21:1092(125)CA - DOD Dependents Schools System and Overseas Education Association -- 1986 FLRAdec CA



[ 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 an