38:0755(66)CA - - DODDS, Dependents Schools, Mediterranean Region, Madrid, Spain and Overseas Federation of Teachers - - 1990 FLRAdec CA - - v38 p755
[ v38 p755 ]
The decision of the Authority follows:
38 FLRA No. 66
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS
OVERSEAS FEDERATION OF TEACHERS
DECISION AND ORDER
December 6, 1990
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This consolidated unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on the parties' stipulation of facts. The General Counsel filed a brief with the Authority. The Respondent and the Charging Party did not file briefs.
The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to negotiate over mid-term bargaining proposals submitted by the Charging Party (the Union), that are the same or substantially identical to proposals previously held to be negotiable by the Authority.
We find that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate with the Union.
II. Background and Facts
On or about April 2, 1987, the Union requested the Respondent to negotiate over the following proposal:
PROPOSAL OVER EXTENDED WORKDAY
Teachers who as part of their regularly assigned work are required to remain beyond their duty hours will be compensated at their daily rate comparable to the number of hours worked.
On or about January 26, 1988, the Union amended the proposal to provide as follows:
Teachers who as part of their regularly assigned work are required to remain beyond their duty hours will be compensated at their daily rate times 1 1/2 (one and one-half) comparable to the number of hours worked.
The parties stipulated that the proposals set forth above are the same or substantially the same as the proposals found to be negotiable by the Authority in Overseas Education Association and Department of Defense Dependents Schools, 28 FLRA 700 (1987) (Proposal 1), and Overseas Education Association and Department of Defense Dependents Schools, 28 FLRA 936 (1987) (Proposal 2).
On or about April 15, 1987, the Union submitted the following proposal to the Respondent for negotiations:
Teachers who request such will be authorized to receive their basic salary and benefits over a twelve month period.
The parties stipulated that the proposal set forth above is the same or substantially the same as the proposal found to be negotiable by the Authority in Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 734 (1987) (Proposal 33).
On or about February 18, 1988, the Respondent declared the above proposals to be nonnegotiable. In addition, in response to the Union's unfair labor practice charges, the Respondent asserted that it had no duty to bargain because Article 7, Section 7b of the parties' collective bargaining agreement constitutes a clear and unmistakable waiver of the Union's statutory right to negotiate during the term of the agreement. Article 7, Section 7b provides as follows:
b. Conditions of employment means personnel policies, practices, and matters affecting working conditions of employees within the Unit. The Employer will give timely notice to the Union of changes thereto. Upon request of the Union, as appropriate, prior to implementation, the Employer will negotiate any newly formulated personnel policies and practices and other matters involving or impacting on working conditions. This obligation applies to those changes within the Unit proposed by the Employer during the duration of this Agreement.
The collective bargaining agreement has been in effect since February 4, 1984.
III. Position of the General Counsel
The General Counsel argues that it is well established that an agency has a statutory obligation to negotiate over proposals that are the same or substantially the same as proposals previously held to be negotiable by the Authority. Thus, the General Counsel claims that, unless the Respondent can establish that the proposals are now nonnegotiable or that the Respondent has no duty to bargain, a violation of section 7116(a)(1) and (5) must be found because it is undisputed that the proposals at issue are the same or substantially the same as proposals previously held to be negotiable by the Authority. The General Counsel maintains that the proposals are not now nonnegotiable and that the Respondent has a duty to bargain.
The General Counsel also contends that the Union has not contractually waived its statutory right to engage in mid-term bargaining. The General Counsel argues that the stipulated record and the language of Article 7, Section 7b do not support a finding of waiver.
IV. Analysis and Conclusions
We conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to negotiate over the mid-term bargaining proposals submitted by the Union.
The duty to bargain in good faith imposed by the Statute requires an agency to bargain during the term of a collective bargaining agreement on negotiable union-initiated proposals concerning matters that are not addressed in the agreement and were not waived by the union. For example, Internal Revenue Service, 29 FLRA 162, 167 (1987). Such a waiver of bargaining rights may be established by express agreement or by bargaining history and must be clear and unmistakable. Id. at 166. In determining whether a contract provision constitutes a clear and unmistakable waiver of the union's right to initiate bargaining, we will examine the wording of the provision and other relevant provisions of the contract, bargaining history, and past practice as presented by parties and the record before us. Id.
We find that the wording of Article 7, Section 7b does not constitute a clear and unmistakable waiver of the Union's right to bargain during the term of the agreement. We will not infer such a waiver from the fact that Article 7, Section 7b requires bargaining over Employer-initiated changes in its personnel policies and practices but is silent with regard to Union-initiated proposals. The provision does not state that it provides the exclusive conditions under which mid-term bargaining will be required. See U.S. Army Corps of Engineers, Kansas City District, Kansas City, Missouri, 31 FLRA 1231, 1237 (1988). Indeed, at the time that provision was negotiated, Authority decisional law did not require mid-term bargaining over union-initiated proposals. See Internal Revenue Service. Furthermore, as the Respondent did not file a brief, the record evidence does not establish any other basis on which to find that the Union waived its statutory right to bargain on mid-term proposals. See id. at 167. Consequently, the Respondent had a duty to bargain on the proposals so long as they were negotiable.
An agency violates section 7116(a)(1) and (5) of the Statute when it refuses to bargain over a proposal that is the same or substantially identical to a proposal the Authority has previously determined to be negotiable. For example, Veterans Administration (Washington, D.C.) and Veterans Administration Hospital (Brockton, Massachusetts) and National Association of Government Employees, SEIU, AFL-CIO, 35 FLRA 188, 197 (1990). As stipulated by the parties in this case, the proposals that the Respondent declared to be nonnegotiable are the same or substantially identical to proposals previously found negotiable by the Authority in Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA 700, 709-11 (1987) (Proposal 1), rev'd as to other matters sub nom. OEA v. FLRA, 876 F.2d 960 (D.C. Cir. 1989); Overseas Education Association and Department of Defense Dependents Schools, 28 FLRA 936, 942 (1987) (Proposal 2), enf'd sub nom. DODDS v. FLRA, No. 88-1004 (D.C. Cir. June 22, 1990) (unpub. en banc order); and Overseas Education Association Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 770-72 (1987) (Proposal 33), enf'd as to other matters sub nom. DODDS v. FLRA, No. 87-1735 (D.C. Cir. June 22, 1990) (unpub. en banc order). Moreover, the U.S. Supreme Court recently confirmed the negotiability of bargaining proposals involving pay and fringe benefits of school employees in Fort Stewart Schools v. FLRA, 110 S. Ct. 2043 (1990). Accordingly, we find that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain on the Union's negotiable proposals.
Having found such violations, we next consider what remedial order will best effectuate the purposes and policies of the Statute. The Authority has indicated that a retroactive bargaining order is appropriate to remedy a refusal to bargain over a specific proposal that had previously been held by the Authority to be within the duty to bargain. For example, Environmental Protection Agency, 21 FLRA 786, 790 (1986); Veterans Administration Regional Office (Buffalo, New York), 10 FLRA 167 (1982). See generally, NTEU v. FLRA, 910 F.2d 964 (D.C. Cir. 1990) (en banc) (discussing Authority's wide discretion to fashion remedies for unfair labor practices, including retroactive bargaining orders). The Authority has also ordered retroactive bargaining orders in cases involving refusals to bargain over rates of pay that are negotiable. The Authority concluded that such a remedy is the only way that the affected employees could be made whole. U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 22 FLRA 758, 765 (1986), rev'd on other grounds sub nom. DOE v. FLRA, 880 F.2d 1163 (10th Cir. 1989). In our view, an order that the Respondent give retroactive application to any agreements reached is appropriate and best effectuates the purposes and policies of the Statute. Although an agreement on Proposal #2 may not be susceptible to retroactive application, we will order retroactive application where possible in order to fully remedy Respondent's unlawful activity.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we order that the Department of Defense Dependents Schools, Mediterranean Region, Madrid, Spain shall: