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33 FLRA No. 81

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF DEFENSE DEPENDENTS

SCHOOLS (ALEXANDRIA, VIRGINIA)

(Respondent)

and

OVERSEAS FEDERATION OF TEACHERS,

AFT, AFL-CIO

(Charging Party)

1-CA-40196, 1-CA-40231

(27 FLRA 586)

DECISION AND ORDER ON REMAND

October 31, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority pursuant to a remand from the United States Court of Appeals for the Fourth Circuit in Department of Defense Dependents Schools v. FLRA, 852 F.2d 779 (4th Cir. 1988) (DODDS).

The issue is whether the Respondent's conduct in disapproving two provisions of a collective bargaining agreement which were imposed on the parties by a Federal Service Impasses Panel (Panel) designee/Arbitrator and preventing their implementation violated section 7116(a)(1), (5), (6) and (8) of the Federal Service Labor-Management Relations Statute (the Statute). For the reasons which follow, we find that the Respondent's disapproval of the provision regarding payment of travel and per diem expenses for union representative to attend regional meetings violated section 7116(a)(1), (5), (6), and (8) of the Statute. The Respondent's disapproval of the academic freedom provision did not violate the Statute. Based on these conclusions, we will modify our original Order in 27 FLRA 586.

II. Background

A. Facts

During the course of bargaining between the Respondent's Mediterranean Region and the Charging Party, the parties sought the assistance of the Panel to aid in the resolution of a number of outstanding issues. The Panel directed the parties to mediation/arbitration and designated its then Chairman to first mediate the issues and then render a decision as an arbitrator on any remaining unresolved issues. As relevant to the instant case, the Panel designee/Arbitrator issued a Decision and Order in which he directed the parties to adopt two provisions into their agreement. The provisions concerned academic freedom for teachers and authorization of travel and per diem expenses for union representatives at regional meetings.

Upon receipt of the locally negotiated agreement which contained the two above-mentioned provisions, the Respondent reviewed the agreement pursuant to the provisions of section 7114(c) of the Statute. As a result, the Respondent disapproved, among others not relevant to the instant case, the two provisions directed to be included in the agreement by the Panel designee/Arbitrator.

B. Administrative Law Judge's Decision

The Judge examined the disapproved provisions before him to determine whether the Respondent's disapproval was proper under section 7114(c) of the Statute. The Judge found that the provision concerning academic freedom for teachers was inconsistent with management's rights under the Statute and, therefore, was properly disapproved. The remaining provisions, including the one concerning travel and per diem expenses for union representatives at regional meetings, were found not to be inconsistent with law, rule or regulation, or the Statute. Consequently, the Judge concluded that the Agency head's disapproval of these provisions violated the Statute.

C. Authority's Decision

In Department of Defense Dependents Schools (Alexandria, Virginia) and Overseas Federation of Teachers, AFT, AFL-CIO, 27 FLRA 586 (1987) (Member Frazier concurring in part and dissenting in part), we reached a number of conclusions concerning the Respondent's conduct in disapproving the provisions which differed, in part, from the conclusions reached by the Judge. As relevant to the instant case, we found that section 7114(c) of the Statute does not empower agency heads to review provisions that are directed to be included in an agreement as the result of an interest arbitration award. In so concluding, we found that once the Panel directed the parties to interest arbitration, the Panel no longer retained jurisdiction over the dispute. Instead, the dispute was before an interest arbitrator who was also a designee of the Panel.

We found that the appropriate mechanism for challenging the interest arbitrator's award was to file exceptions to the award in accordance with section 7122 of the Statute. Since no timely exceptions were filed, the award became final and binding and the parties were obligated to comply with it. Therefore, we declined to consider whether the provisions at issue in the instant case were within the Respondent's duty to bargain.

D. Court's Decision

In DODDS, the court addressed only that portion of the Authority's decision which found that section 7114(c) of the Statute does not empower agency heads to review an award of a Panel member acting as an interest arbitrator. The court disagreed with the Authority. The court concluded that when parties sought assistance from the Panel and the Panel designated one of its members to act as an interest arbitrator, the decision of the Panel's designee was no different from a decision of the Panel. Therefore, the court held that the decision of the interest arbitrator who was a member of the Panel was subject to agency head review under section 7114(c). 852 F.2d at 784. The court concluded that the decision of the Panel designee is not an arbitration decision or award to which exceptions must be filed to subject the decision to Authority review under section 7122. Id. Instead, the court viewed the two provisions imposed by the decision of the Panel designee as terms imposed by a final action of the Panel under section 7119(c)(5)(C) of the Statute which were properly subject to Agency head review. 852 F.2d at 785.

The court vacated the Authority's decision in 27 FLRA 586 to the extent that we declined to address the merits of the two provisions imposed by the designee of the Panel and remanded the case for a decision on the merits.

III. Decision

Based on the rationale and conclusion of the United States Court of Appeals for the Fourth Circuit, we adopt as the law of the case the following conclusions. A decision of a designee of the Panel who is serving as an interest arbitrator is subject to agency head review under section 7114(c) when: (1) the parties seek assistance from the Panel, and (2) the Panel directs the parties to interest arbitration and designates one of its members to serve as the interest arbitrator. We, therefore, reverse our prior decision in 27 FLRA 586 which held that such decisions are interest arbitration awards, not subject to Agency head review, to which exceptions must be filed under section 7122 of the Statute.

In our prior decision we did not consider whether the provisions imposed by the Panel designee/Arbitrator were outside the duty to bargain and hence properly disapproved by the Agency head under section 7114(c). In light of the decision of the United States Court of Appeals for the Fourth Circuit and our decision that the Agency head was authorized to act pursuant to the provisions of section 7114(c), we now have properly before us the question of whether the provisions concerning academic freedom for teachers and authorization of travel and per diem expenses for union representatives in connection with regional meetings were within the duty to bargain. Disapproval of a provision which is within the duty to bargain constitutes an unfair labor practice.

Each provision will be addressed separately below.

A. Academic Freedom for Teachers

The underlined portion of the following provision was disapproved by the Respondent as being inconsistent with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute:

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.

The Judge concluded, in agreement with the Respondent's position, that the provision was inconsistent with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B). In reaching this result, the Judge found that the express language of the provision and the testimony at the unfair labor practice hearing demonstrated that the provision was not directed primarily at establishing an appropriate procedure whereby the application of a performance standard or the exercise of discipline could be reviewed, as the General Counsel had argued. Rather, the Judge found that 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. The Judge found that the provision would have the effect of barring the assignment of duties that are not consistent with academic freedom. Also, by allowing employees to determine how their duties would be performed, that is, "consistent with academic freedom," the provision would establish a particular performance standard which would subject employees' performance to arbitral review and to possible substitution of an arbitrator's judgment for that of management in assigning duties.

The General Counsel excepted to the Judge's conclusion. The General Counsel argued that the provision was designed to afford procedural protection to employees against the arbitrary exercise of management's rights in disciplining employees.

Alternatively, the General Counsel argued that the provision concerned the "technology, methods and means of performing work" under section 7106(b)(1) of the Statute, a permissive subject over which DODDS Mediterranean had elected to bargain. The General Counsel cited Authority precedent that agency heads may not disapprove permissive matters that have been negotiated by the parties. The General Counsel noted that although the parties here did not reach agreement on the provision, they did agree to abide by the mediation process. Therefore, for all practical purposes, the decision of the Panel's Chairman was equivalent to agreement between the parties and was not subject to agency head review.

We find that the Judge correctly concluded that the provision is inconsistent with management's rights to direct employees and assign work. The provision does more than simply provide procedural protections for employees. The provision would establish a new performance standard against which the performance of employees could be measured. The provision also bars the assignment of duties that are not consistent with academic freedom. Thus, the provision would prevent management from assigning duties to employees. Consequently, we find that the provision is inconsistent with management's rights under section 7106(a)(2)(A) and (B) of the Statute.

We agree with the General Counsel that the provision also concerns the "methods, and means of performing work" under section 7106(b)(1) of the Statute. The provision would permit employees to make determinations regarding which teaching methods would be used to teach a prescribed curriculum. Determinations concerning curriculum, including teaching methods and course content, pertain to the means of performing work. See Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 820-23 (1987) (Proposal 67, Section 1), aff'd mem. on other grounds sub nom. Overseas Education Association, Inc. v. FLRA, 855 F.2d 887 (D.C. Cir. 1988). However, in view of our decision that the provision is inconsistent with management's rights under section 7106(a)(2)(A) and (B) of the Statute, we need not address the General Counsel's alternative argument that because the provision concerned a section 7106(b)(1) matter, it could not be disapproved by the Agency head.

B. Travel and Per Diem for Regional Meetings

The Respondent disapproved the underlined portion of the following provision on the basis that it was inconsistent with the Supreme Court's decision in Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104 S. Ct. 439 (1983) (BATF):

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.^(*)

The Judge found, based on prevailing Authority precedent, that the Respondent's disapproval of this provision was improper. The Judge concluded that the disapproval constituted a failure or refusal to comply with impasse decisions in violation of section 7116(a)(1) and (6) of the Statute; interfered with the bargaining relationship between the parties at the local level in violation of section 7116(a)(1) and (5) of the Statute; and constituted an improper disapproval in violation of section 7116(a)(1) and (8) of the Statute.

The Respondent excepted to the Judge's conclusions on the basis that the Judge failed to address the applicability of the Supreme Court's decision in BATF. The Respondent argued that the disapproved language would provide an automatic entitlement to travel and per diem costs. The Respondent claimed that the Comptroller General has authorized such payment only as an exception to the general rule denying such payments. The Respondent further argued that payment may only be made upon the certification by an agency head that travel is in the primary interest of the Government.

The arguments presented by the Respondent are the same arguments which the Authority repeatedly has rejected in determining that payment of travel and per diem expenses for union officials on official time are within the duty to bargain. See National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6 (1986) (U.S. Customs Service), enforced sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988). See also National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 31 FLRA 856 (1988) and National Federation of Federal Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA 1105 (1986) (Provision 3).

We find, in agreement with the Judge, that the provision concerning travel and per diem for union representatives attending regional meetings was within the duty to bargain and the Respondent's disapproval of the provision was improper. Therefore, we conclude that the Respondent's conduct in disapproving the provision was violative of section 7116(a)(1), (5), (6), and (8) of the Statute.

IV. Remedy

The remedial Order as set forth in 27 FLRA 586 is modified to reflect the conclusions reached here. Additionally, the allegations of the unfair labor practice complaints which were found not to have violated the Statute are dismissed.

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 negotiable 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 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) and shall be posted and maintained for 60 consecutive days thereafter, excluding holiday and vacation periods, in conspicuous place, 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.

The allegations contained in the unfair labor practice complaints which were found not to have violated the Statute are dismissed.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE 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 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.

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FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ The last sentence of the provision was apparently disapproved as well. However, in its exceptions to the Judge's decision, the Respondent cited only the underlined portion as being in dispute. Therefore, we will address only that portion.

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