22:0921(94)CA - EEO Commission and National Council of EEOC Locals, No. 216, AFGE -- 1986 FLRAdec CA



[ v22 p921 ]
22:0921(94)CA
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.
 
    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 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.
 
    WE WILL 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 agreements 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 any questions concerning this Notice or compliance
 with its provisions, they may communicate directly with the Regional
 Director, Region III, Federal Labor Relations Authority, 1111 18th
 Street, N.W., Room 700 (P.O. Box 33