[ v22 p351 ]
22:0351(34)NG
The decision of the Authority follows:
22 FLRA No. 34
OVERSEAS EDUCATION ASSOCIATION, INC.
Union
and
DEPARTMENT OF DEFENSE
OFFICE OF DEPENDENTS SCHOOLS
Agency
Case No. 0-NG-850
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute). It raises issues
concerning the negotiability of 14 Union proposals. The Union has
requested that the Authority sever "any parts, subparts, sentences,
phrases or words" of proposals which are found to be nonnegotiable and
"declare negotiable so much of the proposals which are negotiable." The
Authority grants the Union's request to the limited extent that we will
rule upon those portions of the proposals which we view, as submitted,
as being able to stand independently of the rest of the proposal and
which have been specifically addressed by the parties in their
submissions to the Authority. /1/
II. Union Proposal 1
ARTICLE 2 -- CONDITIONS OF THE AGREEMENT Section 1-B: The
Employer and/or its designee at the appropriate level shall
provide the Association with the opportunity to include
appropriate orientation information in the orientation mailing
sent to new employees in the bargaining unit. The Association
shall also be provided an opportunity to present appropriate
orientation material at any orientation sessions.
A. Positions of the Parties
Because the underlined portion of the proposal applies to a point in
time before the newly selected teachers have actually been appointed to
their positions, that is, during the summer before the school year has
begun, the Agency (DoDDS) argues that it does not relate to "employees."
Additionally, it asserts that newly selected teachers may be destined
for a bargaining unit other than that represented by the Union (OEA).
Consequently, it contends that the proposal does not concern conditions
of employment of employees in the OEA bargaining unit. Secondly, DoDDS
states that because not all schools do orientation mailings, the
proposal would require it to institute mailings where none currently
exist. Thus, it argues that the proposal conflicts with its right under
section 7106(b)(1) to determine the methods, means and technology of
performing its work.
The Union states that the proposal is intended to apply only to those
new employees who are being assigned to schools in its bargaining unit
and only to existing orientation mailings.
B. Analysis and Conclusions
As to requiring new mailings, neither the literal language nor the
intended meaning of the proposal would require that. Therefore, DoDDS'
argument that the proposal conflicts with section 7106(b)(1) of the
Statute is rejected.
As to the "conditions of employment" argument, we note that the
proposal, by intent and language, is limited to new employees assigned
to schools in the OEA bargaining unit. Moreover, DoDDS does not dispute
that the provision of "appropriate orientation information" is a matter
affecting working conditions and hence a condition of employment. The
only issue, then, is with the timing of the mailing. In our view, the
material which would be provided relates solely to the selectees' status
as individuals designated for employment in bargaining unit positions
and has relevance specifically to employment in those positions. Thus,
even though the proposal would be effective at a time before the
selectees have been appointed, it relates to matters concerning
bargaining unit positions and, consequently, concerns conditions of
employment in the bargaining unit. Union Proposal 1 is within the duty
to bargain. See, for example, National Treasury Employees Union and
Internal Revenue Service, 7 FLRA 275 (1981) (Union Proposals 2-4) where
the Authority held negotiable proposals which prescribed procedures for
filling vacancies in the bargaining unit even though the procedures
would apply to candidates who were currently outside the unit.
III. Union Proposal 2
Section 2-E
Employees who are released from duty without pay to represent
the Association shall retain entitlement to all allowances and
benefits (including, but not limited to: step increase,
insurance, health benefits, LQA, post allowances, transportation
agreement, teaching position, eligibility for transfer program,
retirement credit) for the period of representation unless
prohibited by law.
A. Positions of the Parties
DoDDS contends that Union Proposal 2 conflicts with Government-wide
regulations, specifically asserting that:
(1) the provision relating to insurance conflicts with Federal
Personnel Manual Supplement 870-1;
(2) the provision relating to health benefits conflicts with
Federal Personnel Manual Supplement 890-1;
(3) the provision relating to living quarters allowance (LQA)
and post differential conflicts with the Department of State
Standardized Regulations (DSSRs).
OEA, in its reply brief, states that the phrase "unless prohibited by
law" is intended to mean that the entitlements sought are to be granted
only to the extent permitted by law and Government-wide regulations. It
claims that the proposal, being so limited, cannot possibly conflict
with those regulations. It concedes that the Federal Personnel Manual
provisions involved are Government-wide regulations, however, it
contends that the DSSRs are not.
B. Analysis and Conclusions
1. Conflict with the DSSRs
The Authority has construed the term "Government-wide regulation" to
include regulations and official declarations of policy which apply to
the Federal civilian work force as a whole and are binding on the
Federal agencies and officials to which they apply. The Authority
emphasized that a requirement that a regulation apply, literally, to all
Federal civilian employees in order to constitute a "Government-wide"
regulation under section 7117 would render that provision virtually
meaningless, since it appeared that few, if any, regulations affect
every civilian employee of the Federal Government. The Authority found
from the legislative history of the Statute that Congress understood
"Government-wide regulations" to constitute a significant limitation on
the scope of bargaining and intended the term to include more than the
inconsequential number of regulations that might fall within a literal
definition. Thus, the Authority concluded that a regulation is a
Government-wide regulation under section 7117 if it is generally
applicable throughout the Federal Government as opposed to applying to
every Federal employee. National Treasury Employees Union, Chapter 6
and Internal Revenue Service, New Orleans District, 3 FLRA 747 (1980).
Various laws providing for certain allowances and differentials for
civilian employee travel and assignment overseas authorize the President
of the United States to issue implementing regulations. /2/ By
Executive Orders, /3/ this authority is delegated to the Secretary of
State who has exercised it by issuing the DSSRs. The DSSRs govern
allowances, differentials, and defraying of official residence expenses
in foreign areas. /4/ As to those subjects, they apply to Federal
civilian employees generally /5/ and are binding on the heads of
agencies. /6/
OEA argues that because Chapter 700 of the DSSRs applies only to
Department of Defense teachers and that, but for Chapter 700, the DSSRs
would not apply to the teachers, the DSSRs are not Government-wide rules
or regulations. In the Authority's view, Chapter 700 merely sets forth
modifications to the overall provisions of the DSSRs to accommodate the
special circumstances of teacher employment -- most notably the fact
that their employment is oriented around the school year. /7/ The
Authority concludes that the DSSRs, in general, apply to teachers. See
also note 4 above.
We reach this conclusion notwithstanding two apparently contrary
statements in, respectively, the legislative history of the Statute and
of the Foreign Service Act of 1980. First, the legislative history of
the Statute contains remarks made by Rep. William D. Ford, regarding the
"Udall substitute" which became the final House Version of the bill
which was enacted, which seem to suggest that the DSSRs are not to be
treated as Government-wide regulations within the meaning of the
Statute. /8/ We think this misconstrues the DSSRs and is inconsistent
with the overall intent of the Congress. As noted above, authority to
issue regulations governing the subjects which the DSSRs address was
delegated from the Congress through the President to the Department of
State. Further, the DSSRs cover not only teachers but civilian Federal
employees generally with respect to certain allowances and differentials
provided in connection with overseas assignment and travel.
Second, a statement in the conference report preceeding enactment of
the Foreign Service Act of 1980 (legislation which, among other things,
established a labor-management relations program in the Foreing Service,
modeled on the Statute), characterizes the DSSRs as not being
"Government-wide" within the meaning of the Statute. /9/ The
legislative history of the Foreign Service Act is not dispositive in
interpreting the Statute. See Department of Defense v. FLRA, 659 F.2d
1140, 1157 n.94 (D.C. Cir. 1981) in which the court stated that it
considered the legislative history of the Foreign Service Act to be
relevant but not dispositive evidence or even an "especially important
factor" in interpreting the Statute. In any event, as explained
earlier, the Authority does not interpret the term "Government-wide rule
or regulation" literally because we believe the result would be
inconsistent with Congressional intent.
Hence, based on the Authority's previous decisions, we conclude that
the DSSRs are Government-wide regulations.
Union Proposal 2 would require the continuation of LQA and post
allowances for unspecified periods during which employees are
representing OEA while in a nonpay status. We find that this conflicts
with DSSR provisions which contain explicit restrictions on payment of
those allowances. /10/ Although OEA has stated that its proposal should
be read as incorporating any limitations imposed by Government-wide
rules and regulations as well as law, the language of the proposal does
not reflect this intent. Consequently, we find the proposal as written
concerning LQA and post allowances is inconsistent with a
Government-wide regulation and outside the duty to bargain.
2. Conflict with the Federal Personnel Manual
DoDDS has also argued that insofar as the proposal would allow an
unlimited and unconditional continuation of life insurance and health
insurance benefits, it conflicts with provisions in the Federal
Personnel Manual (FPM). The FPM limits the extent to which employees in
nonpay status may retain life insurance coverage /11/ and continue
enrollment in a health benefits plan. /12/ However, the FPM also allows
an employee granted leave without pay to serve in an employee
organization to elect the option of continuing health benefits and life
insurance coverage indefinitely if the employee pays both the Government
and employee contributions to cover premium costs. These FPM provisions
are derivative and only reiterate specific limitations contained in
Federal law. See 5 U.S.C. Section 8706(a) and (d) (life insurance) and
5 U.S.C. Section 8906(e) (health benefits). Because limitations imposed
by law are expressly incorporated by the language of the proposal, so by
extension are the derivative provisions of the FPM. Therefore, we find
the proposed entitlements to health benefits and life insurance do not
exceed those permitted by Federal law and the FPM. DoDDS' contention
that the proposal conflicts with the FPM is rejected as a basis for
finding that aspect of the proposal nonnegotiable.
IV. Union Proposal 3
Section 3-D
Each employee has the right to seek assistance from an
Association Representative at any time as long as such assistance
does not interfere with the carrying out of instructional duties.
Positions of the Parties
DoDDS asserts that the proposal would interfere with its rights under
section 7106(a)(2)(A) and (B) to direct employees and to assign work.
In support of this contention, it argues that the proposal, as written,
would prevent it from assigning duties to an employee who decides to
seek assistance from a Union representative during the preparation
period, lunch period or between classes.
The OEA states the Union Proposal 3 is intended to allow teachers to
visit Association representatives only when no specific duties are
assigned and that it is not intended to prohibit the Agency from
assigning duties to teachers during periods of free time.
B. Analysis and Conclusions
The Union's statement of intent is compatible with the language of
the proposal which specifically allows that performance of duties will
take precedence over any rights to seek union assistance. In view of
this meaning, the Agency's argument that the proposal would interfere
with its rights to direct employees and to assign work is unpersuasive.
Union Proposal 3 is within the duty to bargain. See American Federation
of Government Employees, AFL-CIO, Local 3511 and Veterans Administration
Hospital, San Antonio, Texas, 12 FLRA 76 (1983) (Union Proposal 29) in
which the Authority found negotiable a proposal which would neither
prevent management from assigning duties to employees during their meal
periods nor relieve employees of the responsibility to perform any work
scheduled during that time.
V. Union Proposal 4
Section 3-E(7):
Any records to which the employee has not been granted access
shall not be used to adversely affect said employee.
A. Positions of the Parties
OEA states that under the proposal, when an employee is denied access
to material, "those records or documents and the information contained
in them may not be used against the employee in any way which may
adversely affect the employee in the course of his/her employment."
(Emphasis supplied.) DoDDS asserts that, as written, the proposal could
require it to disclose information even though under law and regulation
it might be improper to do so. Alternatively, the proposal could
prevent it from taking actions relating to an employee because of legal
prohibitions on the release of relevant information. Because of this,
the proposal is inconsistent with law and Government-wide rule or
regulation and interferes with its management rights under section
7106(a) of the Statute. In response OEA argues that under the Privacy
Act and the laws and regulations governing adverse actions employees are
already entitled to the records addressed by the proposal.
B. Analysis and Conclusions
Based on the language of the proposal and the Union's statement of
intent, we find that the proposal is not limited to "adverse actions"
within the meaning of title 5 of the U.S. Code. 5 U.S.C. 7501 et seq.
Rather, it would give employees unrestricted access to any and all
"records" used in a manner which would affect them in a negative way.
The proposal makes no allowance for instances where disclosure would be
inconsistent with law and Government-wide rule or regulation such as
divulging medical information contrary to the regulations of the Office
of Personnel Management (OPM).
OPM is authorized to issue regulations governing, among other things,
disability retirement applications. 5 U.S.C. Section 8347. Its
regulations concerning applications filed by agencies are codified at 5
CFR Sections 831.1201-1206 and apply generally to employees in the
executive branch. 5 CFR Sections 831.201 and 831.1201. The Authority
finds that they are Government-wide regulations. /13/
Those regulations incorporate by reference /14/ another OPM
regulation which prohibits an agency from disclosing medical information
"concerning a mental or other condition of such a nature that a prudent
physician would hesitate to inform a person suffering from it of its
exact nature and probable outcome . . . ." According to this provision
an agency may give this type of information only to a licensed physician
with no requirement to allow the employee access to it. Because these
applications are filed in the context of removing an employee, /15/ it
is reasonable to conclude that it is an action adversely affecting the
employee within the meaning of this proposal.
In another example, the proposal as written could also require that
an employee be given access to the records of other employees in
violation of the Privacy Act. More specifically, in a promotion action
a nonselected employee seeking to challenge the outcome could, under the
proposal, demand access to the records of other competing employees.
The Authority has previously held that a proposal seeking unqualified
access by nonselected employees to records of other employees involved
in a promotion action was inconsistent with the Privacy Act and
consequently nonnegotiable. National Federation of Federal Employees,
Local 1745 and Veterans Administration, 13 FLRA 543 (1983) (Union
Proposal 2), appealed as to other matters sub nom. National Federation
of Federal Employees, Local 1745 v. FLRA, No. 84-1054 (D.C. Cir. Feb.
16, 1984).
In summary, because the proposal is framed in a manner that does not
allow for observing legitimate legal and regulatory restrictions on
disclosure of records, it is inconsistent with section 7117 of the
Statute and is not within the duty to bargain. Because we have found
that the Agency can not be required to divulge information where
prohibited by law or Government-wide regulation, it is unnecessary to
address the Agency's arguments that as an alternative to disclosure it
would be prevented from exercising various management rights.
VI. Union Proposal 5
Section 3-K:
Unless otherwise mandated by Federal law or government-wide
regulations, employees in the bargaining unit will be responsible
only to the Employer with respect to matters that affect their
terms and conditions of employment.
A. Positions of the Parties
As explained by OEA, this proposal is intended to exempt employees
from any obligation to follow directives given by military personnel but
not to prohibit agency supervisors from issuing under their own
authority orders of military origin. DoDDS asserts that because the
proposal relates to "ancillary services" made available to employees,
such as recreational services, housing facilities, and PX and commissary
privileges, it does not concern conditions of employment. The Agency
argues that because it has no control over the military it cannot
bargain over services and facilities which are operated by the military.
In support of this argument, it cites the Authority's decision in
American Federation of State, County and Municipal Employees, AFL-CIO
and Library of Congress, Washington, D.C., 7 FLRA 578 (1982). OEA
responds that because the Agency holds employees responsible for
following orders of military personnel, the proposal relates to
conditions of employment.
B. Analysis and Conclusions
1. Conditions of Employment
Based on OEA'S explanation and the language of the proposal itself,
the proposal clearly would apply to matters which are conditions of
employment. Therefore, we reject the Agency's argument to the contrary.
2. Effect of Military Control on Duty to Bargain
The Authority also rejects the Agency's argument that because control
over the matters addressed by the proposal rests with other components
of the Department of Defense it has no obligation to bargain. The
Authority addressed a similar question in Defense Contract
Administration Services Region, Boston, Massachusetts, 15 FLRA 750
(1984). In that case, the Authority held 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 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. American Federation of State, County and
Municipal Employees, AFL-CIO and Library of Congress, Washington, D.C.,
7 FLRA 578 (1982) (Union Proposals XI-XIII, enf'd sub nom. Library of
Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1982) relied upon by DoDDS is
inapposite. In Library of Congress authority over a particular
condition of employment in the bargaining unit rested outside the agency
(Library of Congress) with the Architect of the Capitol. The
circumstances in this case are analogous to those in DCASR, Boston, as
contrasted to those in Library of Congress. Therefore, the principles
set forth in DCASR, Boston are applicable in this case. The fact that
Department of Defense organizations other than DoDDS possess control
over a matter which is the subject of an otherwise negotiable proposal
does not present a basis for finding that proposal nonnegotiable.
3. Management Right to Direct Employees in the Agency
However, the Authority finds that the proposal is nonnegotiable for a
reason other than those raised by the Agency. In the conduct of its
mission DoDDS utilizes various facilities and services which are under
the control of the military departments. The proposal would prevent
DoDDS from requiring employees to follow directives given by military
personnel in the context of their use of those facilities and services
as DoDDS employees. In the Authority's view this would directly
interfere with the Agency's supervision and guidance of employees
insofar as use of those facilities and services is concerned. The
proposal therefore conflicts with the Agency's right under section
7106(a)(2)(A) to direct employees. See National Treasury Employees
Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA
769, 775 (1980), aff'd sub nom. National Treasury Employees Union v.
FLRA, 691 F.2d 553 (D.C. Cir. 1982), in which the Authority discussed
what is encompassed in the management right "to direct . . . employees
in the agency." Thus, it is not within the duty to bargain. Compare
American Federation of Government Employees, AFL-CIO, International
Council of U.S. Marshals Service Locals and Department of Justice, U.S.
Marshals Service, 11 FLRA 672 (1983) (Union Proposal 1) (a proposal
which would preclude certain individuals from making work assignments to
employees was held to conflict with the agency's right under section
7106(a)(2)(B) to assign work).
VII. Union Proposal 6
ARTICLE 6 -- DUES WITHHOLDING
Section 2-A:
Unit employees may have Association dues withheld from their
pay on a biweekly basis during the school year in the amount
established by the Association and authorized by the eligible
employee. The Employer shall take what action is necessary to
ensure the monies withheld will be forwarded within fourteen
calendar days of each pay period to the appropriate official
designated by the Association. Remittance checks will be
accompanied by a listing of the names, amount withheld, and total
income remitted, as well as the names of those employees for whom
allotments have been temporarily or permanently stopped and the
reason therefore.
A. Positions of the Parties
Because its payroll functions are administered by the military
departments, DoDDS argues that the underscored portion of the proposal
is nonnegotiable. It also asserts that the proposal is contrary to law.
OEA asserts that the fact that the military departments provide payroll
services to DoDDS does not relieve DoDDS of its responsibility under
section 7115 of the Statute to implement dues deductions for its
employees.
B. Analysis and Conclusions
The record indicates that military departments provide payroll
services to DoDDS under support or service agreements and as DoDDS'
agents. This arrangement does not relieve DoDDS of its statutorily
prescribed responsibility under section 7115 to implement dues
allotments for its employees who are in the OEA bargaining unit. The
Agency's contention that the proposal is not within its duty to bargain
because its payroll function is administered by the military departments
is rejected. We note that, even if the military departments were acting
under their own delegated authority rather than under a servicing
agreement, the proposal would be negotiable. See discussion in section
VI(B)(2) above.
DoDDS has failed to cite any specific provision and none is apparent
to support its claim that the proposal conflicts with law. This
contention is, therefore, rejected. Union Proposal 6 is within the duty
to bargain.
VIII. Union Proposal 7
Section 3:
Deductions for allotments shall begin on the first full day
period in October of the school year. Authorizations for
allotments not received by the servicing finance office before the
first full pay period in October shall become effective on the
next biweekly pay period. The amount for such allotments shall be
the annual dues divided by the number of full pay periods left in
the school year. Dues shall be withheld only for full pay periods
during the school year. By mutual agreement, an appropriate
finance office and Association Representative may vary the terms
of this section.
A. Positions of the Parties
DoDDS contends that the underscored portion of Union Proposal 7
conflicts with Section 7115 of the Statute. By requiring payment of a
total annual amount regardless of when during the year allotment is
initiated the proposal would require the payment of back dues, contrary
to the requirement in section 7115 that dues allotments be made on a
"regular and periodic" basis.
OEA states that its dues are an annual amount. Thus, a member is
expected to pay the total yearly amount regardless of the point during
the year at which he/she joins and authorizes withholding. It contends
that the proposal reflects its flat membership fee type of dues
structure rather than requiring payment of "back dues."
B. Analysis and Conclusions
Based on the Union's explanation of the proposal, we do not view the
proposal as seeking collection of "back dues." Nor do we interpret the
proposal to require the Agency to continue allotments after a revocation
request or other circumstance (for example, promotion out of the
bargaining unit) which would dictate termination.
In the Authority's view section 7115 establishes a mechanism for the
payment of dues by bargaining unit employees as opposed to prescribing a
permissable dues structure for the labor organizations. Nothing in it
prohibits dues collection based on a particular "flat fee" dues
structure. Consequently, we find that this proposal does not conflict
with section 7115 of the Statute and is within the duty to bargain.
IX. Union Proposal 8
ARTICLE 7 -- USE OF OFFICIAL FACILITIES
Section 2:
The Employer/Designee recognizes that the Association
Representative(s) has exclusive right to distribute all Union
literature in the school international distribution boxes for unit
employees. It is understood that the Civilian Personnel Office
may distribute information on government-wide health benefit
plans.
A. Positions of the Parties
DoDDS contends that the underscored portion of this proposal would
require it to limit access to its internal mail system to OEA even when
a competing union had "equivalent status." This would be inconsistent
with section 7116(a)(3) of the Statute. OEA states that the proposal is
not intended to prevent a competing union from having access to the mail
system "if there is a question concerning representation after the
expiration of the contract." Union Reply Brief at 16.
B. Analysis and Conclusions
This proposal expressly applies to "all Union literature" and, thus,
would encompass the distribution of Union campaign literature. A
question concerning representation (QCR) can be raised, and a rival
union can therefore gain "equivalent status" with an incumbent exclusive
representative, prior to the expiration of a collective bargaining
agreement. 5 U.S.C. Section 7111(f) (3). Section 7116(a)(3) of the
Statute obliges agencies to furnish customary and routine facilities and
services to labor organizations having equivalent status. This proposal
would require OEA to have exclusive use of the Agency mail system for
the distribution of, among other things, union campaign literature even
when a competing union had equivalent status. Because of this, it
conflicts with section 7116(a)(3) of the Statute and is not within the
duty to bargain.
X. Union Proposal 9
Section 4:
The Employer/Designee shall provide Association
Representatives/Staff who are not employees of ODE/DoDDS with
appropriate documents requesting utilization of military
facilities and services overseas when such Representatives/Staff
are acting pursuant to the Federal Service Labor-Management
Relations Statute, Chapter 71 of Title 5 of the U.S. Code.
A. Positions of the Parties
DoDDS argues that this proposal is nonnegotiable because it relates
solely to individuals who are neither DoDDS employees nor bargaining
unit members. OEA contends that the matters proposed would facilitate
its ability to represent unit employees and, consequently, the proposal
is negotiable.
B. Analysis and Conclusions
The Authority finds that this proposal concerns exclusively
individuals who are neither employees of the Agency nor in the
bargaining unit. The obligation of an agency to bargain concerning
conditions of employment extends only to those employees in an
appropriate bargaining unit represented by the exclusive representative.
See, for example, United States Department of Defense, Department of
the Air Force, San Antonio Air Logistics Center, Kelly Air Force Base,
Texas, 15 FLRA 998 (1984). For the reasons expressed in Kelly Air Force
Base, Union Proposal 9 is not within the duty ot bargain.
XI. Union Proposal 10
Section 5-A:
A. The Employer/Designee shall provide Association
Representatives/Staff who are employees of ODE/DoDDS with
appropriate government Travel Orders for transportation for the
purposes of conducting representational duties and to include a
designation of the equivalent Management counterpart grade.
A. Positions of the Parties
DoDDS asserts that the proposal is nonnegotiable because it conflicts
with various provisions of the Department of Defense Joint Travel
Regulations (JTRs). This claim centers on two Comptroller General (CG)
decisions: Unpublished Decision of the Comptroller General B-158880,
April 28, 1966 and Unpublished Decision of the Comptroller General
B-158880, October 27, 1966, which the Agency interprets as requiring
uniform application of the JTRs to all employees -- unit and nonunit
alike. The Agency argues the proposal would require it to either
"waive" conflicting JTR provisions for unit employees or apply the terms
of the proposal to nonunit employees. Either result places the proposal
outside the duty to bargain. To require it to waive JTR provisions is
inconsistent with the CG decisions which it contends are Government-wide
rules and regulations as well as a nondiscretionary mandate of an
outside authority which establishes a compelling need for the JTRs under
section 2424.11(c) of the Authority's Rules and Regulations. To require
it to apply the terms of the proposal to nonunit employees extends
beyond its duty to bargain.
OEA argues that the CG decisions cited by DoDDS are not relevant to
the question of whether under section 7117 of the Statute parties can
agree to contract provisions which are inconsistent with provisions of
agency regulations.
B. Analysis and Conclusions
Section 7117(a) of the Statute specifically provides that the duty to
bargain extends to matters which are the subject of an agency regulation
where there is no compelling need for the regulation. This allows
negotiations over proposed conditions of employment of bargaining unit
employees which may differ from unilaterally established conditions of
employment set forth in agency regulations. The agency's strained
interpretation of the Comptroller General's decisions deprives the
compelling need provisions of the Statute of their intended meaning and
is not supportable. Those decisions addressed the question of whether
agencies could arbitrarily waive regulatory provisions in individual
cases. /16/ This question is distinguishable from that presented by
this case which is whether parties have a statutory right to negotiate
conditions of employment applying to bargaining unit employees which
differ from those set forth in agency regulations. This proposal, by
merely seeking to negotiate over matters covered by JTRs, does not
conflict with the cited Comptroller General decisions themselves, /17/
or with any requirements they may place on the manner in which the JTRs
are administered. Additionally, the Authority finds that nothing in the
cited Comptroller General decisions would require that any provisions
negotiated be applied to nonunit employees.
Based on these reasons the Authority rejects the Agency's arguments.
Our findings that in this case the Agency has not established a
compelling need for any part of the JTRs, does not of course imply that
a compelling need could not be established under other circumstances.
Compare National Federation of Federal Employees, Local 561 and
Department of the Army, U.S. Army Corps of Engineers, Mobile, Alabama,
17 FLRA 759 (1985) aff'd sub nom. National Federation of Federal
Employees, Local 29 v. FLRA, No. 85-1398 (D.C. Cir. April 1, 1986) where
the Authority found that a compelling need had been established for a
portion of the JTRs. The Authority finds, based on the record here,
that Union Proposal 10 is within the duty to bargain.
XII. Union Proposals 11 and 12
(Union Proposal 11)
Section 5-B:
B. Association Representatives/Staff who are not employees of
ODE/DoDDS shall be issued appropriate government Travel Orders on
a reimbursable basis from the Association for transportation for
the purpose of conducting representational duties and to include a
designation of the equivalent Management counterpart grade.
(Union Proposal 12)
Section 6:
Association Representatives/Staff who are not ODE/DoDDS
employees and are stationed outside the United States shall be
given access to services and facilities provided by the Department
of Defense as employees of the Department of Defense on a
reimbursable basis or on the same basis that members of the
American Red Cross, USO, U.S. commercial contractors, Boy Scout
leaders, or traveling clergy are treated.
A. Positions of the Parties
The positions of the parties regarding these two proposals are
essentially the same as those expressed regarding Union Proposal 9. See
section X(A) above.
B. Analysis and Conclusion
Union Proposals 11 and 12, like Union Proposal 9, deal exclusively
with matters concerning individuals who are not in the bargaining unit.
Based on the reasons expressed and the case cited in conjunction with
Union Proposal 9, the Authority finds that Union Proposals 11 and 12 are
not within the duty to bargain. See section X(B) above.
XIII. Union Proposal 13
Section 11:
The Employer/Designee shall provide an area with a minimum of a
desk, chair, file cabinet, typewriter and Class A telephone for
the Association at the national and regional levels. An identical
area shall be provided at the local level provided that an
Association Representative represents at least 50 bargaining unit
members. If the Association Representative represents fewer than
50 bargaining unit members, said area shall be provided if
available.
A. Positions of the Parties
The Agency argues that the underlined portion of the proposal is
nonnegotiable because the military components of the Department of
Defense rather than DoDDS, control the allocation of telephone
resources. OEA argues that DoDDS can procure telephone services from
the military through servicing support agreements.
B. Analysis and Conclusions
The Agency's argument is essentially the same as the one raised in
conjunction with Union Proposal 5. It is rejected here for the reasons
expressed above in section VI(B)(2). Union Proposal 13 is, therefore,
within the Agency's obligation to bargain.
XIV. Union Proposal 14
Section 14:
The Employer/Designee shall take what action it can to provide
each school with a faculty lounge and a Class A telephone. In any
event, employees shall be given reasonable access to military and
civilian telephones at the work site.
A. Positions of the Parties
DoDDS argues that: to the extent the telephones are to be used for
official business, the proposal concerns the methods and means by which
the Agency accomplishes its work and under section 7106(b)(1) it is not
within the duty to bargain; and to the extent the telephones are to be
used for personal business, the proposal conflicts with a
Government-wide rule or regulation, specifically a GSA regulation found
at 41 CFR, Part 101-37.
OEA argues that DoDDS has not demonstrated that use of the telephone
is "principally related to the performance of the Agency's work." Thus,
it has not shown that the proposal interferes with its determination of
the methods, means and technology of performing work. In response to
the Agency's assertion that use of the telephone for personal business
conflicts with a GSA regulation, OEA asserts that the particular
regulation only prohibits using long distance telephone service for
personal reasons. Under the proposal, the Agency retains the right to
prohibit employees from making long distance calls.
B. Analysis and Conclusions
1. Conflict with Section 7106(b)(1)
Because the Proposal would require that telephones, or access to
them, be provided employees for the purpose of conducting the business
of the Agency, it is to the same effect as Union Proposal 3 in American
Federation of Government Employees, Local 644, AFL-CIO and U.S.
Department of Labor, Mine Health and Safety Administration, Morgantown,
West Virginia, 15 FLRA 902 (1984). In that case, the Authority found
that the proposal, which required that sufficient telephones for the
conduct of Government business be furnished, concerned the technology of
performing work within the meaning of section 7106(b)(1) of the Statute.
For the same reasons, Union Proposal 14 as written is an elective
subject on which the Agency has chosen not to bargain.
2. Conflict with a Government-wide Rule or Regulation
The particular regulation on which DoDDS relies has been supplanted
during the pendancy of the case by a provision in the Federal
Information Resources Management Regulation (FIRMR). Specifically, the
FIRMR limits use of "the FTS and other Government provided long distance
services" to Government business only. 41 CFR Section 201-38.007.
However, it does not appear that the FIRMR applies to Department of
Defense installations in the geographical areas involved in this case.
Specifically, 41 CFR Section 201-1.103(c)(3) provides:
(3) The applicability of the telecommunications resources
provisions of the FIRMR to the Department of Defense (DoD) is
governed by the statement of areas of understanding between DoD
and GSA (15 FR 8226, December 1, 1950).
The statement of areas of understanding referred to provides in
relevant part:
1. The areas of understanding herein set forth were worked out
pursuant to order of the President of July 1, 1949, directed to
the Secretary of Defense, the Director, Bureau of the Budget, and
the Administrator of General Services.
2. The areas of understanding with respect to communications
services are:
. . . . . . .
m. This area of understanding is applicable to communications
services within the Continental United States, Hawaii, Puerto Rico
and the Virgin Islands. The Department of Defense shall be exempt
from action taken by the Administrator with respect to
communication services under section 201(a) of Public Law 152 (The
Federal Property and Administrative Services Act of 1949) in other
geographical areas.
In view of this, the Agency's assertion that the proposal conflicts
with 41 CFR Section 201-38.007 cannot be sustained and would not, by
itself, provide a basis for finding the proposal nonnegotiable.
XV. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request, or as
otherwise agreed to by the parties, bargain concerning Union proposals
1, 2 (except insofar as it addresses Living Quarters Allowances and post
allowances), 3, 6, 7, 10 and 13. /18/ IT IS FURTHER ORDERED that the
Union's petition for review as it relates to Union Proposals 2 (insofar
as it addresses Living Quarters Allowances and post allowances), 4, 5,
8, 9, 11, 12 and 14 be, and it thereby is, dismissed.
Issued, Washington, D.C. July 7, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) By its Order dated June 30, 1986, the Authority denied the
Agency's motion to consolidate Case Nos. 0-NG-840, 0-NG-850, 0-NG-950,
0-NG-1115 and 0-NG-1227.
(2) For example, Defense Department Overseas Teachers Pay and
Personnel Practices Act, 73 Stat. 213 (1959); the Overseas
Differentials and Allowances Act, 74 Stat. 792 (1960); and the Travel
Expense Act of 1949, as amended (5 U.S.C. Sections 5701 et seq.).
(3) E.O. 10903, as amended, and E.O. 12228.
(4) Section 012 of the DSSRs. For the text of this provision, see
the Appendix to this decision.
(5) See section 040 of the DSSRs. For relevant portions of the text
see Appendix.
(6) See section 013 of the DSSRs. For text see Appendix.
(7) For relevant portion of the text of Chapter 700 of the DSSRs, see
Appendix.
(8) For text of these remarks, see Appendix.
(9) For text of this statement, see Appendix.
(10) For text of relevant provision of the DSSRs, see Appendix.
(11) FPM, Chapter 870, Subchap. 1, 1-4 and FPM Supplement 870-1,
Subchap. S2, S2-7.
(12) FPM, Chapter 890, Subchap. 3, 3-3 and FPM Supplement 890-1,
Subchap. S8, S8-4.
(13) See discussion of what constitute a Government-wide regulation
in section III(B)(1) above.
(14) 5 CFR Section 831.1204(b) refers to 5 CFR Section 294.401(b).
The provisions of 5 CFR Section 294.401(b) have been relocated and
appear at 5 CFR Section 294.106(d). See 47 Fed. Reg. 46513 (1982) and
50 Fed. Reg. 3308 (1985).
(15) See 5 CFR Sections 831.1201, 831.1203.
(16) Citing an earlier decision, the Comptroller General held:
(I)n 37 Comp. Gen. 820 . . . we held that a statute which
authorizes an administrative officer to prescribe regulations does
not imply authority to include a waiver provision in the
regulations which would permit the administrator in his discretion
to disregard the regulations in certain individual cases and
enforce them in others. Also, as we stated in that decision,
regulations must contain a guide or standard alike to all
individuals similarly situated, so that anyone interested may
determine his own rights or exemptions therein.
Unpublished Decision of the Comptroller General B-158880, October 27,
1966.
(17) In view of this, it is unnecessary to, and the Authority does
not, decide under what circumstances decisions of the Comptroller
General might constitute Government-wide rules and regulations.
(18) In finding these proposals within the duty to bargain the
Authority makes no judgment as to their merits.
APPENDIX
/3/ 012 Exercise of Authority
The Secretary of State hereby prescribes the following
regulations governing allowances, differentials, and defraying of
official residence expenses in foreign areas. These regulations
and any amendments and revisions to them shall govern:
a. Granting of quarters allowances, cost-of-living allowances,
post differential, and danger pay allowance authorized by 5 U.S.C.
5921-5925, and 5928 for employees defined in section 014i and for
employees defined in section 040j who may be authorized by other
provisions of law to be paid allowances and differentials;
b. Allotment of funds to defray official residence expenses
authorized by 5 U.S.C. 5913;
c. Granting of representation allowances authorized by section
905 of the Foreign Service Act of 1980, for officers or employees
of the Foreign Service, and similar allowances authorized by other
provisions of law (including section 235(a)(2) of Title 38 of the
United States Code) for employees (Sec. 040i) other than employees
of the Foreign Service unless authority to prescribe regulations
for such employees under any such act has been vested in, or
specifically delegated to, someone other than the Secretary of
State;
d. Granting of quarters allowances, cost-of-living allowances
and post differential authorized by sections 7 (a) and 8 (a) (1)
and (2) of the Defense Department Overseas Teachers Pay and
Personnel Practices Act (20 U.S.C. 905(a) and 20 U.S.C. 906(a)(1)
and (2), as amended (2) U.S.C. 901 et seq.);
e. Maximum rates of per diem allowances for travel in foreign
areas authorized by 5 U.S.C. 5702;
f. The payment of compensation, post differential and
allowances in the event of an emergency evacuation of employees or
their dependents, or both, from duty stations for military or
other reasons or because of imminent danger to their lives (5
U.S.C. 5521-5527);
g. The payment of a housing supplement to certain employees
assigned to the U.S. Mission to the United Nations, and the
payment of a housing and subsistence expense allowance to U.S.
delegates and alternates to the United Nations General Assembly;
authorized by Section 9 of the United Nations Participation Act of
1945, as amended (59 Stat. 619).
h. Granting of compensatory time off to employees at certain
posts in foreign areas authorized by 5 U.S.C. 5926.
i. Granting of relocation allowances authorized by 38 U.S.C.
235(6) and (7) for Veterans Administration.
j. Advances of pay to employees entering foreign area
assignments authorized by 5 U.S.C. 5927.
/4/ The DSSRs define employee as follows:
040 Definitions
The following definitions apply to all chapters of these
regulations, unless waived or modified in specific instances.
Supplementary definitions which apply to specific chapters or
sections only will be found in the General Provisions of those
chapters and subchapters.
. . . . . . .
i. "employee" means an individual employed in the civilian
service of a government agency (including ambassadors, ministers,
and members of the Foreign Service of the United States under the
Department of State) who is
(1) a citizen of the United States; (except under sec. 312);
(2) officially stationed in a foreign area, except as otherwise
specifically provided in these regulations;
(3) receiving basic compensation (See Sec. 040k); and
(4) eligible for allowances or differential under sub-chapter
030.
Teachers are considered "employees." Section 040(n) provides:
n. "Teacher" means an employee who is a teacher as defined in
section 2(2) of the Defense Department Overseas Teachers Pay and
Personnel Practices Act (73 Stat. 213) and regulations issued
thereunder by the Department of Defense. Substitute teachers are
not considered to be teachers for the purpose of these
regulations.
/5/ Section 013 of the DSSRs provides in part:
013 Authority of Head of Agency
When authorized by law, the head of an agency may . . . grant
post differential, special incentive differential, danger pay
allowance, quarters, cost-of-living, representation allowances,
compensatory time off at certain posts and advances of pay to
employee of his/her agency and require an accounting therefore,
subject to the provisions of these regulations and the
availability of funds. Within the scope of these regulations, the
head of an agency may issue such further implementing regulations
as he/she may deem necessary for the guidance of his/her agency
with regard to the granting of and accounting for these payments.
/6/ Chapter 700 provides in part:
710 General
Under the general provisions of Chapter 000 and the modifying
provisions of this chapter, a teacher (Sec. 040n.) who is assigned
to a teaching position at a post (Sec. 040h) may be granted
quarters allowances in accordance with Chapter 100, cost-of-living
allowances in accordance with chapter 200, and be paid a post
differential in accordance with Chapter 500. (Emphasis added.)
/7/ Rep. Ford's remarks were as follows:
By also permitting negotiation of matters that are the subject of
agency regulations that are not Government-wide rules of regulations,
problems such as those that have occurred with overseas schoolteachers
should be eliminated. While these teachers are employees of the Defense
Department, the Department of State has been given the authority, in
some instances, to issue regulations regarding these teachers. The
Defense Department has indicated that they could not negotiate on these
matters, since they did not issue the regulations. The State Department
will not negotiate on the matters, since the employees organizations
representing these teachers do not have exclusive recognition with
State. Title VII prevents management from continuing this practice or
from extending this type of maneuver to other agencies in order to avoid
the duty to bargain by making "matters" that are the subject of
non-Government-wide regulations (as opposed to regulations themselves)
negotiable.
124 Cong. Rec. H 9650 daily ed. Sept. 13, 1978).
/8/ The conference report stated as follows:
The conferees note that the Senate and House versions of chapter 10
did not differ. The chapter 10 provisions resulted from an amendment
adopted in subcommittee in the House which was modeled after title VII
of the Civil Service Reform Act of 1978. The conferees wish to make
clear that chapter 10 is to be interpreted consistent with the
legislative history of the Reform Act, except where a specific departure
is provided in the bill. As an example of a departure, the bill excepts
from the duty to bargain multi-agency responsibilities (such as the
Uniform Standardized Regulations issued under 5 U.S.C. 5921-25) as well
as those meeting the strict definition of "Government-wide". (Emphasis
in original.)
(H.R. Rep. No. 96-1432, 96th Cong., 2d Sess. 117 reprinted in (1980)
U.S. Code Cong. & Ad. News 4419, 4551.)
/9/ The DSSRs provide in relevant part:
050 PAYMENTS (See subchapter 030 -- Applicability)
051 Allowance Payments
. . . . . . .
051.2 Employees in Non-Pay Status
All allowances granted under these regulations may continue
during periods while the employee is in non-pay status not in
excess of 14 calendar days at any one time. For periods in
non-pay status longer than 14 calendar days, payments under
allowance grants are to be suspended as of the day the employee
enters the non-pay status, and payment is not to be made for any
part of such period, unless otherwise specifically provided in
these regulations (Sec. 132.2b(2)).
132.2 Continuance of Grant
The LQA grant may continue, provided the employee maintains and pays
for his/her quarters at the post:
. . . . . . .
b. When the head of agency determines that continuance of the
grant would be in the public interest
. . . . . . .
(2) while the employee is in non-pay status not in excess of 30
calendar days at any one time. For periods in non-pay status
longer than 30 calendar days, payment shall be suspended as of the
day the employee enters such status, and payment is not to be made
for any part of such period.
ORDER DENYING REQUEST FOR RECONSIDERATION
This matter is before the Authority at this time on a request filed
by the union seeking reconsideration of the Authority's decision of May
9, 1986, modifying the Arbitrator's award in the case.
In his opinion accompanying the award, the Arbitrator determined that
management had failed to comply with agreement provisions concerning
performance standards and that but for the erroneous applications of the
dictates of the collective bargaining agreement, the recommended
promotion of the grievant would originally have been approved. As his
award, the Arbitrator ordered the grievant retroactively promoted with
backpay. In its exceptions to the award, the Agency contended that the
award was contrary to the Back Pay Act, 5 U.S.C. Section 5596, and
section 7106(a) of the Statute. The Authority agreed and held that the
Arbitrator's determinations did not constitute the findings required to
support an award of retroactive promotion and backpay. In its request
for reconsideration, the Union essentially argues that the Authority
misinterpreted the Arbitrator's award.
Section 2429.17 of the Authority's Rules and Regulations permits a
party that can establish "extraordinary circumstances" to move for
reconsideration of a decision of the Authority. Here, however, the
Union has not established "extraordinary circumstances" within the
meaning of section 2429.17. Rather, the arguments presented by the
Union in support of its request essentially constitute nothing more than
disagreement with the merits of the Authority's decision and an attempt
to relitigate the matter.
Accordingly, the Union's request for reconsideration is denied.
Issued, Washington, D.C., June 30, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY