14:0191(40)CA - DOD Dependents Schools and Overseas Education Association -- 1984 FLRAdec CA



[ v14 p191 ]
14:0191(40)CA
The decision of the Authority follows:


 14 FLRA No. 40
 
 DEPARTMENT OF DEFENSE
 DEPENDENTS SCHOOLS
 Respondent
 
 and
 
 OVERSEAS EDUCATION ASSOCIATION
 Charging Party
 
                                            Case No. 3-CA-1952
 
                            DECISION AND ORDER
 
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
 
    Upon consideration of the entire record in this case, including the
 stipulation of facts and the contentions of the parties, /1/ and
 including the amicus curiae brief filed by the Office of Personnel
 Management, /2/ the Authority finds:
 
    The complaint alleges that the Respondent violated section 7116(a)(1)
 and (8) of the Federal Service Labor-Management Relations Statute (the
 Statute) when it failed to comply with section 7131(a) of the Statute by
 denying official time and reimbursement for travel and per diem expenses
 incurred by an employee on the Union negotiating team during ground
 rules negotiations.  The ground rules negotiations for a new collective
 bargaining agreement were conducted on April 30 and May 1, 1979.  The
 record indicates that the employee, Union President Hal Mosher,
 requested official time and reimbursement for his travel expenses and
 per diem in connection with the ground rules negotiations in a letter
 dated August 6, 1980, and that the Respondent denied the request by
 letter dated September 15, 1980.  Respondent granted the employee
 official time for the actual ground rules negotiations, but refused to
 authorize official time for his related travel or to grant reimbursement
 for his travel and per diem expenses incurred in connection with such
 negotiations.
 
    Procedurally, the Respondent contends that the unfair labor practice
 charge herein was filed untimely under section 7118(a)(4)(A) of the
 Statute, /3/ inasmuch as the charge was filed on February 3, 1981, more
 than six months after the completion of the ground rules negotiations
 for which official time and reimbursement of travel and per diem
 expenses were sought, and therefore the complaint should be dismissed.
 The same position was taken by the Respondent and considered by the
 Authority with respect to a previous unfair labor practice case
 involving similar facts.  Department of Defense Dependents Schools, 9
 FLRA 769(1982).  For the reasons stated in Department of Defense
 Dependents Schools, the Authority concludes that, as the charge was
 filed within six months of the Respondent's denial of the requested
 reimbursement, it was timely filed.
 
    The complaint herein alleges that the Respondent's violative conduct
 was related specifically to ground rules negotiations.  The Respondent
 contends essentially that the entitlement to official time and related
 travel and per diem expenses under section 7131(a) of the Statute does
 not apply to such "ground rule" negotiations.  /4/ In this regard, the
 Respondent argues that official time for ground rules negotiations is
 covered by the provisions of section 7131(d) of the Statute, rather than
 section 7131(a), and is thus a negotiable matter rather than a matter of
 statutory entitlement.  Cited in support of this position were
 negotiability decisions of the Authority which held generally that the
 granting of official time to prepare for negotiations is a negotiable
 matter under section 7131(d) of the Statute.  /5/ However, those cases
 are clearly distinguishable.  Thus, as viewed by the Authority,
 preparation for negotiations involves the unilateral act of one party in
 anticipation of bilateral negotiations, while the negotiation of ground
 rules involves the bilateral participation of the parties and is part of
 the good faith negotiating process leading to agreement.  In performing
 their mutual obligation to bargain in good faith, the parties ordinarily
 would need to make certain preliminary arrangements such as the
 scheduling of the time, place, length and agenda of the meetings.  This
 is a necessary step in meeting "at reasonable times and convenient
 places" as required by section 7114 of the Statute.  /6/ The fact that
 some parties mutually agree to set such preliminary arrangements apart
 and call them ground rules negotiations does not separate them from the
 collective bargaining process and the parties' mutual obligation to
 bargain in good faith.  Therefore, the Authority concludes that such
 negotiations are encompassed within the meaning of section 7131(a), and
 that employees designated by the exclusive representative to engage in
 such negotiations are entitled to official time.
 
    Accordingly, the Respondent's denial of official time for travel
 incurred by an employee on the Union negotiating team in connection with
 ground rules negotiations for a new collective bargaining agreement
 constitutes a failure to comply with section 7131(a) of the Statute in
 violation of section 7116(a)(1) and (8).  Florida National Guard, 5 FLRA
 365(1980), reversed as to other matters sub nom.  Florida National Guard
 v. Federal Labor Relations Authority, 699 F.2d 1082 (11th Cir. 1983)
 cert. denied, 52 U.S.L.W. 3440 (U.S. Dec. 6, 1983).
 
    However, with respect to the Respondent's denial of reimbursement of
 Mosher's travel and per diem expenses, the threshold issue involved is
 the same as the threshold issue decided in Bureau of Alcohol, Tobacco
 and Firearms v. FLRA, 104 S.Ct. 439(1983) wherein the United States
 Supreme Court concluded that the obligation of an agency under section
 7131(a) of the Statute to provide official time to its employees
 representing an exclusive representative in the negotiation of a
 collective bargaining agreement does not encompass the payment of travel
 expenses and per diem allowances.  Pursuant to that decision and for the
 reasons set forth by the Court, the Authority concludes herein that the
 Respondent did not fail or refuse to comply with the provisions of
 section 7131(a) of the Statute by its refusal to pay travel expenses and
 a per diem allowance herein.  Therefore, it follows that the Respondent
 did not violate section 7116(a)(1) and (8) of the Statute in this
 regard.
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Federal
 Service Labor-Management Relations Statute, the Authority hereby orders
 that the Department of Defense Dependents Schools shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to grant official time, pursuant to
       section 7131(a) of the Federal Service Labor-Management Relations
       Statute, to employee Hal Mosher for his time spent in a travel
       status on April 29 and May 2, 1979, as the designated
       representative of the Overseas Education Association, the
       exclusive representative of its employees, in connection with
       ground rules negotiations for a new collective bargaining
       agreement conducted on April 30 and May 1, 1979.
 
          (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 Federal Service Labor-Management Relations
 Statute:
 
          (a) Grant official time to employee Hal Mosher for his time
       spent in a travel status on April 29 and May 2, 1979, as the
       designated representative of the Overseas Education Association,
       the exclusive representative of its employees, in connection with
       ground rules negotiations for a new collective bargaining
       agreement conducted on April 30 and May 1, 1979.
 
          (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 an authorized
       representative of the Respondent 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.
 
          (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.
 
    IT IS FURTHER ORDERED that the remaining allegation of the complaint
 in Case No. 3-CA-1952 be, and it hereby is, dismissed.
 
    Issued, Washington, D.C., April 6, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, 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 UNITE