[ v12 p43 ]
12:0043(12)CA
The decision of the Authority follows:
12 FLRA No. 12
DEPARTMENT OF DEFENSE DEPENDENTS
SCHOOLS
Respondent
and
OVERSEAS EDUCATION ASSOCIATION, NEA
Charging Party
Case Nos. 3-CA-1482
3-CA-1484
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.
Upon consideration of the entire record in these consolidated cases,
including the parties' stipulation of facts, accompanying exhibits, and
briefs submitted by the Respondent and the General Counsel, /1/ the
Authority finds:
The consolidated complaint alleges that the Department of Defense
Dependents Schools (the Respondent) violated section 7116(a)(1) and (5)
of the Federal Service Labor-Management Relations Statute (the Statute)
/2/ when it declined to issue "permissive travel orders" to its
employee, Ronald Bentz, an area director of the Overseas Education
Association (OEA) stationed at Karlsruhe, Germany, to attend a National
Education Association (NEA) national convention in Los Angeles,
California from June 24 to July 7, 1980. It is further alleged that the
Respondent violated section 7116(a)(1) and (5) of the Statute by
refusing to issue "temporary duty orders" to Bentz in connection with
his attendance at an OEA board of directors meeting and a labor
relations training session in Washington, D.C. from September 24 to
October 6, 1980. By these acts it is alleged the Respondent
unilaterally changed a practice of issuing such orders for OEA officials
to attend the same or similar functions in the past. On five occasions
from September 1979 to May 1980, the Respondent issued travel orders for
Bentz to attend four conference/labor relations workshops and one
transition team meeting. The record reflects that, on at least four of
these occasions, Bentz was in a duty status. By contrast, the
stipulation indicates that Bentz was not in a duty status from June 24
to July 8, 1980, the travel period for attending the NEA convention in
Los Angeles, /3/ one of the instances at issue here.
The Respondent argues, inter alia, that the travel orders which were
issued to Bentz on the previous occasions were approved because the
activities were work-related, /4/ while the requests at issue herein
were for events which involved union activities only. The General
Counsel takes the position that, by rejecting the requests in the two
cited instances, the Respondent changed a condition of employment
established by past practice.
In regard to the Respondent's refusal to issue travel orders for
Bentz to attend the NEA convention in Los Angeles, the authority
concludes that the General Counsel has not met its burden of proving
that there was a change in past practice involving a condition of
employment. Thus, the record reveals that Bentz would not have been in
a duty status during such travel, in contrast to the earlier instances
when he was issued permissive travel orders while in a duty status.
Additionally, unlike the earlier occasions when Bentz was issued travel
orders in connection with labor relations workshops and a transition
team meeting, there is no evidence in the record that the union
convention involved herein concerned other than internal union business.
Therefore, the Authority concludes that the General Counsel has failed
to establish that the Respondent unilaterally changed a past practice
involving a condition of employment in violation of section 7116(a)(1)
and (5) of the Statute, and therefore will dismiss the allegation of the
complaint in this regard.
However, with regard to the allegation concerning the Respondent's
refusal to issue travel orders in connection with Bentz' attendance at
OEA meetings and labor relations training sessions in Washington, D.C.
from September 24 to October 6, 1980, it appears that the circumstances
surrounding this request were not materially different from Bentz'
previous requests which were granted by the Respondent to attend similar
labor relations workshops/training functions while in a duty status.
Therefore, the Authority finds that the Respondent unilaterally changed
an established past practice and thereby violated section 7116(a)(1) and
(5) of the Statute when it refused to grant the requested orders for
travel from September 24 to October 6, 1980. /5/
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 Authority hereby orders that the Department of Defense
Dependents Schools shall:
1. Cease and desist from:
(a) Unilaterally altering or changing an established past practice as
existed prior to September 24, 1980 with respect to the issuance of
travel orders to Ronald Bentz, an area director of the Overseas
Education Association, to attend labor relations training, without first
notifying the Overseas Education Association, NEA, the exclusive
bargaining representative of the Respondent's employees, and, upon
request, bargaining in good faith to the full extent consonant with law.
(b) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
2. Take the following affirmative Action in order to effectuate the
purposes and policies of the Federal Service Labor-Management Relations
Statute:
(a) Notify the Overseas Education Association, NEA, the exclusive
bargaining representative of the Respondent's employees, of any proposed
change in established past practices with respect to travel orders, or
any other term or condition of employment and, upon request, bargain in
good faith to the full extent consonant with law.
(b) Post at its facilities at the Germany South 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 of the Germany South Region, or his designee, 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 such 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 of 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.
IT IS HEREBY FURTHER ORDERED that the allegation contained in the
consolidated complaint in Case Nos. 3-CA-1482 and 3-CA-1484 relating to
the Respondent's refusal to issue permissive travel orders for Ronald
Bentz to attend a National Education Association national convention
while not in a duty status be, and it hereby is, dismissed. Issued,
Washington, D.C., May 6, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, 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
WE HEREBY NOTIFY OUR EMPLOYEES THAT
WE WILL NOT unilaterally alter or change an established past practice
as existed prior to September 24, 1980 with respect to the issuance of
travel orders to Ronald Bentz, an area director of the Overseas
Education Association, to attend labor relations training, without first
notifying the Overseas Education Association, NEA, the exclusive
bargaining representative of of our employees, and, upon request,
bargaining in good faith to the full extent consonant with law.
WE WILL NOT in any like or related manner interfere with, restrain,
or coerce our employees in the exercise of rights assured by the Federal
Service Labor-Management Relations Statute.
WE WILL notify the Overseas Education Association, NEA, the exclusive
bargaining representative of our employees, of any proposed change in
established past practices with respect to travel orders, or any other
term or condition of employment and, upon request, bargain in good faith
to the full extent consonant with law.
(Activity)
Dated: By: (Signature) (Title)
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 for the Federal Labor Relations Authority whose address is:
P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number
is: (202) 653-8452.
--------------- FOOTNOTES$ ---------------
/1/ In view of the disposition herein, it is unnecessary to pass upon
the Respondent's Motion to Strike and the General Counsel's Opposition
to Motion to Strike.
/2/ Section 7116(a)(1) and (5) 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;
* * * *
(5) to refuse to consult or negotiate in good faith with a
labor organization as required by this chapter(.)
/3/ The Respondent specifically relied upon this fact in denying the
request for permissive travel orders, citing and interpreting the
Department of Defense's Joint Travel Regulations (JTR) paragraph C6250
to the effect that such orders "will be issued only to employees who are
in a duty status during the travel period."
/4/ In this connection, the Respondent refers to the JTR, Part F
(Travel at No Expense to the Government), paragraph C6250, to the effect
that a "travel order will include appropriate statements indicating that
attendance (at a meeting of a technical, professional, scientific, or
other similar organization) is in the interest of the Department of
Defense but that the travel is at no expense to the Government and that
no per diem or other reimbursement is required."
/5/ In so concluding, the Authority rejects the Respondent's
contention that the dispute involves merely a difference of opinion
concerning the intent of the parties' agreement and therefore should be
resolved by an arbitrator under the negotiated grievance procedure
rather than as an unfair labor practice. Thus, the record establishes
that the Respondent consistently applied the agreement and the JTR
referred to therein by granting Bentz' previous requests under
essentially the same circumstances. Accordingly, the unilateral change
of such established past practice constitutes a violation of section
7116(a)(1) and (5) of the Statute irrespective of whether the denial of
Bentz' request might also constitute a breach of the parties' agreement.