09:0769(96)CA - DOD Dependents Schools and Overseas Education Association, NEA -- 1982 FLRAdec CA



[ v09 p769 ]
09:0769(96)CA
The decision of the Authority follows:


 9 FLRA No. 96
 
 DEPARTMENT OF DEFENSE DEPENDENTS
 SCHOOLS
 Respondent
 
 and
 
 OVERSEAS EDUCATION ASSOCIATION, NEA
 Charging Party
 
                                            Case No. 3-CA-1205
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH
 SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
 2429.1(A)).
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, BRIEFS SUBMITTED
 BY THE RESPONDENT AND THE GENERAL COUNSEL, /1/ AND THE AMICUS CURIAE
 BRIEF FILED BY THE OFFICE OF PERSONNEL MANAGEMENT, /2/ THE AUTHORITY
 FINDS:
 
    THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
 STATUTE (THE STATUTE) /3/ BY REFUSING TO REIMBURSE EMPLOYEES SERVING AS
 MEMBERS OF THE UNION NEGOTIATING TEAM FOR TRAVEL AND PER DIEM EXPENSES
 INCURRED WHILE NEGOTIATING A NEW COLLECTIVE BARGAINING AGREEMENT,
 CONTRARY TO THE REQUIREMENTS OF SECTION 7131(A) OF THE STATUTE.  /4/ THE
 RESPONDENT CONCEDES THAT IT HAS DENIED REQUESTS FOR REIMBURSEMENT OF THE
 EMPLOYEES' TRAVEL AND PER DIEM EXPENSES, BUT ARGUES THAT THE UNFAIR
 LABOR PRACTICE CHARGE WAS UNTIMELY FILED HEREIN, AND THAT IN ANY EVENT
 IT IS NOT OBLIGATED TO MAKE SUCH PAYMENTS UNDER THE STATUTE.
 
    THE PARTIES STIPULATE THAT THEY ENGAGED IN NEGOTIATIONS FOR A NEW
 COLLECTIVE BARGAINING AGREEMENT FROM ON OR ABOUT JULY 23, 1979, UNTIL ON
 OR ABOUT DECEMBER 6, 1979.  FROM ON OR ABOUT AUGUST 20, 1979, UNTIL THE
 TERMINATION OF NEGOTIATIONS, THE RESPONDENT'S EMPLOYEES WHO ARE MEMBERS
 OF THE UNION NEGOTIATING TEAM WERE GRANTED OFFICIAL TIME WHILE ENGAGED
 IN NEGOTIATIONS.  HOWEVER, THEY HAVE BEEN REFUSED PAYMENT FOR TRAVEL AND
 PER DIEM EXPENSES INCURRED DURING THE TIME IN WHICH THE PARTIES WERE
 ENGAGED IN NEGOTIATIONS.
 
    THE RESPONDENT ARGUES THAT THE CHARGE WAS UNTIMELY FILED UNDER
 SECTION 7118(A)(4)(A) OF THE STATUTE /5/ INASMUCH AS IT WAS FILED ON
 JUNE 10, 1980, MORE THAN SIX MONTHS AFTER THE END OF NEGOTIATIONS ON
 DECEMBER 6, 1979.  HOWEVER, MEMBERS OF THE UNION NEGOTIATING TEAM SOUGHT
 REIMBURSEMENT FOR TRAVEL AND PER DIEM EXPENSES ON JANUARY 9, MARCH 28
 AND JUNE 12, 1980.  THE RESPONDENT DENIED THE JANUARY 9 REQUEST ON
 JANUARY 23, 1980, AND DID NOT REPLY TO THE OTHERS.  THUS, THE FILING OF
 THE CHARGE ON JUNE 10, 1980, WAS WITHIN SIX MONTHS OF THE RESPONDENT'S
 REFUSAL TO REIMBURSE THE EMPLOYEES FOR SUCH EXPENSES, A REFUSAL WHICH
 THE RESPONDENT CONTINUES TO THIS DATE.  ACCORDINGLY, THE AUTHORITY
 CONCLUDES THAT THE UNFAIR LABOR PRACTICE CHARGE HEREIN WAS NOT UNTIMELY
 FILED AS ALLEGED BY THE RESPONDENT.
 
    ON THE MERITS, THE AUTHORITY HAS PREVIOUSLY FOUND THAT EMPLOYEES
 REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF A
 COLLECTIVE BARGAINING AGREEMENT ON OFFICIAL TIME UNDER SECTION 7131(A)
 OF THE STATUTE ARE ENTITLED TO PAYMENT FROM AGENCIES FOR TRAVEL AND PER
 DIEM EXPENSES.  SEE INTERPRETATION AND GUIDANCE, 2 FLRA 264(1979).  SEE
 ALSO BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT
 OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40(1980),
 ENFORCED, 672 F.2D 732 (9TH CIR. 1982).  THEREFORE, FOR THE REASONS
 STATED THEREIN, THE AUTHORITY FINDS THAT THE RESPONDENT VIOLATED SECTION
 7116(A)(1) AND (8) OF THE STATUTE BY REFUSING TO PAY TRAVEL AND PER DIEM
 EXPENSES TO EMPLOYEES ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
 STATUTE WHILE REPRESENTING THE UNION IN THE NEGOTIATION OF THE PARTIES'
 NEW COLLECTIVE BARGAINING AGREEMENT.  /6/
 
                                   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 SHALL:
 
    1.  CEASE AND DESIST FROM:
 
    (A) FAILING AND REFUSING TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
 TRAVEL AND PER DIEM EXPENSES INCURRED BY ITS EMPLOYEES AS A RESULT OF
 THEIR PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
 STATUTE AS DULY DESIGNATED REPRESENTATIVES OF THE OVERSEAS EDUCATION
 ASSOCIATION, NEA, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED
 CONTRACT NEGOTIATIONS.
 
    (B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
 COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
 STATUTE.
 
    2.  TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
 PURPOSES AND POLICIES OF THE STATUTE:
 
    (A) PROVIDE PAYMENT TO ANY OF ITS EMPLOYEES WHO SUBMIT A PROPERLY
 DOCUMENTED VOUCHER FOR TRAVEL AND PER DIEM EXPENSES INCURRED AS THE
 RESULT OF PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
 STATUTE AS THE DULY DESIGNATED REPRESENTATIVES OF THE OVERSEAS EDUCATION
 ASSOCIATION, NEA, IN THE NEGOTIATION OF THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT.
 
    (B) POST AT ITS FACILITIES COPIES OF THE ATTACHED NOTICE ON FORMS TO
 BE FURNISHED BY THE FEDERAL LABOR RELATIONS AUTHORITY.  UPON RECEIPT OF
 SUCH FORMS, THEY SHALL BE SIGNED BY THE DIRECTOR OF THE DEPARTMENT OF
 DEFENSE DEPENDENTS SCHOOLS AND SHALL BE POSTED AND MAINTAINED BY HIM FOR
 60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
 BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
 CUSTOMARILY POSTED.  THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE
 THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
 MATERIAL.
 
    (C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
 REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION III, FEDERAL LABOR
 RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
 ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
 
    ISSUED, WASHINGTON, D.C., AUGUST 4, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                          NOTICE TO ALL EMPLOYEES
 
           PURSUANT TO A DECISION AND ORDER OF THE FEDERAL LABOR
 
            RELATIONS AUTHORITY AND IN ORDER TO EFFECTUATE THE
 
          POLICIES OF CHAPTER 71 OF TITLE 5 OF THE UNITED STATES
 
            CODE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS 0WE
 
                    HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT FAIL OR REFUSE TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
 TRAVEL AND PER DIEM EXPENSES INCURRED BY OUR EMPLOYEES AS A RESULT OF
 THEIR PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
 STATUTE AS DULY DESIGNATED REPRESENTATIVES OF THE OVERSEAS EDUCATION
 ASSOCIATION, NEA, OUR EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED
 CONTRACT NEGOTIATIONS.
 
    WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
 OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS AS ASSURED BY
 THE STATUTE.
 
    WE WILL PROVIDE PAYMENT TO ANY OF OUR EMPLOYEES WHO SUBMIT A PROPERLY
 DOCUMENTED VOUCHER FOR TRAVEL AND PER DIEM EXPENSES INCURRED AS A RESULT
 OF PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE STATUTE
 AS THE DULY DESIGNATED REPRESENTATIVES OF THE OVERSEAS EDUCATION
 ASSOCIATION, NEA, OUR EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED
 CONTRACT NEGOTIATIONS.
 
                           (AGENCY OR ACTIVITY)
 
    DATED:  BY:  (SIGNATURE) (TITLE)
 
    THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
 OF THIS 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, FEDERAL LABOR RELATIONS AUTHORITY, REGION III, WHOSE ADDRESS
 IS 1111 18TH STREET, NW., SUITE 700, WASHINGTON, D.C., 20036 AND WHOSE
 TELEPHONE NUMBER IS (202) 653-8452.
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE RESPONDENT HAS MOVED TO STRIKE TWO STATEMENTS IN THE GENERAL
 COUNSEL'S BRIEF ON THE GROUNDS THAT THOSE STATEMENTS ARE UNSUPPORTED BY
 THE STATUTE OR CASE LAW AND DIRECTLY CONTRADICT THE STIPULATION.  IN ANY
 MATTER SUBMITTED DIRECTLY TO THE AUTHORITY FOR DECISION BASED UPON A
 STIPULATION OF FACTS, THE AUTHORITY WILL CONSIDER ONLY FACTS CONTAINED
 IN THE STIPULATION.  ACCORDINGLY, THE RESPONDENT'S MOTION IS DENIED.
 SEE GENERAL SERVICES ADMINISTRATION, 6 FLRA NO. 77(1981).
 
    /2/ THE OFFICE OF PERSONNEL MANAGEMENT WAS GRANTED PERMISSION TO
 PARTICIPATE IN THIS PROCEEDING AS AMICUS CURIAE PURSUANT TO SECTION
 2429.9 OF THE AUTHORITY'S RULES AND REGULATIONS.
 
    /3/ SECTION 7116(A)(1) AND (8) OF THE STATUTE PROVIDES:
 
    SEC. 7116.  UNFAIR LABOR PRACTICES
 
    (A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
 PRACTICE FOR AN AGENCY--
 
    (1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
 EXERCISE BY THE EMPLOYEE OF
 
    ANY RIGHT UNDER THIS CHAPTER;
 
   *          *          *          *
 
 
    (8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
 CHAPTER.
 
    /4/ SECTION 7131(A) OF THE STATUTE PROVIDES:
 
    SEC. 7131.  OFFICIAL TIME
 
    (A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
 NEGOTIATION OF A
 
    COLLECTIVE BARGAINING AGREEMENT UNDER THIS CHAPTER SHALL BE
 AUTHORIZED OFFICIAL TIME FOR SUCH
 
    PURPOSES, IN