38:0755(66)CA - - DODDS, Dependents Schools, Mediterranean Region, Madrid, Spain and Overseas Federation of Teachers - - 1990 FLRAdec CA - - v38 p755



[ v38 p755 ]
38:0755(66)CA
The decision of the Authority follows:


38 FLRA No. 66

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS

DEPENDENTS SCHOOLS

MEDITERRANEAN REGION

MADRID, SPAIN

(Respondent)

and

OVERSEAS FEDERATION OF TEACHERS

AFL-CIO

(Charging Party)

1-CA-80240

1-CA-80241

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:

Proposal #2

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.

V. Order

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:

1. Cease and desist from:

(a) Declaring to be nonnegotiable proposals made in the course of negotiations by the Overseas Federation of Teachers, AFL-CIO, the exclusive representative of its employees, that are the same or substantially identical to proposals previously determined to be negotiable by the Authority.

(b) Refusing to bargain with the Overseas Federation of Teachers, AFL-CIO, the exclusive representative of its employees, on negotiable proposals submitted by the Union during the term of the parties' existing collective bargaining agreement, when the Union did not clearly and unmistakably waive its right to bargain on such mid-term proposals.

(c) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of the rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Upon request of the Overseas Federation of Teachers, AFL-CIO, the exclusive representative of its employees, negotiate on the Union's mid-term proposals concerning compensation for teachers who as part of their regularly assigned work are required to remain beyond their duty hours and receipt by teachers of basic salary and benefits over a 12-month period.

(b) Apply any agreement reached pursuant to the bargaining request made by the Overseas Federation of Teachers, AFL-CIO in accord with paragraph 2(a) above retroactive to the date on or about February 18, 1988, on which the proposals were declared to be nonnegotiable.

(c) 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 Authority. Upon receipt of such forms, they shall be signed by the Director of the Department of Defense Dependents Schools, Mediterranean Region, Madrid, Spain 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.

(d) 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.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT declare to be nonnegotiable proposals made in the course of negotiations by the Overseas Federation of Teachers, AFL-CIO, the exclusive representative of our employees, that are the same or substantially identical to proposals previously determined to be negotiable by the Federal Labor Relations Authority.

WE WILL NOT refuse to bargain with the Overseas Federation of Teachers, AFL-CIO, the exclusive representative of our employees, on negotiable proposals submitted by the Union during the term of the parties' existing collective bargaining agreement, when the Union did not clearly and unmistakably waive its right to bargain on such mid-term proposals.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of the rights assured them by the Statute.

WE WILL, upon request of the Overseas Federation of Teachers, AFL-CIO, the exclusive representative of our employees, negotiate on the Union's mid-term proposals concerning compensation for teachers who as part of their r