19:0395(54)CA - DOD Dependents Schools, Mediterranean Region (Madrid, Spain); Zaragoza High School (Zaragoza, Spain) and Neil H. Anderson -- 1985 FLRAdec CA



[ 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), peti