In the Matter of )
DEPARTMENT OF DEFENSE )
DEPARTMENT OF DEFENSE )
DEPENDENTS SCHOOLS )
ALEXANDRIA, VIRGINIA )
and ) Case Nos. 92 FSIP 17
) and 92 FSIP 103
OVERSEAS EDUCATION ASSOCIATION, NEA )
The Overseas Education Association, NEA (Union) filed two separate requests for assistance with the Federal Service Impasses Panel (Panel) to consider negotiation impasses under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119, between it and the Department of Defense, Department of Defense Dependents Schools, Alexandria, Virginia (Employer or DODDS). The impasse in Case No. 92 FSIP 17 arose following negotiations for successor collective-bargaining agreements (CBA) in 1985 and 1989. Case No. 92 FSIP 103, however, arose during mid-term bargaining under the parties' recently expired 1989 CBA.
After investigation of the requests, the Panel consolidated the cases and directed the dispute which, among other matters, involves various pay and fringe benefit issues, to private factfinding. Under this procedure, the designated Factfinder's fees and related expenses were to be shared equally by the parties. Following receipt of the Factfinder's report, which was to contain recommendations for settlement that were supported by rationale, the parties were to advise the Panel as to whether or not they accepted the Factfinder's recommendations. The parties were also notified that once the Panel received the Factfinder's report, and the parties' responses thereto, it would take whatever action it deemed appropriate to resolve the impasse. On June 4, 5, 9, 11, and 12, 1992, a hearing was held before Factfinder Jacob Seidenberg in Washington, D.C. A stenographic record was made, testimony and argument were presented, and documentary evidence was submitted. In accordance with the Panel's procedural determination, the Factfinder issued his Report and Recommendations for settlement, on September 28, 1992. The parties' responses to the Factfinder's recommendations were also received by the Panel pursuant to its procedural determination.
The Panel was advised by the Union that, since the Employer had rejected its offer that the Factfinder's recommendations be accepted in toto, the Panel should impose them on the parties "without any changes or modifications." Should the Panel decide to "change, modify, or clarify" the Factfinder's recommendations, however, it "respectfully requests that . . . its proposals be adopted in full." The Employer advised the Panel that, for the most part, it concurred with the Factfinder's recommendations, but "there are certain issues with which [it] disagree[d]." The Panel also notes that the Employer has raised a jurisdictional question before the Factfinder which he concluded "must be raised and adjudicated in another forum because it is not within the ambit of the charge that the [Panel] gave him."
The Panel has now considered the entire record in these consolidated cases, including those arguments made by the parties to the Factfinder incorporated by reference in their responses to his recommendations. The Factfinder's Report and Recommendations, which sets forth pertinent background information as well as the positions of the parties regarding the issues at impasse, is attached to this Decision and Order.
The parties are at impasse over Union proposals(1) on the following 18 issues: (1) waiver of Department of State Standardized Regulations (DSSR) requirements regarding living quarters allowances for locally-hired unit employees, (2) compensation for extra-duty activities outside the normal duty day, (3) compensation for Junior Reserve Officers' Training Corps (JROTC) instructors, (4) compensation for travel occurring outside the duty day, (5) compensation for lost preparation time, (6) compensation for lost instructional time, (7) employee access to health and dental care, (8) the issuance of permissive travel orders to unit employees not otherwise eligible for Government travel to the U.S. at the close of the school year, (9) waiver of DSSR requirements regarding rental allowances for privately-owned residences, (10) special incentive differentials, (11) danger pay allowances, (12) transportation of goods for reassigned employees, (13) summer recess travel for reassigned employees, (14) Category 2A Space Available travel for professional activities, (15) shipment of household goods and persons when reassigned at the request of the Government, (16) renewal agreement travel for unit employees during the summer recess period following reassignment at the request of the Government, (17) maximum weight allowance for shipment of goods when unit employees are transferred or reassigned from a weight restricted to a nonweight-restricted area, and (18) authorization of maximum temporary lodging allowances.
We shall turn first to the jurisdictional argument raised by the Employer before the Factfinder. It essentially contends that the Panel should decline to retain jurisdiction over the Union's proposals on five of the issues at impasse, specifically, Issue 8 through Issue 12, involving travel and overseas allowances, because they cover matters that already have been subject to the obligation to bargain under Articles 48 and 49 of the parties' CBA. In support of its argument that "there is no duty to bargain over matters which have been subject to negotiations," it cites the consolidated decision of the U.S. Court of Appeals for the District of Columbia Circuit in Department of the Navy, Marine Corps Logistics Base, Albany, Georgia v. Federal Labor Relations Authority and Marine Corps Logistics Base, Barstow, California v. Federal Labor Relations Authority, 962 F.2d 48 (D.C. Cir. 1992) (Marine Corps).(2) In response, the Union basically contends that the Marine Corps cases involve impact-and-implementation bargaining over employer-proposed midterm changes, whereas the instant proposals arose in the context of Union-initiated midterm negotiations. Thus, "DODDS' duty to bargain over the [Union's] midterm proposals cannot and should not be dismissed."
In such circumstances, the Panel is guided by the Federal Labor Relations Authority's (FLRA) decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988) (Carswell), where the FLRA determined that the Panel may apply existing case law to resolve an impasse where a duty-to-bargain issue arises. We find that existing FLRA and D.C. Circuit precedent(3) supports the Union's interpretation of its right to initiate midterm bargaining in the circumstances presented. In this regard, the Employer's contention that the proposals it identifies arose in the context of impact-and-implementation bargaining is unsubstantiated by any evidence in the record.(4) Accordingly, we conclude the Employer's jurisdictional argument is without merit; the Union's proposals are properly before the Panel.
Having carefully examined the entire record in this case, including the parties' responses to the Factfinder's recommendations, on the basis of the rationale provided, we shall order the parties to adopt his recommendations, without modification, on 13 of the 18 issues at impasse.(5) For the reasons stated below, we find it necessary to disturb his recommendations only on Issues 2, 3, 8, 9, and 14.
With respect to the parties' dispute over compensation for extra-duty activities outside the normal duty day (Issue 2), we note preliminarily that the proposal presented by the Union in its initial request for Panel assistance in Case No. 92 FSIP 17 would compensate employees who perform extra-curricular activities of between 1 and 19 hours "beginning with S[chool]Y[ear] 1991-92." The Factfinder's recommendation on this issue fails to address whether such compensation would apply retroactively to the 1991-92 school year, or prospectively. Thus, to facilitate contract administration and prevent future disagreements between the parties, we shall modify the recommendation to specify that payment for such activities shall begin prospectively, i.e., as of the issuance of this decision.
On the issue of compensation for JROTC instructors, the Factfinder's recommendation, among other things, would require the parties to "negotiate a stipend" to give them an LQA for the summer months "unless it is determined by higher authority the current law expressly prohibits the payment of this living quarters allowance." In our view, there is no need to make the payment of a stipend conditional upon the determination of a "higher authority." In this regard, the FLRA has already decided that the proposal presented by the Union in its initial request for Panel assistance in Case No. 92 FSIP 17 is within the duty to bargain.(6) Moreover, because requiring the parties to "negotiate a stipend" could lead to a future impasse on the exact amount to be provided, we believe that alternative wording on this aspect of the recommendation is also warranted. Accordingly, we shall modify the recommendation by ordering that: (1) the Employer provide JROTC Instructors with a stipend, in addition to all other forms of compensation currently received by them, to give them an LQA for the summer months that the Schools are not in session; and (2) the amount of the stipend be determined by prorating the applicable normal annual LQA for teachers to cover the summer period.
Regarding the Factfinder's recommendation that, upon request, permissive travel orders be issued to unit employees not otherwise eligible for Government travel so that they may visit their homes of record in the U.S. at the close of the school year, we are persuaded that there is merit to the underlying intent of the Union's proposal. That is, the financial burden on employees stationed overseas should be reduced so that they may return home during those periods when travel is not provided free of cost by the Employer. We prefer, however, that the parties be ordered to adopt compromise wording requiring the Employer to cover the difference between the applicable Government contract rate and the applicable commercial rate for such travel, if any. This would give employees the option of paying either the available commercial rate, or the Government contract rate, whichever is more economical at the time, for travel using a regular commercial carrier, without requiring the Employer to issue permissive travel orders. We recognize that this may not be a perfect solution, but it at least has the virtues of providing employees with some financial assistance, should they wish to travel home to the U.S., and accommodating the Employer's concern that it not be required to misrepresent the nature of the travel as involving official Government business. Moreover, while we believe that the compromise is unlikely to result in significant cost to the Employer, the parties can revisit the issue in future contract negotiations after they have had a chance to evaluate its real impact. To aid the parties in assessing such impact, we shall also require that employee requests for payments from the Employer under our compromise wording be in writing.
Turning to Issue 9, the Factfinder recommended that the Union's proposal, which essentially requires the Employer to use its discretion and waive the so-called "10-year rule" established under the DSSR, be adopted. Our examination, however, reveals an inconsistency between the Union's proposed wording and the applicable section of the DSSR (see Jt. Exh. 2). In this regard, the Union's proposal refers to "the rule which limits annual rent to one-tenth of the purchase price or appraised value," whereas the regulation refers to the "original purchase price" of personally-owned quarters. Thus, we shall modify the Union's proposal to make it conform to the wording of the regulation.
Finally, the Factfinder's recommendation on the issue of Category 2A Space Available travel for professional activities (Issue 14), in our view, requires only a minor adjustment for purposes of clarification. In this regard, it appears from the record that the Factfinder and the parties understood that management would be in complete control of the types of employee-requested training to be approved for Category 2A travel. Because this is not clearly stated in the wording of the Union's proposal, it shall be modified to reflect this understanding.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:
The parties shall adopt the Factfinder's recommendations on all of the issues at impasse, except as modified below:
1. Issue 2 - Compensation for Extra-Duty Activities Outside the Normal Duty Day
The parties shall adopt the Factfinder's recommendation, modified such that payment for extra-duty activities of between 1 and 19 hours shall commence as of the date of this Order.
2. Issue 3 - Compensation for Junior Reserve Officers' Training Corps (JROTC) Instructors
The parties shall adopt the following wording:
The Employer shall provide JROTC instructors with a stipend, in addition to all other forms of compensation currently received by them, to give them a living quarters allowance (LQA) for the summer months that the Schools are not in session. The amount of the stipend shall be determined by prorating the appropriate normal LQA for teachers to cover the summer period.
3. Issue 8 - Issuance of Permissive Travel Orders
The parties shall adopt the following wording:
A unit employee, not otherwise eligible for Government travel to his or her home of record in the United States at the close of the school year, may choose to pay the Government contract rate in effect at the time, rather than the commercial rate, to travel by regular commercial carrier to his or her home of record at the close of the school year. If requested, in writing, the Employer shall pay the difference between the applicable Government contract rate for such travel, and the applicable commercial rate, if any.
4. Issue 9 - Waiver of DSSR Requirements Regarding Rental Allowances for Privately-Owned Residences
The parties shall adopt the following wording:
The rule which limits annual rent to one-tenth of the original purchase price of a residence owned by a unit employee or the employee's spouse shall not apply when an employee resides in quarters owned by a family member other than a spouse.
5. Issue 14 - Category 2A Space Available Travel for Professional Activities
The parties shall adopt the following wording:
Category 2A Space Available Travel shall be authorized for unit employees, if otherwise eligible, attending Employer-approved training during recess periods.
By direction of the Panel.
Linda A. Lafferty
December 18, 1992
1. / Unless otherwise indicated, the exact wording of the Union's proposals on the issues at impasse is to be found in its original requests for assistance to the Panel (Jt. Exhs. J-1A, J-1B). We note for the record that the Factfinder granted the Union's request to withdraw two additional proposals submitted in its original request for assistance in Case No. 92 FSIP 17 involving (1) extra compensation for dorm counselors and (2) compensation for all other forms of extra-duty assignments not specifically identified in its previous proposals, without prejudice to its right to raise them in the future. Thus, those proposals are no longer among the issues at impasse.
2. / In its decision, the court refused to enforce the FLRA's previous unfair labor practice determinations, essentially finding erroneous the FLRA's interpretation of the Statute concerning the conditions under which an employer is required to negotiate over subjects covered by a master collective-bargaining agreement during impact-and-implementation bargaining subsequent to a management-initiated change during the term of the agreement.
3. / See Internal Revenue Service and National Treasury Employees Union, 29 FLRA 162 (1987), in which the FLRA concluded, in agreement with the D.C. Circuit's opinion in NTEU v. FLRA, 810 F.2d 295 (D.C. Cir. 1987), that 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 proposals concerning matters which are not contained in the agreement "unless the union has waived its right to bargain about the subject matter involved." It further concluded that such a waiver may be established by (1) express agreement, or (2) bargaining history, and "must be clear and unmistakable."
4. / Moreover, even if negotiations over the Union's proposals had arisen in an impact-and-implementation context, we note that the FLRA, on remand, did no more than follow the D.C. Circuit's instructions in dismissing the unfair labor practice complaints in the Marine Corps cases. Department of the Navy, Marine Corps Logistics Base, Albany, Georgia and American Federation of Government Employees, 45 FLRA No. 42 (July 15, 1992) and Marine Corps Logistics Base, Barstow, California and American Federation of Government Employees, Local 1482, AFL-CIO, 45 FLRA No. 46 (July 16, 1992).
5. / In this regard, we note that the parties' responses to the Factfinder's Report and Recommendations indicate that they basically have agreed to accept his recommendations on Issue 7 (employee access to health and dental care), Issue 13 (summer recess travel for reassigned employees), and Issue 18 (authorization of maximum temporary lodging allowances).
6. / Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 840 (1987) (Proposal 31). We note that the proposal found negotiable by the FLRA is broader than the wording recommended by the Factfinder.