[ v19 p395 ]
19:0395(54)CA
The decision of the Authority follows:
19 FLRA No. 54
DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS, MEDITERRANEAN REGION
(MADRID, SPAIN); AND ZARAGOZA
HIGH SCHOOL, (ZARAGOZA, SPAIN)
Respondent
and
NEIL H. ANDERSON, AN INDIVIDUAL
Charging Party
Case No. 1-CA-40204
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 of the Authority's Rules and Regulations.
Upon consideration of the entire record in this case, including the
stipulation of facts, accompanying exhibits, and the contentions of the
parties, the Authority finds:
The complaint alleges that the Respondent, Department of Defense
Dependents Schools, Mediterranean Region (DODDS Mediterranean) and
Zaragoza High School (High School) violated section 7116(a)(1) and (5)
of the Federal Service Labor-Management Relations Statute (the Statute)
by unilaterally changing an established condition of employment without
providing the Overseas Federation of Teachers, AFT, AFL-CIO (Union) an
opportunity to bargain over the change and/or its impact and
implementation. /1/
The record indicates that the Union represents a unit of
nonsupervisory professional school-level personnel employed by DODDS
Mediterranean. On four occasions, from September 1982 to February 1984,
Neil H. Anderson, the president of Union Local 1550 and a teacher at the
High School, had been issued non-funded temporary duty travel orders in
connection with his attendance at Joint Labor-Management Committee
Meetings. The orders were issued by the principal of the High School
and the Meetings were held at a location about 200 miles from Zaragoza.
In connection with receipt of the travel order for his attendance at a
February 1984 meeting, Anderson was advised by the principal that he,
the principal, could no longer issue non-funded travel orders for such a
purpose in the future based upon instruction from the Chief,
Management-Employee Relations Branch at DODDS Mediterranean.
Thereafter, the Union requested bargaining over the change and submitted
a proposal to retain the existing practice. The principal of the High
School responded that he had been advised that he was no longer
authorized to issue such orders. The Chief, Management-Employee
Relations Branch also responded to the Union's proposal by declaring it
nonnegotiable.
The Respondent now argues, essentially, that there was no obligation
to bargain over the substance of the change, that the Respondent at no
time refused to bargain over the impact and implementation of the change
and that, in any event, the impact on employees was de minimis. The
General Counsel argues that the Respondent was obligated to bargain over
the change in the past practice of issuing non-funded temporary duty
travel orders and cites to the Authority's decision in Department of
Defense Dependents Schools, 12 FLRA 43 (1983).
In the above-cited case, the Authority determined, in part, that a
refusal to issue temporary duty orders to an employee for his attendance
at a union board of directors meeting and a labor-management training
session constituted a violation of section 7116(a)(1) and (5) of the
Statute. In so concluding, the Authority noted that the requested
travel orders were not materially different from previous requests to
attend labor relations workshops and training functions which had been
granted. Therefore, the refusal to issue the temporary duty order
constituted a unilateral change in an established past practice in
violation of the Statute.
In the instant case, a past practice had been established concerning
the issuance of non-funded temporary duty travel orders to the local
president for his attendance at Joint Labor-Management Committee
Meetings. When the Respondent sought to change this practice, it was
obligated to notify the Union and bargain, upon request, concerning the
decision to effect the change. See Department of Defense, Department of
the Navy, Naval Weapons Station, Yorktown, Virginia, 16 FLRA No. 72
(1984), and Department of the Air Force, Scott Air Force Base, Illinois,
5 FLRA 9 (1981). With respect to the Respondent's assertion that the
impact of the change herein on unit employees was no more than de
minimis, it is the Authority's view that where, as here, the decision to
make a change was itself negotiable, the question is whether the
statutory obligation to notify and negotiate with the exclusive
representative concerning the change was fulfilled, not the extent of
impact of any unilateral change in conditions of employment upon unit
employees. See U.S. Army Reserve Components Personnel and
Administration Center, St. Louis, Missouri, 19 FLRA No. 40 (1985).
This latter inquiry is appropriate when the bargaining obligation of
management is limited to procedures and appropriate arrangements
pursuant to section 7106(b)(2) and (3) of the Statute. See, e.g.,
Department of the Treasury, Internal Revenue Service, Jacksonville
District, Jacksonville, Florida, 15 FLRA No. 187 (1984). Accordingly,
the Authority concludes that the Respondent's unilateral change in a
negotiable condition of employment violated section 7116(a)(1) and (5)
of the Statute. /2/
ORDER
Pursuant to section 2423.29 of the Authority's Rules and Regulations
and section 7118 of the Federal Service Labor-Management Relations
Statute, the Authority hereby orders that the Department of Defense
Dependents Schools, Mediterranean Region (Madrid, Spain) and Zaragoza
High School (Zaragoza, Spain) shall:
1. Cease and desist from:
(a) Unilaterally changing an established past practice regarding the
issuance of non-funded temporary duty travel orders to Neil H. Anderson,
President, Local 1550, Overseas Federation of Teachers, AFT, AFL-CIO, to
attend Joint Labor-Management Committee Meetings, without first
notifying the Overseas Federation of Teachers, AFT, AFL-CIO, the
exclusive representative of the Respondent's employees, and bargaining
in good faith to the full extent consonant with law.
(b) In any like or related manner interfering with, restraining, or
coercing employees in the exercise of 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) Restore the past practice of issuing non-funded temporary duty
travel orders to Neil H. Anderson, President, Local 1550, Overseas
Federation of Teachers, AFT, AFL-CIO, for his attendance at Joint
Labor-Management Committee Meetings.
(b) Notify the Overseas Federation of Teachers, AFT, AFL-CIO, the
exclusive representative of the Respondent's employees, of any proposed
change in the established past practice regarding the issuance of
non-funded temporary duty travel orders for attendance at Joint
Labor-Management Committee Meetings and, upon request, bargain in good
faith to the full extent consonant with law.
(c) Post at its facilities at Zaragoza High School, 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 Mediterranean Region, or his 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. The Director shall take reasonable
steps 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 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 herewith.
Issued, Washington, D.C., July 31, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., 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
WE HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT unilaterally change an established past practice regarding
the issuance of non-funded temporary duty travel orders to Neil H.
Anderson, President, Local 1550, Overseas Federation of Teachers, AFT,
AFL-CIO, to attend Joint Labor-Management Committee Meetings, without
first notifying the Overseas Federation of Teachers, AFT, AFL-CIO, the
exclusive representative of our employees, and bargaining in good faith
to the full extent consonant with law. 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. WE WILL restore the past practice of issuing
non-funded temporary duty travel orders to Neil H. Anderson, President,
Local 1550, Overseas Federation of Teachers, AFT, AFL-CIO, for his
attendance at Joint Labor-Management Committee Meetings. WE WILL notify
the Overseas Federation of Teachers, AFT, AFL-CIO, the exclusive
representative of our employees, of any proposed change in the
established past practice regarding the issuance of non-funded temporary
duty travel orders for attendance at Joint Labor-Management Committee
Meetings and, upon request, bargain in good faith to the full extent
consonant with law.
(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 I,
Federal Labor Relations Authority, whose address is: 441 Stuart Street,
9th Floor, Boston, MA 02116 and whose telephone number is: (617)
223-0920.
--------------- FOOTNOTES$ ---------------
/1/ While the Charging Party in the instant case is captioned as an
individual rather than as the Union, the Authority notes that the
Charging Party filed the unfair labor practice charge in his capacity as
local Union president and that both the charge and complaint clearly
allege a failure to bargain with the Union.
/2/ The Authority finds no merit to the Respondent's assertion that
the issuance of the travel order in question is illegal noting that the
Respondent has not cited to any authority or provided any support for
its assertion. To the extent that the Respondent has argued that
issuance of the travel orders is prohibited under the Defense
Department's Joint Travel Regulations, a determination that the Union's
proposal to retain the existing practice was contrary to the regulation
would necessitate a finding under the Authority's Rules and Regulations
as to the compelling need for the regulation to bar negotiations.
However, the Respondent has not argued compelling need as a defense to
the bargaining request or in any manner demonstrated the existence of a
compelling need for the regulation so as to bar negotiations. See
Defense Logistics Agency (Cameron Station, Virginia), 12 FLRA 412
(1983), aff'd sub nom. Defense Logistics Agency, et al v. FLRA, 754 F.2d
1003 (1985). But see U.S. Army Engineer Center and Fort Belvoir, 13
FLRA 707 (1984), rev'd sub nom. United States Army Engineer Center v.
FLRA, No. 84-1327 (4th Cir. May 23, 1985), petition for reh'g pending.
Similarly, the Authority rejects the Respondent's argument that issuance
of the travel order must be made on a case-by-case basis noting, as in
Department of Defense Dependents Schools, supra, that issuance of travel
orders under the Joint Travel Regulations for attendance at various
labor-management meetings can become an established past practice.