36:0871(84)CA - - DOD, Office of Dependents Schools and Overseas Education Association - - 1990 FLRAdec CA - - v36 p871

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[ v36 p871 ]
36:0871(84)CA
The decision of the Authority follows:


36 FLRA No. 84

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF DEFENSE

OFFICE OF DEPENDENTS SCHOOLS

(Respondent)

and

OVERSEAS EDUCATION ASSOCIATION

(Charging Party)

3-CA-60491

DECISION AND ORDER

August 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the General Counsel to the attached decision of the Administrative Law Judge. The Respondent did not file an opposition to the exceptions.

The Judge found that the Respondent did not violate section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute), as alleged, when it refused to furnish the Charging Party (the Union) with the home addresses of new recruits whom the Respondent had tentatively selected for positions for the next school year. The Union had requested that the Respondent provide the information on an ongoing basis, as soon as acceptances of tentative offers were received. The Judge recommended that the complaint be dismissed.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge made at the hearing and find that no prejudicial error was committed. We affirm those rulings. We adopt the Judge's findings, conclusions, and recommendation that the complaint be dismissed, to the extent consistent with this decision.

II. Background and Administrative Law Judge's Decision

The Respondent conducts a recruitment program for teachers for its overseas schools each year. As described in more detail by the Judge, tentative offers of employment are made to recruits from mid-April through, at least, September. The tentative offers are conditional upon, among other things, the outcome of various administrative and investigative procedures, and the continuing need for the position. The letter used by the Respondent to make a tentative offer cautions the recruit against resigning present employment or taking any action that might cause inconvenience "in the event your tentative selection does not result in a definite appointment. You will be notified at such time as this commitment is final." ALJ Decision at 4. Enclosed with the tentative offer is a letter of acceptance or declination that must be returned by the recruit within 48 hours of receipt.

The Respondent issues between 1,000 and 2,000 tentative offers to obtain the approximately 600 personnel needed each year. For the 1986-87 school year, an estimated 1,500 offers were made to obtain the 571 teachers needed. Approximately 60 of the people who had accepted tentative offers for that year subsequently either dropped out or failed to qualify for final selection.

In early June 1986, the Union requested the home addresses of new recruits who had accepted tentative offers of positions for the next school year, as well as the home addresses of all such recruits, on an ongoing basis, as acceptances were received from them. The Respondent refused the request by letter dated June 23, 1986. It asserted that applicants who have been offered positions but have not reported for duty are not employees as defined by 5 U.S.C. § 2105, and that, therefore, it has no obligation under section 7114(b)(4) of the Statute to provide the information.

The Judge concluded that the Respondent was not obligated to furnish the information requested by the Union. In reaching that conclusion, the Judge found that the selectees were not yet employees, that the information requested by the Union did not directly relate to unit positions, and that the information was not shown to be necessary for the Union to carry out its representational obligations.

III. General Counsel's Exceptions

The General Counsel excepted to the dismissal of the complaint, arguing, in reliance on Overseas Education Association and Department of Defense, Office of Dependents Schools, 22 FLRA 351, 352-53 (1986), enforced on other grounds sub nom. Overseas Education Association, Inc. v. FLRA, 827 F.2d 814 (D.C. Cir. 1987) (OEA), that, even if the new recruits were not employees, the request related to matters concerning bargaining unit positions and, therefore, the Union had a right to the information.

IV. Analysis and Conclusions

We adopt the Judge's finding that the recruits were not employees within the meaning of section 7103(a)(2) of the Statute at the time of the Union's request. This, however, is not the end of the inquiry. Rather, here, as with any other request for data under section 7114(b)(4)(B) of the Statute, the Union's right to the home addresses of recruits who had accepted tentative offers of employment depends on, among other things, a showing that such information is "necessary for full and proper discussion, understanding, and negotiation of subjects within the scope of collective bargaining[.]"

While the home addresses of prospective members of the bargaining unit could, under some circumstances, be information that is necessary within the meaning of section 7114(b)(4)(B) for a representative to carry out its obligations, we find that here the facts do not support such a conclusion. The Union requested the information at the beginning of June regarding recruits who had received and responded to only tentative offers of employment in September. The final selections depended on the continued need for positions, as well as other administrative and investigative matters, and might not be made until September. Indeed, approximately 60 of those who had accepted tentative offers for the 571 positions dropped out or failed to qualify for final hiring. There is no evidence to indicate that this did not reflect the usual outcome of the selection process.

Thus, the record reflects that the Union requested the information concerning individuals who were basically still applicants. Even though conditional offers of employment had been made to them, the offers and acceptances were made often months before the applicants might actually become employed. Further, a significant number of those who accepted the positions would not become employees for that school year. Based on the remoteness and uncertainty of the recruits' prospective employment in the bargaining unit, we find that the record does not support a finding that the Union needed the recruits' home addresses in order to carry out its representational responsibilities. In reaching this conclusion, we recognize that there are situations in which an employer will be obligated to provide a representative with information about prospective employees, that is, those who have a substantial expectation of becoming employees. Cf. Star Tribune, 295 NLRB No. 63, 131 LRRM 1404, 1410 (1989) (employer obligated to furnish information concerning applicants for union-represented positions, which was necessary and relevant to union's performance of its bargaining obligation with respect to eliminating discriminatory employment practices).

The General Counsel's reliance on OEA is misplaced. In that case the Authority held that the agency had a duty to bargain over the union's proposal to include union orientation information in the agency's orientation mailing to new selectees. The Authority found that the proposal related to matters concerning bargaining unit positions, despite the fact that the mailing would occur before the selectees had been appointed. The Authority stated that the timing of the mailing was not determinative because the orientation information related solely to the selectees' prospective employment in bargaining unit positions and was specifically relevant to employment in those positions. The decision does not indicate precisely how far in advance of the appointment of the selectees the mailing would occur or the extent to which the prospective appointment of those who would receive the mailing was subject to uncertainty. Both matters, however, were within the agency's control, as they were not specified in the proposal.

In contrast, in the present case, the Union seeks to obtain information as a matter of right under section 7114(b)(4) of the Statute--home addresses of tentative selectees--and, as already discussed, the prospective employment of the selectees is both remote and u