[ v21 p1092 ]
21:1092(125)CA
The decision of the Authority follows:
21 FLRA No. 125
DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS SYSTEM
Respondent
and
OVERSEAS EDUCATION ASSOCIATION
Charging Party
Case No. 31-CA-40176
DECISION AND ORDER
I. Statement of the Case
This unfair labor practice case is before the Authority based on the
Regional Director's "Order Transferring Case to the Authority" in
accordance with section 2429.1(a) of the Authority's Rules and
Regulations. The complaint alleged that the Respondent violated section
7116(a)(1) and (5) of the Federal Service Labor-Management Relations
Statute (the Statute) by repudiating the parties' collective bargaining
agreement which provides for payment of certain travel and per diem
expenses, thereby failing to bargain in good faith with the Charging
Party.
II. Background
The parties' collective bargaining agreement, which was negotiated in
1977 and continues in full force and effect, contains the following
provisions relating to the payment of travel and per diem expenses which
are the subject of this case:
Article 10 - Association Management Deliberations
The (Union's) Area Director shall be in duty status during such
deliberations in accordance with Article 8, Section 2 and shall
receive transportation and per diem at government expense in
accordance with the JTR. The Area Director may be accompanied and
assisted for such deliberations by no more than three teachers in
duty status and receiving transportation and per diem at
government expense in accordance with the JTR.
Article 13 - Grievance Procedure /1/
All Participants, including witnesses, in the hearing shall be
in a duty status and, in the event the hearing is not held at a
site within commuting distance, participants, including witnesses,
shall be provided transportation in accordance with the JTR, Vol.
II.
Under these provisions, the Respondent paid the travel and per diem
expenses of its employees who were the Charging Party's representatives
at deliberations and of bargaining unit employees at arbitration
hearings. This practice existed since at least 1977. On February 21,
1984, the Respondent notified the Charging Party that effective on March
10, 1984, it would no longer make the payments for travel and per diem
expenses required by Articles 10 and 13 of the parties' agreement. This
action was based upon the Respondent's view that Articles 10 and 13 were
not in compliance with law and that decisions concerning whether or not
to pay travel and per diem expenses would be made solely by management.
III. Positions of the Parties
The Respondent argues that the Authority lacks jurisdiction to
resolve the issues raised in the complaint because reimbursement for
travel and per diem expenses is covered by Section 5702 of the Travel
Expense Act, 5 U.S.C. Sections 5701, et seq., not the Statute; that
implementation of the United States Supreme Court's decision in Bureau
of Alcohol, Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89 (1983), on
the matter of payment for travel and per diem expenses, as applicable to
this case, is subject to the parties' contractual grievance procedure
and not to the unfair labor practice procedures of the Statute; and
that there can be no repudiation of contractual rights or privileges
where none exist, which is the case here. The Respondent further argues
that the mere announcement of an intention to no longer pay travel and
per diem expenses without any actual denial of such payments is not a
violation of the Statute, and that it did not unlawfully refuse to
bargain.
The General Counsel's position, as set forth in the complaint, is
that the Respondent unilaterally repudiated the parties' collective
bargaining agreement and thereby failed and refused to negotiate in good
faith with the Charging Party. /2/
IV. Analysis
As to the Respondent's first contention to the effect that the
Authority lacks jurisdiction under the Statute to address payment of
travel and per diem expenses, the Authority notes its recent decision in
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). In that case, the Authority found
that the Travel Expense Act, 5 U.S.C. Sections 5701, et seq., does not
specifically address payment of travel expenses incurred by employees
engaged in labor-management activity. Therefore, the Respondent's
contention that the Authority lacks jurisdiction to resolve the issues
raised in the complaint because they are covered by the Travel Expense
Act is without merit.
The answer to the Respondent's second contention, that the issues
raised in this case are subject to the parties' contractual grievance
procedure rather than to the unfair labor practice procedures of the
Statute, is that we are here presented with an alleged repudiation of
the agreement rather than with differing and arguable interpretations of
that agreement. It is entirely appropriate to resolve this issue in an
unfair labor practice proceeding. See, for example, American Federation
of Government Employees, Local 1923, AFL-CIO, 20 FLRA No. 88 (1985). As
to the substantive issues raised by the complaint and the Respondent's
further contentions addressing those issues, the Authority concludes
that the announced intention to no longer make payments of travel and
per diem expenses was an unlawful repudiation of the parties' agreement,
as explained below.
As already noted, the parties had negotiated for the payment of
travel and per diem expenses and had included those provisions in their
collective bargaining agreement. Under these provisions, payment of
travel and per diem expenses was made by the Respondent for its
employees who represented the Charging Party at deliberations with
Agency management, as well as for bargaining unit employees at
arbitration hearings. At the time that the Respondent notified the
Charging Party that the payments would no longer by made under the terms
of the agreement but would be based solely upon a decision by
management, the United States Supreme Court had rendered its decision in
Bureau of Alcohol, Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89
(1983), finding that section 7131(a) of the Statute did not entitle
employees on official time to the payment of travel and per diem
expenses. However, the Court added in footnote 17 of its decision that
"unions may presumably negotiate for such payments in collective
bargaining as they do in the private sector." 464 U.S. at 107.
Following that decision, the Authority decided in National Treasury
Employees Union and Department of the Treasury, U.S. Customs Service,
supra, that a union's proposal which would require an agency to pay
travel and per diem expenses incurred by employees using official time,
while not an entitlement under the Statute, is within the duty to
bargain as it is not inconsistent with law or Government-wide
regulation. In reaching its decision, the Authority found that agencies
have discretion to determine whether and under what circumstances travel
related to labor-management relations activities is sufficiently within
the interest of the United States so as to constitute official business
for which employees may receive appropriate expenses from Federal funds
and, further, that the exercise of such discretion is subject to
negotiation. Therefore, parties may mutually decide what labor
relations activities are sufficiently within the interest of the United
States so that payment of travel and per diem expenses may be made.
Within these negotiated parameters, however, determinations as to the
appropriateness of specific travel and per diem expenses which are
necessary and proper under law and governing regulation would have to be
made on a case-by-case basis. /3/
In this case, the provisions authorizing the payment of travel and
per diem expenses had been negotiated by the parties and incorporated
into the terms of their agreement. The parties therefore were obligated
to adhere to those provisions during the term of their agreement which,
as previously noted, the parties stipulated has continued in full force
and effect. Internal Revenue Service, 17 FLRA 731, 734 (1985), petition
for review filed sub nom. National Treasury Employees Union v. FLRA, No.
85-1361 (D.C. Cir. June 14, 1985). The Respondent has not shown that
the provisions of Articles 10 and 13 are inconsistent with law and
regulation; rather, we note that payment for travel and per diem
expenses is within the duty to bargain. The Respondent's announced
intention to no longer make payments for travel and per diem expenses in
accordance with the contractually agreed-upon provisions therefore
constituted a repudiation of the agreement which was inconsistent with
the Respondent's good-faith bargaining obligation in violation of the
Statute. See Adjutant General, State of Ohio, Ohio Air National Guard,
Worthington, Ohio, 21 FLRA No. 124 (1986).
V. Conclusion
The Authority finds that the Respondent repudiated the parties'
collective bargaining agreement providing for payment of travel and per
diem expenses, and thereby failed to bargain in good faith with the
Charging Party in violation of section 7116(a)(1) and (5) of the
Statute. To remedy this unfair labor practice, we shall order the
Respondent to abide by the terms of the 1977 agreement and to pay travel
and per diem expenses to all bargaining unit employees who submit or
previously submitted appropriate claims for such payments under the
terms of Articles 10 and 13 of the parties' collective bargaining
agreement. Of course, such payments must be consistent not only with
the terms of the parties' collective bargaining agreement, /4/ but also
with law and regulation, including the Federal Travel Regulations.
ORDER
Pursuant to section 2423.29 of the Federal Labor Relations
Authority's Rules and Regulations and section 7118 of the Statute, it is
ordered that the Department of Defense Dependents Schools System shall:
1. Cease and desist from:
(a) Repudiating the terms of Articles 10 and 13 of the 1977
collective bargaining agreement negotiated with the Overseas Education
Association, the exclusive representative of its employees, which
provides for the payment of travel and per diem expenses, thereby
failing and refusing to bargain in good faith with the Overseas
Education Association.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights assured by the
Federal Service Labor-Management Relations Statute.
2. Take the following affirmative action in order to effectuate the
purposes and policies of the Statute:
(a) Comply with the 1977 collective bargaining agreement negotiated
with the Overseas Education Association, which provides in Articles 10
and 13 for the payment of travel and per diem expenses to
representatives of the Overseas Education Association at deliberations,
and unit employees at arbitration hearings.
(b) Pay travel and per diem expenses to all bargaining unit employees
who submit or previously submitted appropriate claims for such payments
under the terms of Articles 10 and 13 of the 1977 collective bargaining
agreement, to the extent that such payments are consistent with the
terms of the collective bargaining agreement and law and regulation,
including the Federal Travel Regulations.
(c) Post at its facilities where bargaining unit employees
represented by the Overseas Education Association are located, copies of
the attached Notice on forms to be furnished by the Federal Labor
Relations Authority. Upon receipt of such forms, they shall be signed
by the Director, or a designee, and shall be posted and maintained for
60 consecutive days thereafter, in conspicuous places, including all
bulletin boards and other places where notices to employees are
customarily posted. Reasonable steps shall be taken to ensure that such
Notices are not altered, defaced, or covered by any other material.
(d) Pursuant to section 2423.30 of the Authority's Rules and
Regulations, notify the Regional Director, Region III, Federal Labor
Relations 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., May 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) This provision addresses attendance at arbitration hearings.
Although it does not specifically reference payment of per diem
expenses, the parties' stipulation indicates that such payment is
encompassed by the provision.
(2) The General Counsel's brief was untimely filed and therefore has
not been considered.
(3) See National Treasury Employees Union and Department of the
Treasury, U.S. Customs Service, 21 FLRA, No. 2 (1986), slip op. at pp.
6-7; see also American Federation of Government Employees, AFL-CIO,
National Council of Federal Grain Inspection Locals and U.S. Department
of Agriculture, Federal Grain Inspection Service, 21 FLRA No. 21 (1986)
and National Treasury Employees Union and Department of the Treasury,
Internal Revenue Service, 21 FLRA No. 19 (1986), in which the Authority
found proposals authorizing payment of various travel and per diem
expenses to be within the duty to bargain.
(4) We note in this regard that the language of Articles 10 and 13
reference that payment will be in accordance with the Joint Travel
Regulations.
APPENDIX
NOTICE TO ALL EMPLOYEES
PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
RELATIONS
AUTHORITY AND IN ORDER TO EFFECTUATE THE POLICIES OF CHAPTER 71
OF TITLE
5 OF THE UNITED STATES CODE FEDERAL SERVICE LABOR-MANAGEMENT
RELATIONS
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT repudiate the terms of Articles 10 and 13 of the 1977
collective bargaining agreement negotiated with the Overseas Education
Association, the exclusive representative of our employees, which
provides for the payment of travel and per diem expenses, thereby
failing and refusing to bargain in good faith with the Overseas
Education Association.
WE WILL NOT in any like or related manner interfere with, restrain or
coerce our employees in the exercise of their rights assured by the
Statute.
WE WILL comply with the 1977 collective bargaining agreement
negotiated with the Overseas Education Association, which provides in
Articles 10 and 13 for the payment of travel and per diem expenses to
representatives of the Overseas Education Association at deliberations,
and unit employees at arbitration hearings.
WE WILL pay travel and per diem expenses to all bargaining unit
employees who submit or previously submitted appropriate claims for such
payments under the terms of Articles 10 and 13 of the 1977 collective
bargaining agreement, to the extent that such payments are consistent
with the terms of the collective bargaining agreement and law and
regulation, including the Federal Travel Regulations.
(Activity)
Dated:
By: (Signature) (Title)
This Notice must remain posted for 60 consecutive days from the date
of posting, and must not be altered, defaced, or covered by any other
material.
If employees have any questions concerning this Notice or compliance
with its provisions, they may communicate directly with the Regional
Director, Region III, Federal Labor Relations Authority, 1111 18th
Street, N.W., Room 700 (P.O. Box 33758), Washington, D.C. 20033-0758,
and whose telephone number is: (202) 653-8500.