Overseas Education Association (Union) and Department of Defense, Office of Dependents Schools, Alexandria, Virginia (Agency) (Authority decision, October 30, 1981)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

A union appealed negotiability issues arising during bargaining with the Defense Department’s overseas schools. While the appeal was pending, an agency reorganization made the existing bargaining units inappropriate, and the Authority directed new elections in a separate case. The Authority held that the bargaining issues were moot until an appropriate unit and representative were determined. It dismissed the appeal without prejudice and did not decide the proposals’ merits.

Decision snapshot

• Authority: 5 U.S.C. § 7105(a)(2)(E), 5 U.S.C. § 7114(a)(4).
• Outcome: Negotiability appeal dismissed without prejudice as moot.
• Key point: The bargaining duty depended on an appropriate unit of exclusive recognition.

Full text (FLRA public release)

[ v07 p84 ]

07:0084(11)NG

The decision of the Authority follows:

7 FLRA No. 11

OVERSEAS EDUCATION ASSOCIATION
Union

and

DEPARTMENT OF DEFENSE, OFFICE
OF DEPENDENTS SCHOOLS,
ALEXANDRIA, VIRGINIA
Agency

Case No. O-NG-180

DECISION AND ORDER ON NEGOTIABILITY APPEAL

THIS MATTER IS BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
SEQ.).

SHORTLY AFTER NEGOTIATIONS BETWEEN THE ABOVE-CAPTIONED PARTIES HAD
COMMENCED, THE UNION TIMELY FILED THE INSTANT APPEAL WITH THE AUTHORITY.
DURING THE PENDENCY OF THE APPEAL, AN AGENCY REORGANIZATION RESULTED IN
THE FILING OF A NUMBER OF REPRESENTATION CASES WITH THE AUTHORITY.
THESE CASES WERE CONSOLIDATED FOR PURPOSES OF DECISION IN DEPARTMENT OF
DEFENSE DEPENDENTS SCHOOLS AND OVERSEAS EDUCATION ASSOCIATION, NEA, 6
FLRA NO. 55(1981). IN THAT DECISION, THE AUTHORITY FOUND THAT THE
REORGANIZATION HAD RESULTED IN A REALIGNMENT OF THE ORGANIZATIONAL
STRUCTURE OF THE DEPARTMENT OF DEFENCE DEPENDENTS SCHOOLS SO AS TO CAUSE
THE EXISTING BARGAINING UNITS TO BE NO LONGER APPROPRIATE.
CONSEQUENTLY, THE AUTHORITY CONCLUDED THAT SELF DETERMINATION ELECTIONS
MUST BE HELD TO DETERMINE WHICH OF THE CONTENDING UNIONS, IF ANY, IS THE
EMPLOYEES' CHOICE AS EXCLUSIVE REPRESENTATIVE AND, DERIVATIVELY, TO
DETERMINE THE EMPLOYEES' PREFERENCE FOR REPRESENTATION IN A WORLD WIDE
OR IN REGIONWIDE UNITS OF EXCLUSIVE RECOGNITION (DECISION AT P. 11-12).

AS A RESULT OF THE DECISION FINDING THAT THE EXISTING BARGAINING
UNITS INVOLVED ARE NO LONGER APPROPRIATE AND DIRECTING THAT ELECTIONS BE
HELD, THE ISSUE NOW BEFORE THE AUTHORITY IN THE INSTANT CASE IS WHETHER
THIS APPEAL IS PROPERLY BEFORE THE AUTHORITY AT THIS TIME.

THE STATUTORY DUTY TO BARGAIN IS SET FORTH IN SECTION 7114(A)(4) OF
THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WHICH PROVIDES,
IN PERTINENT PART, AS FOLLOWS:

ANY AGENCY AND ANY EXCLUSIVE REPRESENTATIVE IN ANY APPROPRIATE UNIT
IN THE AGENCY, THROUGH

APPROPRIATE REPRESENTATIVES, SHALL MEET AND NEGOTIATE IN GOOD FAITH
FOR THE PURPOSES OF

ARRIVING AT COLLECTIVE BARGAINING AGREEMENT.

ALSO, WITH REGARD TO THE DUTY TO BARGAIN, SECTION 7103(A)(12) OF THE
STATUTE DEFINES "COLLECTIVE BARGAINING" AS:

(T)HE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE REPRESENTATIVE OF
AN AGENCY AND THE

EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN AN APPROPRIATE UNIT IN THE
AGENCY TO MEET AT

REASONABLE TIMES AND TO CONSULT AND BARGAIN IN A GOOD-FAITH EFFORT TO
REACH AGREEMENT WITH

RESPECT TO THE CONDITIONS OF EMPLOYMENT AFFECTING SUCH EMPLOYEES(.)

THUS, THE STATUTE CLEARLY INDICATES THAT THE BARGAINING OBLIGATION
EXISTS IN AN APPROPRIATE UNIT OF EXCLUSIVE RECOGNITION WITH RESPECT TO
CONDITIONS OF EMPLOYMENT WHICH AFFECT ANY EMPLOYEES WITHIN THE UNIT.
THEREFORE, WHERE THERE IS NO APPROPRIATE UNIT, THERE IS NO DUTY TO
BARGAIN.

IN CASES INVOLVING CHANGES IN THE STATUS OF EXISTING UNITS, IN THE
CONTEXT OF UNIT CONSOLIDATION, THE AUTHORITY HAS HELD THAT A NEW
BARGAINING OBLIGATION IS CREATED IN LIEU OF SUCH OBLIGATIONS WHICH
PREVIOUSLY EXISTED REGARDING SMALLER UNITS NOW IN THE CONSOLIDATED UNIT.
IN OTHER WORDS, IN THOSE CASES, THE DUTY TO BARGAIN WITH A LOCAL UNIT
OF EXCLUSIVE RECOGNITION WAS HELD NO LONGER TO EXIST AT THAT LEVEL DUE
TO THE ESTABLISHMENT OF THE APPROPRIATE UNIT AT THE NATIONAL LEVEL.
DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION
AND LOCAL 1346, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1164,
AFL-CIO AND SOCIAL SECURITY ADMINISTRATION, 6 FLRA NO. 60(1981).

SINCE THE AUTHORITY HELD THAT THE UNIT OF EXCLUSIVE RECOGNITION
INVOLVED IN THE INSTANT NEGOTIABILITY APPEAL IS NO LONGER APPROPRIATE,
THE DUTY TO BARGAIN WITH THE EXCLUSIVE REPRESENTATIVE OF THIS UNIT NO
LONGER EXISTS. THAT IS, THE AGENCY HAS NO DUTY TO BARGAIN WITH THE
UNION REGARDING CONDITIONS OF EMPLOYMENT OF EMPLOYEES IN THE UNIT NO
LONGER DEEMED APPROPRIATE. HENCE, IN THE ABSENCE OF A DUTY TO BARGAIN
BETWEEN THE PARTIES TO THIS CASE, ISSUES AS TO THE SCOPE OF BARGAINING,
I.E., WHETHER THE PROPOSALS IN DISPUTE HEREIN ARE INCONSISTENT WITH LAW
AND REGULATION UNDER SECTION 7117(A) AND (B) ARE NOT APPROPRIATE FOR
RESOLUTION BY THE AUTHORITY AT THIS TIME.

FOR THE FOREGOING REASONS, IT IS CONCLUDED THAT THE NEGOTIABILITY
ISSUES RAISED IN THE INSTANT APPEAL WERE RENDERED MOOT BY THE
AUTHORITY'S DECISION THAT THE BARGAINING UNIT INVOLVED IS NO LONGER
APPROPRIATE. CF. AMERICAL FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
LOCAL 2 AND DEPARTMENT OF THE ARMY, HARRY DIAMOND LABORATORIES, ADELPHI,
MARYLAND, 5 FLRA NO. 13(1981) (NEGOTIABILITY ISSUES WITH RESPECT TO A
PAID PARKING PROGRAM WERE RENDERED MOOT BY DISCONTINUANCE OF THE
PROGRAM
DURING THE PENDENCY OF THE APPEAL).

ACCORDINGLY, WITHOUT PASSING ON THE MERITS OF THE DISPUTE, IT IS
ORDERED THAT THE UNION'S APPEAL BE, AND IT HEREBY IS, DISMISSED WITHOUT
PREJUDICE.

ISSUED, WASHINGTON, D.C., OCTOBER 30, 1981.

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY