09:0769(96)CA - DOD Dependents Schools and Overseas Education Association, NEA -- 1982 FLRAdec CA
[ v09 p769 ]
09:0769(96)CA
The decision of the Authority follows:
9 FLRA No. 96
DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS
Respondent
and
OVERSEAS EDUCATION ASSOCIATION, NEA
Charging Party
Case No. 3-CA-1205
DECISION AND ORDER
THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE REGIONAL
DIRECTOR'S "ORDER TRANSFERRING CASE TO THE AUTHORITY" IN ACCORDANCE WITH
SECTION 2429.1(A) OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR
2429.1(A)).
UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, BRIEFS SUBMITTED
BY THE RESPONDENT AND THE GENERAL COUNSEL, /1/ AND THE AMICUS CURIAE
BRIEF FILED BY THE OFFICE OF PERSONNEL MANAGEMENT, /2/ THE AUTHORITY
FINDS:
THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1) AND (8) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS
STATUTE (THE STATUTE) /3/ BY REFUSING TO REIMBURSE EMPLOYEES SERVING AS
MEMBERS OF THE UNION NEGOTIATING TEAM FOR TRAVEL AND PER DIEM EXPENSES
INCURRED WHILE NEGOTIATING A NEW COLLECTIVE BARGAINING AGREEMENT,
CONTRARY TO THE REQUIREMENTS OF SECTION 7131(A) OF THE STATUTE. /4/ THE
RESPONDENT CONCEDES THAT IT HAS DENIED REQUESTS FOR REIMBURSEMENT OF THE
EMPLOYEES' TRAVEL AND PER DIEM EXPENSES, BUT ARGUES THAT THE UNFAIR
LABOR PRACTICE CHARGE WAS UNTIMELY FILED HEREIN, AND THAT IN ANY EVENT
IT IS NOT OBLIGATED TO MAKE SUCH PAYMENTS UNDER THE STATUTE.
THE PARTIES STIPULATE THAT THEY ENGAGED IN NEGOTIATIONS FOR A NEW
COLLECTIVE BARGAINING AGREEMENT FROM ON OR ABOUT JULY 23, 1979, UNTIL ON
OR ABOUT DECEMBER 6, 1979. FROM ON OR ABOUT AUGUST 20, 1979, UNTIL THE
TERMINATION OF NEGOTIATIONS, THE RESPONDENT'S EMPLOYEES WHO ARE MEMBERS
OF THE UNION NEGOTIATING TEAM WERE GRANTED OFFICIAL TIME WHILE ENGAGED
IN NEGOTIATIONS. HOWEVER, THEY HAVE BEEN REFUSED PAYMENT FOR TRAVEL AND
PER DIEM EXPENSES INCURRED DURING THE TIME IN WHICH THE PARTIES WERE
ENGAGED IN NEGOTIATIONS.
THE RESPONDENT ARGUES THAT THE CHARGE WAS UNTIMELY FILED UNDER
SECTION 7118(A)(4)(A) OF THE STATUTE /5/ INASMUCH AS IT WAS FILED ON
JUNE 10, 1980, MORE THAN SIX MONTHS AFTER THE END OF NEGOTIATIONS ON
DECEMBER 6, 1979. HOWEVER, MEMBERS OF THE UNION NEGOTIATING TEAM SOUGHT
REIMBURSEMENT FOR TRAVEL AND PER DIEM EXPENSES ON JANUARY 9, MARCH 28
AND JUNE 12, 1980. THE RESPONDENT DENIED THE JANUARY 9 REQUEST ON
JANUARY 23, 1980, AND DID NOT REPLY TO THE OTHERS. THUS, THE FILING OF
THE CHARGE ON JUNE 10, 1980, WAS WITHIN SIX MONTHS OF THE RESPONDENT'S
REFUSAL TO REIMBURSE THE EMPLOYEES FOR SUCH EXPENSES, A REFUSAL WHICH
THE RESPONDENT CONTINUES TO THIS DATE. ACCORDINGLY, THE AUTHORITY
CONCLUDES THAT THE UNFAIR LABOR PRACTICE CHARGE HEREIN WAS NOT UNTIMELY
FILED AS ALLEGED BY THE RESPONDENT.
ON THE MERITS, THE AUTHORITY HAS PREVIOUSLY FOUND THAT EMPLOYEES
REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE NEGOTIATION OF A
COLLECTIVE BARGAINING AGREEMENT ON OFFICIAL TIME UNDER SECTION 7131(A)
OF THE STATUTE ARE ENTITLED TO PAYMENT FROM AGENCIES FOR TRAVEL AND PER
DIEM EXPENSES. SEE INTERPRETATION AND GUIDANCE, 2 FLRA 264(1979). SEE
ALSO BUREAU OF ALCOHOL, TOBACCO AND FIREARMS, WESTERN REGION, DEPARTMENT
OF THE TREASURY, SAN FRANCISCO, CALIFORNIA, 4 FLRA NO. 40(1980),
ENFORCED, 672 F.2D 732 (9TH CIR. 1982). THEREFORE, FOR THE REASONS
STATED THEREIN, THE AUTHORITY FINDS THAT THE RESPONDENT VIOLATED SECTION
7116(A)(1) AND (8) OF THE STATUTE BY REFUSING TO PAY TRAVEL AND PER DIEM
EXPENSES TO EMPLOYEES ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
STATUTE WHILE REPRESENTING THE UNION IN THE NEGOTIATION OF THE PARTIES'
NEW COLLECTIVE BARGAINING AGREEMENT. /6/
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 SHALL:
1. CEASE AND DESIST FROM:
(A) FAILING AND REFUSING TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
TRAVEL AND PER DIEM EXPENSES INCURRED BY ITS EMPLOYEES AS A RESULT OF
THEIR PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
STATUTE AS DULY DESIGNATED REPRESENTATIVES OF THE OVERSEAS EDUCATION
ASSOCIATION, NEA, THE EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED
CONTRACT NEGOTIATIONS.
(B) IN ANY LIKE OR RELATED MANNER INTERFERING WITH, RESTRAINING, OR
COERCING ITS EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS ASSURED BY THE
STATUTE.
2. TAKE THE FOLLOWING AFFIRMATIVE ACTION IN ORDER TO EFFECTUATE THE
PURPOSES AND POLICIES OF THE STATUTE:
(A) PROVIDE PAYMENT TO ANY OF ITS EMPLOYEES WHO SUBMIT A PROPERLY
DOCUMENTED VOUCHER FOR TRAVEL AND PER DIEM EXPENSES INCURRED AS THE
RESULT OF PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
STATUTE AS THE DULY DESIGNATED REPRESENTATIVES OF THE OVERSEAS EDUCATION
ASSOCIATION, NEA, IN THE NEGOTIATION OF THE PARTIES' COLLECTIVE
BARGAINING AGREEMENT.
(B) POST AT ITS FACILITIES 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 AND SHALL BE POSTED AND MAINTAINED BY HIM FOR
60 CONSECUTIVE DAYS THEREAFTER, IN CONSPICUOUS PLACES, INCLUDING ALL
BULLETIN BOARDS AND OTHER PLACES WHERE NOTICES TO EMPLOYEES ARE
CUSTOMARILY POSTED. THE DIRECTOR SHALL TAKE REASONABLE STEPS TO INSURE
THAT SAID NOTICES ARE NOT ALTERED, DEFACED, OR COVERED BY ANY OTHER
MATERIAL.
(C) PURSUANT TO SECTION 2423.30 OF THE AUTHORITY'S RULES AND
REGULATIONS, NOTIFY THE REGIONAL DIRECTOR, REGION III, FEDERAL LABOR
RELATIONS AUTHORITY, IN WRITING, WITHIN 30 DAYS FROM THE DATE OF THIS
ORDER, AS TO WHAT STEPS HAVE BEEN TAKEN TO COMPLY HEREWITH.
ISSUED, WASHINGTON, D.C., AUGUST 4, 1982
RONALD W. HAUGHTON, CHAIRMAN
HENRY B. FRAZIER III, MEMBER
LEON B. APPLEWHAITE, MEMBER
FEDERAL LABOR RELATIONS AUTHORITY
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 0WE
HEREBY NOTIFY OUR EMPLOYEES THAT:
WE WILL NOT FAIL OR REFUSE TO PROVIDE PAYMENT OF PROPERLY DOCUMENTED
TRAVEL AND PER DIEM EXPENSES INCURRED BY OUR EMPLOYEES AS A RESULT OF
THEIR PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE
STATUTE AS DULY DESIGNATED REPRESENTATIVES OF THE OVERSEAS EDUCATION
ASSOCIATION, NEA, OUR EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED
CONTRACT NEGOTIATIONS.
WE WILL NOT IN ANY LIKE OR RELATED MANNER INTERFERE WITH, RESTRAIN,
OR COERCE OUR EMPLOYEES IN THE EXERCISE OF THEIR RIGHTS AS ASSURED BY
THE STATUTE.
WE WILL PROVIDE PAYMENT TO ANY OF OUR EMPLOYEES WHO SUBMIT A PROPERLY
DOCUMENTED VOUCHER FOR TRAVEL AND PER DIEM EXPENSES INCURRED AS A RESULT
OF PARTICIPATION ON OFFICIAL TIME UNDER SECTION 7131(A) OF THE STATUTE
AS THE DULY DESIGNATED REPRESENTATIVES OF THE OVERSEAS EDUCATION
ASSOCIATION, NEA, OUR EMPLOYEES' EXCLUSIVE REPRESENTATIVE, IN SCHEDULED
CONTRACT NEGOTIATIONS.
(AGENCY OR ACTIVITY)
DATED: BY: (SIGNATURE) (TITLE)
THIS NOTICE MUST REMAIN POSTED FOR 60 CONSECUTIVE DAYS FROM THE DATE
OF THIS POSTING AND MUST NOT BE ALTERED, DEFACED, OR COVERED BY ANY
OTHER MATERIAL.
IF EMPLOYEES HAVE ANY QUESTIONS CONCERNING THIS NOTICE, OR COMPLIANCE
WITH ITS PROVISIONS, THEY MAY COMMUNICATE DIRECTLY WITH THE REGIONAL
DIRECTOR, FEDERAL LABOR RELATIONS AUTHORITY, REGION III, WHOSE ADDRESS
IS 1111 18TH STREET, NW., SUITE 700, WASHINGTON, D.C., 20036 AND WHOSE
TELEPHONE NUMBER IS (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ THE RESPONDENT HAS MOVED TO STRIKE TWO STATEMENTS IN THE GENERAL
COUNSEL'S BRIEF ON THE GROUNDS THAT THOSE STATEMENTS ARE UNSUPPORTED BY
THE STATUTE OR CASE LAW AND DIRECTLY CONTRADICT THE STIPULATION. IN ANY
MATTER SUBMITTED DIRECTLY TO THE AUTHORITY FOR DECISION BASED UPON A
STIPULATION OF FACTS, THE AUTHORITY WILL CONSIDER ONLY FACTS CONTAINED
IN THE STIPULATION. ACCORDINGLY, THE RESPONDENT'S MOTION IS DENIED.
SEE GENERAL SERVICES ADMINISTRATION, 6 FLRA NO. 77(1981).
/2/ THE OFFICE OF PERSONNEL MANAGEMENT WAS GRANTED PERMISSION TO
PARTICIPATE IN THIS PROCEEDING AS AMICUS CURIAE PURSUANT TO SECTION
2429.9 OF THE AUTHORITY'S RULES AND REGULATIONS.
/3/ SECTION 7116(A)(1) AND (8) OF THE STATUTE PROVIDES:
SEC. 7116. UNFAIR LABOR PRACTICES
(A) FOR THE PURPOSE OF THIS CHAPTER, IT SHALL BE AN UNFAIR LABOR
PRACTICE FOR AN AGENCY--
(1) TO INTERFERE WITH, RESTRAIN, OR COERCE ANY EMPLOYEE IN THE
EXERCISE BY THE EMPLOYEE OF
ANY RIGHT UNDER THIS CHAPTER;
* * * *
(8) TO OTHERWISE FAIL OR REFUSE TO COMPLY WITH ANY PROVISION OF THIS
CHAPTER.
/4/ SECTION 7131(A) OF THE STATUTE PROVIDES:
SEC. 7131. OFFICIAL TIME
(A) ANY EMPLOYEE REPRESENTING AN EXCLUSIVE REPRESENTATIVE IN THE
NEGOTIATION OF A
COLLECTIVE BARGAINING AGREEMENT UNDER THIS CHAPTER SHALL BE
AUTHORIZED OFFICIAL TIME FOR SUCH
PURPOSES, INCLUDING ATTENDANCE AT IMPASSE PROCEEDING, DURING THE TIME
THE EMPLOYEE OTHERWISE
WOULD BE IN DUTY STATUS. THE NUMBER OF EMPLOYEES FOR WHOM OFFICIAL
TIME IS AUTHORIZED UNDER
THIS SUBSECTION SHALL NOT EXCEED THE NUMBER OF INDIVIDUALS DESIGNATED
AS REPRESENTING THE
AGENCY FOR SUCH PURPOSES.
/5/ SECTION 7118(A)(4)(A) PROVIDES:
SEC. 7118. PREVENTION OF UNFAIR LABOR PRACTICES
* * * *
(A)(4)(A) EXCEPT AS PROVIDED IN SUBPARAGRAPH (B) OF THIS PARAGRAPH,
NO COMPLAINT SHALL BE
ISSUED BASED ON ANY ALLEGED UNFAIR LABOR PRACTICE WHICH OCCURRED MORE
THAN 6 MONTHS BEFORE THE
FILING OF THE CHARGE WITH THE AUTHORITY.
/6/ BECAUSE THE ENTITLEMENT TO TRAVEL AND PER DIEM EXPENSES APPLIES
ONLY TO EMPLOYEES ON OFFICIAL TIME, AS DESCRIBED ABOVE, NO SUCH
ENTITLEMENT APPLIES TO THE PERIOD JULY 23, 1979, TO AUGUST 20, 1979,
WHEN NEGOTIATIONS WERE BEING CONDUCTED BUT EMPLOYEES NEGOTIATING FOR THE
UNION WERE NOT ON OFFICIAL TIME.