27:0586(72)CA - DOD Dependents Schools, Alexandria, Virginia and OFT -- 1987 FLRAdec CA



[ v27 p586 ]
27:0586(72)CA
The decision of the Authority follows:


 27 FLRA No. 72
 
 DEPARTMENT OF DEFENSE DEPENDENTS 
 SCHOOLS (ALEXANDRIA, VIRGINIA)
 Respondent
 
 and
 
 OVERSEAS FEDERATION OF TEACHERS, 
 AFT, AFL-CIO
 Charging Party
 
                                            Case Nos. 1-CA-40196 
                                                              1-CA-40231
 
                          DECISION AND ORDER /1/
 
                         I.  Statement of the Case
 
    This consolidated unfair labor practice case is before the Authority
 on exceptions to the attached Administrative Law Judge's Decision filed
 by the Respondent.  The General Counsel filed cross-exceptions to the
 Administrative Law Judge's Decision and an opposition to the
 Respondent's exceptions.  The consolidated complaint alleged that when
 the Respondent disapproved four provisions of a local collective
 bargaining agreement and thereby prevented implementation of the
 provisions, the Respondent:  violated section 7116(a)(1) and (5) of the
 Federal Service Labor-Management Relations Statute (the Statute) by
 interfering with the bargaining relationship between the parties at the
 level of exclusive recognition;  violated section 7116(a)(1) and (8) of
 the Statute by failing and refusing to approve an agreement pursuant to
 section 7114(c) of the Statute;  /2/ and violated section 7116(a)(1) and
 (6) of the Statute by failing and refusing to cooperate in impasse
 procedures and decisions.
 
                              II.  Background
 
    The record before us indicates that the Charging Party represents a
 unit of various school personnel employed by the Department of Defense
 Dependents Schools, Mediterranean Region (DODDS Mediterranean or
 Activity).  During the course of bargaining between the Activity and the
 Charging Party, the parties sought the assistance of the Federal Service
 Impasses Panel (Panel) to aid in the resolution of a number of
 outstanding issues.  The Panel directed that mediation/arbitration be
 conducted to resolve the impasse and designated its then Chairman to
 first mediate the issues and to render a decision as an arbitrator on
 any remaining unresolved issues.
 
    On December 8, 1983, the arbitrator issued a Decision and Order in
 which, as relevant to this case, he directed the parties to adopt two
 provisions in their agreement.  The provisions concerned academic
 freedom for teachers and authorization of travel and per diem expenses
 for union representatives at regional meetings.  Additionally, the
 arbitrator referred to the Panel for resolution a third provision
 regarding entitlement to travel and per diem expenses for witnesses at
 arbitration hearings.  /3/ The Panel's Decision and Order as to that
 matter, in Case No. 83 FSIP 102, was issued on February 24, 1984.  The
 fourth provision in dispute in this case concerns attendance by a union
 representative at the opening of employee storage areas, which matter
 was negotiated solely by the parties.
 
    On or about January 4, 1984, the agreement was forwarded to the
 agency head for review pursuant to section 7114(c) of the Statute.
 Subsequently, on or about January 25, 1984, while the agreement was
 still before the agency head, the Activity and the Charging Party
 entered into a Memorandum of Understanding (MOU) in which they agreed to
 implement the agreement effective February 4, 1984.  The MOU allowed for
 renegotiations or other action in the event the agency head disapproved
 provisions of the agreement and also provided for implementation of
 those provisions which were not disapproved.
 
    Prior to the agreed-upon implementation date, the Respondent notified
 the Activity on January 31, 1984, that there were outstanding issues
 still before the Panel, that no final agreement had been completed, and
 that therefore, the 30-day review period provided for in section 7114(c)
 of the Statute had not yet commenced.  The Respondent, however, went on
 to specifically disapprove three provisions of the agreement that are
 here in dispute.  The disapproved provisions included the two which the
 arbitrator directed the parties to include in their agreement and the
 one that was negotiated by the parties themselves.  At the same time,
 the Activity indicated to the Charging Party that as a result of the
 Respondent's action, the Activity would not implement the disapproved
 provisions of the agreement.  The other provisions of the agreement were
 apparently implemented as the parties had agreed upon.
 
    As indicated above, the Panel issued its Decision and Order on
 February 24, 1984, in which it directed the parties to adopt a proposal
 made by the Charging Party concerning travel and per diem expenses for
 witnesses at arbitration hearings.  On March 20, 1984, after receipt of
 the Panel's decision, the Respondent notified the Activity and the
 Charging Party that all outstanding issues had been resolved by the
 Panel and that the Respondent was therefore completing its review of the
 agreement as required by section 7114(c) of the Statute.  The Respondent
 disapproved various provisions of the parties' agreement, including the
 four that are involved in this case.
 
    As a result of the disapproval of the arbitrator-directed provision
 dealing with authorization of travel and per diem expenses at regional
 meetings, the Activity denied reimbursement for such meetings.  The
 Charging Party then assumed the costs which were estimated to be
 somewhere between $7,700.00 and $13,000.00.  As a result of the
 disapproval of the Panel-directed provision regarding payment of travel
 and per diem expenses for civilian and military employees attending
 arbitration hearings, at least two civilian employee witnesses were
 denied reimbursement for their expenses.
 
                 III.  Administrative Law Judge's Decision
 
    Initially, the Judge disposed of a number of procedural arguments
 raised by the Respondent which are fully described in his Decision.
 Among them, the Judge determined that the Respondent's January 31
 communication constituted disapproval as to three of the provisions.
 This disapproval was reiterated on March 20, 1984, at which time the
 Respondent also disapproved the provision directed to be included in the
 agreement by the Panel.  As to the merits of the allegations, the Judge
 determined that the issue in this case is essentially whether the
 Respondent had properly disapproved the provisions of the parties'
 agreement pursuant to section 7114(c) of the Statute.  Examining each
 provision separately, the Judge found that the provision concerning
 academic freedom interfered with management's rights to direct and
 assign employees within the meaning of section 7106(a)(2)(A) and (B) of
 the Statute.  The Judge therefore concluded that the Respondent properly
 disapproved this provision and that such conduct was not violative of
 the Statute.
 
    As to the remaining three provisions, the Judge found that they were
 not inconsistent with law, rule or regulation or the Statute.
 Therefore, he found that the Respondent's disapproval of these
 provisions constituted a violation of section 7116(a)(1), (5) and (8).
 Additionally, he found that the improper disapproval of the two travel
 and per diem provisions constituted a violation of section 7116(a)(1)
 and (6) of the Statute.
 
    To remedy the unfair labor practices, the Judge basically ordered the
 Respondent to rescind its disapproval of the three provisions, authorize
 the Activity to include the provisions in the agreement retroactive to
 the implementation date of February 4, 1984, and authorize the Activity
 to reimburse and make whole employees and the Charging Party for any
 losses which they incurred as a result of the Respondent's disapproval.
 
                       IV.  Positions of the Parties
 
    The Respondent filed exceptions to the Judge's Decision and also
 requested a stay of that Decision.  Essentially, the Respondent agrees
 with the Judge's conclusion as to the provision on academic freedom but
 disagrees with his conclusions as to the other provisions.  The
 Respondent also objects to the Judge's ruling concerning the date on
 which the agreement was before the Respondent for the section 7114(c)
 review.
 
    The General Counsel excepts to the Judge's conclusion as to the
 academic freedom provision.  The General Counsel also disagrees with the
 bases on which the Judge found the two provisions on travel and per diem
 were not inconsistent with law, rule or regulation, although agreeing
 with the Judge's conclusion that they were improperly disapproved.  The
 General Counsel also excepts to the Judge's failure to specify that
 holiday and vacation periods be excluded from the posting period of the
 remedial unfair labor practice notice.
 
                               V.  Analysis
 
    This case raises a number of issues, including one of first
 impression under the Statute.  The issues are:  (1) whether interest
 arbitration awards are subject to agency head review under section
 7114(c) of the Statute;  (2) whether the provisions in dispute in this
 case were appropriately before the Respondent for review under section
 7114(c);  (3) whether the Respondent's disapproval of the provisions was
 violative of the Statute;  and (4) whether the Judge correctly
 determined the date on which the provisions were before the Respondent
 for review.
 
        A.  Section 7114(c) Review and Interest Arbitration Awards
 
    The Authority has previously addressed the role of an agency head in
 reviewing provisions of an agreement which have been imposed by a final
 order of the Panel.  In Interpretation and Guidance, 15 FLRA 564 (1984),
 affirmed sub nom. American Federation of Government Employees, AFL-CIO
 v. FLRA, 778 F.2d 850 (D.C. Cir. 1985), the Authority determined that
 under section 7114(c) of the Statute an agency head is authorized to
 review for legal sufficiency provisions of a collective bargaining
 agreement imposed by Panel decisions and orders rendered pursuant to
 section 7119 of the Statute.  The Authority reached this result by
 reconciling the provisions of sections 7114(c) and 7119 in the absence
 of any pertinent legislative history.  The Authority also found that
 review of an agency head's disapproval in such cases may be sought
 either through the negotiability procedures of section 7117 of the
 Statute or the unfair labor practice procedures available under section
 7118 of the Statute.
 
    The question here is whether an agency head is empowered under
 section 7114(c) to review provisions directed to be included in an
 agreement by an interest arbitration award.  For the reasons set forth
 below, we find that agency heads are not empowered under section 7114(c)
 of the Statute to review interest arbitration awards.
 
    It is well established that the appropriate mechanism for challenging
 the propriety of interest arbitration awards, including those resulting
 from a Panel-directed arbitration proceeding, is through the filing of
 exceptions to the award pursuant to section 7122 of the Statute.  /4/
 United States Air Force, Air Force Logistics Command, Wright-Patterson
 Air Force Base, Ohio, 15 FLRA 151 (1984), affirmed sub nom. Department
 of the Air Force v. FLRA, 775 F.2d 727 (6th Cir. 1985).  /5/ This
 conclusion was compelled by the clear intent of Congress that the review
 procedures of section 7122 apply to interest arbitration awards which
 result from impasse proceedings before the Panel under section 7119(b)
 of the Statute.  More particularly, the House Committee on Post Office
 and Civil Service, in reporting on the language ultimately enacted into
 law as section 7122 of the Statute, determined:
 
          Section 7122 sets forth the procedures under which a party may
       obtain review by the Authority of an arbitrator's award.  The
       procedures apply in the case of either an award in an arbitration
       resulting from an impasse proceeding under section 7119(b) . . .
       or an award in a grievance proceeding under section 7121(.) /6/
 
    The Authority also noted in Wright-Patterson that in addition to
 providing a mechanism for challenging interest arbitration awards,
 Congress also sought to ensure that such awards become final and
 binding.  As stated by the Committee on Conference in its Report
 accompanying the bill as ultimately enacted and signed into law:
 
          The House provides that if no exception to an arbitrator's
       award is filed with the Authority, the award "shall be final and
       binding" (section 7122(b)).  The Senate contained no comparable
       provision.  The conferees adopted the House provision.  The intent
       of the House in adopting this provision was to make it clear that
       the awards of arbitrators, when they become final, are not subject
       to further review by any other authority or administrative body,
       including the Comptroller General.  /7/
 
    Thus, where no exceptions to an award have been filed within the
 prescribed time limit set forth in section 7122(b) of the Statute, the
 award becomes final and binding and an agency's failure to take whatever
 actions are necessary to implement the award will result in a finding of
 a violation of the Statute.  Wright-Patterson.  /8/
 
    In Department of the Air Force, Flight Test Center, Edwards Air Force
 Base, California and Interdepartmental Local 3854, American Federation
 of Government Employees, AFL-CIO, 21 FLRA No. 61 (1986), the Authority
 reiterated the policy that challenges to interest arbitration awards
 resulting from Panel-directed interest arbitration are to be resolved
 through the mechanism of section 7122 of the Statute and resolved the
 exceptions to the award.  /9/ Among other things, the Authority also
 determined that once the Panel directed the parties to interest
 arbitration, the Panel no longer retained jurisdiction of the dispute,
 so that the arbitrator's award was final and binding.  It was also
 determined that there was no basis for distinguishing between awards
 rendered by Panel members serving as interest arbitrators, as occurred
 in the case before us now, and awards directed by other interest
 arbitrators in terms of their reviewability under section 7122(a) of the
 Statute.
 
    In reaching our conclusion that interest arbitration awards are not
 subject to review by agency heads under section 7114(c) of the Statute
 we recognize that there are two concerns that should be addressed:
 namely, the effect of our conclusion on the resolution of negotiability
 issues and on the scope of judicial review.
 
                    1.  Review of Negotiability Issues
 
    The Authority has held that negotiability disputes that arise between
 an agency and an exclusive representative under section 7117(c) of the
 Statute must be resolved by the Authority under section 7105(a)(2)(E).
 Department of the Air Force, Air Force Logistics Command,
 Wright-Patterson Air Force Base, Ohio and American Federation of
 Government Employees, Council of Locals, No. 214, 18 FLRA 710 (1985);
 Louis A. Johnson Veterans Administration Medical Center, Clarksburg,
 West Virginia and American Federation of Government Employees, Local
 2384, 15 FLRA 347 (1984).  Interest arbitrators do not have the
 authority to resolve duty to bargain questions and where an arbitrator
 makes a negotiability decision, the award will be set aside.  AFLC,
 Wright-Patterson Air Force Base.
 
    We recognize that there may be a concern, based on that line of
 cases, that duty to bargain questions that arise during an interest
 arbitration proceeding might not be resolved on the merits unless we
 provide for agency head review of the award.  To fully understand the
 nature of that concern, it will be helpful to briefly describe the
 circumstances under which negotiability issues are normally resolved.
 
    Ordinarily, when parties negotiate an agreement, the executed
 agreement is forwarded to the agency head for review.  The agency head,
 or someone designated by the agency head, /10/ has an opportunity to
 determine whether the provisions that have been negotiated are
 consistent with the Statute land any other law, rule and regulation.
 Where a matter is disapproved on the basis that it is outside the duty
 to bargain, that is, inconsistent with the Statute or any other law,
 rule, or regulation, the union may file a petition for review of the
 agency head's disapproval with the Authority under the procedures set
 forth in section 7117.  The Authority will then determine whether the
 matter is within the duty to bargain.  If it is, and the agency
 therefore has improperly disapproved the provision, the agency will be
 ordered to rescind its disapproval.  See, for example, National
 Federation of Federal Employees, Local 476 and Department of the Army,
 U.S. Army Electronics Research and Development Command, Fort Monmouth,
 New Jersey, 26 FLRA No. 28 (1987).  Similarly, if the Panel directs
 parties to adopt a provision in their agreement, the agency head may
 appropriately review the provision under section 7114(c).  A disapproval
 may subsequently be challenged by the union through the filing of a
 petition for review of the negotiability issue or in an unfair labor
 practice proceeding.  Interpretation and Guidance, supra.  Once again,
 the Authority will determine whether the agency properly or improperly
 disapproved the matter.  An improper disapproval will be remedied by
 directing the agency to rescind its disapproval.  See, for example,
 Department of the Treasury and Internal Revenue Service, 22 FLRA No. 89
 (1986), petition for review filed sub nom. Department of the Treasury,
 Internal Revenue Service v. FLRA, No. 86-1475 (D.C. Cir. Aug. 25, 1986).
 
    Where a provision is found to be nonnegotiable and properly
 disapproved by the agency head, on the other hand, the parties are
 obligated to return to the bargaining table "with a sincere resolve to
 reach agreement." Department of the Interior, National Park Service,
 Colonial National Historical Park, Yorktown, Virginia, 20 FLRA 537
 (1985) at 541, affirmed sub nom. FLRA v. National Association of
 Government Employees, Local R4-68, 802 F.2d 1484 (4th Cir. 1986).
 
    In both circumstances, there are certain bargaining consequences.
 Where the disapproval was improper, the agency is ordered to rescind its
 disapproval, which has the effect of giving full force and effect to the
 provision in the parties' agreement.  Where the disapproval was proper,
 the parties are required to return to the bargaining table to negotiate
 and attempt to reach agreement.  An open question until now has been the
 resolution of duty to bargain issues which are raised in an interest
 arbitration proceeding.
 
    As noted, interest arbitrators do not have the authority to resolve
 duty to bargain questions.  If they do, the awards will be found
 deficient and set aside.  In Social Security Administration and National
 Council of SSA Field Operations Locals (NCSSAFOL), American Federation
 of Government Employees, AFL-CIO (AFGE), 25 FLRA No. 17 (1987), we
 reiterated this holding.  We stated that in cases involving allegations
 of nonnegotiability made during an interest arbitration proceeding, we
 will carefully examine the record in the case, including the
 arbitrator's award, to determine whether the arbitrator made a
 negotiability ruling.  If so, the award will be set aside.  However,
 where the arbitrator has merely applied existing case law in resolving
 the impasse, we will resolve any exceptions to the award on the merits.
 The award will be sustained if the existing case law was correctly
 applied.
 
    In those instances where an award is set aside because an interest
 arbitrator has improperly asserted jurisdiction over a duty to bargain
 question, we will provide a meaningful course of action for the parties
 to follow so that the matter is not left unresolved.  In our view, the
 appropriate course of action is to require the parties to return to the
 bargaining table "with a sincere resolve to reach agreement." This
 approach is consistent with the requirement in situations where an
 agency head properly disapproves a provision under section 7114(c).
 
    We also note that the parties can take measures to avoid the problem
 of an award being set aside because an interest arbitrator improperly
 asserted jurisdiction over a negotiability issue.  One measure is for
 the parties to refrain from presenting negotiability questions in an
 interest arbitration proceeding and instead resolve them through other
 means -- including presentation of the issue to the Authority in a
 section 7117 negotiability case.  Also, the parties should advise the
 arbitrator that negotiability questions cannot be resolved in an
 arbitration proceeding unless, as we indicated in Social Security
 Administration, the arbitrator merely applies existing case law to
 resolve the impasse.  In this latter event, the parties should assist
 the arbitrator by identifying the relevant case law to be applied.
 
                       2.  Scope of Judicial Review
 
    The second concern stemming from our determination that interest
 arbitration awards are not subject to agency head review is the effect
 on judicial review.  Under section 7123 of the Statute, review of
 arbitration awards is limited.  /11/ See United States Marshals Service
 v. FLRA, 708 F.2d 1417 (9th Cir. 1983) and United States Marshals
 Service v. FLRA, 778 F.2d 1432 (9th Cir. 1985) (courts of appeal have no
 jurisdiction to review decisions of the Authority on exceptions to
 arbitration awards unless the Authority's final order also involves an
 unfair labor practice.  An unreviewable duty to bargain order in
 exceptions to an arbitration award does not become reviewable after the
 party seeking review failed to comply with that order and therefore
 committed an unfair labor practice.  Moreover, the court will not review
 the merits of the original unfair labor practice order for possible
 deficiencies under section 7122 but merely whether an unfair labor
 practice was committed).
 
    Judicial review of final orders of the Authority rendered in
 negotiability and unfair labor practice proceedings is not so limited.
 In these proceedings, judicial review of the underlying duty to bargain
 question can be sought.  See Marshals Service, 778 F.2d at 1435.
 
    While our holding here might appear to have the effect of limiting
 judicial review of negotiability issues, that is not the result.  Since
 interest arbitrators are not empowered to resolve negotiability issues
 it is of little, if any, consequence that the scope of judicial review
 is limited in arbitration cases.  The only possible exception is where
 an interest arbitrator applies existing negotiability case law in
 resolving an impasse.  In that event, the arbitrator's award can be
 challenged through the filing of exceptions with the Authority under
 section 7122(a) of the Statute.  In resolving the exceptions, the
 Authority will determine whether or not the arbitrator correctly applied
 the existing case law.  If not, the award will be modified or set aside.
  Judicial review of the Authority's decision would only be available on
 the limited basis set forth in section 7123 and would not involve a
 review of the negotiability question on its merits.
 
    While the exclusion of interest arbitration awards from section
 7114(c) review affects the scope of judicial review in some situations,
 we are convinced that the exclusion represents the most reasonable
 construction of the Statute and practical approach to the issue before
 us.  As we have previously discussed, this approach is consistent with
 express Congressional intent that section 7122 of the Statute is the
 mechanism for challenging all arbitration awards, including interest
 arbitration awards.  It is also consistent with Congressional intent
 that arbitration awards are to be final and binding unless found to be
 deficient by the Authority on timely filed exceptions under section
 7122.  Moreover, this approach implicitly promotes interest arbitration
 as an effective means of resolving negotiation impasses.
 
    We turn next to the four provisions that were disapproved by the
 Respondent in this case.  We will determine whether the provisions were
 appropriately before the Respondent for review under section 7114(c),
 and whether the Respondent's conduct in disapproving the provisions was
 violative of the Statute, as alleged.
 
         B.  Academic Freedom and Travel and Per Diem Expenses at
 
                Regional Meetings
 
    As noted, the provisions regarding academic freedom and travel and
 per diem for union representatives at regional meetings were directed to
 be included in the agreement by the interest arbitration award.  In the
 absence of timely filed exceptions, the award became final and binding.
 The Respondent was not authorized to conduct a section 7114(c) review.
 Therefore, Respondent's disapproval of these provisions violated section
 7116(a)(1) and (8) of the Statute.  As the Respondent's disapproval
 caused the Activity not to implement such provisions, we find a further
 violation of section 7116(a)(1) and (5) of the Statute because such
 conduct interfered with the bargaining relationship of the parties at
 the level of exclusive recognition.  Finally, as the award resulted from
 Panel-directed interest arbitration, we find that the Respondent's
 conduct also violated section 7116(a)(1) and (6) of the Statute because
 of the refusal to comply with impasse procedures as set forth in section
 7119 of the Statute.  /12/
 
         C.  Travel and Per Diem Expenses at Arbitration Hearings
 
    Next, we turn to the provision regarding travel and per diem for
 witnesses at arbitration hearings which the Panel directed the parties
 to incorporate into their agreement.  Based on the Authority's
 Interpretation and Guidance, 15 FLRA 564, it was appropriate for the
 Respondent to exercise its section 7114(c) review authority as to this
 provision because it was imposed by a decision and order of the Panel.
 For the reasons set forth below, we find that the provision is not
 inconsistent with law, rule, or regulation.  Therefore the Respondent's
 disapproval was improper.
 
    The provision stated:
 
          All witnesses who are civilian and military employees and who
       are deemed necessary by the arbitrator to the arbitration hearing
       will be entitled to travel and per diem expenses if the incident
       giving rise to the grievance occurred at a location other than the
       location of the arbitration hearing.
 
    This provision stems from one originally offered by the Union in an
 attempt to ease the financial burden in bringing witnesses to
 arbitration hearings and to lessen the disparity between its resources
 and those of the Activity which, assertedly, was able to use special
 rates and military planes in securing its witnesses.  The Activity
 opposed the provision on the basis that there would be no incentive for
 limiting costs and that costs could be manipulated inasmuch as the
 Activity did not solely determine the site of arbitration hearings.  The
 Activity also noted that in the past all the arbitration hearings had
 been held at the grievants' worksites.
 
    The Panel determined that the issue concerning the Activity's
 obligation to pay the travel and per diem expenses of the Union's
 witnesses required a balancing of interests in ensuring that hearings
 were fair and full while maintaining a reasonable level of costs.  On
 this basis, the Panel determined that the issue could best be resolved
 by adoption of the Charging Party's proposal along with the proviso that
 the arbitrator be empowered to determine which employees are necessary
 and, further, that the employer pay the travel expenses only when the
 incident giving rise to the grievance occurred at a location other than
 that of the arbitration hearing.
 
    The Respondent disapproved the provision with respect to travel and
 per diem for unit and non-unit civilian employees on the basis that the
 Supreme Court in Bureau of Alcohol, Tobacco and Firearms (BATF) v. FLRA,
 464 U.S. 89 (1983), found that such payments were not authorized by the
 Statute.  /13/ As to travel and per diem for military employees, the
 Respondent argued that they were not employees within the meaning of
 section 7103(a)(2) of the Statute /14/ so that the provision which would
 confer a contractual benefit on them was inconsistent with the Statute.
 
    The Judge found first that the decision in BATF did not preclude the
 negotiation of this particular provision as to civilian employees and
 that it was neither asserted nor shown to be inconsistent with the
 Travel Expense Act, 5 U.S.C. Section 5702, or any other law, rule or
 regulation.  He also found that the provision established a procedure
 for and facilitated the use of the grievance and arbitration procedure
 negotiated under section 7121 of the Statute and therefore directly
 affected conditions of employment of unit employees.  The effect of the
 provision, he added, was not to establish conditions of employment of
 non-unit employees or military personnel but rather was to allocate
 costs between the parties as to one aspect of the negotiated grievance
 procedure.  The Judge then found that where a proposal affects
 conditions of employment of unit employees and is otherwise consistent
 with law, rule or regulation, it is within the duty to bargain even if
 it affects employees outside the unit, citing Association of Civilian
 Technicians, Pennsylvania State Council and Pennsylvania Army and Air
 National Guard, 14 FLRA 38 (1984).
 
    In our view, the provision was designed to allocate costs between the
 Union and the Activity to ensure that necessary witnesses would be in
 attendance at arbitration hearings.  It was not designed to confer a
 contractual benefit on employees or other persons outside the unit.  As
 to the provision's effect on such employees, we note our Decision and
 Order on Remand in American Federation of Government Employees, Local
 32, AFL-CIO, 22 FLRA No. 49 (1986), petition for review filed sub nom.
 American Federation of Government Employees, Local 32 v. FLRA, No.
 86-1447 (D.C. Cir. Aug. 11, 1986).  In that case, we held that in
 determining whether proposals affecting unit and non-unit employees are
 within the duty to bargain, we will balance the right of the union
 involved to negotiate over the conditions of employment of unit
 employees and the right of the agency to set conditions of employment of
 employees outside the unit.  In so doing, we will examine whether the
 nature and degree of the proposal's impact is so intrinsically related
 to the working conditions of employees outside the unit so as to invade
 the purview of other unit representatives or require the agency to act
 in a way that will have a significant effect on the rights of employees
 who are not represented by the union involved.
 
    In this case, after balancing the rights of the parties involved, we
 find that such is not the case.  Rather, the balance must be struck in
 favor of finding the provision to be within the scope of bargaining.
 First, nothing contained in the BATF decision precludes the
 authorization of payment for travel and per diem expenses for witnesses
 at arbitration hearings and in fact the Authority has found this matter
 to be within the duty to bargain.  See Department of Defense Dependents
 Schools System, 21 FLRA No. 125 (1986) and National Treasury Employees
 Union and Department of the Treasury, Internal Revenue Service, 21 FLRA
 No. 19 (1986), petition for review filed sub nom. Department of the
 Treasury, Internal Revenue Service v. FLRA, No. 86-1290 (D.C. Cir. May
 19, 1986).  Clearly, the participation of necessary witnesses is an
 important element in the processing and resolution of grievances.  The
 Judge correctly noted that access to the grievance/arbitration procedure
 is a fundamental statutory right.  /15/ Any provision that advances and
 promotes the use of and access to this fundamental statutory right, and
 which does not violate law, rule, or regulation, in our view is within
 the duty to bargain.  This is so even where the matter would indirectly
 affect employees outside the bargaining unit.
 
    The record here indicates that non-unit employees, particularly
 military personnel, have been called to arbitration hearings by the
 Activity.  The Union, in its submission to the Panel, stated without
 contradiction that the Activity has brought in witnesses from various
 countries and has used special rates and military planes in connection
 with their attendance.  Under these circumstances, and in view of the
 Congressional mandate regarding the scope and effect of negotiated
 grievance procedures, we find, on balance, that the provision is not
 inconsistent with law, rule, or regulation.  Therefore, the Respondent's
 disapproval of this provision under section 7114(c) was improper and the
 Respondent's conduct constituted a violation of section 7116(a)(1) and
 (6) of the Statute.  /16/
 
                   D.  Opening of Employee Storage Areas
 
    Finally, we turn to the Respondent's disapproval of the following
 provision regarding union attendance at the opening of employee storage
 areas which the Activity and the Charging Party negotiated on their own:
 
          Security.  Except in emergencies if it becomes necessary to
       open employees' cabinets, desks, drawers or other storage areas
       used exclusively by the employee, the Employer will notify the
       Union representative who shall accompany the Employer when any of
       the foregoing is opened.
 
    The Respondent disapproved this provision on the basis that it
 conflicted with management's right to determine its internal security
 practices under section 7106(a)(1) of the Statute.  The Respondent later
 also argued that the provision violated management's section
 7106(a)(2)(B) right to assign work.  The Judge found that the provision
 did not interfere with either of these management rights.  Rather, he
 concluded that the provision was indistinguishable from proposals
 previously found negotiable by the Authority in other proceedings and
 merely constituted a procedure which the Activity would observe in
 exercising its right to determine internal security practices.
 
    We agree with the Judge's findings and conclusions.  /17/ It is by
 now well established that a refusal to negotiate over a proposal
 previously found negotiable by the Authority is a violation of the
 Statute.  See Department of the Treasury, Internal Revenue Service,
 Memphis Service Center, 15 FLRA 829 (1984), and cases cited therein at
 n. 2.  Here, the Respondent's disapproval of a provision which is not
 materially different from ones previously found to be within the duty to
 bargain was improper and therefore a violation of section 7116(a)(1) and
 (8) of the Statute.  As the provision was not implemented because of
 such disapproval, we find that the Respondent has violated section
 7116(a)(1) and (5) of the Statute as well.
 
                        E.  Respondent's Objection
 
    The Respondent objects to the Judge's finding, as alleged, that
 certain provisions were disapproved on January 31.  It argues that, as
 in fact they were not disapproved until March 20, the complaint should
 be dismissed.  There is no issue here of the timeliness of the charge;
 only whether certain actions can be found to be an improper disapproval
 of the various provisions.  We find it unnecessary to decide whether the
 Respondent's actions on January 31, which at least indicated its
 intention to disapprove, amounted to a "final action" that would form
 the basis for the filing of an unfair labor practice charge.  The fact
 remains that the Respondent disapproved.  The question is whether that
 disapproval violated the Statute.  We find that for the most part it
 did.  We find no merit in the Respondent's objection.
 
                                VI.  Remedy
 
    To remedy the unfair labor practice conduct, we shall order the
 Respondent to take the following action:  revoke and rescind its
 disapproval of the four provisions involved in this case;  direct DODDS
 Mediterranean to incorporate the provisions into its collective
 bargaining agreement with the Charging Party retroactive to February 4,
 1984, subject to any other agreement concerning such provisions the
 parties may have reached, /18/ and until modified in a manner consistent
 with the Statute;  and make whole the Charging Party and bargaining unit
 employees for any losses they incurred as a result of the unlawful
 disapproval.  As a part of the make whole remedy, we shall direct that
 the Respondent reimburse the Charging Party for the expenses it incurred
 in paying various travel and per diem expenses which otherwise would
 have been paid had the Respondent not unlawfully disapproved the
 provisions authorizing such payments and, further, to reimburse the
 affected employees who either did not receive payments to which they
 were entitled or were not compensated fully for such expenses, upon
 their submission of properly documented claims for such payments.  /19/
 The make whole order is being directed against the Respondent, rather
 than DODDS Mediterranean as the Judge had ordered, because the
 Respondent is the party that violated the Statute.  It should therefore
 assume the costs of its unlawful conduct.  See Department of the
 Treasury and Internal Revenue Service, 22 FLRA No. 89 (1986), petition
 for review filed sub nom. Department of the Treasury, Internal Revenue
 Service v. FLRA, No. 86-1475 (D.C. Cir. Aug. 25, 1986).
 
    As for the posting of the remedial notice, the General Counsel has
 requested that school and holiday vacation periods be excluded from
 computation of the 60-day posting period.  We find merit to the General
 Counsel's request.  Therefore, and as we have done in previous
 decisions, we shall order that the posting period exclude holiday and
 vacation periods.  See Department of Defense Dependents Schools,
 Mediterranean Region, Naples American High School (Naples, Italy), 21
 FLRA No. 103 (1986), and case cited therein at the footnote.
 
                               VII.  Summary
 
    The various circumstances involved in this unfair labor practice case
 have demonstrated that there exists a multiplicity of forums for
 reviewing and/or challenging provisions directed to be included in an
 agreement or negotiated by the parties involved.  For this reason, we
 wish to summarize our holdings in this case.:
 
          1.  Where provisions are directed to be included in an
       agreement as a result of Panel-directed interest arbitration, the
       appropriate mechanism for challenging such provisions is through
       the procedures set forth in section 7122 of the Statute.  Agency
       heads are not empowered to review such provisions under section
       7114(c) of the Statute.
 
          2.  Where provisions are directed to be included in an
       agreement by a Decision and Order of the Panel, review of such
       provisions may be sought either through the negotiability
       procedures of section 7117 of the Statute and Part 2424 of the
       Authority's Rules and Regulations, or through the unfair labor
       practice procedures of section 7118 of the Statute and Part 2423
       of the Rules and Regulations.
 
          3.  Where parties have negotiated provisions and incorporated
       them into their agreement, agency heads may properly exercise
       review under section 7114(c) of the Statute.  However, an agency
       head risks committing an unfair labor practice by disapproving a
       provision which is substantially identical to a matter previously
       found negotiable by the Authority.
 
                            VIII.  Conclusions
 
    Pursuant to section 2423.29 of the Authority's Rules and Regulations
 and section 7118 of the Statute, the Authority has reviewed the rulings
 of the Judge made at the hearing, finds no prejudicial error was
 committed, and thus affirms those rulings.  The Authority has considered
 the Judge's Decision and the entire record in this case, and adopts the
 Judge's findings, conclusions and recommended Order, as modified.  We
 find that the Respondent's disapproval of various contract provisions
 violated section 7116(a)(1) and (8), section 7116(a)(1) and (6) and
 section 7116(a)(1) and (5) of the Statute, as alleged.  /20/
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Federal Labor Relations
 Authority's Rules and Regulations and section 7118 of the Statute, the
 Department of Defense Dependents Schools (Alexandria, Virginia) shall:
 
    1.  Cease and desist from:
 
    (a) Disapproving provisions of a collective bargaining agreement
 between the Department of Defense Dependents Schools, Mediterranean
 Region and the Overseas Federation of Teachers, AFT, AFL-CIO.
 
    (b) Failing and refusing to cooperate in impasse procedures as
 required by the Statute.
 
    (c) Interfering with the bargaining relationship between the
 Department of Defense Dependents Schools, Mediterranean Region and the
 Overseas Federation of Teachers, AFT, AFL-CIO.
 
    (d) In any like or related manner, interfering with, restraining or
 coercing 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) Revoke and rescind its disapproval of provisions of the
 collective bargaining agreement between the Department of Defense
 Dependents Schools, Mediterranean Region and the Overseas Federation of
 Teachers, AFT, AFL-CIO, concerning academic freedom, payment of travel
 and per diem expenses for Union representatives attending Regional
 meetings, payment of travel and per diem expenses for civilian and
 military employees at arbitration hearings, and attendance of a Union
 representative at the opening of employee storage areas.
 
    (b) Direct the Department of Defense Dependents Schools,
 Mediterranean Region to incorporate the above provisions into their
 agreement with the Overseas Federation of Teachers, AFT, AFL-CIO,
 retroactive to February 4, 1984, subject to any agreement which may have
 been reached by the parties concerning such matters and until modified
 in a manner consistent with the Statute.
 
    (c) Make whole the Overseas Federation of Teachers, AFT, AFL-CIO and
 any bargaining unit employees who incurred losses as a result of the
 improper disapproval of the provisions in the agreement between the
 Department of Defense Dependents Schools, Mediterranean Region and the
 Overseas Federation of Teachers, AFT, AFL-CIO.  This includes
 reimbursement to the Overseas Federation of Teachers for the expenses it
 incurred in paying various travel and per diem expenses which otherwise
 would have been paid had the provisions authorizing such payment not
 been disapproved.  This also includes reimbursement to the affected
 employees who either did not receive payments to which they were
 entitled or were not compensated fully for such expenses, upon their
 submission of properly documented claims for such payments.
 
    (d) Post at all schools located in the Department of Defense
 Dependents Schools, Mediterranean Region, 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
 Department of Defense Dependents Schools (Alexandria, Virginia), or a
 designee, and shall be posted and maintained for 60 consecutive days
 thereafter, excluding holiday and vacation periods, 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.
 
    (e) 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 with it.
 
    Issued, Washington, D.C., June 24, 1987.
                                       /s/ Jerry A. Calhoun, Chairman
 
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
    Member Frazier, concurring in part and dissenting in part:
 
    I concur in my colleagues' conclusion that the Respondent's
 disapproval of various contract provisions violated section 7116(a) of
 the Statute.  I do so based on my agreement with their dispositive
 finding that the agency failed to comply with the applicable rules
 concerning the filing of exceptions in order to challenge the propriety
 of an interest arbitration award under section 7122(b).
 
    However, I cannot agree with the majority's conclusion that agency
 heads are not empowered under section 7114(c) to review provisions
 directed to be included in an agreement by an interest arbitration
 award.  Such a conclusion creates a conflict between sections of the
 Statute where none need be found.
 
    The legislative history cited by the majority clearly supports the
 proposition that "Section 7122 sets forth the procedures under which a
 party may obtain review by the Authority of an arbitrator's award." I
 agree therefore that the only manner in which a party may obtain review
 by the Authority of an interest arbitration award is by filing
 exceptions under section 7122.  I further agree that arbitration awards
 are to be final and binding unless found to be deficient by the
 Authority on timely filed exceptions under section 7122.
 
    The requirement that interest arbitration awards be challenged only
 through the procedures of section 7122 does not, however, answer the
 question of whether an agency head is empowered under section 7114(c) to
 review provisions directed to be included in an agreement by an interest
 arbitration award.  Section 7114(c) does not deal with "review by the
 Authority of an arbitrator's award" which is the matter addressed by
 section 7122 and the pertinent legislative history.  Section 7114(c)
 thus does not intrude on matters governed by section 7122.  By the same
 token, section 7122 does not address the different matters governed by
 section 7114(c);  namely, the authority of an agency head to disapprove
 contract provisions where they are considered contrary to law (including
 the Statute), rule or regulation.  From the proposition that section
 7122 is the sole procedure for seeking Authority review of an
 arbitration award it simply does not follow that agency heads may not
 review for legal sufficiency provisions of a collective bargaining
 agreement imposed by an arbitrator acting under the auspices of the
 Federal Service Impasses Panel.  Agency head action under section
 7114(c) does not constitute "review by the Authority of the arbitrator's
 award." It simply constitutes review by the agency head of the contract
 provision directed for inclusion in the collective bargaining agreement
 to ensure that the provision is legally sufficient much as the agency
 head would review the same provision in determining whether to file
 exceptions to the award with the Authority pursuant to section 7122.
 
    Nothing in the legislative history of the Statute specifically
 addresses the issue here.  In the absence of a specific indication of
 congressional intent to the contrary, I believe that the two provisions
 of the Statute, sections 7122 and 7114(c), should, if possible, be
 reconciled.  Such a reconciliation is possible.  Conversely, it does not
 appear necessary to me to take the "either/or" -- "all or nothing"
 approach which the majority takes with respect to the interpretatin and
 application of sections 7122 and 7114(c) in these circumstances.
 
    Such a reconciliation is not without precedent.  As noted by the
 majority, in Interpretation and Guidance, 15 FLRA 564 (1984), aff'd sub
 nom. American Federation of Government Employees v. FLRA, 778 F.2d 850
 (D.C. Cir. 1985), the Authority determined that under section 7114(c) of
 the Statute, an agency head is authorized to review for legal
 sufficiency provisions of a collective bargaining agreement imposed by
 decisions and orders of the Federal Service Impasses Panel under section
 7119 of the Statute.  The Authority reached this result by reconciling
 the provisions of section 7114(c) and 7119 in the absence of any
 pertinent legislative history.  The Authority also found that review of
 an agency head's disapproval in such cases may be sought either through
 the negotiability procedures of section 7117 or the unfair labor
 practice procedures available under section 7118 of the Statute.
 
    Section 7119 authorizes the Panel in resolving negotiation impasses
 to order or approve interest arbitration as an alternative procedure to
 the procedures and final action of the Panel itself.  Thus, interest
 arbitration is, simply, one of a number of closely aligned procedures
 for resolving impasses under section 7119.  In my view, therefore, the
 rationale supporting the Authority's conclusion that an agency head can
 review a contract provision that resulted from one of those procedures
 -- direct Panel action -- persuasively supports the same conclusion with
 respect to the rest of those procedures -- including interest
 arbitration which has been directed or approved by the Panel.  By
 concluding otherwise, the majority has elevated the status of the "stand
 in" interest arbitrator who often is, and who indeed was in the facts of
 this case, an agent of the Panel, to a position more favored than that
 of the principal -- the Panel itself.
 
    Furthermore, in the Interpretation and Guidance, the Authority
 reached the conclusion that agency heads are empowered to review "all
 provisions of collective bargaining agreements" in recognition of the
 requirement that Panel decisions must be consistent with law and
 regulation and in recognition of the general function of section 7114(c)
 as a means by which the agency head reviews contract provisions for
 legal sufficiency.  15 FLRA at 567 (emphasis in original).  Under
 section 7122(a) of the Statute, interest arbitration awards similarly
 may be challenged for legal sufficiency.
 
    In fact one of the most important purposes, if not the primary
 purpose, of both section 7114(c) and section 7122(a) is to provide
 procedures to ensure that labor-management relations in the Federal
 sector is conducted in a manner consistent with "law, rule or
 regulation." In the case of both interest arbitration awards and
 grievance arbitration awards, either party may file exceptions with the
 Authority alleging that an award is contrary to "law, rule or
 regulation." In the case of provisions included in a collective
 bargaining agreement the agency head may act to disapprove them if
 contrary to "law, rule or regulation." Accordingly, my conclusion that
 agency heads are empowered to review for legal sufficiency all
 provisions of a collective bargaining agreement, including provisions
 directed to be included in the agreement by an interest arbitration
 award, is consistent with the general purpose of both section 7114(c)
 and section 7122(a).
 
    Having so concluded, some reconciliation of the two sections is
 nevertheless required.  Section 7114(c)(3) of the Statute provides that
 an agreement which has not been approved or disapproved by the Agency
 involved within 30 days after the date of its execution becomes
 effective and binding on the parties on the 31st day, without the
 approval of the agency, subject only to the requirements of the Statute
 and any other applicable law, rule or regulation.  Section 7122(b) of
 the Statute, as amended, provides that if no exceptions to an
 arbitrator's award are filed during the 30-day period beginning on the
 date the award is served on the filing party, the award becomes final
 and binding and the agency must take the action required by a final
 award.  In order to reconcile these provisions of the Statute, I would
 conclude, as previously indicated and in agreement with the majority,
 that the Agency must file timely exceptions to the arbitration award
 under section 7122 or else the award becomes final and binding.  This
 preserves the full effectiveness of section 7122 in these sorts of
 circumstances.  Therefore, if the agency did not file timely exceptions
 to an interest arbitration award, agency head action under section
 7114(c) to disapprove a provision directed to be included in a
 collective bargaining agreement by that award would have no effect.
 
    I would further conclude, however, and in contrast to my colleagues,
 that the filing of timely exceptions challenging the award as
 inconsistent with applicable law and/or regulations operates as a
 constructive disapproval by the agency under section 7114(c).  Compare,
 e.g., National Federation of Federal Employees, Local 1505 and
 Department of the Interior, National Park Service, Roosevelt-Vanderbilt
 National Historical Site, Hyde Park, New York, 7 FLRA 608 (1982);
 American Federation of Government Employees, AFL-CIO, Local 2955 and
 National Guard Bureau, Office of the Adjutant General, Des Moines, Iowa,
 5 FLRA 617, 618 n.2 (1981).  If the union then were to file a petition
 for review of the negotiability issues raised by the disapproval, the
 Authority would have before it for review both the exceptions to the
 arbitration award filed by the agency and the appeal from the agency's
 negotiability determination filed by the union.  The Authority could
 consolidate the related negotiability and arbitration appeals for
 purposes of decision.
 
    This approach to deciding issues concerning the consistency of
 interest arbitration-ordered contract provisions with applicable law and
 regulation leaves intact the option of either party, depending upon the
 outcome, to attempt to obtain judicial review of the negotiability
 decision of the Authority.  Where the Authority issues a decision on a
 negotiability determination made by an agency head pursuant to section
 7114(c), those decisions have been held subject to judicial review.
 E.g., National Federation of Federal Employees, Local 615 v. FLRA, 801
 F.2d 477, 479 (D.C. Cir. 1986).  As the majority points out, the filing
 of exceptions under section 7122(a) of the Statute means that judicial
 review would only be available in the limited circumstances set forth in
 section 7123.  However, under the view I espouse, it would be left to
 the courts to determine the extent of judicial review to which the
 parties may be entitled concerning negotiability decisions by the
 Authority in these sorts of cases.  Further, the approach I have taken
 would not delay the resolution of the exceptions filed by the agency to
 the arbitration award.
 
    In sum, sections 7114 and 7122 of the Statute should be reconciled so
 as to give each one force and effect.  The views I have discussed
 accomplish this reconciliation.  Nothing in the Statute or its
 legislative history indicates to me that Congress intended either
 section to prevail over the other so as to render it nugatory in some
 circumstances.  For these reasons, I concur in the result, but
 respectfully dissent from my colleagues' rationale in this case.
 
    Issued, Washington, D.C., June 24, 1987.
 
                                       /s/ Henry B. Frazier III, Member
 
 
 
 
 
 
 
 
                          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 disapprove provisions of a collective bargaining
 agreement between the Department of Defense Dependents Schools,
 Mediterranean Region and the Overseas Federation of Teachers, AFT,
 AFL-CIO.
 
    WE WILL NOT fail and refuse to cooperate in impasse procedures as
 required by the Statute.
 
    WE WILL NOT interfere with the bargaining relationship between the
 Department of Defense Dependents Schools, Mediterranean Region and the
 Overseas Federation of Teachers, AFT, AFL-CIO.
 
    WE WILL NOT in any like or related manner interfere with, restrain or
 coerce employees in the exercise of their rights assured by the Statute.
 
    WE WILL revoke and rescind our disapproval of provisions of the
 collective bargaining agreement between the Department of Defense
 Dependents Schools, Mediterranean Region and the Overseas Federation of
 Teachers, AFT, AFL-CIO, concerning academic freedom, payment of travel
 and per diem expenses for Union representatives attending regional
 meetings, payment of travel and per diem expenses for civilian and
 military employees at arbitration hearings, and attendance of a Union
 representative at the opening of employee storage areas.
 
    WE WILL direct the Department of Defense Dependents Schools,
 Mediterranean Region to incorporate the above provisions into their
 agreement with the Overseas Federation of Teachers, AFT, AFL-CIO,
 retroactive to February 4, 1984, subject to any agreement which may have
 been reached by the parties concerning such matters and until modified
 in a manner consistent with the Statute.
 
    WE WILL make whole the Overseas Federation of Teachers, AFT, AFL-CIO
 and any bargaining unit employees who incurred losses as a result of our
 improper disapproval of the provisions in the agreement between the
 Department of Defense Dependents Schools, Mediterranean Region and the
 Overseas Federation of Teachers, AFT, AFL-CIO.  This includes
 reimbursement to the Overseas Federation of Teachers for the expenses it
 incurred in paying various travel and per diem expenses which otherwise
 would have been paid had the provisions authorizing such payment not
 been disapproved.  This also includes reimbursement to the affected
 employees who either did not receive payments to which they were
 entitled or were not compensated fully for such expenses, upon their
 submission of properly documented claims for such payments.
                                       (Activity)
 
    Dated:  . . .  By:  (Signature) (Title)
 
    This Notice must remain posted for 60 consecutive days from the date
 of posting, excluding holiday and vacation periods, 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:
  10 Causeway Street, Room 1017, Boston, MA 02222-1046, and whose
 telephone number is:  (617) 565-7280.
 
 
 
 
 
 
 
 
 
 
 -------------------- ALJ$ DECISION FOLLOWS --------------------
 
    Case Nos. 1-CA-40196, 1-CA-40231
 
    DEPARTMENT OF DEFENSE DEPENDENTS 
    SCHOOLS (ALEXANDRIA, VIRGINIA)
    Respondent
 
                                    and
 
    OVERSEAS FEDERATION OF TEACHERS, AFT, AFL-CIO
    Charging Party
 
    Mr. Martin L. Frantz
    For the Respondent
 
    Mr. Ernest J. Lehmann
    For the Charging Party
 
    Gerard M. Greene, Esquire
    For the General Counsel, FLRA
 
    Before:  GARVIN LEE OLIVER
    Administrative Law Judge
 
                                 DECISION
 
                           Statement of the Case
 
    This decision concerns a consolidated unfair labor practice complaint
 issued by the Regional Director, Region I, Federal Labor Relations
 Authority, Boston, Massachusetts, against the Department of the Defense
 Dependents Schools, Alexandria, Virginia (Respondent), based on charges
 filed by the Overseas Federation of Teachers, AFT, AFL-CIO (the Union).
 The consolidated complaint alleged, in substance, that the Respondent
 violated Sections 7116(a)(1), (5), (6) and (8) of the Federal Service
 Labor-Management Relations Statute, 5 USC Section 7101 et seq. (the
 Statute), by disapproving certain terms of a collective bargaining
 agreement between the Union and the Department of Defense Dependents
 Schools, Mediterranean Region (the Activity).  More specifically, the
 consolidated complaint alleged that on or about January 31, and on or
 about March 20, 1984, the Respondent interfered with the bargaining
 relationship between the Union and the Activity by disapproving contract
 provisions concerning academic freedom, reimbursement of travel and per
 diem expenses incurred by Union representatives attending regularly
 scheduled union-management meetings, reimbursement of travel and per
 diem expenses incurred by witnesses at arbitration hearings, and the
 attendance of Union representatives when employees' storage areas are
 opened by the Activity.  The consolidated complaint also alleged that,
 insofar as the first three provisions were included in the
 collective-bargaining agreement as a result of proceedings before the
 Federal Service Impasses Panel (FSIP, or the Panel), the Respondent
 failed and refused to cooperate in impasse procedures and impasse
 decisions by disapproving those provisions.  Finally, the consolidated
 complaint alleged that, insofar as all of the foregoing contract
 provisions are in accordance with the Statute and any other applicable
 law, rule or regulation, the Respondent failed and refused to comply
 with Section 7114(c) of the Statute by disapproving those provisions.
 
    The Respondent's Answer admitted the jurisdictional allegations as to
 the Union, the Respondent, and the charges, but denied any violation of
 the Statute.  The Respondent's Answer admitted that the first three
 provisions, described above, were directed to be included in the
 collective-bargaining agreement by the FSIP, and that as a result of
 Respondent's disapproval none of the foregoing provisions have been
 implemented.
 
    A hearing was held on March 7-8, 1985.  The Respondent, Charging
 Party, and the General Counsel were represented and afforded full
 opportunity to be heard, adduce relevant evidence, examine and
 cross-examine witnesses, and file post-hearing briefs.  The Respondent
 and General Counsel filed briefs on July 19, 1985.  The proposed
 findings have been adopted where found material and supported by the
 record as a whole.  Based on the entire record, including my observation
 of the witnesses and their demeanor, I make the following findings of
 fact, conclusions of law, and recommendations.
 
                             Findings of Fact
 
    1.  At all times material herein, pursuant to a certification of
 representative issued in Case No. 3-RO-55 on June 22, 1982 the Union has
 been the exclusive representative of the following unit of employees:
 
          All nonsupervisory professional school-level personnel employed
       by the Department of Defense Dependents Schools, Mediterranean
       Region;  excluding all nonprofessional employees, substitute
       teachers, management officials, supervisors and employees
       described in Section 7112(b)(2), (3), (4), (6) and (7) of the
       Statute.
 
    2.  The bargaining unit is comprised of approximately 900 employees,
 employed by the Activity at 32 schools located on military installations
 at 21 different sites in six countries.  The Activity's operations span
 an extensive geographical area in the Mediterranean region from as far
 west as the Azores to Bahrain in the Persian Gulf, encompassing four
 time zones (Tr. 22-23).
 
    3.  In September 1983 Robert G. Howlett, Chairman, FSIP, conducted
 mediation/arbitration proceedings in order to resolve impasses which had
 arisen in contract negotiations between the Union and the Activity, and
 subsequently issued an Arbitrator's Decision and Order, Case No. 83 FSIP
 102, December 8, 1983.  Howlett had been vested by the Panel with "the
 authority to mediate with respect to the issues and to issue a binding
 decision as an arbitrator on any issues that remained unresolved."
 Howlett resolved all but two issues, which he referred to the full Panel
 (ALJ Ex. 1).
 
    4.  On or about January 4, 1984 the Union notified the Activity that
 its membership had ratified the collective-bargaining agreement, and
 that it expected the agreement to be implemented at the expiration of a
 30-day period (Tr. 29).  At that period of time, Activity representative
 Ronald Richards informed the Union's European Director Ernest Lehmann
 that the agreement "was being submitted to headquarters for their
 review" (Tr. 29).  Submission of the agreement for review was consistent
 with the ground rules established by the Union and the Activity (Tr.
 194).  The agreement which the Activity forwarded to the Respondent
 included all of the provisions directed by Howlett (Tr. 31-32;  195;
 G.C. Ex. 4).  In the same period of time, in early January,
 representatives of the Union and the Activity signed the agreement (Tr.
 30-31), and the signature page was also forwarded to the Respondent (Tr.
 195-200).
 
    5.  On or about January 25, 1984 the Union and the Activity concluded
 a Memorandum of Understanding concerning implementation of the
 collective-bargaining agreement (Tr. 29-30;  149-150;  Res. Ex. 7).
 This step was undertaken at the Activity's initiative (Tr. 148).  As
 Richards recalled, "We wanted to implement the agreement.  The Union
 seemed receptive to that idea." (Tr. 148, 197).  At that time, there
 remained outstanding the two issues which Chairman Howlett had referred
 to the Panel, and the Activity also had not heard from headquarters
 concerning the regulatory review.  (Tr. 197).  The agreement provided
 that the "Union may request to renegotiate those disapproved provisions
 or take action to the Federal Labor Relations Authority." (Res. Ex. 7).
 The Activity made it clear to the Union "that there was the possibility
 that part of it would maybe be declared non-negotiable, and we wouldn't
 be able to implement that;  but the parts that were not found to be in
 conflict, we would implement." Notwithstanding that possibility, the
 Activity was willing at the time to abide by the collective-bargaining
 agreement, including the provisions directed by Chairman Howlett.  (Tr.
 198).
 
    6.  By message dated January 31, 1984, Respondent notified the
 Activity that inasmuch as there were outstanding issues regarding the
 agreement pending before the Federal Services Impasses Panel (FSIP), a
 final agreement had not been completed and the 30-day period for review
 would not commence running until the complete agreement was before it.
 However, Respondent went on to state that it "specifically disapproved"
 certain provisions of the collective bargaining agreement.  A copy of
 Respondent's message was furnished to the Union the following day.  (Tr.
 141, 199;  Res. Ex. 3).
 
    7.  On February 29, 1984, Edward H. Passman, attorney for the Union,
 advised Respondent that in view of Respondent's position that a final
 agreement was not before it and that the 30 day review period was not
 running, the Union had concluded that there was not an executed final
 agreement which would set the time limits running for the filing of a
 negotiability appeal.  Passman requested that once FSIP ruled on the
 outstanding items, Respondent furnish a copy of the "review of the
 completed negotiated agreement under 5 U.S.C. 7114(c) for the purpose of
 filing a negotiability appeal to the Federal Labor Relations Authority"
 (Res. Ex. 9).
 
                      The Academic Freedom Provision
 
    8.  Respondent's January 31, 1984 message disapproved, as
 inconsistent with management's statutory rights to direct employees and
 to assign work under Sections 7102(a)(2)(A) and (B) of the Statute, the
 following underlined portion of the agreement:
 
                   Article 6, EMPLOYEE RESPONSIBILITIES
 
          Section 1.  Employee Responsibilities.  The Parties recognize
       the standard applied to professionals and the obligations of
       employees employed overseas on military installations.  An
       employee's responsibilities include, but are not limited to:
 
                       . . .
 
 
          f.  Performing their assigned duties consistent with academic
       freedom and academic responsibility.
 
    9.  The academic freedom provision was included in the
 collective-bargaining agreement at the direction of Chairman Howlett
 during the mediation/arbitration proceedings held in September 1983 (ALJ
 Ex. 1, p.3;  Tr. 111, G.C. Ex. 1(E) (par. 7(a));  GC. Ex. 1(F) (par.
 7(a)).
 
    10.  The academic freedom provision directed by Chairman Howlett
 originated from a Union bargaining proposal.  (Tr. 104, 175;  Res. Ex.
 13).  The Union position was that management had the right to determine
 the curriculum and to direct employees, but teachers had the right
 within the discretion afforded them by academic freedom to decide
 without undue interference which teaching methods would be used to teach
 a prescribed curriculum (Tr. 225, 234, 300).  The premise of the
 proposal was that, within the prescribed curriculum, a teacher should
 have the opportunity to teach within his subject area in the best way he
 sees fit, that is, by using all of the methods and means he can to most
 effectively get his information across to students.  (Tr. 109, 112).
 Union bargaining team member Colette Grillo, a mathematics teacher,
 offered as an example her use of dice to teach rules of probability.
 (Tr. 108).  Absent Activity guidelines prohibiting specific material,
 Grillo testified, a teacher's choice of methods and means depended upon
 relevancy and the students' maturity.  (Tr. 109, 110).  Apart from
 establishing the curriculum and recommended materials, the Activity does
 not publish a list of materials prohibited from use in a classroom.
 (Tr. 111, 242).  Grillo testified that the academic freedom contract
 article was designed, in the Union's view, to afford protection to
 teachers in cases such as " . . . a principal coming into my room and
 seeing my students rolling dice, and simply coming in and saying, 'You
 may not roll dice in your classroom, because it looks to me like they
 are gambling,' without trying to find out exactly what was going on, why
 I was doing it, how effective it was, whether it was offensive to the
 students, offensive to the parents, offensive to the rest of the
 community, etc." (Tr. 115, 116).  Activity representatives, witnesses
 for the Respondent, acknowledged that teachers exercised some discretion
 in teaching methods and in deciding the most appropriate intervention
 and instructional means to guarantee that students will achieve learner
 objectives established by a curriculum.  (Tr. 235, 241, 242, 273, 278,
 281).  However, the Activity viewed the Union's proposal as "trying to
 completely eliminate any responsible behavior in the classroom and give
 teachers carte blanche to teach any concept any way they wanted."
 Management saw the proposal as restricting management from assigning how
 a subject should be taught or limiting how it could be taught.  (Tr.
 177).  At one point in bargaining, an amendment of the Union's proposal
 to include a reference to "academic responsibility" appeared to
 alleviate management's concern that a principal might not be able to
 direct a teacher in a particular way.  (Tr. 225, 226, 227-228).
 However, the Activity refrained from offering this as a proposal or
 concluding an agreement on those terms (Tr. 107).  The bargaining on
 this matter took place in the presence of Chairman Howlett.  (Tr. 105,
 228).  The provision ultimately directed by Chairman Howlett differed
 from the Union's original proposal by deleting reference to the academic
 freedom "in its broadest interpretation" and substituting "consistent
 with . . . academic responsibility."
 
     The Provision Dealing with the Opening of Employees' Storage Area
 
    11.  Respondent's January 31, 1984 message also disapproved, as
 inconsistent with management's statutory right to determine internal
 security practices, and as interference with the exercise of other
 retained rights, under Sections 7106(a)(1) and (2) of the Statute, the
 following provision:
 
          Security.  Except in emergencies, if it becomes necessary to
       open employees' cabinets, desks, drawers or other storage areas
       used exclusively by the employee, the Employer will notify the
       Union representative who shall accompany the Employer when any of
       the foregoing is opened.
 
    12.  This provision was included in the collective-bargaining
 agreement as a result of the Union's and Activity's own negotiating
 efforts, rather than being directed by Chairman Howlett (Tr. 59).  /21/
 
    13.  The provision calling for the Union's attendance when employee
 storage areas are opened by the Activity was intended by the Union as a
 procedural safeguard.  It was not intended to prevent the Activity from
 undertaking a search.  (Tr. 60, 87-88, 292).  To comply with the
 provision, the Activity need only give notice to the designated Union
 representative or his designee of its intent to open the storage area.
 If the representative declines to accompany the Activity officials,
 after having received notice, the official may proceed with the search.
 (Tr. 91-92).  The Union representative shall be permitted to accompany
 the Employee's representative except in emergency situations.  (Tr.
 226-227).
 
      Provision Concerning Travel and Per Diem for Regional Meetings
 
    13.  Respondent's January 31, 1984 message also disapproved, as
 inconsistent with Bureau of Alcohol, Tobacco and Firearms vs. Federal
 Labor Relations Authority, 104 S. Ct. 439 (1983), the provision calling
 for reimbursement of travel and per diem expenses incurred by Union
 representatives for participation at regional meetings, as underlined:
 
                   Article 10, UNION MANAGEMENT MEETINGS
 
          Section 3.  Regional Scheduled Meetings.  To facilitate impact
       bargaining and provide the means whereby the Union may present
       employee concerns to the Employer formally seven (7) scheduled
       meetings a year commencing with the 1984-1985 school year will be
       held.  These meetings will be scheduled prior to the beginning of
       each school year.  However, by mutual agreement the sites and
       times may be adjusted to reduce travel costs.  The Union may
       nominate five (5) representatives to attend who will be on
       official time.  Travel and per diem shall be authorized for up to
       two (2) Union representatives per meeting.  Up to two (2) Union
       representatives may receive a travel day to facilitate attendance.
 
    15.  This provision, as well as the entire Article 10, was included
 in the collective-bargaining agreement at the direction of Chairman
 Howlett (ALJ Ex. 1, pp. 42-43).
 
    16.  Collective-bargaining agreements previously in effect between
 the Union and the Activity's predecessors, since 1973, had provided for
 the reimbursement of travel and per diem expenses for the Union's
 participation in periodic Union-management meetings.  (Tr. 17-20;  G.C.
 Ex. 2, 3).  Following an agency reorganization and the establishment of
 the DODDS Regions, including the Activity, in 1979, travel and per diem
 expenses were reimbursed pursuant to an interim agreement.  (Tr. 22).
 The Union and the Activity continued, following the Union's
 certification as exclusive representative of the present bargaining
 unit, to have regional meetings on a monthly basis to address employees'
 concerns.  (Tr. 20, 22).
 
    17.  On February 17, 1982 the Activity initiated a grievance against
 the Union charging, in effect, that the Union had not shown good faith
 in containing travel costs.  The Union's proposal, that the parties
 submit the issue to an arbitrator as one in interest arbitration with a
 view, if necessary, to altering the contract language, was accepted.
 The arbitrator noted that the problem of covering travel costs had been
 exacerbated by several factors, including a new division of budgeted
 resources.  He concluded, however, that the Union had not in all
 instances shown good faith in containing travel costs in the Joint Labor
 Management Committee process, and that some modification in the
 provision of the contract was necessary.  He noted that the Joint Labor
 Management Committee process and regional meetings "are a vital part" of
 the collective bargaining agreement.  Accordingly, he rejected the
 Activity's proposal to limit the number of regional meetings to five a
 year, but did reduce the number of meetings from twelve to seven.  He
 also made changes in the allotment of Union members eligible for
 temporary duty status for meetings, the selection of locations for
 meetings, and how Union team members may be selected for such meetings.
 (Tr. 94, Res. Ex. 2).
 
    18.  Until implementation of the present collective-bargaining
 agreement on February 4, 1984, the Activity had observed the terms and
 conditions of the previous agreements (Tr. 21, 130, 148), as amended by
 the decision of the arbitrator (Tr. 94, Res. Ex. 2), and thus continued
 to reimburse travel and per diem expenses in connection with the
 Union-management meetings until that time.  (Tr. 128).  Prior to the
 1978 travel and per diem expenses incurred in negotiating
 collective-bargaining agreements had also been reimbursed pursuant to
 ground rules.  (Tr. 20).
 
    19.  During negotiations for a new agreement in late 1982
 management's position was that regional meetings were not productive,
 were open-ended and repetitious, and were expending sums needlessly.
 Respondent wanted to limit the number of meetings per year.  (Tr.
 129-131;  ALJ Ex. 1).  The Union's position was to maintain the status
 quo (Tr. 132).  After mediation efforts of the FMCS were unsuccessful,
 Respondent requested the services of the FSIP (Tr. 134).  The
 Arbitrator's Opinion and Decision reflects that the only disagreement of
 significance concerning the regional meetings was the number which
 should be held (ALJ Ex. 1, p. 39).
 
    20.  As noted, the entire Article 10 dealing with union management
 meetings was included in the collective bargaining agreement at the
 direction of Chairman Howlett.  Article 10, Section 3 of the present
 collective-bargaining agreement thus continues the long-standing
 practice of periodic meetings devoted to the discussion of employees'
 concerns concerning working conditions and to negotiations over mid-term
 changes in working conditions (e.g. impact bargaining).  Negotiations
 between the Union and the Activity may take place only at the Regional
 level, as distinct from the school level.  (Tr. 34, Tr. 215, 217).
 
    21.  As the Union and the Activity had agreed, the
 collective-bargaining agreement was implemented on February 4, 1984.
 (Tr. 33).  However, as a result of Respondent's disapproval, the
 foregoing portions of the collective-bargaining agreement were not
 implemented by the Activity (G.C. Ex. 1(E) (para. 10);  (G.C. Ex. 1(F)
 (para. 10)).
 
    22.  As a consequence of Respondent's action, the Activity denied
 reimbursement for travel and per diem expenses incurred in connection
 with the first Regional scheduled meeting held February 27, 1984 at
 Madrid, Spain (Tr. 33).  At that time Lehmann was told by the Activity
 that because the Respondent had "taken that section out of the contract
 . . . they could not authorize payment for travel." (Tr. 34).
 Similarly, the Activity denied reimbursement for travel and per diem
 expenses with respect to meetings subsequently held in March and May,
 1984.  (Tr. 48-49).  These three meetings were held under Article 10,
 Section 3 of the collective-bargaining agreement.  (Tr. 35, 186).  In
 March 1984 the Activity formally notified the Union that, because of the
 Respondent's action, the Activity would not reimburse expenses for the
 Regional scheduled meetings.  (Tr. 95;  G.C. Ex. 7;  Tr. 307-309).
 During the 1984-85 school year the Union and the Activity continued to
 hold such meetings.  (Tr. 185).
 
    23.  With the Respondent's elimination of the travel and per diem
 provision from Article 10, Section 3, the Union assumed the cost of
 expenses which would otherwise have been reimbursed by the Activity.
 Estimates of the total cost to the Union thus far range from $7,700 to
 $13,000 (Tr. 48, 50-51, 184).  To offset the expenditures, the Union
 membership in April, 1984 voted for a dues increase.  (Tr. 51-52).
 
    24.  Chairman Howlett's decision reserved jurisdiction "to determine
 any questions which may arise on issues which I directed be included in
 the contract during the mediation process" and "to determine any issues
 which may arise with respect to the regional scheduled meetings" (ALJ
 Ex. 1, pp. 44).  On January 12, 1984, the Union requested Chairman
 Howlett to clarify the Decision and Order in several respects.  (Tr. 96,
 98, Res. Ex. 1).  Ultimately Lehmann and Richards met with Chairman
 Howlett in November 1984 to address the Union's questions.  (Tr. 215).
 None of the issues raised by the Union with respect to Chairman
 Howlett's decision concerned academic freedom, travel and per diem for
 attendance at Regional scheduled meetings or searches of teachers'
 desks.  (Tr. 97, 217, 218).
 
                       Travel Expenses of Witnesses
 
    25.  On March 20, 1984, Respondent notified the Activity and the
 Union that it had received the final Order on outstanding issues from
 the FSIP on February 24, 1984.  Respondent stated, "There are no other
 issues to be decided by the FSIP.  Accordingly, it is appropriate that
 this headquarters complete a review of the agreement as required in 5
 USC 7114(c)." Respondent went on to disapprove, among others, Article 6,
 Section 1(f), Article 12, Section 7, Article 10, Section 3, all
 discussed above, and the following provision of the
 collective-bargaining agreement, at that time not designated by article:
 
                 PAYMENT FOR TRAVEL EXPENSES OF WITNESSES
 
          All witnesses who are civilian and military employees and who
       are deemed necessary by the Arbitrator to the arbitration hearing
       will be entitled to travel and per diem expenses if the incident
       giving rise to the grievance occurred at a location other than the
       location of the arbitration hearing.
 
    In brief, the Respondent disapproved the provision on the basis sthat
 it was inconsistent with Federal law as it conferred a "negotiated
 contractual benefit" upon military personnel who are excluded from
 coverage under the Statute, and, as to civilian employees, on the basis
 that it was contrary to the "Supreme Court's mandate" in Bureau of
 Alcohol, Tobacco and Firearms vs. FLRA, 104 S. Ct. 439 (1983).  (Res.
 Ex. 8).
 
    26.  The provision was directed to be included in the
 collective-bargaining agreement by the FSIP Decision and Order, 83 FSIP
 102, February 25, 1984 (ALJ Ex. 2), setting forth FSIP's determination
 of the two issues which had been referred to the Panel by Chairman
 Howlett.  The FSIP stated, in part, as follows:
 
          The issue concerning the obligation, if any, of the Employer to
       pay the travel and per diem expenses of Union witnesses requires a
       balancing of interests in ensuring fair and full hearings while
       keeping the costs of such proceedings at a reasonable level.  In
       this context, we conclude that this issue can be best resolved by
       adoption of the Union's alternative proposal to limit the
       Employer's obligation to those Union witnesses who are civilians
       and military employees.  In addition, we think it important that
       in cases where the parties disagree, the arbitrator be empowered
       to decide which employees are necessary and that the Employer pay
       such travel expenses only if the incident giving rise to the
       grievance occurred at a location other than that of the
       arbitration hearing.  With these safeguards, the Employer will not
       be saddled with an unreasonable financial burden while the Union's
       concerns will, in large measure, be addressed.
 
    27.  As a result of Respondent's disapproval, the foregoing provision
 was not implemented by the Activity (G.C. Ex. 1(E), para. 10;  G.C. Ex.
 1(F), para. 10;  Tr. 55).  Consequently, Respondent's action precluded
 the reimbursement of travel and per diem expenses to at least two
 civilian witnesses at arbitration hearings held since March 1984.  (Tr.
 55-57).  No uniformed military witnesses have been called by the Union
 to date.  However, in the past 2-3 years uniformed military personnel
 have been called as witnesses at arbitration hearings by the Activity.
 (Tr. 58-59).
 
                             Subsequent Events
 
    28.  On March 31, 1984 the Union filed the Charge against Agency in
 Case No. 1-CA-40196 alleging, in substance, that Respondent had violated
 the Statute by making a patent breach of the collective bargaining
 agreement by refusing to issue travel orders (G.C. Ex. A).
 
    29.  On April 23, 1984 the Union filed the Charge against Agency in
 Case No. 1-CA-40231 alleging, in substance, that Respondent, by TWX and
 letter dated March 30, 1984, had improperly refused to approve the
 negotiated agreement and that the review of the negotiated agreement was
 premature since outstanding negotiability issues were pending (G.C. Ex.
 C).
 
    30.  Following the Respondent's disapproval of the contractual
 provisions, the Union requested the Activity to negotiate over the
 disapproved sections.  The Union wished to negotiate language which
 would serve on an interim basis until a final ruling was made on
 Respondent's action.  The Activity insisted that any negotiated language
 found acceptable be deemed to replace that which had been disapproved.
 The Union and the Activity could not reach agreement on this issue, but
 agreed to set it aside temporarily and try to first resolve the concern
 of Respondent over the disapproved sections.  (Tr. 143, 188, 286-287).
 
    31.  After a tentative agreement had been reached concerning
 "academic freedom" and the attendance of a Union representative when
 employee storage areas are opened, the Activity, on March 19, 1984,
 submitted the new language to the Respondent for "review and comment
 before we finalize." (Res. Ex. 4;  Tr. 143, 144).  Lehmann explained
 that the Union wanted to avoid repetition of the experience in January,
 when the Respondent disapproved terms previously accepted by the Union
 and the Activity.  Lehmann told the Activity, "(b)efore we go any
 further on this, you find out whether your Agency is going to accept
 this language, and then we'll see about it." (Tr. 288).  Thus, in
 contrast to the procedure followed in January, on this occasion the
 Union and the Activity refrained from "signing off" on their agreement
 until they had received the Respondent's comments (Tr. 144).  In late
 March, 1984 the Respondent gave qualified approval of the language
 concerning Union representation when storage areas are opened, and
 rejected the proposed revision of the "academic freedom" provision (Res.
 Ex. 5;  Tr. 145).  The Union and the Activity continued their effort to
 fill the gap created by Respondent's disapproval, but disagreement
 persisted over whether the new language, if any, would be the final
 solution to the problem, and replace the language disapproved by
 Respondent, as urged by the Activity, or would merely serve as an
 "interim" measure until a final ruling was made on Respondent's action,
 as was the Union's position.  (Tr. 145, 187-188, 287).
 
    32.  On May 23, 1984 the Union and the Activity agreed to contact the
 Federal Mediation and Conciliation Service (FMCS) for assistance on this
 issue and made a joint submission to the FMCS.  (Tr. 146, 188-189, 288;
 Res. Ex. 6).
 
    33.  In September 1984, Mr. Lehmann again requested the Activity to
 negotiate over the disapproved sections (Tr. 168).  Mr. Richards
 responded that the parties had submitted the issue to the FSIP and,
 therefore, Respondent saw no reason or need to bargain until after the
 FSIP had considered the negotiation impasse.  (Tr. 168).  It is noted
 that, at this point, the parties had submitted the matter to the FMCS,
 as reflected above, and not to the FSIP.  See 5 C.F.R. Section 2471.1
 (1985).
 
    34.  On October 30, 1984 the Union filed a Charge against Agency,
 Case No. 1-CA-50051, alleging that the Respondent and the Activity had
 violated the Statute by refusing to bargain over the impact and
 implementation of matters declared non-negotiable by the Respondent
 (Res. Ex. 10).  The record does not reflect disposition of this charge.
 
    35.  Except for a telephone call inquiring about the joint
 submission, the FMCS did not formally respond to the joint submission
 until June 10, 1985.  At that time, the FMCS stated, "After some
 discussions between our Service and FSIP, we have concluded that the
 most precise and convenient way to handle this action is to allow either
 party or whomever would request assistance of FMCS to go straight to
 FSIP without going through our Service.  /22/ The record does not
 indicate that either party has requested the Panel to consider the
 matter pursuant to section 7119(b)(1) of the Statute.  Therefore, I find
 that the matter is not now before the FSIP.
 
               Discussion, Conclusions, and Recommendations
 
                             Procedural Issues
 
    Respondent contends that the complaint is materially defective as the
 violations of the Statute alleged in paragraph 11, 12, and 13 of the
 complaint are based on a non-fact.  Respondent contends that the
 agency's approval/disapproval occurred on March 20, 1984, and not on
 January 31, 1984, as alleged in paragraphs 6(a) and 8 of the complaint.
 Further, Respondent claims that while paragraphs 5 and 6 allege that the
 contract was executed on January 4, 1984, contracts are not "executed"
 until final approval is given by the head of the agency pursuant to
 section 7114(c) of the Statute.
 
    The complaint is not materially defective in this respect.
 Respondent's statutory review pursuant to section 7114(c) of those
 provisions imposed upon the parties by the Panel on February 24, 1984
 occurred on March 20, 1984.  However, it is clear that Respondent had
 earlier specifically disapproved on January 31, 1984, as alleged, three
 provisions of the parties' January 4, 1984 agreement, two of which had
 been imposed by an arbitrator pursuant to Panel procedures.  As a result
 of the January 31, 1984 disapproval, the Union was advised and such
 terms were not implemented by the Activity.  (See Findings Nos. 5, 6,
 21, and 22).  Respondent's March 20, 1984 review merely reiterated its
 earlier disapproval as to these three terms.
 
    Respondent is also mistaken in contending that an agreement is not
 "executed" until approval by the head of the agency pursuant to section
 7114(c).  Pursuant to sections 7103(a)(12) and 7114(b)(5) a written
 document embodying agreed terms must be executed, on the request of any
 party, when agreement is reached.  Thus, this event refers to the making
 and signing of the written agreement by the representatives of the
 agency and the exclusive representative at the level of recognition and
 not to the final approval or disapproval by the head of the agency
 pursuant to section 7114(c) after the agreement is executed.  American
 Federation of Government Employees, AFL-CIO, Local 3732, 16 FLRA No. 50,
 16 FLRA 318 (1984).  Section 7114(c)(2) requires the approval by the
 head of the agency "within 30 days from the date the agreement is
 executed . . . " and section 7114(c)(3) provides that if "the head of
 the agency does not approve or disapprove the agreement within that
 30-day period, the agreement shall take effect . . . . " Thus,
 Respondent is confusing the effective date of the agreement, which is
 governed by 7114(c)(2) and (3), with the date the agreement is executed
 by the parties at the level of recognition.  See National Federation of
 Federal Employees, Local 1263, 14 FLRA 761, 764 (1984).  The record
 demonstrates that the agreement in issue was executed by the parties at
 the level of recognition on or about January 4, 1984, as alleged in the
 complaint.
 
    Respondent also claims that the case should be dismissed since (1)
 the Union has elected to pursue a negotiability appeal, (2) the case is
 before the FSIP, and (3) the case is the subject of a substantially
 identical unfair labor practice charge.
 
    The Authority has held that under the provisions of the Statute an
 agency head is authorized to review and approve or disapprove all
 provisions of collective bargaining agreements, even those imposed upon
 the parties by the Panel in resolution of an impasse.  Further, that an
 exclusive representative may obtain review of such action either through
 the expedited procedures available under the provisions of section 7117
 of the Statute and Part 2424 of the Authority's Rules and Regulations,
 or the unfair labor practice procedures available under the provisions
 of section 7118 of the Statute.  Interpretation and Guidance, 15 FLRA
 No. 120, 15 FLRA 564 (1984), appeal docketed sub. nom. American
 Federation of Government Employees v. FLRA, No. 84-1512 (D.C. Cir.
 October 12, 1984).
 
    After the agency head's approval/disapproval, the parties entered
 into negotiations in an effort to resolve the matter, but could not
 agree whether such resolution would be on interim or permanent basis.
 However, the record does not reflect that the Union ever filed a
 negotiability appeal under section 7117 with regard to the agency head's
 disapproval.  Therefore, contrary to Respondent's position, the Union
 was not required to select whether to proceed under the unfair labor
 practice procedure or the negotiability procedure, as required by
 section 2424.5 of the regulations, since it has only proceeded before
 the Authority under the unfair labor practice procedure.  The Union's
 request for a copy of the final review of the agreement "for the purpose
 of filing a negotiability appeal" and the negotiations conducted after
 the approval/disapproval did not constitute the filing of a petition for
 review or the selection of the negotiability procedure under section
 2424.5 of the regulations.  /23/
 
    The practice of simultaneously seeking Panel assistance and a remedy
 in an unfair labor practice proceeding to resolve substantially the same
 issues was condemned by the Authority in Department of the Navy, Norfolk
 Naval Shipyard, Portsmouth, Virginia, 13 FLRA No. 95, 13 FLRA 571
 (1984).  In this case, however, contrary to Respondent's position, the
 record does not reflect that the matter is currently before the Panel or
 that either party has requested the Panel to consider substantially the
 same issues.  (See Findings No. 29-31).  Moreover, the Authority held in
 Interpretation and Guidance, 11 FLRA 626 (1983), that the Panel's
 authority under section 7119(c)(5)(A)(ii) to assist the parties in
 resolving an impasse through whatever methods or procedures the Panel
 considers appropriate does not include resolving questions concerning
 the underlying obligation to bargain.
 
    Under Executive Order 11491, as amended, the Assistant Secretary of
 Labor held that a complaint could not simultaneously litigate the same
 issue, arising out of the same set of facts, in two different unfair
 labor practice proceedings before the same forum.  Department of the
 Treasury, Internal Revenue Service, Brookhaven Service Center, 7 A/SLMR
 532, 539 (1976), remanded on other grounds, 6 FLRC 310 (1978).  Assuming
 that some aspect of this rule is applicable to proceedings before the
 Authority, the record does not show that a complaint has been issued by
 the General Counsel concerning the charge in Case No. 1-CA-50051 (see
 Finding No. 33), nor does the record disclose that the issues and facts
 are the same.  This case involves the agency head's disapproval of
 certain contract provisions while the charge in Case No. 1-CA-50051
 involves an alleged failure to subsequently bargain on the impact and
 implementation of such disapproval.
 
                        The Disapproved Provisions
 
    The head of the agency disapproved the four provisions in issue under
 section 7114(c) of the Statute as not being in accordance with the
 Statute and other applicable law, rules and regulations.  Three of the
 provisions had been imposed by the FSIP and incorporated into the
 collective bargaining agreement by the local parties pursuant to a Panel
 proceeding.  The fourth had been agreed to by the local parties.  The
 issue is whether these provisions are, in fact, not in accordance with
 the Statute, or any other applicable law, rule, or regulation.
 
    1.  The Academic Freedom Provision
 
    As noted, Respondent disapproved the underlined portion of Article 6,
 Section 1(f), dealing with employee responsibilities, as follows
 
          An employee's responsibilities include, but are not limited to:
 
                       . . .
 
 
          (f) performing their assigned duties consistent with academic
       freedom and academic responsibility.
 
    Respondent argues that the common meaning given to "academic freedom"
 is:  "freedom of a teacher to discuss social, economic, or political
 problems without interference from officials, organized groups, etc."
 Random House College Dictionary, Revised Edition, 1980.  Respondent
 claims that the testimony of Union witnesses shows that the provision is
 intended to convey to bargaining unit members the "right to make certain
 decisions about the manner in which work is to be performed unfettered
 by management direction." Therefore, Respondent asserts, the phrase
 "performing their assigned duties consistent with academic freedom"
 transfers to bargaining unit members the discretion to determine all or
 part of the duties to be performed.  Respondent maintains that since the
 provision limits or diminishes management's rights under section
 7106(a)(2)(A) and (B) to assign work and direct employees, the provision
 conflicts with the Statute.
 
    The General Counsel argues that the objective of the provision is to
 secure procedural protection from the arbitrary exercise of management
 rights as illustrated by the testimony of Ms. Grillo.  (See Finding No.
 8).  The General Counsel claims that it is analogous to proposals found
 negotiable by the Authority as legitimate measures pursuant to section
 7106(b) of the Statute, and establishes criteria whereby the application
 of a performance standard or the exercise of the disciplinary
 prerogative may be reviewed.  The General Counsel claims that the
 proposal falls within the procedural view of academic freedom rather
 than the substantive, and involves not the right to choose a teaching
 method, but the procedural right of a teacher not to be discharged for
 the use of a teaching method which was not proscribed by regulation, and
 as to which it was not proven that he should have had notice that its
 use was prohibited, citing Mailloux v. Kiley, 323 F. Supp. 1387, 1390
 (D. Mass. 1971), affirmed in part 448 F.2d 1242, 1243 (1st. Cir., 1971).
 
    Contrary to the position of the General Counsel, the express language
 of the provisions and the testimony at the hearing demonstrates that it
 was not primarily directed at establishing an appropriate procedure
 whereby the application of a performance standard or the exercise of
 discipline may be reviewed.  Rather, as Respondent contends, the
 provision was intended to transfer to bargaining unit members the
 discretion to determine which teaching methods would be used to teach a
 prescribed curriculum.  I agree with Respondent's position that the
 provision directly interferes with management rights to direct employees
 and assign work by transferring to bargaining unit members the
 discretion to determine how all or a portion of their assigned duties
 are to be performed "consistent with academic freedom." It would subject
 their performance to arbitral review under this standard.  The provision
 would have the effect of barring the assignment to unit employees of
 duties not "consistent with academic freedom" and barring management
 direction, that is, the supervision and guidance of employees in the
 performance of their duties to the extent such guidance was not
 "consistent with academic freedom." Management's assignment of work and
 direction would be subject to challenge on this basis and to the
 possibility of an arbitrator substituting his judgment for that of the
 agency with respect to the assignment of duties.
 
    The Authority has defined the right "to direct . . . employees in the
 agency" and "to assign work", two management rights embodied in section
 7106(a)(2)(A) and (B) of the Statute, in National Treasury Employees
 Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
 769, 775 (1980), aff'd sub nom. National Treasury Employees Union v.
 FLRA, 691 F.2d 553 (D.C. Cir. 1982).  The Authority stated that "the
 right 'to direct . . . employees in the agency' means to supervise and
 guide them in the performance of their duties on the job." The right to
 assign work, the Authority held, "is composed of two discretionary
 elements:  (1) the particular duties and work to be assigned, and (2)
 the particular employees to whom or positions to which it will be
 assigned." In American Federation of State, County and Municipal
 Employees, AFL_CIO, Council 26 and U.S. Department of Justice, 13 FLRA
 No. 96, 13 FLRA 578 (1984), the Authority held that, as to overall
 performance as well as performance in each job element, an essential
 aspect of management's assignment of work and the direction of employees
 in the performance of their work is to establish the job requirements
 for various levels of performance so as to achieve the quality and
 amount of work needed from employees to effectively and efficiently
 fulfill the agency's mission and functions.  Since management has the
 right to establish performance standards, the provision herein, which
 would establish a particular performance standard by which the
 performance of assigned duties would be judged and would permit arbitral
 review of performance under the standard, it directly interferes with
 management's rights to direct employees and assign work.
 
    The Authority has uniformly held that the plain language of section
 7106(a) provides that "nothing" in the Statute shall "affect the
 authority" of an agency to exercise the rights enumerated in that
 section.  See e.g., Professional Air Traffic Controllers Organization
 and Federal Aviation Administration, 5 FLRA 763, 767 (1981).
 Consequently, because the provision is not in accordance with the
 management rights to direct employees and to assign work, pursuant to
 section 7106(a)(2)(A) and (B) of the Statute, the head of the agency
 properly disapproved it pursuant to section 7114(c).  Cf. International
 Association of Fire Fighters, Local F-215 and Headquarters, 15th
 Infantry Division (Mechanized), Fort Polk, Louisiana, 8 FLRA 417 (1982);
  American Federation of Government Employees, Local 32, AFL-CIO, and
 Office of Personnel Management, 17 FLRA No. 99, 17 FLRA 683 (1985);
 National Federation of Federal Employees, Local 1622, 16 FLRA No. 82, 16
 FLRA 578 (1984) (proposal two).
 
    2.  Travel and Per Diem For Regional Meetings
 
    The head of the Agency disapproved, as inconsistent with the Supreme
 Court's decision in Bureau of Alcohol, Tobacco and Firearms v. Federal
 Labor Relations Authority, 104 S. Ct. 439 (1983), the provision calling
 for reimbursement of travel and per diem expenses for up to two of the
 five Union representatives authorized to attend Union-Management
 regional meetings on official time.  The provision was included in the
 agreement at the direction of an arbitrator pursuant to an FSIP
 proceeding.  In this proceeding, Respondent also claims that all matters
 involving the payment of travel and per diem have been declared to be
 outside the Authority's jurisdiction by the Office of Personnel
 Management (OPM) FPM Letter 711-162 (1/19/84).  Respondent asserts, in
 the alternative, that FPM Letter 711-162 is a Government-wide rule or
 regulation, and the provision in issue is inconsistent therewith.
 
    FPM Letter 711-162 does not divest the Authority of jurisdiction of
 this matter, nor is it a Government-wide rule or regulation.  It was
 issued pursuant to OPM's advisory authority concerning labor-management
 relations.  The letter is precatory and does not bind Federal agencies
 in the manner of a regulation.  As District Judge Charles R. Richey
 stated in National Treasury Employees Union v. Donald J. Devine,
 Director, Office of Personnel Management, 587 F. Supp. 960, 964 (D.D.C.,
 1984), "If its instructions are incorrect, they may be subject to
 challenge when adopted by the management of a particular agency during
 bargaining and brought to the attention of the FLRA."
 
    The Authority has held that a proposal that would require that
 management pay the travel expenses incurred by employees while using
 official time available under the terms of an agreement is not
 inconsistent with Federal law.  National Treasury Employees Union and
 Department of the Treasury, U.S. Customs Service, 9 FLRA No. 70, 9 FLRA
 629 (1982), reversed and remanded as to other matters sub nom. National
 Treasury Employees Union v. Federal Labor Relations Authority, 712 F.2d
 669 (D.C. Cir., 1983), remanded sub nom. U.S. Customs Service,
 Department of the Treasury v. Federal Labor Relations Authority, No.
 82-2116 (D.C. Cir., 1/19/84).  The Authority has also held that
 proposals do not violate Federal law which provide for reimbursement for
 travel and per diem expenses for employees engaged in impact bargaining
 on official time and reimbursement for travel and per diem expenses for
 employees representing a union on official time during the negotiation
 of local supplements authorized by an agreement.  National Treasury
 Employees Union and Department of the Treasury, U.S. Customs Service, 9
 FLRA No. 138, 9 FLRA 983 (1982), remanded sub nom. Department of the
 Treasury, U.S. Customs Service v. Federal Labor Relations Authority, No.
 82-2225 (D.C. Cir., 1/19/84).  Although the above decisions were
 remanded for consideration in light of the Supreme Court's decision in
 Bureau of Alcohol, Tobacco and Firearms v. FLRA, 104 S. Ct. 439 (1983),
 the Authority has not issued its decision(s) on remand to date.
 Consequently, I am bound by the Authority's original decisions,
 particularly since the Supreme Court decision did not rule that the
 payment by an agency of travel expenses and per diem allowances to
 employee union representatives in the negotiation or administration of a
 collective bargaining agreement is inconsistent with Federal law.
 Rather, the Court observed, at 104 S. Ct. 449, n. 17:
 
          Our conclusion that federal agencies may not be required under
       Section 7131(a) to pay the travel expenses and per diem allowances
       of union negotiators does not, of course, preclude an agency from
       making such payments upon a determination that they serve the
       convenience of the agency or are otherwise in the primary interest
       of the government, as was the practice prior to passage of the
       Act.  See n. 11, supra.  Furthermore, unions may presumably
       negotiate for such payments in collective bargaining as they do in
       the private sector.  See Midstate Tel. Corp. v. NLRB, 706 F.2d
       401, 405 (CA2 1983);  Axelson, Inc. v. NLRB, 599 F.2d 91, 93-95
       (CA5 1979).  Indeed, we are informed that many agencies presently
       pay the travel expenses of employee representatives pursuant to
       collective-bargaining agreements.  Letter from Ruth E. Peters,
       Counsel for Respondent FLRA, Nov. 9, 1983.  See also J.P. Stevens
       & Co., 239 NLRB 738, 739 (1978) (employer required to pay travel
       expenses as remedy for failing to bargain in good faith).
 
    Accordingly, since the provision in issue has the same purpose and
 effect as the proposals previously found by the Authority not to violate
 Federal law, I am constrained to conclude that the portion of Article
 10, Section 3 disapproved by Respondent is not inconsistent with Federal
 law, rule, or regulation.
 
    3.  Payment For Travel Expenses of Witnesses
 
    As noted, the head of the Agency disapproved the following provision
 which the FSIP had ordered the local parties to adopt:
 
          All witnesses who are civilian and military employees and who
       are deemed necessary by the arbitrator to the arbitration hearing
       will be entitled to travel and per diem expenses if the incident
       giving rise to the grievance occurred at a location other than the
       location of the arbitration hearing.
 
    Disapproval as to its application to civilian employees, either
 within or outside the bargaining unit, was based on the Supreme Court's
 decision in Bureau of Alcohol, Tobacco and Firearms v. FLRA, supra.
 Disapproval as to military employees was based on the fact that a member
 of the uniformed services is not an "employee" pursuant to section
 7103(a)(2)(ii) of the Statute.  Therefore, Respondent disapproved the
 language as extending a negotiated contractual benefit, or requiring
 management to extend a benefit, to a member of the uniformed services in
 violation of the Statute.
 
    With regard to civilian employees, the Supreme Court's decision, as
 noted above, did not preclude the negotiation of such a provision.
 Respondent has not asserted or shown that the provision insofar as it
 requires the activity to pay the travel and per diem of witnesses is
 inconsistent with the Travel Expense Act, 5 U.S.C. Section 5702, or any
 other applicable statute, rule, or regulation.  See Department of
 Defense Dependents Schools, Mediterranean Region, 19 FLRA No. 54, 19
 FLRA 395, 397 n.2 (1985).
 
    The record reflects that the provision was imposed by the FSIP after
 expressly balancing the interest of insuring full and fair arbitration
 hearings for a mobile overseas work force in the Mediterranean Region
 against the possibility of abuse and the costs of such procedures.  The
 net effect of the provision imposed by the FSIP is to require the
 Activity to assume the costs of those Union witnesses who are civilian
 and military employees and "who are deemed necessary by the arbitrator .
 . . if the incident giving rise to the grievance occurred at a location
 other than the location of the arbitration hearing." Therefore, the
 provision establishes a procedure for, and facilitates the use of, the
 grievance/arbitration procedure negotiated pursuant to section 7121 of
 the Statute.  As such, it directly affects the conditions of employment
 of bargaining unit employees.  Access to the grievance/arbitration
 procedure is a fundamental statutory right, U.S. Department of the
 Treasury, Bureau of Alcohol, Tobacco and Firearms, Chicago, Illinois 3
 FLRA 723, 730-731, 3 FLRA No. 116 (1980), and the Authority has
 recognized, in another context, that the participation of both parties
 in an arbitration proceeding serves an important statutory interest.
 Department of Labor, Employment Standards Administration, Wage and Hour
 Division, Washington, D.C. 10 FLRA 316, 10 FLRA No. 60 (1982).  In the
 absence of such a provision, the Union would have to assume the costs of
 such witnesses.  Therefore, the thrust of the provision is to allocate
 costs between the parties and not to establish conditions of employment
 for employees outside the unit or uniformed military personnel.  The
 Authority has held that a bargaining proposal which directly affects the
 conditions of employment of bargaining unit employees, and is otherwise
 consistent with applicable laws and regulations, is within the duty to
 bargain despite the fact that such a proposal also would affect
 employees outside the bargaining unit.  Association of Civilian
 Technicians, Pennsylvania State Council and Pennsylvania Army and Air
 National Guard, 14 FLRA 38, 39, 14 FLRA No. 6 (1984);  c.f. NTEU Chapter
 91 and Department of the Treasury, IRS, Southwest Region 17 FLRA 534,
 535, 17 FLRA No. 77 (1985);  AFGE Local 1698 and Department of the Navy,
 Aviations Supply Office, Consolidated Civilian Personnel Division 17
 FLRA 557, 17 FLRA No. 84, (1985).
 
    To the extent that the provision indirectly affects civilian
 employees outside the bargaining unit, it is well established that the
 duty to bargain under the Statute does not extend to conditions of
 employment affecting employees outside the bargaining unit.  However, an
 agency may elect to bargain over such matters if it so chooses.
 American Federation of Government Employees, AFL_CIO, Local 2, 4 FLRA
 450 (1980);  National Labor Relations Board Union, Local 21, 15 FLRA No.
 152, 15 FLRA 798 (1984), National Federation of Federal Employees, Local
 1705, 17 FLRA No. 123, 17 FLRA 945 (1985), Federal Deposit Insurance
 Corporation, Headquarters, 18 FLRA No. 92, 18 FLRA 768 (1985).  Here,
 the Activity elected to bargain over the matter in issue, and the record
 does not reflect that it ever raised a question concerning the
 negotiability of the proposal during the collective bargaining process,
 including consideration by the FSIP.  Compare Department of the Air
 Force, Air Force Logistics Command, Wright-Patterson Air Force Base,
 Ohio, 18 FLRA No. 81, 18 FLRA 710 (1985).  The duty to bargain in good
 faith under section 7114(b)(2) of the Statute requires that the parties
 be represented at the negotiations by "duly authorized representatives."
 Therefore, once agreement is reached pursuant to the collective
 bargaining process, the head of the Agency may not assert for the first
 time during the review under section 7114(c) an election not to bargain
 on a permissive subject and disapprove an agreement on that basis.
 Therefore, the disapproval in the instant case may not be interpreted as
 an election not to bargain.  It is concluded that the record does not
 support Respondent's contention that the provision violates applicable
 law, rule, or regulation.
 
    4.  Provision Dealing With The Opening Of Employees' Storage Areas
 
    As noted, Respondent disapproved the following terms of the
 collective bargaining agreement negotiated by the local parties:
 
          Security.  Except in emergencies if it becomes necessary to
       open employees' cabinets, desks, drawers or other storage areas
       used exclusively by the employee, the Employer will notify the
       Union representative who shall accompany the Employer when any of
       the foregoing is opened.
 
    The head of the agency disapproved the provision on the following
 basis:
 
          The article as written conflicts with 5 USC 7106(a)(1) which
       states:  "Subject to subsection (b) of this section, nothing in
       this chapter shall affect the authority of any management official
       of any agency (1) to determine the . . . internal security
       practices of the agency." Management's free and unrestricted
       access to any portion of its property (including buildings,
       cabinets, desks, etc.) cannot be interfered with or reduced by
       negotiation.  An "emergency" need not exist to trigger
       management's right to access.  Additionally, the exercise of 5 USC
       7106(a)(1) rights cannot be preconditioned in a manner that
       failure to meet the precondition prevents the exercise of the
       right.  The absence of a union representative or refusal to
       accompany management would prevent the exercise of a retained
       management right.  Accordingly, the language in Section 7 is
       disapproved.
 
    Respondent in this proceeding also argues that the provision, by
 requiring that the Union representative "shall" accompany the Employer,
 interferes with the right "to assign work" under section 7106(a)(2)(B).
 Respondent contends that the provision requires that the supervisor
 assign the Union representative to accompany management while accessing
 the storage area, no other duty could be assigned the Union
 representative at the time, and a second person might have to be
 assigned to teach a class while the Union representative accompanies
 management.
 
    The General Counsel contends that the provision is indistinguishable
 from proposals previously held by the Authority not to be inconsistent
 with management's rights to determine its internal security practices.
 Further, the General Counsel asserts that the provision would not
 prevent the Activity from conducting a search.
 
    The record reflects that the provision was not intended to prevent
 management from having access to employees' storage areas.  The stated
 intent was to provide for notice to the Union of the opportunity to
 accompany management in non-emergency situations if it becomes necessary
 to open an employee's storage area.  The Union acknowledges that if the
 Union representative or his designee declines to accompany the Activity
 official, the official may proceed with the search.  Thus, it has not
 been established that the provision would interfere with the agency's
 right to determine its internal security practices.  Rather, the
 provision constitutes a procedure which management officials will
 observe in exercising their statutory authority concerning internal
 security practices, and is indistinguishable from proposals held by the
 Authority to be not inconsistent with management's right to determine
 its internal security practices.  NTEU and Department of the Treasury,
 U.S. Customs Service, 9 FLRA No. 138, 9 FLRA 983, 987 (1982), remanded
 as to other matters sub nom. Department of the Treasury, U.S. Customs
 Service v. FLRA, No. 82-2225 (D.C. Cir., Jan. 19, 1984);  NTEU and NTEU,
 Chapter 61 and Department of the Treasury, IRS, Albany District, New
 York, 7 FLRA No. 47, 7 FLRA 304 (1981).  /24/
 
    The head of the agency did not disapprove the provision on the basis
 of its interference with the agency's right "to assign work" under
 section 7106(a)(2)(B).  Assuming, however, that it would be proper to
 consider the Agency's current objection to the provision on this ground,
 it is concluded that the provision does not interfere with the agency's
 right "to assign work." The provision does not by its terms specify
 whether the Union representative is an employee or non-employee Union
 representative.  The agreement recognizes in Article 9, Section 5, that
 the Union may have non-employee representatives in which case there
 would be no interference with the right to assign work.  In the case of
 employee representatives, Article 9, Section 1 of the agreement provides
 that, "The conduct of representational business as set forth in the
 Agreement shall not normally interfere with classroom instruction unless
 prearranged with the principal." Further, Article 9, Section 2,
 authorizes official time for various representational activities.  The
 provision in issue is not inconsistent with these provisions which
 attempt to reconcile management's right to assign work with Union
 representational activities.  As noted above, management discretion to
 assign work includes the right to determine when such assignments will
 occur and when the work which has been assigned will be performed.
 Assuming that the Union representatives is "assigned" to accompany
 management in these circumstances, nothing in the provision interferes
 with management's right to determine when such work will be performed.
 Thus, it is concluded that the provision does not negate the Agency's
 right to assign work.  Instead, it is an applicable procedure dealing
 with internal security practices which has been negotiated by the
 parties pursuant to section 7106(b).
 
                                Conclusion
 
    The provisions of the collective bargaining agreement mandated by the
 FSIP and by an arbitrator under the impasse procedures of the FSIP,
 concerning the reimbursement of travel and per diem in connection with
 Regional scheduled meetings and the reimbursement of travel and per diem
 expenses for certain witnesses at arbitration hearings, have not been
 demonstrated by the record to be in fact contrary to the Statute or any
 other applicable law, rule, or regulation.  Consequently, Respondent's
 disapproval constituted a failure or refusal to cooperate in impasse
 decisions and violated section 7116(a)(1) and (6) of the Statute, as
 alleged.  The provision dealing with the attendance of a Union
 representative when storage areas are opened, which had been agreed to
 by the parties, was also consistent with law.  Respondent's disapproval
 of these three provisions was inconsistent with section 7114(c)(2),
 which requires approval when an agreement is in accordance with the
 Statute and any other applicable law, rule, or regulation, and such
 disapproval thereby violated section 7116(a)(1) and (8) of the Statute,
 as alleged.  As a direct result of Respondent's disapproval, these
 provisions have not been implemented by the Union and the Activity.
 Thus, Respondent's action has interfered with the bargaining
 relationship between the Union and the Activity in violation of section
 7116(a)(1) and (5) as alleged.
 
    The provision of the agreement mandated by the FSIP concerning
 academic freedom was in fact contrary to the Statute.  Therefore, it
 will be recommended that the allegations that Respondent violated
 section 7114(c)(2), 7116(a)(1), (6), and (8) by disapproving this
 provision be dismissed.
 
    Based on the foregoing findings and conclusions, it is recommended
 that the Authority issue the following Order:
 
                                   ORDER
 
    Pursuant to section 2423.29 of the Rules and Regulations of the
 Federal Labor Relations Authority and section 7118 of the Statute, the
 Authority hereby orders that the Department of Defense Dependents
 Schools (Alexandria, Virginia) shall:
 
    1.  Cease and desist from:
 
          (a) Failing and refusing to cooperate in impasse procedures and
       impasse decisions.
 
          (b) Failing and refusing to approve provisions of a collective
       bargaining agreement which are in accordance with the Statute and
       any other applicable law, rule, or regulation.
 
          (c) In any like or related manner interfering with the
       bargaining relationship between the Department of Defense
       Dependents Schools, Mediterranean Region and the Overseas
       Federation of Teachers, AFT, AFL-CIO.
 
          (d) In any like or related manner, interfering with,
       restraining, or coercing 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) Revoke and rescind its disapproval of provisions of the
       collective bargaining agreement between the Department of Defense
       Dependents Schools, Mediterranean Region and the Overseas
       Federation of Teachers, AFT, AFL-CIO, concerning reimbursement of
       travel and per diem incurred by Union representatives attending
       Regional scheduled meetings, reimbursement of travel and per diem
       expenses incurred by military and civilian employees at
       arbitration hearings, and the attendance of a Union representative
       when employee storage areas are opened.
 
          (b) Authorize Department of Defense Dependents Schools,
       Mediterranean Region to reinstate the above provisions and give
       them retroactive effect to February 4, 1984, the effective date of
       the collective bargaining agreement, subject to any agreement
       which may have been reached by the parties and until modified in a
       manner consistent with the Statute.
 
          (c) Authorize Department of Defense Dependents Schools,
       Mediterranean Region to reimburse and make whole employees and the
       Union for any losses which they incurred as a result of the
       disapproval of the foregoing provisions, including expenses for
       travel and per diem, as applicable, consistent with applicable law
       and regulation.
 
          (d) Post at all schools of the Department of Defense Dependents
       Schools, Mediterranean Region, copies of the attached Notice
       marked "Appendix" on forms to be furnished by the Authority.  Upon
       receipt of such forms, they shall be signed by an appropriate
       official 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 insure that such
       notices are not altered, defaced, or covered by any other
       material.
 
          (e) Pursuant to 5 C.F.R. Section 2423.30 notify the Regional
       Director, Region I, Federal Labor Relations Authority, Boston,
       Massachusetts in writing, within 30 days from the date of this
       order, as to what steps have been taken to comply herewith.
 
    It is further Ordered that the allegations in the complaint alleging
 a violation of the Statute because of Respondent's disapproval of the
 provision in the collective bargaining agreement dealing with academic
 freedom be, and they hereby are, DISMISSED.
 
                                       /s/ GARVIN LEE OLIVER
                                       Administrative Law Judge
 
    Dated:  September 13, 1985
    Washington, D.C.
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Member Frazier's separate opinion, concurring in part and
 dissenting in part, immediately follows this Decision and Order.
 
    (2) Section 7114(c) provides as follows:
 
              Section 7114.  Representation rights and duties
 
                       .   .   .   .   .   .   .
 
 
          (c)(1) An agreement between any agency and an exclusive
       representative shall be subject to approval by the head of the
       agency.
 
          (2) The head of the agency shall approve the agreement within
       30 days from the date the agreement is executed if the agreement
       is in accordance with the provisions of this chapter and any other
       applicable law, rule, or regulation (unless the agency has granted
       an exception to the provision).
 
          (3) If the head of the agency does not approve or disapprove
       the agreement within the 30-day period, the agreement shall take
       effect and shall be binding on the agency and the exclusive
       representative subject to the provisions of this chapter and any
       other applicable law, rule, or regulation.
 
    (3) Another provision referred by the arbitrator to the Panel for
 resolution is not at issue in this case.
 
    (4) Section 7122 provides in pertinent part as follows:
 
               Section 7122.  Exceptions to arbitral awards
 
          (a) Either party to arbitration under this chapter may file
       with the Authority an exception to any arbitrator's award pursuant
       to the arbitration . . . .
 
          (b) If no exception to an arbitrator's award is filed under
       subsection (a) of this section during the 30-day period beginning
       on the date the award is served on the party, the award shall be
       final and binding.  An agency shall take the actions required by
       an arbitrator's final award.  The award may include the payment of
       backpay (as provided in section 5596 of this title).
 
    (5) See also Veterans Administration, 23 FLRA No. 87 (1986), petition
 for review filed sub nom. Veterans Administration v. FLRA, No. 86-1717
 (D.C. Cir. Dec. 22, 1986).
 
    (6) H.R. Rep. No. 96-1403, 95th Cong., 2d Sess. 56 (1978), reprinted
 in Legislative History of the Federal Service Labor-Management Relations
 Statute, Title VII of the Civil Service Reform Act of 1978, at 702
 (1979) (hereafter cited as Legislative History).
 
    (7) H.R. Rep. No. 95-1717, 95th Cong., 2d Sess. 158 (1978), reprinted
 in Legislative History, at 826.
 
    (8) See also American Federation of Government Employees, Local 3511,
 AFL-CIO, 23 FLRA No. 77 (1986);  U.S. Department of Justice and
 Department of Justice, Bureau of Prisons (Washington, D.C.) and Federal
 Correctional Institution (Danbury, Connecticut), 20 FLRA 39 (1985),
 enforced sub nom. U.S. Department of Justice and Department of Justice,
 Bureau of Prisons v. FLRA, 792 F.2d 25 (2nd Cir. 1986);  and General
 Services Administration, Washington, D.C., 18 FLRA 395 (1985), in which
 the Authority found violations of the Statute based on refusals to
 comply with final and binding arbitration awards rendered in grievance
 arbitration proceedings to which no exceptions were timely filed or to
 which timely exceptions were filed but were subsequently denied on the
 merits.
 
    (9) See also Department of the Air Force, Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio and American Federation
 of Government Employees, Council of Locals, No. 214, 18 FLRA 710 (1985),
 request for clarification denied March 11, 1986;  and Department of
 Housing and Urban Development and American Federation of Government
 Employees, Local 476, AFL-CIO, 18 FLRA 783 (1985).
 
    (10) Agency heads may properly delegate their section 7114(c) review
 authority.  See American Federation of Government Employees, Local 1546
 and Department of the Army, Sharpe Army Depot, Lathrop, California, 19
 FLRA 1016 (1985), remanded as to other matters sub nom. American
 Federation of Government Employees, AFL-CIO, Local 1546 v. FLRA, No.
 85-1689 (9th Cir. 1986).
 
    (11) Section 7123 provides in relevant part as follows:
 
               Section 7123.  Judicial review;  enforcement
 
          (a) Any person aggrieved by any final order of the Authority
       other than an order under --
 
          (1) section 7122 of this title (involving an award by an
       arbitrator), unless the order involves an unfair labor practice
       under section 7118 of this title, or
 
                       .   .   .   .   .   .   .
 
 
          may . . . institute an action for judicial review of the
       Authority's order in the United States court of appeals(.)
 
    (12) While there is some indication in the record that the parties
 entered into renegotiations over the academic freedom provision after
 the Respondent indicated its disapproval on January 31, the Respondent
 is here charged with improperly disapproving the provisions mandated by
 the interest arbitration award, not with disapproving the revised
 provision.  Our findings and conclusions, therefore, go to the provision
 as directed in the award.  This is true also for the provision on the
 opening of employee storage areas, negotiated by the parties themselves,
 to be discussed below.
 
    (13) In BATF, the Court held that section 7131(a) of the Statute does
 not entitle employees on official time to the payment of travel and per
 diem expenses.  However, the Court added that "unions may presumably
 negotiate for such payments in collective bargaining as they do in the
 private sector." 464 U.S. at 107 n. 17.  Subsequent to that decision,
 the Authority found the authorization of travel and per diem expenses to
 be within the duty to bargain.  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).
 
    (14) Section 7103(a)(2) provides in relevant part as follows:
 
                 Section 7103.  Definitions;  application
 
          (a) For the purpose of this chapter --
 
                       .   .   .   .   .   .   .
 
 
          (2) "employee" means an individual --
 
                       .   .   .   .   .   .   .
 
 
          but does not include --
 
                       .   .   .   .   .   .   .
 
 
          (ii) a member of the uniformed services(.)
 
    (15) Thus, section 7121 by its very terms mandates that collective
 bargaining agreements contain negotiated grievance procedures
 culminating in binding arbitration.  As to the intended scope and
 coverage of negotiated grievance procedures, see the following statement
 of the Joint Conferees contained in H.R. Rep. 95-1717, 95th Cong., 2d
 Sess. 157 (1978) reprinted in Legislative History, supra, at 825:
 
          All matters that under the provisions of law could be submitted
       to the grievance procedures shall in fact be within the scope of
       any grievance procedure negotiated by the parties unless the
       parties agree as part of the collective bargaining process that
       certain matters shall not be covered by the grievance procedures.
 
    See also the following cases in which the Authority discussed broad
 scope grievance procedures:  American Federation of Government
 Employees, AFL-CIO, National Council of EEOC Locals and Equal Employment
 Opportunity Commission, 10 FLRA 3 (1982);  National Federation of
 Federal Employees, Local 15 and Headquarters, U.S. Army Armament
 Materiel Readiness Command, Rock Island Arsenal, Illinois, 9 FLRA 478
 (1982);  and, American Federation of Government Employees, AFL-CIO,
 Local 2782 and Department of Commerce, Bureau of the Census, Washington,
 D.C., 6 FLRA 314 (1981).
 
    (16) In finding the provision to be within the duty to bargain, we
 therefore do not adopt the Judge's characterization of the matter as
 being permissively negotiable and further find it unnecessary in this
 case to pass upon his comments regarding agency head disapproval of
 "permissive" subjects of bargaining.
 
    (17) The proposals in the cases cited by the Judge involved the
 presence of an individual when agency management was conducting a search
 of that individual's desk, locker, etc.  Here, the provision would allow
 for attendance by a union representative at such a search.  We do not
 view this distinction as a material difference among the cases and no
 such argument has been made by the Respondent.
 
    (18) See our discussion, supra n. 12, where we noted there was some
 evidence the parties had negotiated certain of the disapproved
 provisions.
 
    (19) See Department of the Treasury, Internal Revenue Service,
 Columbia District, Columbia, South Carolina, 22 FLRA No. 28 (1986),
 petition for review filed sub nom. Department of the Treasury, Internal
 Revenue Service Columbia District, Columbia, South Carolina v. FLRA, No.
 86-1467 (D.C. Cir. Aug. 22, 1986), and Office of the General Counsel,
 National Labor Relations Board, 22 FLRA No. 25 (1986), petition for
 review filed sub nom. National Labor Relations Board, Office of the
 General Counsel v. FLRA, No. 86-1468 (D.C. Cir. Aug. 22, 1986).  Of
 course, all such payments to the Charging Party and the employees must
 be consistent with law and regulation, including the Federal Travel
 Regulations.
 
    (20) The Respondent's request for a stay, is hereby denied.
 
    (21) This item, designated as Article 12, Section 7, (Res. Ex. 3),
 appears in Gen. Counsel's Ex. 4 as Article 20, Section 15, as a result
 of the Union's and Activity's redrafting of the agreement's text in
 January 1984 (Tr. 147, Tr. 307-309).
 
    (22) The FMCS reply of June 10, 1985 occurred after the hearing in
 this case and was made an attachment to Respondent's brief.  The General
 Counsel objects to any consideration being given the letter on the basis
 that there has been no showing that the letter is relevant and that
 reopening of the record is warranted.  The letter is relevant and is
 helpful in showing the current status of this matter before the FMCS and
 FSIP.  It is received and made a part of the record as ALJ Ex. 3.
 Otherwise only matters contained in the original record have been relied
 on in deciding this case.  Accordingly, the General Counsel's Motion to
 Strike is denied.  Internal Revenue Service, 16 FLRA No. 119, 16 FLRA
 845, n. 1 (1984).
 
    (23) Respondent has not claimed that these negotiations were
 conducted pursuant to the January 25, 1984 memorandum of understanding
 (see Finding No. 5) and, thus, constituted a waiver of the Union's right
 to file an unfair labor practice charge.  If it were deemed necessary to
 decide this issue, I would find no clear and unequivocal waiver on this
 basis.
 
    (24) As in NTEU, Chapter 61, 7 FLRA at 307, n. 5, it is noted that
 the provision involves internal security practices toward storage areas
 used exclusively by employees and would not necessarily be dispositive
 in other circumstances involving stricter internal security practices
 such as those concerned with a special security room, vault or safe.
 
 
 
 
 
 
 
                                 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 STATUTE
 
                   WE HEREBY NOTIFY OUR EMPLOYEES THAT:
 
    WE WILL NOT fail and refuse to cooperate in impasse procedures and
 impasse decisions, fail and refuse to approve provisions of a collective
 bargaining agreement which are in accordance with the Statute and any
 other applicable law, rule, or regulations, or in any like or related
 manner interfere with the bargaining relationship between the Department
 of Defense Dependents Schools, Mediterranean Region and the Overseas
 Federation of Teachers, AFT, AFL-CIO.
 
    WE WILL revoke and rescind our disapproval of provisions of the
 collective bargaining agreement between the Department of Defense
 Dependents Schools, Mediterranean Region and the Overseas Federation of
 Teachers, AFT, AFL-CIO, concerning reimbursement of travel and per diem
 incurred by Union representatives attending Regional scheduled meetings,
 reimbursement of travel and per diem expenses incurred by military and
 civilian employees at arbitration hearings, and the attendance of a
 Union representative when employee storage areas are opened.
 
    WE WILL authorize Department of Defense Dependents Schools,
 Mediterranean Region to reinstate the above provisions and give them
 retroactive effect to February 4, 1984, the effective date of the
 collective bargaining agreement, subject to any agreement which may have
 been reached by the parties and until modified in a manner consistent
 with the Statute.
 
    WE WILL authorize Department of Defense Dependents Schools,
 Mediterranean Region to reimburse and make whole employees and the Union
 for any losses which they incurred as a result of the disapproval of the
 foregoing provisions, including expenses for travel and per diem, as
 applicable, consistent with applicable law and regulation.
 
    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.
                                       (Agency or Activity)
 
    Dated: