50:0197(38)CA - - DOD Dependents Schools and Overseas Education Association - - 1995 FLRAdec CA - - v50 p197
[ v50 p197 ]
The decision of the Authority follows:
50 FLRA No. 38
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF DEFENSE
OVERSEAS EDUCATION ASSOCIATION
DECISION AND ORDER
February 28, 1995
Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.
I. Statement of the Case
The Administrative Law Judge issued the attached decision in the above-entitled proceeding finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by changing its policy concerning certain travel reimbursements for unit employees without bargaining with the Union over the impact and implementation of the change. The Respondent filed exceptions to the Judge's decision. The General Counsel filed an opposition to the exceptions.(*)
Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.
Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Defense Dependents Schools shall:
1. Cease and desist from:
(a) Unilaterally changing its travel reimbursement policies for unit employees without bargaining with the Overseas Education Association, the exclusive representative of an appropriate unit of its employees, to the extent consistent with law and regulation, over the impact and implementation of the change.
(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured them 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) Rescind the January 14, 1992, memorandum from the Chief, Finance Division, Germany Region and, to the extent consistent with law and regulation, restore the policy in effect prior to December 1, 1991, governing travel reimbursements of bargaining unit employees for the use of privately owned vehicles for travel to alternate duty sites.
(b) Make whole all bargaining unit employees for all monies lost as a result of the January 14, 1992, change in travel reimbursement.
(c) Notify the Overseas Education Association of any proposed change in travel reimbursement policies affecting unit employees and, upon request, bargain to the extent consistent with law and regulation.
(d) Post at its facilities in the Germany 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, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.
(e) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Washington Region, 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 unilaterally change our travel reimbursement policies for unit employees without bargaining with the Overseas Education Association, the exclusive representative of an appropriate unit of our employees, to the extent consistent with law and regulation, over the impact and implementation of the change.
WE WILL NOT in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.
WE WILL rescind the January 14, 1992, memorandum from the Chief, Finance Division, Germany Region, and, to the extent consistent with law and regulation, restore the policy in effect prior to December 1, 1991, governing travel reimbursements of bargaining unit employees for the use of privately owned vehicles for travel to alternate duty sites.
WE WILL make whole all bargaining unit employees for all monies lost as a result of the January 14, 1992, change in travel reimbursement.
WE WILL notify the Overseas Education Association of any proposed change in travel reimbursement policies affecting unit employees and, upon request, bargain to the extent consistent with law and regulations.
This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.
If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Washington Regional Office, Federal Labor Relations Authority, whose address is: 1255 22nd Street, N.W. 4th Floor, Washington, D.C. 20037 and whose telephone number is: (202)653-8500.
UNITED STATES OF AMERICA
FEDERAL LABOR RELATIONS AUTHORITY
OFFICE OF ADMINISTRATIVE LAW JUDGES
WASHINGTON, D.C. 20424-0001
DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS
OVERSEAS EDUCATION ASSOCIATION
Case No. WA-CA-20892
Leonard L. Bransford
Representative of Respondent
H. T. Nguyen
Counsel for the Charging Party
Laurence M. Evans
Counsel for the General Counsel, FLRA
Before: GARVIN LEE OLIVER
Administrative Law Judge
Statement of the Case
The unfair labor practice complaint alleged that Respondent violated section 7116(a)(l) and (5) of the Federal Service Labor-Management Relations Statute (the Statute), 5 U.S.C. §§ 7116(a)(l) and (5), when Respondent, by its Germany Region, implemented a change in its existing policy for reimbursing bargaining unit employees for use of privately owned vehicles without bargaining with the Charging Party over the impact and implementation of the change.
Respondent's answer admitted the allegations as to the Respondent, the Union, and the charge, but denied any change in employee working conditions or any violation of the Statute.
A hearing was held in Washington, D.C. 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 helpful briefs. 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
The Overseas Education Association (OEA or Union) is the certified exclusive representative of a unit of employees appropriate for collective bargaining at the Department of Defense Dependents Schools (DODDS or Respondent).
OEA and DODDS were, at all relevant times, parties to a collective bargaining agreement. Article 7A, Section 1.B. provides that DODDS shall provide proposals about proposed changes in working conditions or policies to OEA in writing, normally at least sixty days prior to the proposed implementation date, and, if the Union wishes to negotiate, it shall submit written proposals within thirty days following receipt of the proposed changes.
On September 16, 1991, Mr. Thomas F. Garnett, Jr., Director, Personnel Management, Office of Civilian Personnel Policy/Equal Opportunity, Office of the Assistant Secretary of Defense, Department of Defense, advised OEA of a proposed change to the Department of Defense Joint Travel Regulations (JTRs) relating to travel to alternate duty locations. Such notice was provided in accordance with the national consultation rights which OEA holds with the Department of Defense (DOD). The record does not contain any response by OEA to the DOD notice.
Under an agreement between DODDS and the military department (otherwise unidentified in the record), the military department performs payroll and finance services for DODDS, including the processing and payment of travel vouchers. The Chief, Finance Division, DODDS-Germany Region, merely obtains a budget and transfers these funds to the military department for payment of the claims.
On January 14, 1992, the Chief of Finance Division, DODDS-Germany Region, sent the following memorandum to the Director, Deputy Director, Division Chiefs, Superintendents, Principals, and Business Managers in the DODDS-Germany Region:
SUBJECT: Employee Use of Privately Owned Vehicles (POV) for Travel to Alternative Duty Point(s)
We have recently been advised that paragraph C2153 of Volume 2, Joint Travel Regulations (JTR) has been changed regarding Subject travel reimbursement entitlement. This change is effective for travel on or after December 1, 1991, and reads as follows:
"Use of a privately owned conveyance between place of abode and an alternate duty point. When a privately owned conveyance is used for commuting from an employee's place of abode to an alternate duty point (a point other than the employee's regular place of work and return), an employee is entitled to mileage reimburse- ment for the distance that exceeds the employee's commuting distance to the regular place of work and return."
This change can conceivably result in employees not being entitled to any reimbursement for some trips made. This situation will occur when round trip abode-alternate duty point(s) is less mileage than round trip abode-regular place of work. Prior to this change, employees using a POV to travel from their abode to an alternate duty station(s) and return to abode without first returning to their regular place of work would have been reimbursed for all mileage driven.
A different scenario, not addressed by subject change because its provisions remain unchanged, is that of an employee travelling by POV from abode to an alternate duty station(s) and then proceeding to the regular place of work, rather than returning directly to the abode. Under these circumstances, an employee would previously have been, and will continue to be, reimbursed only for that mileage which is in excess of the one-way distance from the abode to the regular place of work.
It appears that the intent of both previously existing provisions, as well as subject change, is to avoid the Government underwriting any employee POV costs associated with normal commuting between abode and regular place of work.
In DODDS-Germany Region several hundred unit employees are itinerant teachers, primarily special education teachers, who service more than one school on a daily basis. They are authorized the use of their privately owned vehicles as a means of transporting themselves from their homes to their primary duty sites and alternate duty sites. Prior to this change, they were reimbursed on the basis of mileage from their homes to their alternate duty sites. Under the announced change in the JTR, an employee is only entitled to mileage reimbursement for the distance that exceeds the employee's commuting distance to the regular place of work and return.
Mr. Jackie Robinson, President of OEA, testified that the memorandum of instruction regarding the JTR change affected what claims supervisors would allow their employees to submit and resulted in less compensation for travel for unit employees.
There is no evidence that the memorandum itself was distributed to bargaining unit employees or that they saw the memorandum. No evidence was presented that any itinerant teacher has suffered an actual loss as a result of the change.
OEA was not provided prior notice and an opportunity to negotiate over the impact and implementation of the January 14, 1992 memorandum.
On February 18, 1992, the OEA informed DODDS Headquarters that the change was effected without notice to or bargaining with the Union and that an unfair labor practice charge would be filed.
On April 6, 1992, DODDS Headquarters advised OEA that "[t]here have been no policies or regulations developed by this office to implement the JTR changes regarding reimbursement to employee's for use of their privately-owned vehicles for travel to alternate duty points." Respondent stated that OEA's proposals concerning various changes to the JTRs could be addressed during the bargaining sessions scheduled in May 1992.
The parties subsequently bargaining over this and other issues related to the JTRs. In October 1992, OEA requested the assistance of the Federal Services Impasses Panel concerning various proposals related to the JTRs. The matter was pending before the Panel as of the date of the hearing.
DISCUSSION AND CONCLUSIONS
The issues presented for determination are (l) whether the impact of the change in reimbursement for unit employees' use of privately owned vehicles for travel to alternate duty points had an impact which was more than de minimis and triggered a duty to bargain over the impact and implementation of the decision, as alleged, and (2) if so, whether OEA was provided reasonable advance notice of the implementation of the decision so as to be able to request such an opportunity to bargain.
Duty to Bargain
DODDS contends that the January 14, 1992 memorandum was an intramanagement communication written only to inform and advise management officials about a recent change to the JTR, that it was not directive in nature, and there was no evidence that any bargaining unit member ever saw the memorandum or was affected by it.
In determining whether a change is more than de minimis, the Authority
will place principal emphasis on such general areas of consideration as the nature and extent of the effect or reasonably foreseeable effect of the change on conditions of employment of bargaining unit employees. Equitable considerations will also be taken into account in balancing the various interests involved.
Department of Health and Human Services, Social Security Administration, 24 FLRA 403, 408 (1986) (SSA). The Authority has held that the appropriate inquiry involves an analysis of the reasonably foreseeable effect of the change based on what the Respondent knew, or should have known, at the time of the change. Portsmouth Naval Shipayard, Portsmouth, New Hampshire, 45 FLRA 574, 575 (1992).
The January 14, 1992 memorandum stated that the JTR change for travel reimbursement "is effective for travel on or after December 1, 1991[,]" discussed possible effects of that change on employees, and requested the management officials to give "[t]he widest possible dissemination of this information to all effected employees[.]"
Although no evidence was presented that any bargaining unit employee saw the memorandum, or was affected by it, Respondent knew, or should have known, that information in the memorandum would be disseminated to bargaining unit employees, as "effected employees," in accordance with the instructions in the memorandum. The record shows that there are several hundred unit employees who are itinerant teachers, primarily special education teachers, in Respondent's Germany region who use their privately owned automobiles for transportation to alternate work sites. Respondent also knew, or should have known, that managers would comply with the announced JTR change by ensuring that claims would not be forwarded for processing where reimbursement was not authorized by the JTR change. The memorandum specifically pointed out one instance where reimbursement would no longer be allowed.
Based on these considerations, and the entire record, I conclude that this change in a condition of employment had more than a de minimis impact and gave rise to a duty to bargain over the impact and implementation of the decision, as alleged.
Respondent asserts that the OEA received adequate notice of the proposed change on September 16, 1991, when it received notice from the DOD of a proposed change to the DOD JTR. Such notice was given in accordance with the national consultation rights which OEA holds with the DOD. Respondent contends that this notice, issued at substantially the same organizational level in DOD as DODDS, notified the OEA of the proposed change and placed upon it the contractual obligation to submit written proposals directly to DODDS pursuant to Article 7A, Section l.B. of the collective bargaining agreement. Respondent claims that when OEA failed to timely submit proposals in accordance with the collective bargaining agreement, the bargaining obligation ended.
I agree with Counsel for the General Counsel that notice to the Union by DOD pursuant to national consultation rights, as set forth in section 7113(b)(l) of the Statute, is not relevant in the circumstances of this case. That notice pertained to a proposed revision of the JTR by DOD. Once that process was completed and DODDS decided to implement the revised DOD JTR and change conditions of employment, the Union was entitled to notice and an opportunity to engage in collective bargaining. Section 7113(c) provides that "[n]othing in this section [pertaining to national consultation rights] shall be construed to limit the right of any agency or exclusive representative to engage in collective bargaining." In Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 361 (1986), the Authority, citing Defense Contract Administration Services Region, Boston, Massachusetts, 15 FLRA 750 (1984), pointed out that where a union holds exclusive recognition in a component of an agency, that component is obligated to bargain over conditions of employment despite the fact that control over a particular condition of employment rests with a different organizational component in the same overall agency. The Authority held that the only limits on an agency's obligation to bargain over conditions of employment, in that circumstance, are those placed on its discretion by provisions of law, Government-wide rule or regulation, or Agency regulations for which a compelling need exists.
It is concluded that Respondent violated section 7116(a)(l) and (5) of the Statute, as alleged, when, on January 14, 1992, Respondent, by its Germany Region, unilaterally implemented a change in its existing policy for bargaining unit employees' travel reimbursement entitlement without bargaining over the impact and implementation of this change in employee working conditions.
The General Counsel requests as a remedy that, in addition to an appropriate notice to employees, the January 14, 1992 memorandum be rescinded and any itinerant teacher who can demonstrate pecuniary loss due to its implementation be compensated. After balancing the factors set forth in Federal Correctional Institution, 8 FLRA 604,606 (1982), a status quo ante remedy appears to be appropriate and warranted in order to best effectuate the purposes and policies of the Statute. See Warner Robins Air Logistics Center (AFLC), Robins Air Force Base, Georgia, 21 FLRA 1015 (1986) (status quo ante award includes make whole order for employees affected by change of guidelines for evaluating travel vouchers where there had been no impact and implementation bargaining before the change was made). Any dispute over actual losses to employees may be resolved during the compliance stage of the proceedings. Department of the Army, U.S. Army Enlisted Records and Evaluation Center, Fort Benjamin Harrison, Indiana and Finance and Accounting Office for the Secretary of the Army, St. Louis, Missouri, 41 FLRA 885 (1991).
Based on the above findings and conclusions, it is recommended that the Authority issue the following Order:
Pursuant to section 2423.29 of the Federal Labor Relations Authority's Rules and Regulations and section 7118 of the Statute, it is hereby ordered that the Department of Defense Dependents Schools shall:
1. Cease and desist from:
(a) Unilaterally changing its policy concerning the reimbursement for unit employees' use of privately owned vehicles for travel to alternate duty points without bargaining with the Overseas Education Association, the exclusive representative of an appropriate unit of its employees, to the extent consistent with law and regulations, concerning the procedures to be observed in implementing any new policy, and appropriate arrangements for employees