22:0921(94)CA - EEO Commission and National Council of EEOC Locals, No. 216, AFGE -- 1986 FLRAdec CA
[ v22 p921 ]
The decision of the Authority follows:
22 FLRA No. 94 EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Respondent and NATIONAL COUNCIL OF EEOC LOCALS, NO. 216, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO Charging Party Case Nos. 3-CA-40202 and 3-CA-40462 DECISION AND ORDER I. Statement of the Case This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on a stipulation of facts by the parties. The issue is whether the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) when it (1) refused to authorize payments for travel and per diem for negotiators of the Charging Party (the Union) as required by the terms of the parties' negotiated agreements and (2) when it refused to negotiate over a change in the site of negotiations being held pursuant to certain of those agreements. II. Background Facts The Respondent and the Charging Party were parties to a collective bargaining agreement effective from August 29, 1981, to August 29, 1984, the mandatory provisions of which have continued in full force and effect, and to ground rules agreements pertaining to the implementation of a field reorganization, mid-term negotiations regarding certain specified matters and implementation of EEOC Order 131, each of which provided for the payment of travel and per diem expenses for Union representatives at negotiations held pursuant to the provisions of those agreements. Since December 1983, the Respondent has refused to authorize payments for travel and per diem expenses as provided for by those agreements. Since January 1984, the Respondent refused to bargain with the Charging Party over a change in the site of negotiations held pursuant to the ground rules agreements applied to the negotiations at issue. III. Positions of the Parties The Respondent contends that the provisions in the parties' agreements authorizing the payment of travel and per diem were "for informational purposes only" pursuant to the Authority's Interpretation and Guidance, 2 FLRA 265 (1979), rather than a result of negotiations. Respondent further argues that its subsequent refusal to authorize payments was a result of the United States Supreme Court's decision in Bureau of Alcohol, Tobacco and Firearms (BATF) v. FLRA, 464 U.S. 89 (1983), wherein the Court found that section 7131(a) of the Statute does not entitle employees on official time to the payment of travel and per diem expenses. Moreover, Respondent contends that the payment of travel and per diem is not a negotiable condition of employment and was not appropriate under applicable law and regulation (Travel Expense Act, 5 U.S.C. Section 5702 and implementing regulations of the Office of Personnel Management). As to its refusal to negotiate on changes in the sites of negotiations, Respondent contends that the sites were mutually agreed to by the parties and that there was no obligation to negotiate changes in those agreements. The General Counsel contends that travel and per diem is a mandatory subject of bargaining which when in an agreement may not be lawfully rejected or unilaterally altered, and that Respondent made the determination required by applicable law and regulation when it included the provisions in the agreement. As to the refusal to negotiate a change in the site of negotiations, the General Counsel argues that changed circumstances, i.e., the Supreme Court's decision in BATF, obligates the Respondent to negotiate, notwithstanding the existence of an agreement, on where the negotiations would occur. The General Counsel seeks as a remedy, reimbursement to Union representatives for their travel and per diem expenses. IV. Analysis As to the Respondent's reliance on the United States Supreme Court's decision in BATF, following that decision the Authority decided in National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), slip op. at pp. 6-7, petition for review filed sub nom., Department of the Treasury, U.S. Customs Service v. FLRA, No. 85-1198, (D.C. Cir., March 27, 1986), 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. To refuse to give effect to such provisions in a collective bargaining agreement is violative of section 7116(a)(5) of the Statute. See Department of Defense Dependents School System, 21 FLRA No. 125 (1986). The Respondent's contention that the provisions were in the agreement "for informational purposes" is not a basis for a different conclusion. The provisions authorizing travel and per diem expenses had been incorporated into the terms of the parties' collective bargaining agreement and the record in this case does not support a conclusion that the parties intended the provisions to encompass the payment of the expenses only as long as the Respondent was required to pay them under the Authority's Interpretation and Guidance. Since the provisions negotiated by the parties do not violate law or government-wide regulation, the parties were therefore obligated to adhere to those provisions during the term of their agreement which the parties stipulated continued in full force and effect. Accordingly, the Respondent's unilateral refusal to comply with agreed-upon provisions for the payment of travel and per diem was inconsistent with the good faith bargaining obligation and constitutes a violation of the Statute. We do not however, believe that the Respondent's refusal to negotiate on changes in the sites of the negotiations was violative of the Statute. As the parties describe in their briefs, the sites of the negotiations were established in the respective agreements of the parties. While those agreements presupposed that the Respondent would be paying travel and per diem expenses, the refusal to pay such expenses does not create a circumstance where the Respondent was obligated to bargain on a change in the agreement. V. Conclusion The Authority finds that the Respondent's refusal to comply with the parties' collective bargaining agreement and ground rules agreements providing for the payment of travel and per diem is violative 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 agreements at issue and to pay travel and per diem to all bargaining unit employees who previously submitted or who submit appropriate claims for such payments under the terms of the agreement. Such payments must be consistent, not only with the terms of the parties' agreements, 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 Equal Employment Opportunity Commission shall: 1. Cease and desist from: (a) Refusing to comply with the terms of collective bargaining agreements negotiated with the National Council of EEOC, Locals No. 216, American Federation of Government Employees, AFL-CIO, the exclusive representative of its employees, which provide for the payment of travel and per diem expenses, thereby failing and refusing to bargain in good faith. (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 collective bargaining agreements negotiated with the National Council of EEOC Locals, No. 216, American Federation of Government Employees, AFL-CIO, which provide for the payment of travel and per diem expenses to its representatives. (b) Pay travel and per diem expenses to all bargaining unit employees who previously submitted or who submit appropriate claims for such payments under the terms of collective bargaining agreements, 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 faciliites where bargaining unit employees represented by the National Council of EEOC Locals, No. 216, American Federation of Government Employees, AFL-CIO, 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 Authortity, 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. July 30, 1986. /s/ JERRY L. CALHOUN Jerry L. Calhoun, Chairman /s/ HENRY B. FRAZIER III Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY 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 refuse to comply with the terms of collective bargaining agreements negotiated with the National Council of EEOC Locals, No. 216, American Federation of Government Employees, AFL-CIO, the exclusive representative of our employees, which provide for the payment of travel and per diem expenses.