergencies, if it becomes necessary to
open employees' cabinets, desks, drawers or other storage areas
used exclusively by the employee, the Employer will notify the
Union representative who shall accompany the Employer when any of
the foregoing is opened.
12. This provision was included in the collective-bargaining
agreement as a result of the Union's and Activity's own negotiating
efforts, rather than being directed by Chairman Howlett (Tr. 59). /21/
13. The provision calling for the Union's attendance when employee
storage areas are opened by the Activity was intended by the Union as a
procedural safeguard. It was not intended to prevent the Activity from
undertaking a search. (Tr. 60, 87-88, 292). To comply with the
provision, the Activity need only give notice to the designated Union
representative or his designee of its intent to open the storage area.
If the representative declines to accompany the Activity officials,
after having received notice, the official may proceed with the search.
(Tr. 91-92). The Union representative shall be permitted to accompany
the Employee's representative except in emergency situations. (Tr.
226-227).
Provision Concerning Travel and Per Diem for Regional Meetings
13. Respondent's January 31, 1984 message also disapproved, as
inconsistent with Bureau of Alcohol, Tobacco and Firearms vs. Federal
Labor Relations Authority, 104 S. Ct. 439 (1983), the provision calling
for reimbursement of travel and per diem expenses incurred by Union
representatives for participation at regional meetings, as underlined:
Article 10, UNION MANAGEMENT MEETINGS
Section 3. Regional Scheduled Meetings. To facilitate impact
bargaining and provide the means whereby the Union may present
employee concerns to the Employer formally seven (7) scheduled
meetings a year commencing with the 1984-1985 school year will be
held. These meetings will be scheduled prior to the beginning of
each school year. However, by mutual agreement the sites and
times may be adjusted to reduce travel costs. The Union may
nominate five (5) representatives to attend who will be on
official time. Travel and per diem shall be authorized for up to
two (2) Union representatives per meeting. Up to two (2) Union
representatives may receive a travel day to facilitate attendance.
15. This provision, as well as the entire Article 10, was included
in the collective-bargaining agreement at the direction of Chairman
Howlett (ALJ Ex. 1, pp. 42-43).
16. Collective-bargaining agreements previously in effect between
the Union and the Activity's predecessors, since 1973, had provided for
the reimbursement of travel and per diem expenses for the Union's
participation in periodic Union-management meetings. (Tr. 17-20; G.C.
Ex. 2, 3). Following an agency reorganization and the establishment of
the DODDS Regions, including the Activity, in 1979, travel and per diem
expenses were reimbursed pursuant to an interim agreement. (Tr. 22).
The Union and the Activity continued, following the Union's
certification as exclusive representative of the present bargaining
unit, to have regional meetings on a monthly basis to address employees'
concerns. (Tr. 20, 22).
17. On February 17, 1982 the Activity initiated a grievance against
the Union charging, in effect, that the Union had not shown good faith
in containing travel costs. The Union's proposal, that the parties
submit the issue to an arbitrator as one in interest arbitration with a
view, if necessary, to altering the contract language, was accepted.
The arbitrator noted that the problem of covering travel costs had been
exacerbated by several factors, including a new division of budgeted
resources. He concluded, however, that the Union had not in all
instances shown good faith in containing travel costs in the Joint Labor
Management Committee process, and that some modification in the
provision of the contract was necessary. He noted that the Joint Labor
Management Committee process and regional meetings "are a vital part" of
the collective bargaining agreement. Accordingly, he rejected the
Activity's proposal to limit the number of regional meetings to five a
year, but did reduce the number of meetings from twelve to seven. He
also made changes in the allotment of Union members eligible for
temporary duty status for meetings, the selection of locations for
meetings, and how Union team members may be selected for such meetings.
(Tr. 94, Res. Ex. 2).
18. Until implementation of the present collective-bargaining
agreement on February 4, 1984, the Activity had observed the terms and
conditions of the previous agreements (Tr. 21, 130, 148), as amended by
the decision of the arbitrator (Tr. 94, Res. Ex. 2), and thus continued
to reimburse travel and per diem expenses in connection with the
Union-management meetings until that time. (Tr. 128). Prior to the
1978 travel and per diem expenses incurred in negotiating
collective-bargaining agreements had also been reimbursed pursuant to
ground rules. (Tr. 20).
19. During negotiations for a new agreement in late 1982
management's position was that regional meetings were not productive,
were open-ended and repetitious, and were expending sums needlessly.
Respondent wanted to limit the number of meetings per year. (Tr.
129-131; ALJ Ex. 1). The Union's position was to maintain the status
quo (Tr. 132). After mediation efforts of the FMCS were unsuccessful,
Respondent requested the services of the FSIP (Tr. 134). The
Arbitrator's Opinion and Decision reflects that the only disagreement of
significance concerning the regional meetings was the number which
should be held (ALJ Ex. 1, p. 39).
20. As noted, the entire Article 10 dealing with union management
meetings was included in the collective bargaining agreement at the
direction of Chairman Howlett. Article 10, Section 3 of the present
collective-bargaining agreement thus continues the long-standing
practice of periodic meetings devoted to the discussion of employees'
concerns concerning working conditions and to negotiations over mid-term
changes in working conditions (e.g. impact bargaining). Negotiations
between the Union and the Activity may take place only at the Regional
level, as distinct from the school level. (Tr. 34, Tr. 215, 217).
21. As the Union and the Activity had agreed, the
collective-bargaining agreement was implemented on February 4, 1984.
(Tr. 33). However, as a result of Respondent's disapproval, the
foregoing portions of the collective-bargaining agreement were not
implemented by the Activity (G.C. Ex. 1(E) (para. 10); (G.C. Ex. 1(F)
(para. 10)).
22. As a consequence of Respondent's action, the Activity denied
reimbursement for travel and per diem expenses incurred in connection
with the first Regional scheduled meeting held February 27, 1984 at
Madrid, Spain (Tr. 33). At that time Lehmann was told by the Activity
that because the Respondent had "taken that section out of the contract
. . . they could not authorize payment for travel." (Tr. 34).
Similarly, the Activity denied reimbursement for travel and per diem
expenses with respect to meetings subsequently held in March and May,
1984. (Tr. 48-49). These three meetings were held under Article 10,
Section 3 of the collective-bargaining agreement. (Tr. 35, 186). In
March 1984 the Activity formally notified the Union that, because of the
Respondent's action, the Activity would not reimburse expenses for the
Regional scheduled meetings. (Tr. 95; G.C. Ex. 7; Tr. 307-309).
During the 1984-85 school year the Union and the Activity continued to
hold such meetings. (Tr. 185).
23. With the Respondent's elimination of the travel and per diem
provision from Article 10, Section 3, the Union assumed the cost of
expenses which would otherwise have been reimbursed by the Activity.
Estimates of the total cost to the Union thus far range from $7,700 to
$13,000 (Tr. 48, 50-51, 184). To offset the expenditures, the Union
membership in April, 1984 voted for a dues increase. (Tr. 51-52).
24. Chairman Howlett's decision reserved jurisdiction "to determine
any questions which may arise on issues which I directed be included in
the contract during the mediation process" and "to determine any issues
which may arise with respect to the regional scheduled meetings" (ALJ
Ex. 1, pp. 44). On January 12, 1984, the Union requested Chairman
Howlett to clarify the Decision and Order in several respects. (Tr. 96,
98, Res. Ex. 1). Ultimately Lehmann and Richards met with Chairman
Howlett in November 1984 to address the Union's questions. (Tr. 215).
None of the issues raised by the Union with respect to Chairman
Howlett's decision concerned academic freedom, travel and per diem for
attendance at Regional scheduled meetings or searches of teachers'
desks. (Tr. 97, 217, 218).
Travel Expenses of Witnesses
25. On March 20, 1984, Respondent notified the Activity and the
Union that it had received the final Order on outstanding issues from
the FSIP on February 24, 1984. Respondent stated, "There are no other
issues to be decided by the FSIP. Accordingly, it is appropriate that
this headquarters complete a review of the agreement as required in 5
USC 7114(c)." Respondent went on to disapprove, among others, Article 6,
Section 1(f), Article 12, Section 7, Article 10, Section 3, all
discussed above, and the following provision of the
collective-bargaining agreement, at that time not designated by article:
PAYMENT FOR TRAVEL EXPENSES OF WITNESSES
All witnesses who are civilian and military employees and who
are deemed necessary by the Arbitrator to the arbitration hearing
will be entitled to travel and per diem expenses if the incident
giving rise to the grievance occurred at a location other than the
location of the arbitration hearing.
In brief, the Respondent disapproved the provision on the basis sthat
it was inconsistent with Federal law as it conferred a "negotiated
contractual benefit" upon military personnel who are excluded from
coverage under the Statute, and, as to civilian employees, on the basis
that it was contrary to the "Supreme Court's mandate" in Bureau of
Alcohol, Tobacco and Firearms vs. FLRA, 104 S. Ct. 439 (1983). (Res.
Ex. 8).
26. The provision was directed to be included in the
collective-bargaining agreement by the FSIP Decision and Order, 83 FSIP
102, February 25, 1984 (ALJ Ex. 2), setting forth FSIP's determination
of the two issues which had been referred to the Panel by Chairman
Howlett. The FSIP stated, in part, as follows:
The issue concerning the obligation, if any, of the Employer to
pay the travel and per diem expenses of Union witnesses requires a
balancing of interests in ensuring fair and full hearings while
keeping the costs of such proceedings at a reasonable level. In
this context, we conclude that this issue can be best resolved by
adoption of the Union's alternative proposal to limit the
Employer's obligation to those Union witnesses who are civilians
and military employees. In addition, we think it important that
in cases where the parties disagree, the arbitrator be empowered
to decide which employees are necessary and that the Employer pay
such travel expenses only if the incident giving rise to the
grievance occurred at a location other than that of the
arbitration hearing. With these safeguards, the Employer will not
be saddled with an unreasonable financial burden while the Union's
concerns will, in large measure, be addressed.
27. As a result of Respondent's disapproval, the foregoing provision
was not implemented by the Activity (G.C. Ex. 1(E), para. 10; G.C. Ex.
1(F), para. 10; Tr. 55). Consequently, Respondent's action precluded
the reimbursement of travel and per diem expenses to at least two
civilian witnesses at arbitration hearings held since March 1984. (Tr.
55-57). No uniformed military witnesses have been called by the Union
to date. However, in the past 2-3 years uniformed military personnel
have been called as witnesses at arbitration hearings by the Activity.
(Tr. 58-59).
Subsequent Events
28. On March 31, 1984 the Union filed the Charge against Agency in
Case No. 1-CA-40196 alleging, in substance, that Respondent had violated
the Statute by making a patent breach of the collective bargaining
agreement by refusing to issue travel orders (G.C. Ex. A).
29. On April 23, 1984 the Union filed the Charge against Agency in
Case No. 1-CA-40231 alleging, in substance, that Respondent, by TWX and
letter dated March 30, 1984, had improperly refused to approve the
negotiated agreement and that the review of the negotiated agreement was
premature since outstanding negotiability issues were pending (G.C. Ex.
C).
30. Following the Respondent's disapproval of the contractual
provisions, the Union requested the Activity to negotiate over the
disapproved sections. The Union wished to negotiate language which
would serve on an interim basis until a final ruling was made on
Respondent's action. The Activity insisted that any negotiated language
found acceptable be deemed to replace that which had been disapproved.
The Union and the Activity could not reach agreement on this issue, but
agreed to set it aside temporarily and try to first resolve the concern
of Respondent over the disapproved sections. (Tr. 143, 188, 286-287).
31. After a tentative agreement had been reached concerning
"academic freedom" and the attendance of a Union representative when
employee storage areas are opened, the Activity, on March 19, 1984,
submitted the new language to the Respondent for "review and comment
before we finalize." (Res. Ex. 4; Tr. 143, 144). Lehmann explained
that the Union wanted to avoid repetition of the experience in January,
when the Respondent disapproved terms previously accepted by the Union
and the Activity. Lehmann told the Activity, "(b)efore we go any
further on this, you find out whether your Agency is going to accept
this language, and then we'll see about it." (Tr. 288). Thus, in
contrast to the procedure followed in January, on this occasion the
Union and the Activity refrained from "signing off" on their agreement
until they had received the Respondent's comments (Tr. 144). In late
March, 1984 the Respondent gave qualified approval of the language
concerning Union representation when storage areas are opened, and
rejected the proposed revision of the "academic freedom" provision (Res.
Ex. 5; Tr. 145). The Union and the Activity continued their effort to
fill the gap created by Respondent's disapproval, but disagreement
persisted over whether the new language, if any, would be the final
solution to the problem, and replace the language disapproved by
Respondent, as urged by the Activity, or would merely serve as an
"interim" measure until a final ruling was made on Respondent's action,
as was the Union's position. (Tr. 145, 187-188, 287).
32. On May 23, 1984 the Union and the Activity agreed to contact the
Federal Mediation and Conciliation Service (FMCS) for assistance on this
issue and made a joint submission to the FMCS. (Tr. 146, 188-189, 288;
Res. Ex. 6).
33. In September 1984, Mr. Lehmann again requested the Activity to
negotiate over the disapproved sections (Tr. 168). Mr. Richards
responded that the parties had submitted the issue to the FSIP and,
therefore, Respondent saw no reason or need to bargain until after the
FSIP had considered the negotiation impasse. (Tr. 168). It is noted
that, at this point, the parties had submitted the matter to the FMCS,
as reflected above, and not to the FSIP. See 5 C.F.R. Section 2471.1
(1985).
34. On October 30, 1984 the Union filed a Charge against Agency,
Case No. 1-CA-50051, alleging that the Respondent and the Activity had
violated the Statute by refusing to bargain over the impact and
implementation of matters declared non-negotiable by the Respondent
(Res. Ex. 10). The record does not reflect disposition of this charge.
35. Except for a telephone call inquiring about the joint
submission, the FMCS did not formally respond to the joint submission
until June 10, 1985. At that time, the FMCS stated, "After some
discussions between our Service and FSIP, we have concluded that the
most precise and convenient way to handle this action is to allow either
party or whomever would request assistance of FMCS to go straight to
FSIP without going through our Service. /22/ The record does not
indicate that either party has requested the Panel to consider the
matter pursuant to section 7119(b)(1) of the Statute. Therefore, I find
that the matter is not now before the FSIP.
Discussion, Conclusions, and Recommendations
Procedural Issues
Respondent contends that the complaint is materially defective as the
violations of the Statute alleged in paragraph 11, 12, and 13 of the
complaint are based on a non-fact. Respondent contends that the
agency's approval/disapproval occurred on March 20, 1984, and not on
January 31, 1984, as alleged in paragraphs 6(a) and 8 of the complaint.
Further, Respondent claims that while paragraphs 5 and 6 allege that the
contract was executed on January 4, 1984, contracts are not "executed"
until final approval is given by the head of the agency pursuant to
section 7114(c) of the Statute.
The complaint is not materially defective in this respect.
Respondent's statutory review pursuant to section 7114(c) of those
provisions imposed upon the parties by the Panel on February 24, 1984
occurred on March 20, 1984. However, it is clear that Respondent had
earlier specifically disapproved on January 31, 1984, as alleged, three
provisions of the parties' January 4, 1984 agreement, two of which had
been imposed by an arbitrator pursuant to Panel procedures. As a result
of the January 31, 1984 disapproval, the Union was advised and such
terms were not implemented by the Activity. (See Findings Nos. 5, 6,
21, and 22). Respondent's March 20, 1984 review merely reiterated its
earlier disapproval as to these three terms.
Respondent is also mistaken in contending that an agreement is not
"executed" until approval by the head of the agency pursuant to section
7114(c). Pursuant to sections 7103(a)(12) and 7114(b)(5) a written
document embodying agreed terms must be executed, on the request of any
party, when agreement is reached. Thus, this event refers to the making
and signing of the written agreement by the representatives of the
agency and the exclusive representative at the level of recognition and
not to the final approval or disapproval by the head of the agency
pursuant to section 7114(c) after the agreement is executed. American
Federation of Government Employees, AFL-CIO, Local 3732, 16 FLRA No. 50,
16 FLRA 318 (1984). Section 7114(c)(2) requires the approval by the
head of the agency "within 30 days from the date the agreement is
executed . . . " and section 7114(c)(3) provides that if "the head of
the agency does not approve or disapprove the agreement within that
30-day period, the agreement shall take effect . . . . " Thus,
Respondent is confusing the effective date of the agreement, which is
governed by 7114(c)(2) and (3), with the date the agreement is executed
by the parties at the level of recognition. See National Federation of
Federal Employees, Local 1263, 14 FLRA 761, 764 (1984). The record
demonstrates that the agreement in issue was executed by the parties at
the level of recognition on or about January 4, 1984, as alleged in the
complaint.
Respondent also claims that the case should be dismissed since (1)
the Union has elected to pursue a negotiability appeal, (2) the case is
before the FSIP, and (3) the case is the subject of a substantially
identical unfair labor practice charge.
The Authority has held that under the provisions of the Statute an
agency head is authorized to review and approve or disapprove all
provisions of collective bargaining agreements, even those imposed upon
the parties by the Panel in resolution of an impasse. Further, that an
exclusive representative may obtain review of such action either through
the expedited procedures available under the provisions of section 7117
of the Statute and Part 2424 of the Authority's Rules and Regulations,
or the unfair labor practice procedures available under the provisions
of section 7118 of the Statute. Interpretation and Guidance, 15 FLRA
No. 120, 15 FLRA 564 (1984), appeal docketed sub. nom. American
Federation of Government Employees v. FLRA, No. 84-1512 (D.C. Cir.
October 12, 1984).
After the agency head's approval/disapproval, the parties entered
into negotiations in an effort to resolve the matter, but could not
agree whether such resolution would be on interim or permanent basis.
However, the record does not reflect that the Union ever filed a
negotiability appeal under section 7117 with regard to the agency head's
disapproval. Therefore, contrary to Respondent's position, the Union
was not required to select whether to proceed under the unfair labor
practice procedure or the negotiability procedure, as required by
section 2424.5 of the regulations, since it has only proceeded before
the Authority under the unfair labor practice procedure. The Union's
request for a copy of the final review of the agreement "for the purpose
of filing a negotiability appeal" and the negotiations conducted after
the approval/disapproval did not constitute the filing of a petition for
review or the selection of the negotiability procedure under section
2424.5 of the regulations. /23/
The practice of simultaneously seeking Panel assistance and a remedy
in an unfair labor practice proceeding to resolve substantially the same
issues was condemned by the Authority in Department of the Navy, Norfolk
Naval Shipyard, Portsmouth, Virginia, 13 FLRA No. 95, 13 FLRA 571
(1984). In this case, however, contrary to Respondent's position, the
record does not reflect that the matter is currently before the Panel or
that either party has requested the Panel to consider substantially the
same issues. (See Findings No. 29-31). Moreover, the Authority held in
Interpretation and Guidance, 11 FLRA 626 (1983), that the Panel's
authority under section 7119(c)(5)(A)(ii) to assist the parties in
resolving an impasse through whatever methods or procedures the Panel
considers appropriate does not include resolving questions concerning
the underlying obligation to bargain.
Under Executive Order 11491, as amended, the Assistant Secretary of
Labor held that a complaint could not simultaneously litigate the same
issue, arising out of the same set of facts, in two different unfair
labor practice proceedings before the same forum. Department of the
Treasury, Internal Revenue Service, Brookhaven Service Center, 7 A/SLMR
532, 539 (1976), remanded on other grounds, 6 FLRC 310 (1978). Assuming
that some aspect of this rule is applicable to proceedings before the
Authority, the record does not show that a complaint has been issued by
the General Counsel concerning the charge in Case No. 1-CA-50051 (see
Finding No. 33), nor does the record disclose that the issues and facts
are the same. This case involves the agency head's disapproval of
certain contract provisions while the charge in Case No. 1-CA-50051
involves an alleged failure to subsequently bargain on the impact and
implementation of such disapproval.
The Disapproved Provisions
The head of the agency disapproved the four provisions in issue under
section 7114(c) of the Statute as not being in accordance with the
Statute and other applicable law, rules and regulations. Three of the
provisions had been imposed by the FSIP and incorporated into the
collective bargaining agreement by the local parties pursuant to a Panel
proceeding. The fourth had been agreed to by the local parties. The
issue is whether these provisions are, in fact, not in accordance with
the Statute, or any other applicable law, rule, or regulation.
1. The Academic Freedom Provision
As noted, Respondent disapproved the underlined portion of Article 6,
Section 1(f), dealing with employee responsibilities, as follows
An employee's responsibilities include, but are not limited to:
. . .
(f) performing their assigned duties consistent with academic
freedom and academic responsibility.
Respondent argues that the common meaning given to "academic freedom"
is: "freedom of a teacher to discuss social, economic, or political
problems without interference from officials, organized groups, etc."
Random House College Dictionary, Revised Edition, 1980. Respondent
claims that the testimony of Union witnesses shows that the provision is
intended to convey to bargaining unit members the "right to make certain
decisions about the manner in which work is to be performed unfettered
by management direction." Therefore, Respondent asserts, the phrase
"performing their assigned duties consistent with academic freedom"
transfers to bargaining unit members the discretion to determine all or
part of the duties to be performed. Respondent maintains that since the
provision limits or diminishes management's rights under section
7106(a)(2)(A) and (B) to assign work and direct employees, the provision
conflicts with the Statute.
The General Counsel argues that the objective of the provision is to
secure procedural protection from the arbitrary exercise of management
rights as illustrated by the testimony of Ms. Grillo. (See Finding No.
8). The General Counsel claims that it is analogous to proposals found
negotiable by the Authority as legitimate measures pursuant to section
7106(b) of the Statute, and establishes criteria whereby the application
of a performance standard or the exercise of the disciplinary
prerogative may be reviewed. The General Counsel claims that the
proposal falls within the procedural view of academic freedom rather
than the substantive, and involves not the right to choose a teaching
method, but the procedural right of a teacher not to be discharged for
the use of a teaching method which was not proscribed by regulation, and
as to which it was not proven that he should have had notice that its
use was prohibited, citing Mailloux v. Kiley, 323 F. Supp. 1387, 1390
(D. Mass. 1971), affirmed in part 448 F.2d 1242, 1243 (1st. Cir., 1971).
Contrary to the position of the General Counsel, the express language
of the provisions and the testimony at the hearing demonstrates that it
was not primarily directed at establishing an appropriate procedure
whereby the application of a performance standard or the exercise of
discipline may be reviewed. Rather, as Respondent contends, the
provision was intended to transfer to bargaining unit members the
discretion to determine which teaching methods would be used to teach a
prescribed curriculum. I agree with Respondent's position that the
provision directly interferes with management rights to direct employees
and assign work by transferring to bargaining unit members the
discretion to determine how all or a portion of their assigned duties
are to be performed "consistent with academic freedom." It would subject
their performance to arbitral review under this standard. The provision
would have the effect of barring the assignment to unit employees of
duties not "consistent with academic freedom" and barring management
direction, that is, the supervision and guidance of employees in the
performance of their duties to the extent such guidance was not
"consistent with academic freedom." Management's assignment of work and
direction would be subject to challenge on this basis and to the
possibility of an arbitrator substituting his judgment for that of the
agency with respect to the assignment of duties.
The Authority has defined the right "to direct . . . employees in the
agency" and "to assign work", two management rights embodied in section
7106(a)(2)(A) and (B) of the Statute, in National Treasury Employees
Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
769, 775 (1980), aff'd sub nom. National Treasury Employees Union v.
FLRA, 691 F.2d 553 (D.C. Cir. 1982). The Authority stated that "the
right 'to direct . . . employees in the agency' means to supervise and
guide them in the performance of their duties on the job." The right to
assign work, the Authority held, "is composed of two discretionary
elements: (1) the particular duties and work to be assigned, and (2)
the particular employees to whom or positions to which it will be
assigned." In American Federation of State, County and Municipal
Employees, AFL_CIO, Council 26 and U.S. Department of Justice, 13 FLRA
No. 96, 13 FLRA 578 (1984), the Authority held that, as to overall
performance as well as performance in each job element, an essential
aspect of management's assignment of work and the direction of employees
in the performance of their work is to establish the job requirements
for various levels of performance so as to achieve the quality and
amount of work needed from employees to effectively and efficiently
fulfill the agency's mission and functions. Since management has the
right to establish performance standards, the provision herein, which
would establish a particular performance standard by which the
performance of assigned duties would be judged and would permit arbitral
review of performance under the standard, it directly interferes with
management's rights to direct employees and assign work.
The Authority has uniformly held that the plain language of section
7106(a) provides that "nothing" in the Statute shall "affect the
authority" of an agency to exercise the rights enumerated in that
section. See e.g., Professional Air Traffic Controllers Organization
and Federal Aviation Administration, 5 FLRA 763, 767 (1981).
Consequently, because the provision is not in accordance with the
management rights to direct employees and to assign work, pursuant to
section 7106(a)(2)(A) and (B) of the Statute, the head of the agency
properly disapproved it pursuant to section 7114(c). Cf. International
Association of Fire Fighters, Local F-215 and Headquarters, 15th
Infantry Division (Mechanized), Fort Polk, Louisiana, 8 FLRA 417 (1982);
American Federation of Government Employees, Local 32, AFL-CIO, and
Office of Personnel Management, 17 FLRA No. 99, 17 FLRA 683 (1985);
National Federation of Federal Employees, Local 1622, 16 FLRA No. 82, 16
FLRA 578 (1984) (proposal two).
2. Travel and Per Diem For Regional Meetings
The head of the Agency disapproved, as inconsistent with the Supreme
Court's decision in Bureau of Alcohol, Tobacco and Firearms v. Federal
Labor Relations Authority, 104 S. Ct. 439 (1983), the provision calling
for reimbursement of travel and per diem expenses for up to two of the
five Union representatives authorized to attend Union-Management
regional meetings on official time. The provision was included in the
agreement at the direction of an arbitrator pursuant to an FSIP
proceeding. In this proceeding, Respondent also claims that all matters
involving the payment of travel and per diem have been declared to be
outside the Authority's jurisdiction by the Office of Personnel
Management (OPM) FPM Letter 711-162 (1/19/84). Respondent asserts, in
the alternative, that FPM Letter 711-162 is a Government-wide rule or
regulation, and the provision in issue is inconsistent therewith.
FPM Letter 711-162 does not divest the Authority of jurisdiction of
this matter, nor is it a Government-wide rule or regulation. It was
issued pursuant to OPM's advisory authority concerning labor-management
relations. The letter is precatory and does not bind Federal agencies
in the manner of a regulation. As District Judge Charles R. Richey
stated in National Treasury Employees Union v. Donald J. Devine,
Director, Office of Personnel Management, 587 F. Supp. 960, 964 (D.D.C.,
1984), "If its instructions are incorrect, they may be subject to
challenge when adopted by the management of a particular agency during
bargaining and brought to the attention of the FLRA."
The Authority has held that a proposal that would require that
management pay the travel expenses incurred by employees while using
official time available under the terms of an agreement is not
inconsistent with Federal law. National Treasury Employees Union and
Department of the Treasury, U.S. Customs Service, 9 FLRA No. 70, 9 FLRA
629 (1982), reversed and remanded as to other matters sub nom. National
Treasury Employees Union v. Federal Labor Relations Authority, 712 F.2d
669 (D.C. Cir., 1983), remanded sub nom. U.S. Customs Service,
Department of the Treasury v. Federal Labor Relations Authority, No.
82-2116 (D.C. Cir., 1/19/84). The Authority has also held that
proposals do not violate Federal law which provide for reimbursement for
travel and per diem expenses for employees engaged in impact bargaining
on official time and reimbursement for travel and per diem expenses for
employees representing a union on official time during the negotiation
of local supplements authorized by an agreement. National Treasury
Employees Union and Department of the Treasury, U.S. Customs Service, 9
FLRA No. 138, 9 FLRA 983 (1982), remanded sub nom. Department of the
Treasury, U.S. Customs Service v. Federal Labor Relations Authority, No.
82-2225 (D.C. Cir., 1/19/84). Although the above decisions were
remanded for consideration in light of the Supreme Court's decision in
Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104 S. Ct. 439 (1983),
the Authority has not issued its decision(s) on remand to date.
Consequently, I am bound by the Authority's original decisions,
particularly since the Supreme Court decision did not rule that the
payment by an agency of travel expenses and per diem allowances to
employee union representatives in the negotiation or administration of a
collective bargaining agreement is inconsistent with Federal law.
Rather, the Court observed, at 104 S. Ct. 449, n. 17:
Our conclusion that federal agencies may not be required under
Section 7131(a) to pay the travel expenses and per diem allowances
of union negotiators does not, of course, preclude an agency from
making such payments upon a determination that they serve the
convenience of the agency or are otherwise in the primary interest
of the government, as was the practice prior to passage of the
Act. See n. 11, supra. Furthermore, unions may presumably
negotiate for such payments in collective bargaining as they do in
the private sector. See Midstate Tel. Corp. v. NLRB, 706 F.2d
401, 405 (CA2 1983); Axelson, Inc. v. NLRB, 599 F.2d 91, 93-95
(CA5 1979). Indeed, we are informed that many agencies presently
pay the travel expenses of employee representatives pursuant to
collective-bargaining agreements. Letter from Ruth E. Peters,
Counsel for Respondent FLRA, Nov. 9, 1983. See also J.P. Stevens
& Co., 239 NLRB 738, 739 (1978) (employer required to pay travel
expenses as remedy for failing to bargain in good faith).
Accordingly, since the provision in issue has the same purpose and
effect as the proposals previously found by the Authority not to violate
Federal law, I am constrained to conclude that the portion of Article
10, Section 3 disapproved by Respondent is not inconsistent with Federal
law, rule, or regulation.
3. Payment For Travel Expenses of Witnesses
As noted, the head of the Agency disapproved the following provision
which the FSIP had ordered the local parties to adopt:
All witnesses who are civilian and military employees and who
are deemed necessary by the arbitrator to the arbitration hearing
will be entitled to travel and per diem expenses if the incident
giving rise to the grievance occurred at a location other than the
location of the arbitration hearing.
Disapproval as to its application to civilian employees, either
within or outside the bargaining unit, was based on the Supreme Court's
decision in Bureau of Alcohol, Tobacco and Firearms v. FLRA, supra.
Disapproval as to military employees was based on the fact that a member
of the uniformed services is not an "employee" pursuant to section
7103(a)(2)(ii) of the Statute. Therefore, Respondent disapproved the
language as extending a negotiated contractual benefit, or requiring
management to extend a benefit, to a member of the uniformed services in
violation of the Statute.
With regard to civilian employees, the Supreme Court's decision, as
noted above, did not preclude the negotiation of such a provision.
Respondent has not asserted or shown that the provision insofar as it
requires the activity to pay the travel and per diem of witnesses is
inconsistent with the Travel Expense Act, 5 U.S.C. Section 5702, or any
other applicable statute, rule, or regulation. See Department of
Defense Dependents Schools, Mediterranean Region, 19 FLRA No. 54, 19
FLRA 395, 397 n.2 (1985).
The record reflects that the provision was imposed by the FSIP after
expressly balancing the interest of insuring full and fair arbitration
hearings for a mobile overseas work force in the Mediterranean Region
against the possibility of abuse and the costs of such procedures. The
net effect of the provision imposed by the FSIP is to require the
Activity to assume the costs of those Union witnesses who are civilian
and military employees and "who are deemed necessary by the arbitrator .
. . if the incident giving rise to the grievance occurred at a location
other than the location of the arbitration hearing." Therefore, the
provision establishes a procedure for, and facilitates the use of, the
grievance/arbitration procedure negotiated pursuant to section 7121 of
the Statute. As such, it directly affects the conditions of employment
of bargaining unit employees. Access to the grievance/arbitration
procedure is a fundamental statutory right, U.S. Department of the
Treasury, Bureau of Alcohol, Tobacco and Firearms, Chicago, Illinois 3
FLRA 723, 730-731, 3 FLRA No. 116 (1980), and the Authority has
recognized, in another context, that the participation of both parties
in an arbitration proceeding serves an important statutory interest.
Department of Labor, Employment Standards Administration, Wage and Hour
Division, Washington, D.C. 10 FLRA 316, 10 FLRA No. 60 (1982). In the
absence of such a provision, the Union would have to assume the costs of
such witnesses. Therefore, the thrust of the provision is to allocate
costs between the parties and not to establish conditions of employment
for employees outside the unit or uniformed military personnel. The
Authority has held that a bargaining proposal which directly affects the
conditions of employment of bargaining unit employees, and is otherwise
consistent with applicable laws and regulations, is within the duty to
bargain despite the fact that such a proposal also would affect
employees outside the bargaining unit. Association of Civilian
Technicians, Pennsylvania State Council and Pennsylvania Army and Air
National Guard, 14 FLRA 38, 39, 14 FLRA No. 6 (1984); c.f. NTEU Chapter
91 and Department of the Treasury, IRS, Southwest Region 17 FLRA 534,
535, 17 FLRA No. 77 (1985); AFGE Local 1698 and Department of the Navy,
Aviations Supply Office, Consolidated Civilian Personnel Division 17
FLRA 557, 17 FLRA No. 84, (1985).
To the extent that the provision indirectly affects civilian
employees outside the bargaining unit, it is well established that the
duty to bargain under the Statute does not extend to conditions of
employment affecting employees outside the bargaining unit. However, an
agency may elect to bargain over such matters if it so chooses.
American Federation of Government Employees, AFL_CIO, Local 2, 4 FLRA
450 (1980); National Labor Relations Board Union, Local 21, 15 FLRA No.
152, 15 FLRA 798 (1984), National Federation of Federal Employees, Local
1705, 17 FLRA No. 123, 17 FLRA 945 (1985), Federal Deposit Insurance
Corporation, Headquarters, 18 FLRA No. 92, 18 FLRA 768 (1985). Here,
the Activity elected to bargain over the matter in issue, and the record
does not reflect that it ever raised a question concerning the
negotiability of the proposal during the collective bargaining process,
including consideration by the FSIP. Compare Department of the Air
Force, Air Force Logistics Command, Wright-Patterson Air Force Base,
Ohio, 18 FLRA No. 81, 18 FLRA 710 (1985). The duty to bargain in good
faith under section 7114(b)(2) of the Statute requires that the parties
be represented at the negotiations by "duly authorized representatives."
Therefore, once agreement is reached pursuant to the collective
bargaining process, the head of the Agency may not assert for the first
time during the review under section 7114(c) an election not to bargain
on a permissive subject and disapprove an agreement on that basis.
Therefore, the disapproval in the instant case may not be interpreted as
an election not to bargain. It is concluded that the record does not
support Respondent's contention that the provision violates applicable
law, rule, or regulation.
4. Provision Dealing With The Opening Of Employees' Storage Areas
As noted, Respondent disapproved the following terms of the
collective bargaining agreement negotiated by the local parties:
Security. Except in emergencies if it becomes necessary to
open employees' cabinets, desks, drawers or other storage areas
used exclusively by the employee, the Employer will notify the
Union representative who shall accompany the Employer when any of
the foregoing is opened.
The head of the agency disapproved the provision on the following
basis:
The article as written conflicts with 5 USC 7106(a)(1) which
states: "Subject to subsection (b) of this section, nothing in
this chapter shall affect the authority of any management official
of any agency (1) to determine the . . . internal security
practices of the agency." Management's free and unrestricted
access to any portion of its property (including buildings,
cabinets, desks, etc.) cannot be interfered with or reduced by
negotiation. An "emergency" need not exist to trigger
management's right to access. Additionally, the exercise of 5 USC
7106(a)(1) rights cannot be preconditioned in a manner that
failure to meet the precondition prevents the exercise of the
right. The absence of a union representative or refusal to
accompany management would prevent the exercise of a retained
management right. Accordingly, the language in Section 7 is
disapproved.
Respondent in this proceeding also argues that the provision, by
requiring that the Union representative "shall" accompany the Employer,
interferes with the right "to assign work" under section 7106(a)(2)(B).
Respondent contends that the provision requires that the supervisor
assign the Union representative to accompany management while accessing
the storage area, no other duty could be assigned the Union
representative at the time, and a second person might have to be
assigned to teach a class while the Union representative accompanies
management.
The General Counsel contends that the provision is indistinguishable
from proposals previously held by the Authority not to be inconsistent
with management's rights to determine its internal security practices.
Further, the General Counsel asserts that the provision would not
prevent the Activity from conducting a search.
The record reflects that the provision was not intended to prevent
management from having access to employees' storage areas. The stated
intent was to provide for notice to the Union of the opportunity to
accompany management in non-emergency situations if it becomes necessary
to open an employee's storage area. The Union acknowledges that if the
Union representative or his designee declines to accompany the Activity
official, the official may proceed with the search. Thus, it has not
been established that the provision would interfere with the agency's
right to determine its internal security practices. Rather, the
provision constitutes a procedure which management officials will
observe in exercising their statutory authority concerning internal
security practices, and is indistinguishable from proposals held by the
Authority to be not inconsistent with management's right to determine
its internal security practices. NTEU and Department of the Treasury,
U.S. Customs Service, 9 FLRA No. 138, 9 FLRA 983, 987 (1982), remanded
as to other matters sub nom. Department of the Treasury, U.S. Customs
Service v. FLRA, No. 82-2225 (D.C. Cir., Jan. 19, 1984); NTEU and NTEU,
Chapter 61 and Department of the Treasury, IRS, Albany District, New
York, 7 FLRA No. 47, 7 FLRA 304 (1981). /24/
The head of the agency did not disapprove the provision on the basis
of its interference with the agency's right "to assign work" under
section 7106(a)(2)(B). Assuming, however, that it would be proper to
consider the Agency's current objection to the provision on this ground,
it is concluded that the provision does not interfere with the agency's
right "to assign work." The provision does not by its terms specify
whether the Union representative is an employee or non-employee Union
representative. The agreement recognizes in Article 9, Section 5, that
the Union may have non-employee representatives in which case there
would be no interference with the right to assign work. In the case of
employee representatives, Article 9, Section 1 of the agreement provides
that, "The conduct of representational business as set forth in the
Agreement shall not normally interfere with classroom instruction unless
prearranged with the principal." Further, Article 9, Section 2,
authorizes official time for various representational activities. The
provision in issue is not inconsistent with these provisions which
attempt to reconcile management's right to assign work with Union
representational activities. As noted above, management discretion to
assign work includes the right to determine when such assignments will
occur and when the work which has been assigned will be performed.
Assuming that the Union representatives is "assigned" to accompany
management in these circumstances, nothing in the provision interferes
with management's right to determine when such work will be performed.
Thus, it is concluded that the provision does not negate the Agency's
right to assign work. Instead, it is an applicable procedure dealing
with internal security practices which has been negotiated by the
parties pursuant to section 7106(b).
Conclusion
The provisions of the collective bargaining agreement mandated by the
FSIP and by an arbitrator under the impasse procedures of the FSIP,
concerning the reimbursement of travel and per diem in connection with
Regional scheduled meetings and the reimbursement of travel and per diem
expenses for certain witnesses at arbitration hearings, have not been
demonstrated by the record to be in fact contrary to the Statute or any
other applicable law, rule, or regulation. Consequently, Respondent's
disapproval constituted a failure or refusal to cooperate in impasse
decisions and violated section 7116(a)(1) and (6) of the Statute, as
alleged. The provision dealing with the attendance of a Union
representative when storage areas are opened, which had been agreed to
by the parties, was also consistent with law. Respondent's disapproval
of these three provisions was inconsistent with section 7114(c)(2),
which requires approval when an agreement is in accordance with the
Statute and any other applicable law, rule, or regulation, and such
disapproval thereby violated section 7116(a)(1) and (8) of the Statute,
as alleged. As a direct result of Respondent's disapproval, these
provisions have not been implemented by the Union and the Activity.
Thus, Respondent's action has interfered with the bargaining
relationship between the Union and the Activity in violation of section
7116(a)(1) and (5) as alleged.
The provision of the agreement mandated by the FSIP concerning
academic freedom was in fact contrary to the Statute. Therefore, it
will be recommended that the allegations that Respondent violated
section 7114(c)(2), 7116(a)(1), (6), and (8) by disapproving this
provision be dismissed.
Based on the foregoing findings and conclusions, it is recommended
that the Authority issue the following Order:
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 (Alexandria, Virginia) shall:
1. Cease and desist from:
(a) Failing and refusing to cooperate in impasse procedures and
impasse decisions.
(b) Failing and refusing to approve provisions of a collective
bargaining agreement which are in accordance with the Statute and
any other applicable law, rule, or regulation.
(c) In any like or related manner interfering with the
bargaining relationship between the Department of Defense
Dependents Schools, Mediterranean Region and the Overseas
Federation of Teachers, AFT, AFL-CIO.
(d) In any like or related manner, interfering with,
restraining, or coercing 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) Revoke and rescind its disapproval of provisions of the
collective bargaining agreement between the Department of Defense
Dependents Schools, Mediterranean Region and the Overseas
Federation of Teachers, AFT, AFL-CIO, concerning reimbursement of
travel and per diem incurred by Union representatives attending
Regional scheduled meetings, reimbursement of travel and per diem
expenses incurred by military and civilian employees at
arbitration hearings, and the attendance of a Union representative
when employee storage areas are opened.
(b) Authorize Department of Defense Dependents Schools,
Mediterranean Region to reinstate the above provisions and give
them retroactive effect to February 4, 1984, the effective date of
the collective bargaining agreement, subject to any agreement
which may have been reached by the parties and until modified in a
manner consistent with the Statute.
(c) Authorize Department of Defense Dependents Schools,
Mediterranean Region to reimburse and make whole employees and the
Union for any losses which they incurred as a result of the
disapproval of the foregoing provisions, including expenses for
travel and per diem, as applicable, consistent with applicable law
and regulation.
(d) Post at all schools of the Department of Defense Dependents
Schools, Mediterranean Region, copies of the attached Notice
marked "Appendix" on forms to be furnished by the Authority. Upon
receipt of such forms, they shall be signed by an appropriate
official 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.
(e) Pursuant to 5 C.F.R. Section 2423.30 notify the Regional
Director, Region I, Federal Labor Relations Authority, Boston,
Massachusetts 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 allegations in the complaint alleging
a violation of the Statute because of Respondent's disapproval of the
provision in the collective bargaining agreement dealing with academic
freedom be, and they hereby are, DISMISSED.
/s/ GARVIN LEE OLIVER
Administrative Law Judge
Dated: September 13, 1985
Washington, D.C.
--------------- FOOTNOTES$ ---------------
(1) Member Frazier's separate opinion, concurring in part and
dissenting in part, immediately follows this Decision and Order.
(2) Section 7114(c) provides as follows:
Section 7114. Representation rights and duties
. . . . . . .
(c)(1) An agreement between any agency and an exclusive
representative shall be subject to approval by the head of the
agency.
(2) The head of the agency shall approve the agreement within
30 days from the date the agreement is executed if the agreement
is in accordance with the provisions of this chapter and any other
applicable law, rule, or regulation (unless the agency has granted
an exception to the provision).
(3) If the head of the agency does not approve or disapprove
the agreement within the 30-day period, the agreement shall take
effect and shall be binding on the agency and the exclusive
representative subject to the provisions of this chapter and any
other applicable law, rule, or regulation.
(3) Another provision referred by the arbitrator to the Panel for
resolution is not at issue in this case.
(4) Section 7122 provides in pertinent part as follows:
Section 7122. Exceptions to arbitral awards
(a) Either party to arbitration under this chapter may file
with the Authority an exception to any arbitrator's award pursuant
to the arbitration . . . .
(b) If no exception to an arbitrator's award is filed under
subsection (a) of this section during the 30-day period beginning
on the date the award is served on the party, the award shall be
final and binding. An agency shall take the actions required by
an arbitrator's final award. The award may include the payment of
backpay (as provided in section 5596 of this title).
(5) See also Veterans Administration, 23 FLRA No. 87 (1986), petition
for review filed sub nom. Veterans Administration v. FLRA, No. 86-1717
(D.C. Cir. Dec. 22, 1986).
(6) H.R. Rep. No. 96-1403, 95th Cong., 2d Sess. 56 (1978), reprinted
in Legislative History of the Federal Service Labor-Management Relations
Statute, Title VII of the Civil Service Reform Act of 1978, at 702
(1979) (hereafter cited as Legislative History).
(7) H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. 158 (1978), reprinted
in Legislative History, at 826.
(8) See also American Federation of Government Employees, Local 3511,
AFL-CIO, 23 FLRA No. 77 (1986); U.S. Department of Justice and
Department of Justice, Bureau of Prisons (Washington, D.C.) and Federal
Correctional Institution (Danbury, Connecticut), 20 FLRA 39 (1985),
enforced sub nom. U.S. Department of Justice and Department of Justice,
Bureau of Prisons v. FLRA, 792 F.2d 25 (2nd Cir. 1986); and General
Services Administration, Washington, D.C., 18 FLRA 395 (1985), in which
the Authority found violations of the Statute based on refusals to
comply with final and binding arbitration awards rendered in grievance
arbitration proceedings to which no exceptions were timely filed or to
which timely exceptions were filed but were subsequently denied on the
merits.
(9) See also Department of the Air Force, Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio and American Federation
of Government Employees, Council of Locals, No. 214, 18 FLRA 710 (1985),
request for clarification denied March 11, 1986; and Department of
Housing and Urban Development and American Federation of Government
Employees, Local 476, AFL-CIO, 18 FLRA 783 (1985).
(10) Agency heads may properly delegate their section 7114(c) review
authority. See American Federation of Government Employees, Local 1546
and Department of the Army, Sharpe Army Depot, Lathrop, California, 19
FLRA 1016 (1985), remanded as to other matters sub nom. American
Federation of Government Employees, AFL-CIO, Local 1546 v. FLRA, No.
85-1689 (9th Cir. 1986).
(11) Section 7123 provides in relevant part as follows:
Section 7123. Judicial review; enforcement
(a) Any person aggrieved by any final order of the Authority
other than an order under --
(1) section 7122 of this title (involving an award by an
arbitrator), unless the order involves an unfair labor practice
under section 7118 of this title, or
. . . . . . .
may . . . institute an action for judicial review of the
Authority's order in the United States court of appeals(.)
(12) While there is some indication in the record that the parties
entered into renegotiations over the academic freedom provision after
the Respondent indicated its disapproval on January 31, the Respondent
is here charged with improperly disapproving the provisions mandated by
the interest arbitration award, not with disapproving the revised
provision. Our findings and conclusions, therefore, go to the provision
as directed in the award. This is true also for the provision on the
opening of employee storage areas, negotiated by the parties themselves,
to be discussed below.
(13) In BATF, the Court held that section 7131(a) of the Statute does
not entitle employees on official time to the payment of travel and per
diem expenses. However, the Court added that "unions may presumably
negotiate for such payments in collective bargaining as they do in the
private sector." 464 U.S. at 107 n. 17. Subsequent to that decision,
the Authority found the authorization of travel and per diem expenses to
be within the duty to bargain. National Treasury Employees Union and
Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986),
petition for review filed sub nom. Department of the Treasury, U.S.
Customs Service v. FLRA, No. 86-1198 (D.C. Cir. Mar. 27, 1986).
(14) Section 7103(a)(2) provides in relevant part as follows:
Section 7103. Definitions; application
(a) For the purpose of this chapter --
. . . . . . .
(2) "employee" means an individual --
. . . . . . .
but does not include --
. . . . . . .
(ii) a member of the uniformed services(.)
(15) Thus, section 7121 by its very terms mandates that collective
bargaining agreements contain negotiated grievance procedures
culminating in binding arbitration. As to the intended scope and
coverage of negotiated grievance procedures, see the following statement
of the Joint Conferees contained in H.R. Rep. 95-1717, 95th Cong., 2d
Sess. 157 (1978) reprinted in Legislative History, supra, at 825:
All matters that under the provisions of law could be submitted
to the grievance procedures shall in fact be within the scope of
any grievance procedure negotiated by the parties unless the
parties agree as part of the collective bargaining process that
certain matters shall not be covered by the grievance procedures.
See also the following cases in which the Authority discussed broad
scope grievance procedures: American Federation of Government
Employees, AFL-CIO, National Council of EEOC Locals and Equal Employment
Opportunity Commission, 10 FLRA 3 (1982); National Federation of
Federal Employees, Local 15 and Headquarters, U.S. Army Armament
Materiel Readiness Command, Rock Island Arsenal, Illinois, 9 FLRA 478
(1982); and, American Federation of Government Employees, AFL-CIO,
Local 2782 and Department of Commerce, Bureau of the Census, Washington,
D.C., 6 FLRA 314 (1981).
(16) In finding the provision to be within the duty to bargain, we
therefore do not adopt the Judge's characterization of the matter as
being permissively negotiable and further find it unnecessary in this
case to pass upon his comments regarding agency head disapproval of
"permissive" subjects of bargaining.
(17) The proposals in the cases cited by the Judge involved the
presence of an individual when agency management was conducting a search
of that individual's desk, locker, etc. Here, the provision would allow
for attendance by a union representative at such a search. We do not
view this distinction as a material difference among the cases and no
such argument has been made by the Respondent.
(18) See our discussion, supra n. 12, where we noted there was some
evidence the parties had negotiated certain of the disapproved
provisions.
(19) See Department of the Treasury, Internal Revenue Service,
Columbia District, Columbia, South Carolina, 22 FLRA No. 28 (1986),
petition for review filed sub nom. Department of the Treasury, Internal
Revenue Service Columbia District, Columbia, South Carolina v. FLRA, No.
86-1467 (D.C. Cir. Aug. 22, 1986), and Office of the General Counsel,
National Labor Relations Board, 22 FLRA No. 25 (1986), petition for
review filed sub nom. National Labor Relations Board, Office of the
General Counsel v. FLRA, No. 86-1468 (D.C. Cir. Aug. 22, 1986). Of
course, all such payments to the Charging Party and the employees must
be consistent with law and regulation, including the Federal Travel
Regulations.
(20) The Respondent's request for a stay, is hereby denied.
(21) This item, designated as Article 12, Section 7, (Res. Ex. 3),
appears in Gen. Counsel's Ex. 4 as Article 20, Section 15, as a result
of the Union's and Activity's redrafting of the agreement's text in
January 1984 (Tr. 147, Tr. 307-309).
(22) The FMCS reply of June 10, 1985 occurred after the hearing in
this case and was made an attachment to Respondent's brief. The General
Counsel objects to any consideration being given the letter on the basis
that there has been no showing that the letter is relevant and that
reopening of the record is warranted. The letter is relevant and is
helpful in showing the current status of this matter before the FMCS and
FSIP. It is received and made a part of the record as ALJ Ex. 3.
Otherwise only matters contained in the original record have been relied
on in deciding this case. Accordingly, the General Counsel's Motion to
Strike is denied. Internal Revenue Service, 16 FLRA No. 119, 16 FLRA
845, n. 1 (1984).
(23) Respondent has not claimed that these negotiations were
conducted pursuant to the January 25, 1984 memorandum of understanding
(see Finding No. 5) and, thus, constituted a waiver of the Union's right
to file an unfair labor practice charge. If it were deemed necessary to
decide this issue, I would find no clear and unequivocal waiver on this
basis.
(24) As in NTEU, Chapter 61, 7 FLRA at 307, n. 5, it is noted that
the provision involves internal security practices toward storage areas
used exclusively by employees and would not necessarily be dispositive
in other circumstances involving stricter internal security practices
such as those concerned with a special security room, vault or safe.
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 STATUTE
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT fail and refuse to cooperate in impasse procedures and
impasse decisions, fail and refuse to approve provisions of a collective
bargaining agreement which are in accordance with the Statute and any
other applicable law, rule, or regulations, or in any like or related
manner interfere with the bargaining relationship between the Department
of Defense Dependents Schools, Mediterranean Region and the Overseas
Federation of Teachers, AFT, AFL-CIO.
WE WILL revoke and rescind our disapproval of provisions of the
collective bargaining agreement between the Department of Defense
Dependents Schools, Mediterranean Region and the Overseas Federation of
Teachers, AFT, AFL-CIO, concerning reimbursement of travel and per diem
incurred by Union representatives attending Regional scheduled meetings,
reimbursement of travel and per diem expenses incurred by military and
civilian employees at arbitration hearings, and the attendance of a
Union representative when employee storage areas are opened.
WE WILL authorize Department of Defense Dependents Schools,
Mediterranean Region to reinstate the above provisions and give them
retroactive effect to February 4, 1984, the effective date of the
collective bargaining agreement, subject to any agreement which may have
been reached by the parties and until modified in a manner consistent
with the Statute.
WE WILL authorize Department of Defense Dependents Schools,
Mediterranean Region to reimburse and make whole employees and the Union
for any losses which they incurred as a result of the disapproval of the
foregoing provisions, including expenses for travel and per diem, as
applicable, consistent with applicable law and regulation.
WE WILL NOT in any like or related manner, interfere with, restrain,
or coerce employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
(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 any of its provisions, they may communicate directly with the
Regional Director of the Federal Labor Relations Authority, Region 1,
whose address is: 441 Stuart Street, 9th Floor, Boston, Massachusetts
02116, and whose telephone number is: (617) 223-0920.