54:0259(37)CA - - DOD Dependents Schools & Overseas Federation of Teachers // [ Department of Defense ] - - 1998 FLRAdec CA - - v54 p259



[ v54 p259 ]
54:0259(37)CA
The decision of the Authority follows:


54 FLRA No. 37

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS

(Respondent)

and

OVERSEAS FEDERATION OF TEACHERS

(Union/Charging Party)

CH-CA-50593

CH-CA-50694

_____

DECISION AND ORDER

May 29, 1998

_____

Before the Authority: Phyllis N. Segal, Chair; Donald S.

Wasserman and Dale Cabaniss, Members.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions to the attached decision of the Administrative Law Judge filed by the Respondent and cross-exceptions filed by the General Counsel. The General Counsel filed an opposition to the Respondent's exceptions and the Respondent filed an opposition to the General Counsel's cross-exceptions.

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by failing to comply with the terms of a settlement agreement entered into for the purpose of resolving a grievance.

The Judge found that the Respondent violated the Statute, as alleged, and further found that, in the circumstances of this case, the Respondent's conduct constituted a repudiation of the settlement agreement. To remedy the Respondent's unlawful conduct, the Judge recommended that it: (1) make certain employees whole for any losses incurred by them as a result of the unfair labor practice, and (2) post a remedial notice. No exceptions were filed to the Judge's finding of a violation. The exceptions and cross-exceptions concern only the Judge's recommended remedy.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings and conclusions, noting that there were no exceptions.(1) However, we adopt the Judge's recommended Order only to the extent consistent with this decision.

II. Background

The facts are fully set forth in the Judge's decision. The settlement agreement involved in this case was designed to ensure that teachers who had been involuntarily reassigned off the island of Lajes were given priority to return.(2) To that end, it was designed to create vacancies for these teachers by ensuring that current Lajes teachers would be given priority consideration in transfers from Lajes to other locations.

The Judge found, as relevant here, that the Respondent failed to comply with the terms of the settlement agreement by refusing to accord priority to the requests of Harry Foley and Gloria Krom to be transferred off the island of Lajes. The Judge further found that the Respondent's failure to do so effectively denied opportunities to return to Lajes two former Lajes teachers -- David Gronke and Mary Ann Henke-Rebelo -- which also violated the settlement agreement. The Judge additionally determined that the Respondent's refusal to accord priority to James Coyle's request to be transferred back to Lajes violated the settlement agreement. Finally, the Judge concluded that the Respondent's actions constituted an unlawful repudiation of the agreement.

As a remedy, the Judge ordered that employees Gronke, Henke-Rebelo and Coyle be made whole for any losses incurred by them as a result of the Respondent's unlawful conduct. In this connection, the Judge found that Lajes teachers receive 5% hardship pay and that if Gronke and Henke-Rebelo had been returned to Lajes in accordance with the settlement agreement, they each would have received hardship pay for the entire 1995-96 school year. The Judge further found that if Coyle had been properly returned to Lajes in December 1995, he would have received hardship pay from December 1995 until the end of the 1995-96 school year. In addition, the Judge found that if Gronke and Henke-Rebelo had been properly returned to Lajes, they each would have received two Environmental Morale Leave (EML) flights instead of one.(3) The Judge did not order make-whole relief for employees Foley and Krom because Gronke and Henke-Rebelo had previously received offers to return to Lajes for the 1996-97 school year.

In fashioning the remedy, the Judge rejected the General Counsel's request that the Respondent be required to post the remedial notice in this case at its facilities world-wide. In the Judge's view, as the Union only represents employees in the Respondent's Old Mediterranean Region and, as the Union is principally concerned with enforcement of the settlement agreement, it is appropriate to post the notice only at those facilities where members of the bargaining unit are employed.

III. Positions of the Parties

A. Respondent

1. Exceptions

The Respondent excepts to two aspects of the Judge's recommended remedy. First, pursuant to Federal Aviation Association, Washington, D.C., 27 FLRA 230 (1987) (FAA), the Respondent argues that although employees Gronke, Henke-Rebelo and Coyle were affected by an unjustified personnel action, it has not been established that they suffered a withdrawal or reduction in pay, allowances or differentials that would entitle them to relief under the Back Pay Act. The Respondent therefore contends that they are not entitled to the 5% hardship pay ordered by the Judge.

In this connection, the Respondent maintains that there is no such thing as hardship pay and that the Judge was actually referring to two types of allowances known as a post differential and a post allowance. According to the Respondent, a post differential is a payment that is intended to compensate employees for serving at a post "where conditions are extraordinarily difficult, unhealthful or where excessive physical hardships differ substantially from those in the continental United States." Exceptions at 4. The Respondent further asserts that a post allowance is a payment that is intended to compensate employees for serving at a post where the cost of living is substantially higher than Washington, D.C. Id.

The Respondent contends that in this case, because Gronke, Henke-Rebelo and Coyle were stationed in Italy during the 1995-96 school year, they were not entitled to a post differential. However, the Respondent submits that they were entitled to a 10% post allowance, which they would not have received had they been assigned to Lajes. In the Respondent's view, prior to awarding these employees make-whole relief, it must be determined whether they actually suffered a loss of allowances or differentials consistent with FAA.

The Respondent also submits that the affected employees were not entitled to the EML flights ordered by the Judge because there is no statutory or regulatory provision that would qualify such flights as an allowance to which employees would be entitled under the Back Pay Act. Rather, relying on Hurley v. United States, 624 F.2d 93 (10th Cir. 1980) (Hurley) and Community Services Administration and National Council of CSA Locals, AFGE, AFL-CIO, 7 FLRA 206 (1981) (Community Services), the Respondent asserts that EML flights are similar to per diem travel expenses that have been disallowed.

Consistent with the foregoing, the Respondent requests that the Judge's Order be modified to exclude post differentials and EML flights. In the alternative, the Respondent argues that any relief to which the affected employees are entitled is more appropriately determined during the compliance stage of this proceeding.

2. Opposition

The General Counsel asserts that at the hearing testimony was offered with regard to the differential pay received by Lajes employees and that the Respondent had the opportunity to cross-examine its witness on this issue and to offer testimony of its own. However, the General Counsel points out that the Respondent failed to do so. According to the General Counsel, the Respondent now seeks, through its exceptions, to offer new evidence concerning a type of payment known as a "post allowance" and asserts that employees Gronke, Henke-Rebelo and Coyle received such an allowance during the 1995-96 school year. The General Counsel argues that this new evidence should be rejected as untimely. In the alternative, the General Counsel submits that because this evidence concerns a dispute over the computation of the amount of backpay due to affected employees, it is more appropriately addressed during the compliance stage of this proceeding.

As concerns the Respondent's assertion that EML flights are not recoverable under the Back Pay Act, the General Counsel asserts that the Respondent's reliance on Hurley and Community Services is misplaced. Instead, the General Counsel argues that EML flights or their monetary equivalent are appropriately included in a backpay award based on precedent set forth in decisions of the Comptroller General including In the Matter of Norma J. Raymond, 59 Comp. Gen. 261 (1980) (Raymond) and Urbina v. United States, 428 F.2d 1289 (Ct. Cl. 1970) (Urbina). According to the General Counsel, in Urbina the Court of Claims upheld an award of backpay for a living quarters allowance granted to an employee living in Japan, even though the employee was living in the United States during the period of time for which he received backpay.

B. General Counsel

1. Cross-Exceptions

The General Counsel excepts to two aspects of the recommended remedy. First, the General Counsel excepts to the Judge's failure to order relief for two employees who currently teach on Lajes. The General Counsel notes, in this regard, that in his decision the Judge found that the Respondent had repudiated the settlement agreement by failing to transfer Harry Foley and Gloria Krom -- whose transfers would have created additional vacancies for former Lajes teachers to fill. However, despite this finding, the General Counsel points out that the Judge declined to order relief for either of these employees. The General Counsel submits that the Judge's failure to do so was incorrect.

The General Counsel argues, in this regard, remedies for unfair labor practices should be "'designed to recreate the conditions and relationships that would have been had there been no unfair labor practice.'" Cross-exceptions at 7-8 (quoting United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 444-45 (1990). According to the General Counsel, "[r]emedies should be designed to restore, so far as possible, the status quo that would have obtained but for the wrongful act." Id. (quoting NLRB v. J.H. Rutter-Rex Manufacturing Co., 396 U.S. 258, 265 (1969).

The General Counsel asserts that in this case, in order for the parties to be restored to the positions that would have obtained in the absence of the Respondent's unlawful actions, Foley and Krom must be given the transfers they requested in 1995. However, the General Counsel contends that instead, the Judge's decision "suggests that in a repudiation case, it must not only be shown that there was a clear and patent breach of an agreement and that the provision breached went to the heart of the agreement but in addition, those affected by the repudiation must somehow show that they were the intended beneficiaries of the agreement before they may obtain relief." Cross-Exceptions at 9. In the General Counsel's view, if a contract provision is so significant that its breach constitutes an unlawful repudiation of the entire agreement, then its breach is also significant enough to require a remedy.

The General Counsel also contends, based on Federal Deposit Insurance Corporation, Washington, D.C., 48 FLRA 313, 331 (1993), that the Judge erred in failing to order that the remedial notice be posted world-wide. According to the General Counsel, as the settlement agreement requires the Respondent to transfer former Lajes employees back to Lajes from a variety of locations around the world and, conversely, to transfer current Lajes employees to such locations, the order in this case has world-wide implications. The General Counsel accordingly urges the Authority to modify the recommended order and direct that the notice be posted at the Respondent's facilities world-wide.

2. Opposition

In its opposition to the General Counsel's cross-exceptions, the Respondent argues that there is no merit in the General Counsel's contentions that the Judge erred in failing to provide relief for two current Lajes employees or in declining to order that the notice to employees be posted world-wide. Consequently, the Respondent argues that the cross-exceptions be denied.

IV. Analysis and Conclusions

A. The Judge Correctly Determined that the Make-Whole Relief Specifically Include a Hardship Differential and EML flights

It is well established that a government employee found to have been affected by an improper or unwarranted personnel action resulting in the withdrawal or reduction of pay, allowances or differentials may be made whole under the Back Pay Act, 5 U.S.C. § 5596(b)(1)(a). Immigration and Naturalization Service, Los Angeles District, Los Angeles, California, 52 FLRA 103, 105 (1996); Community Services, 7 FLRA at 208.

In its comments accompanying the Back Pay Act, Congress explained that the authority for awarding an employee the "pay, allowances, or differentials" he or she would have received but for an unjustified or unwarranted personnel action was designed to enforce the principle that a government employee should be "made whole" following the correction of such an action. Specifically, Congress expressed its intent that the phrase "pay, allowances, or differentials" would "cover everything to which such officer or employee would have been entitled if the personnel action had not occurred." H.R. Rep. No. 32, 89th Congress, 1st Sess. 5 (1965). However, it left the scope of the remedy to be more fully defined in the implementing regulations. Id.

Pursuant to the regulations implementing the Back Pay Act, 5 C.F.R. § 550.803, the term "pay, allowances, and differentials" is defined as "monetary and employment benefits to which an employee is entitled by statute or regulation by virtue of the performance of a Federal function." Consistent with this definition, the Authority has concluded that the pay, allowances and differentials encompassed by the Back Pay Act "constitute normal legitimate employee benefits in the nature of employment compensation or emoluments" that do not extend to reimbursement payments such as per diem. Community Services, 7 FLRA at 209. See also United States Department of the Treasury, Internal Revenue Service and Internal Revenue Service, Austin District, and Internal Revenue Service, Houston, District, 23 FLRA 774, 782 (1986); U.S. Customs Service, Chicago-O'Hare and National Treasury Employees Union, Chapter 172, 23 FLRA 366, 368 (1986) (citing Community Services, 7 FLRA at 206).

1. Hardship Differentials

In this case, the Respondent contends, inter alia, that the Judge erred in ordering that the make-whole relief awarded to affected employees specifically include a 5% hardship differential. The Respondent explains that because each of the aggrieved employees was entitled to receive a 10% post allowance -- which they would not have received had they been properly transferred to Lajes -- it has not been established that they actually suffered a loss of allowances or differentials as the Back Pay Act requires.

We note, in this connection, that the Respondent does not contend that the payment of a 5% hardship differential is contrary to the Back Pay Act or is otherwise inconsistent with law. We, therefore, conclude pursuant to the Back Pay Act, that the affected employees are entitled to such relief. Under 5 C.F.R. § 550.805(b), no employee may be granted more pay, allowances, and differentials under the Back Pay Act and its implementing regulations than he or she would have received if the unjustified or unwarranted personnel action had not occurred.(4) Accordingly, any hardship differential due affected employees may be subject to an offset of any post allowance he or she received. However, as this dispute concerns the calculation of actual losses to employees under the Back Pay Act, we conclude that it is appropriately resolved during the compliance stage of this proceeding. See, e.g., Department of Defense Dependents Schools, 50 FLRA 197, 207 (1995).

2. EML Flights

The Respondent also maintains that the Judge erred in ordering that the make-whole relief awarded to affected employees specifically include EML flights. More specifically, the Respondent contends that there is no statutory or regulatory provision that can be construed as permitting EML flights as part of a back pay award. We disagree.

As the Respondent correctly observes, EML flights are provided to employees of the Department of Defense pursuant to DoD Directive 4515.13R entitled "Air Transportation Eligibility." The Authority has, on numerous occasions, defined the term "regulation" as encompassing DoD directives. See, e.g., Overseas Education Association and U.S. Department of Defense Dependents Schools, Arlington, Virginia, 51 FLRA 1246, 1251 (1996) (defining "rule or regulation" to include both Government-wide and governing agency rules and regulations, including DoD Directive 1400.13 which pertains to the salary schedules of DoD teachers); U.S. Department of Defense, Office of Dependents Schools, Germany Region and Overseas Education Association, 48 FLRA 979, 985 (1993) (finding that DoD Directive 1400.25-M is a governing Agency regulation). Therefore, to the extent that the Respondent is arguing that there is no statutory or regulatory authority for EML flights, such argument must be rejected.

We also reject the Respondent's claim that reimbursing affected employees for lost EML flights would be similar to reimbursing them for per diem expenses -- expenses which have been disallowed under cases such as Hurley and Community Services. In Hurley, the U.S. Court of Appeals for the Tenth Circuit held that an employee's per diem and commuting expenses were not reimbursable under the Back Pay Act, even though the employee had been erroneously reassigned from duties in Texas to duties in Oklahoma.

In so holding, the court noted that where an employee's separation is found to be unjustified or unwarranted under the Back Pay Act, the employee is entitled to receive an amount equal to all or any part of the pay, allowances or differentials that he or she normally would have earned if the personnel action had not occurred. The court then cited with approval Morris v. United States, 595 F.2d 591 (Ct. Cl. 1979) (Morris), wherein the Court of Claims rejected an employee's claim for expenses incurred as a consequence of his erroneous transfer because they were not "allowances that he would have received had he not undergone the improper personnel action." Id. at 594 (emphasis added). Pursuant to the reasoning set forth in Morris, the Tenth Circuit found that the per diem and commuting expenses claimed by the affected employee would not have been received if the erroneous personnel action had not occurred. Accordingly, it denied the claimed expenditures.

The Comptroller General has employed the same reasoning in resolving similar disputes. Thus, in In the Matter of Orlan Wilson, 66 Comp. Gen. 185 (1987), the Comptroller General noted that generally, the Back Pay Act does not authorize payment of travel or transportation expenses when they are incidental expenses incurred by an employee as a result of an unwarranted personnel action. The Comptroller General explained that this is because such expenses are not allowances that the employee would have received if he or she had not undergone the improper personnel action. Applying these principles to the case pending before it, the Comptroller General found that the employee had been denied certain travel and transportation allowances that he would have received but for the improper personnel action. As such, the Comptroller General found that "those allowances may be paid under the Back Pay Act." Id. at 187.(5)

The second case on which the Respondent relies, Community Services, concerned an arbitrator's finding that the employees involved in a grievance were entitled to two days of per diem travel payments. There, the Authority rejected the award and, citing Hurley, found that in the circumstances presented, neither the Back Pay Act nor its implementing regulations authorize the payment of per diem as part of an award of backpay. See Community Services, 7 FLRA at 209 n.5.

As relevant here, the provisions of DoD Directive 4515.13R establish that the EML program is applicable to Federal employees stationed at overseas installations "where adverse environmental conditions require special arrangements for leave in more desirable places at periodic intervals." DoD Directive 4515.13R at 6-5. The provisions further establish that those employees who are eligible to participate in the EML program travel on a "space-available" basis and are given a higher priority than those traveling on ordinary leave. Id. at 6.

We interpret DoD Directive 4515.13R as vesting an employee with an entitlement to EML flights if he or she is stationed at an overseas installation where adverse environmental conditions require special arrangements for leave and if the appropriate requirements of DoD Directive 1327.05, pertaining to "Leave and Liberty," have been met. Therefore, consistent with the backpay principles discussed above, we conclude that the monetary value of EML flights may be recovered under the Back Pay Act.(6) We further conclude, consistent with the analysis set forth in section A.1., that it is appropriate to leave the determination as to whether the affected employees would have met the requirements for participation in the EML program to the compliance stage of this proceeding.

B. The Judge Erred in Failing to Award Make-Whole Relief for Lajes Employees Foley and Krom

The Authority has defined the broad objectives that an unfair labor practice remedy should be designed to serve. The General Counsel has correctly pointed to United States Department of Justice, Bureau of Prisons, Safford, Arizona, 35 FLRA 431, 445 (1990) (Safford), wherein the Authority stated that "remedies for unfair labor practices under the Statute should, like those under the NLRA, be 'designed to recreate the conditions and relationships that would have been had there been no unfair labor practice.'" Safford, 35 FLRA at 444-45 (quoting Local 60, United Brotherhood of Carpenters & Joiners v. NLRB, 365 U.S. 651, 657 (1961) (Harlan, J., concurring)). The Authority further stated that remedies should be designed to "restore, so far as possible, the status quo that would have obtained but for the wrongful act." Id. at 445 (quoting NLRB v. J.H. Rutter-Rex Manufacturing Co., 396 U.S. 258, 265 (1969)). In addition, the Authority has noted that although the deterrence of future violative conduct is not in itself the principal objective of a remedial order, it "is also certainly a desirable effect[.]" Id. See also F.E. Warren Air Force Base, Cheyenne, Wyoming, 52 FLRA 149, 160 (1996).

In this case, it is undisputed that the Respondent violated the Statute by "intentionally and purposefully" refusing to accord Foley and Krom the "highest priority in . . . world-wide transfers/reassignments . . . to create vacancies" for the return of employees Gronke and Henke-Rebelo in accordance with paragraph one of the settlement agreement. Judge's Decision at 17. Nevertheless, despite this finding, the Judge specifically determined that it was not appropriate to award Foley and Krom make-whole relief because Gronke and Henke-Rebelo had previously received offers to return to Lajes for the 1996-97 school year. According to the Judge, the purpose of the settlement agreement was to return employees to Lajes, "not to fulfill the desires of Lajes teachers to transfer." Id. Therefore, he concluded that Foley and Krom incurred no loss for which they are entitled to be compensated. In our view, this aspect of the Judge's decision is contrary to the above-stated precedent.(7)

The Judge found that were it not for the Respondent's failure to honor the settlement agreement, Foley and Krom would have been granted the transfers they had requested for the 1995-96 school year. Accordingly, as Foley and Krom were denied a benefit to which they were entitled under the terms of the settlement agreement, we conclude that they were adversely affected by the Respondent's unlawful actions. In order to recreate the conditions and relationships that would have existed had the unfair labor practice not occurred, we find, consistent with Safford, that Foley and Krom are entitled to be placed in the positions they would have been in had the improper action not occurred. Specific relief to which they are entitled includes reassignment to the positions they previously requested, if available, and compensation under the Back Pay Act, if appropriate. As circumstances may have changed since the outset of this proceeding, we leave for compliance the determination of any specific losses and other appropriate relief.(8)

C. The Judge Did Not Err in Failing to Order that the Notice to Employees be Posted World-Wide

In determining the scope of a posting requirement, the Authority considers the purposes that a notice serves. U.S. Department of Justice, Office of the Inspector General, Washington, D.C., 47 FLRA 1254, 1263 (1993). The Authority has stated, in this regard, that a notice provides evidence to bargaining unit employees that the rights guaranteed under the Statute will be vigorously enforced. The Authority has also acknowledged that, in many instances, the posting of a notice is the only visible indication to unit employees that a respondent recognizes and intends to fulfill its obligations under the Statute. Id. (citing Department of Housing and Urban Development, San Francisco, California, 41 FLRA 480, 483 (1991). Consequently, where a respondent's conduct impacts unit employees beyond the particular location where the violation occurred, it is appropriate to require that notices be posted in additional areas. See, e.g., U.S. Department of Treasury, Customs Service, Washington, D.C. and Customs Service, Region IV, Miami, Florida, 37 FLRA 603, 605 (1990).

In this case, the record establishes that the Union holds exclusive recognition in a unit of the Respondent's employees located throughout its Old Mediterranean Region. The primary issue resolved by the Judge concerned the Respondent's compliance with a settlement agreement that gives current Lajes employees priority consideration for purposes of reassignment to teaching positions located outside of Lajes. The agreement also gives former Lajes employees priority consideration for future positions on Lajes that will be filled from the outside.

The notice in this case will be of the greatest import to current members of the Union's bargaining unit and to former Lajes employees who were involuntarily reassigned at the end of the 1991-92 school year. As the Union only represents employees in the Respondent's Old Mediterranean Region, this latter group of employees may or may not be included within the Union's bargaining unit. Consequently, in order to give full effect to the purposes served by the Notice, we modify the Judge's order to require that the Notice be posted at each of the Respondent's facilities at which bargaining unit members are employed and at those facilities where former Lajes employees -- those who were involuntarily reassigned at the end of the 1991-1992 school year -- now teach. In our view, the scope of this posting will best effectuate the purposes and policies of the Statute. See id. at 605.

In reaching this result, we specifically reject the General Counsel's contention that the Notice should be posted at the Respondent's facilities world-wide as the posting that we are ordering is sufficient to remedy the Respondent's unlawful actions.

V. Order

Pursuant to section 2423.41(c) of the Authority's Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of Defense Dependents Schools shall:

1. Cease and desist from:

(a) Repudiating the settlement agreement entered into with the Overseas Federation of Teachers on April 20, 1995, requiring, inter alia, that: (1) when a position on Lajes becomes vacant and a determination is made to fill the position from outside of Lajes, a qualified former Lajes teacher, who was involuntarily reassigned at the end of the 1991-92 school year, who has a current fully successful performance rating, will be reassigned to that position; and (2) the transfer requests of current Lajes teachers be given highest priority in order to create vacancies for the return of former Lajes teachers.

(b) In any like or related manner interfering with, restraining, or coercing bargaining unit employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Comply fully with the provisions of the settlement agreement entered into on April 20, 1995, with the Overseas Federation of Teachers.

(b) Make David Gronke and Mary Ann Henke-Rebelo whole for the losses incurred by them for the 1995-96 school year as a result of the Department of Defense Dependents Schools' repudiation of the settlement agreement and its failure and refusal to return them to Lajes, pursuant to the settlement agreement. Such relief shall specifically include 5% hardship pay for the entire 1995-96 school year, subject to any offset, as appropriate, and the monetary value of one additional EML flight if it is determined that they qualified for participation in the EML program.

(c) Upon request, reassign Harry Foley and Gloria Krom to the positions they previously requested, or, if those positions are not available, to substantially equivalent positions. If no substantially similar positions are available, Foley and Krom shall be placed on a preferential hiring list and they shall be offered employment before any other persons are hired.

(d) Make Harry Foley and Gloria Krom whole for the losses incurred by them for the 1995-96 school year as a result of the Department of Defense Dependents Schools' repudiation of the settlement agreement. Such relief shall include any benefits that Foley and Krom would have received if the reassignments had been properly made. Reimbursement for lost benefits shall be retroactive from the time that Foley and Krom are offered reassignment to the outset of the 1995-96 school year, consistent with applicable law and regulation.

(e) Make James Coyle whole for the losses suffered by him from the date in December 1995, when the Department of Defense Dependents Schools repudiated the settlement agreement by filling a vacancy on Lajes from the outside without offering to return him to Lajes. Such relief shall specifically include 5% hardship pay from the date in December 1995 that it filled the vacancy through the end of the 1995-96 school year, subject to any offset, as appropriate. If Coyle would have been entitled to two EML flights from December 1995 until the end of the 1995-96 school year, such relief shall also include the monetary value of one additional EML flight.

(f) Until an offer to return to Lajes has been made to each of the teachers who was involuntarily reassigned at the end of the 1991-92 school year, the Department of Defense Dependents Schools shall: (1) fill no vacancy on Lajes from the outside without offering the vacancy to a teacher who was involuntarily reassigned if he or she is qualified; and (2) during the transfer program, implement matches brought to its attention by the Overseas Federation of Teachers that would permit teachers who were involuntarily reassigned to return to Lajes.

(g) Post at each of its facilities at which bargaining unit members are employed, and at those facilities where former Lajes teachers who were involuntarily reassigned at the end of the 1991-92 school year are employed, 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 Department of Defense Dependents Schools and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such Notices are not altered, defaced, or covered by any other material.

(h) Pursuant to section 2423.41(e) of the Authority's Regulations, notify the Regional Director, Chicago Region, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that the Department of Defense Dependents Schools violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this Notice:

We hereby notify bargaining unit employees that:

WE WILL NOT repudiate the settlement agreement entered into with the Overseas Federation of Teachers on April 20, 1995, requiring, inter alia, that: (1) when a position on Lajes becomes vacant and a determination is made to fill the position from outside of Lajes, a qualified former Lajes teacher, who was involuntarily reassigned at the end of the 1991-92 school year, and who has a current fully successful performance rating, will be reassigned to that position; and (2) transfer requests of current Lajes teachers be given highest priority in order to create vacancies for the return of former Lajes teachers.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce bargaining unit employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL comply fully with the provisions of the settlement agreement entered into on April 20, 1995, with the Overseas Federation of Teachers (the Union), the exclusive representative of certain bargaining unit employees.

WE WILL make whole David Gronke and Mary Ann Henke-Rebelo for the losses incurred by them for the 1995-96 school year as the result of our failure and refusal to return them to Lajes, pursuant to the settlement agreement. Such relief will specifically include 5% hardship pay for the entire 1995-96 school year which they would have received as Lajes teachers, subject to any offset, as appropriate, and the monetary value of one additional EML flight for each if it is determined that they qualified for participation in the EML program.

WE WILL, upon request, reassign Harry Foley and Gloria Krom to the positions they previously requested, or, if such positions are not available, to substantially equivalent positions. If no substantially similar positions are available, they shall be placed on a preferential hiring list and shall be offered employment before any other persons are hired.

WE WILL make Harry Foley and Gloria Krom whole for the losses incurred by them for the 1995-96 school year as a result of our failure and refusal to reassign them to positions off of Lajes, pursuant to the settlement agreement. Such relief will specifically include any benefits that Foley and Krom would have received if the reassignments had been properly made. Reimbursement for lost benefits shall be retroactive from the outset of the 1995-96 school year until such time as Foley and Krom are offered reassignment consistent with applicable law and regulation.

WE WILL make whole James Coyle for the losses incurred by him from the date in December 1995 that we repudiated the settlement agreement by filling a vacancy on Lajes from the outside without offering to return him to Lajes. Such relief shall specifically include 5% hardship pay from the date in December 1995 that we filled the vacancy through the end of the 1995-96 school year, subject to any offset as appropriate. If Coyle would have been entitled to two EML flights from December 1995 until the end of the 1995-96 school year, such relief will also include the monetary value of one additional EML flight.

WE WILL NOT fill any vacancy on Lajes from the outside without offering the vacancy to a teacher who was involuntarily reassigned if he or she is qualified and; refuse, during the transfer program, to implement matches brought to our attention by the Union.

_______________________

(Activity)

Date: ________ 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 any of its provisions, they may communicate directly with the Regional Director of the Federal Labor Relations Authority, Chicago Regional Office, who address is 55 West Monroe, Suite 1150, Chicago, IL 60603-9729, and whose telephone number is (312) 886-5977.




UNITED STATES OF AMERICA

FEDERAL LABOR RELATIONS AUTHORITY

OFFICE OF ADMINISTRATIVE LAW JUDGES

WASHINGTON, D.C. 20424-0001

DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS

Respondent

and

OVERSEAS FEDERATION OF TEACHERS

Charging Party

Case Nos. CH-CA-50593

CH-CA-50694

Ms. Marian Manlove

For the Respondent

Philip T. Roberts, Esquire

For the General Counsel

Mr. Ernest J. Lehmann

For the Charging Party

Before: WILLIAM B. DEVANEY

Administrative Law Judge

DECISION

Statement of the Case

This proceeding, under the Federal Service Labor-Management Relations Statute, Chapter 71 of Title 5 of the United States Code, 5 U.S.C. § 7101, et seq. (1), and the Rules and Regulations issued thereunder, 5 C.F.R. § 2423.1, et seq., concerns whether Respondent, repudiated the Settlement Agree-ment of April 20, 1995, in violation of §§ 16(a)(5) and (1) of the Statute.

This case was initiated by a charge in Case No. CH-CA-50593, filed on May 2, 1995, alleging violations of §§ 16(a)(1), (2), (5) and (8) of the Statute (G.C. Exh. 1(a)), and by a charge in Case No. CH-CA-50694, filed on June 5, 1995, alleging violations of §§ 16(a)(1), (5), (6) and (8) of the Statute (G.C. Exh. 1(c)). The Complaint and Notice of Hearing issued on January 12, 1996 (G.C. Exh. 1(e)); alleged violation only of §§ 16(a)(5) and (1) of the Statute; and left the date and place of hearing to be determined. By Order dated January 26, 1996, (G.C. Exh. 1(g)), the hearing was set for March 20, 1996, in Washington, D.C., and a hearing was duly held on March 20, 1996, in Washington, D.C., before the undersigned. All parties were represented at the hearing, were afforded full opportunity to be heard, to introduce evidence bearing on the issues involved, and were afforded the opportunity to present oral argument which each party waived. At the conclusion of the hearing, April 22, 1996, was fixed as the date for mailing post-hearing briefs, which time was subsequently extended, on motion of Respondent, joined in by General Counsel, to May 22, 1996. Respondent and General Counsel each timely mailed an excellent brief received on May 24, 1996, which have been carefully considered.(2) Upon the basis of the entire record, I make the following findings and conclusions:

FINDINGS

1. The Department of Defense Dependents Schools (hereinafter, "DODDS" or "Respondent") employs about 6,000 educators (Tr. 119) of whom the Charging Party, Overseas Federation of Teachers, AFT-AFL-CIO (Tr. 19) (hereinafter, "Union"), represents about 700 (Tr. 119). The Union represents teachers in DODDS' Old Mediterranean Region which includes Turkey, Italy, Bahrain (Persian Gulf) and the Azores, which are owned by Portugal (Tr. 19, 119).

2. Lajes is a small island in the nine island archipelago making up the Azores on which the Air Force has had a base since World War II (Tr. 20). To educate children of Air Force personnel stationed on Lajes, DODDS operates two schools: an elementary school - kindergarten through grade 6; and a high school - grades 7 through 12. There are 16 employees in Lajes High School including the Principal (Res. Exh. 2; Tr. 121) and 26 in Lajes elementary school including the Principal (Res. Exh. 3; Tr. 122).

3. The United States' presence in Lajes is governed by a treaty between Portugal and the United States. A protocol to that treaty provided that no American personnel - military or civilian - could stay in Lajes more than three years. Although "on the books", the three year limitation had not been enforced, and waivers were routinely granted, until about 1991 when a dispute erupted over the release of Lajes nationals in a RIF. Incensed, the Portuguese Government invoked the three-year rule and refused to approve the waiver requests submitted during the 1991-92 school year. DODDS, declining to submit to "blackmail", complied with the treaty limitation and removed some 25 teachers who had been in Lajes more than three years, even though the Portuguese Government had relented a bit and had granted some waivers (Tr. 21-22). Because some teachers really wanted to stay in Lajes, the Union sought through negotiations to obtain a contractual obligation to return employees who had been involuntarily removed at the end of the 1991-92 school year. The parties could not agree and the negotiation impasse was taken to the Federal Service Impasses Panel which, on July 1, 1993, ordered the parties to adopt the following provision:

"Current employees who were involuntarily reassigned from the Lajes Air Base Schools at the end of School Year 1991-92 [hereinafter also referred to as "returnee" or "returnees"] shall be given priority to return to Lajes if: (1) a vacancy occurs; (2) the Employer decides to fill the vacancy; (3) the Employer decides to fill the vacancy through a reassignment of an employee from outside of Lajes; and (4) those employees wishing to return to Lajes are fully qualified and have a current performance rating of at least fully successful." (FSIP Release No. 346, July 16, 1993)(Case No. 93 FSIP 22).

DODDS, under § 14(c) of the Statute, disapproved the provision; the Union filed a negotiability appeal; and the Authority, in Overseas Federation of Teachers and U.S. Department of Defense Dependents Schools, Mediterranean Region, 49 FLRA No. 12, 49 FLRA 73 (1994), held the provision negotiable and ordered DODDS to rescind its disapproval of the provision.

3. Later, apparently in 1995, a dispute arose over implementation of the FSIP ordered provision and the Union filed a grievance, Case No. E-95-199, and on April 20, 1995, the parties, at Tirania, Italy (Tr. 24), signed the following Settlement Agreement:

"This settlement agreement represents full and final settlement of the issue raised in grievance E-95-199 and 49 FLRA No. 12.

"1. The Agency agrees that teachers, currently assigned to the Lajes schools and occupying positions which may be filled by former Lajes teachers who were involuntarily reassigned at the end of the 1991-92 school year, will receive the highest priority in district, regional, and world-wide transfers/reassignments out of Lajes. This is done to create vacancies and facilitate the return of former Lajes teachers who were involuntarily reassigned from Lajes at the end of the 1991-92 school year.

"2. The Agency agrees that whenever a position in Lajes becomes vacant and management decides to fill the position from outside of Lajes, a qualified former Lajes teacher with a current fully successful performance rating, who was involuntarily reassigned at the end of the 1991-92 school year, will be reassigned to that position.

"3. The Agency agrees to make every effort to facilitate the return of former Lajes teachers, who were involuntarily reassigned at the end of the 1991-92 school year, to positions in Lajes for which they are qualified.

"4. The Agency agrees to refrain from purposefully establishing positions with requirements in order to deny former Lajes teachers, who were involuntarily reassigned at the end of the 1991-92 school year, the opportunity to return to Lajes.

"5. The Union recognizes that the Agency reserves the right to determine what positions and requirements are necessary and needed to meet its mission.

"6. The Union agrees to provide the Agency, by close of business Tuesday, April 25, 1995, a list of additional teachers who wish to leave Lajes and where they wish to be reassigned.

"7. The terms of this agreement will be implemented immediately in order that these employees may be considered under the conditions set forth herein in the World Wide Transfer Program now being conducted for SY 95/96.

"8. The terms of this agreement will remain in effect until all of the former Lajes' (sic) employees who were involuntarily reassigned at the end of SY 1991/92 have received an offer to a position in Lajes for which they qualify, regardless of whether or not there is a World Wide Transfer Program."(3) (G.C. Exh. 4).

4. Meanwhile, DODDS, in Washington, D.C., on April 19, 1995, had begun the world-wide transfer program for the 1995-96 school year (Tr. 31, 32). The Overseas Education Association (OEA) was present and represented by Ms. Connie Sullivan; Panama Federation of Teachers (PFT) was present and represented by Mr. Kenneth Younkin; the Union was represented by Ms. Constance M. Kowalski (Tr. 30-31); and DODDS was represented by Mr. Bryce Read, who was in charge of the transfer program, and by Ms. Cheryl D. Vinci, Chief of Recruitment (Tr. 31, 124). Mr. Read retired in the summer of 1995 and Ms. Vinci assumed responsibility for the residual of the transfer program (Tr. 117).

5. There is no dispute, as Ms. Kowalski stated, that transfers are divided into four categories: First, excess teachers; Second, compassionate requests (family, financial, health); Third, teachers assigned to one year areas who had remained more than one year; and Fourth, teachers who just wanted to travel (Tr. 34-35). Nor is there any disagreement that attention is directed first and exclusively to the First Category, namely, the excess list, inasmuch as, unless placed, these teachers faced termination; however, Ms. Kowalski said that, before beginning the placement of the excess list, they first considered three settlements, ". . . to recognize the fact that there was some settlements that had to be honored." (Tr. 38). There were three settlements, each involving one employee. One settlement involved the Union and it could not be honored, because, ". . . There was no opening at that time . . . ." (Tr. 38). The other two settlements involved OEA, and Ms. Kowalski was not too familiar with them but she thought a Ms. Patricia Venable was placed and the other person could not be placed (Tr. 40). As the settlement involved here did not exist on April 19, 1995, when the transfer program began, obviously it was not, and could not have been, considered before beginning the placement of the excess list.

6. There were 350-400 excess teachers and fewer than 200 openings (Tr. 32, 33). More than 1,000 requests for transfer had been made, overwhelmingly by Category Four "travelers". On April 19, about 1/3 of the excess list had been "gone through" (Tr. 40); on April 20, about 60%; and on April 21st and 22nd the transfer program had been completed (Tr. 128, 144)(4); however, Ms. Vinci conceded that, ". . . vacancies continued to come in during the rest of the school year and into the summer. People continued to retire and create additional vacancies. So, there were reconsiderations." (Tr. 144).

7. Ms. Kowalski first learned of the settlement on April 20, but did not know its details until after the transfer meeting on the 20th had ended (Tr. 42). She did not receive a copy until the 21st (Tr. 43); and even then couldn't do anything until she got a list of the people who wanted to return to Lajes (Tr. 44), which she received on Saturday, April 22, (G.C. Exh. 5; Tr. 46). She stated that on April 21 she had mentioned to Mr. Read that there was a settlement and asked him what would be done about the Lajes situation and that Mr. Read had replied, ". . . we couldn't really deal with it at that point because we had so many unknowns from it. And it would be dealt with at a later date." (Tr. 43).

8. Over the weekend, Ms. Kowalski perceived two opportunities to reassign returnees to Lajes as follows(5): (a) Ms. Elaine Hermann, an excess employee had been "assigned", in the transfer program, to Rota, Spain; Mr. Harry Foley in Lajes had requested a transfer to Rota; and Mr. David A. Gronke, a returnee in Naples, Italy, wanted to return to Lajes. Therefore, send Foley to Rota; Gronke to Lajes; and Hermann to Naples. (b) Mr. Dwight Bowen, an excess employee had been "assigned", in the transfer program, to Okinawa; Ms. Gloria Krom(6), was in Lajes and had requested a transfer to Okinawa; and Ms. Mary Henke-Rebelo, a returnee, was in Naples and wanted to return to Lajes. Therefore, sent Krom to Okinawa; Henke-Rebelo to Lajes; and Mr. Bowen to Naples. On Monday, April 24, 1995, Ms. Kowalski brought these two proposals to the attention of Mr. Read.

Ms. Vinci insisted that Mr. Foley was merely a Category 3 employee (Tr. 129) and, ". . . when we got to Category 3 candidates -- as Mr. Foley is -- there was not an available position. It had been identified for placement by an excess employee. (Tr. 129).

In June, 1995, the Union learned that Ms. Charlotte Gutheil, who had been declared excess at Incirlik, Turkey, and assigned to Korea, had been able to stay at Incirlik. Accordingly, the Union saw this as a further opportunity to return a returnee to Lajes as Mr. Ron Masone, who was in Lajes, had requested a transfer to Korea(7); and Mary Ann Henke-Rebelo, also part of Ms. Kowalski's proposal "b", above, a returnee in Naples, could be sent back to Lajes. Ms. Marie Sainz-Funaro, President of the Union (Tr. 69), brought this to the attention of Respondent (G.C. Exhs. 12, 13, 14; Tr. 101-103); but on August 8, 1995, the position in Korea was filled by Mr. James Ashley, an excess employee in Germany (Tr. 109).

Further, in October, 1995, Mr. Dan Bose, a returnee, whose wife, Cynthia Ellis-Bose, had been returned to Lajes in June, 1995 (G.C. Exh. 16; Res. Exh. 4), was still in Incirlik, Turkey, and became aware that there was another opening in Korea for a PE teacher, which Mr. Ron Masone was, and, as Mr. Masone had requested a transfer to Korea, he could have filled this position (Tr. 110); but Respondent, the Union asserted, had filled this position with a stateside hire (Tr. 110). Had Mr. Masone been assigned to Korea, Mr. Dan Bose could have been returned to Lajes.

Respondent stated that there was a vacancy in Korea in Mr. Masone's category [at Tobu] but, ". . . that had been identified for placement by an excess employee. So, when we got to individuals in Mr. Masone's category, the position was not available. It had been identified for placement by an excess employee." (Tr. 131). Ms. Vinci further stated that the "vacancy" for an elementary PE position at Osan, Korea, was subject to a request to return an employee with administrative re-employment rights and was not considered a vacancy (Tr. 131). Nevertheless, Ms. Sainz-Funaro stated that about six weeks into the school year, DODDS recruited a new hire stateside to fill that position (Tr. 110). In its Brief, DODDS states, "As Ms. Vinci testified, the vacancy in Osan did not exist during the transfer program because it had been slated to accommodate the return of an employee on Adminis-trative Reemployment Rights (Transcript, pg. 131). However, late in the summer that individual notified DoDDS that he was no longer interested in exercising his return rights. Therefore on August 8, 1996 (sic), management exercised it (sic) prerogative and hired from stateside since it was only two weeks before the start of the school year." (DODDS' Brief, pp. 11-12).

9. In December, 1995, a vacancy occurred at Lajes; but, instead of returning a returnee, i.e., Mr. James Coyle who was in Gaeta, Italy, an excess employee from Incirlik, Turkey, was reassigned to Lajes (Tr. 110-111; 135). Obviously, had Mr. Coyle been returned to Lajes, the excess teacher from Incirlik could have been sent to take his place at Gaeta.

10. DODDS did return two returnees, Ms. Christine Deisher (Res. Exh. 5) and Ms. Cynthia Elaine Ellis-Bose (Res. Exh. 4, G.C. Exh. 16), to Lajes during the 1995-96 transfer program (Tr. 95-96, 125-126, 156). In addition, Ms. Karen Randolph declined an offer to return to Lajes in 1995 (Tr. 134, 135).

Previously, Ms. Dorothy Macy and Mr. Steve Payne had been returned to Lajes (G.C. Exh. 5, Res. Exh. 3; Tr. 159, 160). As noted above in n.2, I take notice that Mr. Richard Flowers retired during the 1993-94 school year; and that Mr. Frank Geer retired on disability June 16, 1996.

11. On March 18, 1996, DODDS offered reassignment to Lajes to returnees: Mr. Daniel Bose (Res. Exh. 10; Tr. 132); Ms. Mary Ann Henke-Rebelo (Res. Exh. 11; Tr. 133); and Mr. David A. Gronke (Res. Exh. 12; Tr. 133). On March 19, 1996, DODDS offered reassignment to Lajes to returnee James A. Coyle (Res. Exh. 13; Tr. 133).

Consequently, offers to return have been made, as shown on the record, to all active employees on General Counsel Exhibit 5 except:

Mr. Keith Ballantine

Ms. Tomi Silsbee

Mr. Gary Himango

Ms. Janeen Hoffman

Ms. Gloria Pena

12. DODDS did not make the transfers requested by the Union. Rather, it adhered to its "assignment" of excess employees and sent a notice of transfer to Ms. Hermann on April 26, 1995 (Res. Exh. 14; Tr. 138) to go to Rota; and Mr. Bowen was sent to Okinawa (G.C. Exh. 11). Ms. Hermann had not requested to go to Rota, nor had Mr. Bowen requested to go to Okinawa (Tr. 51-53). It is certainly possible that some excess teacher had submitted a request, but the record does not show, or even suggest, that in going through the excess list any consideration was given to the desires of the teacher to be placed. They began with the longest service computation date (Tr. 37) and looked for job openings that matched qualifications (Tr. 57), but did apply personal logic in assigning them (Tr. 52).

Ms. Vinci said the transfer program ended effectively on Saturday, April 22nd (Tr. 128) and, ". . . to undo identified placements would create a ripple effect . . ."; that there are "extenuating circumstances" (Tr. 136); but conceded that the only "extenuating circumstances" involved in the Union's requests would have been that, ". . . you would have three transfers instead of one" (Tr. 141). Ms. Sainz-Funaro was told by Mr. Ed Turner, Chief of Staffing (Tr. 82), when she again suggested the moves Ms. Kowalski had put forward to Mr. Read, ". . . no, we're placing excess employees first; we're not going to deal with that settlement agreement" (Tr. 89); that, ". . . He wasn't about to change anything." (Tr. 89).

CONCLUSIONS

Not every breach of contract is a violation of the Statute, but repudiation of an agreement does violate the Statute. Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211, 1218 (1991). To determine whether a failure or refusal to honor an agreement constitutes a repudiation, the Authority has stated,

"We find that the nature and scope of the failure or refusal to honor an agreement must be considered, in the circumstances of each case, in order to determine whether the Statute has been violated. Because the breach of an agreement may only be a single instance, it does not necessarily follow that the breach does not violate the Statute. That suggests that a single breach of an agreement, no matter how significant, would not violate the Statute. Rather, it is the nature and scope of the breach that are relevant. Where the nature and scope of the breach amount to a repudiation of an obligation imposed by the agreement's terms, we will find that an unfair labor practice has occurred in violation of the Statute." (id., at 1218-1219).

In Department of the Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois, 51 FLRA 858 (1996), the Authority further commented,

". . . two elements are examined in analyzing an allegation of repudiation: (1) the nature and scope of the alleged breach of an agreement (i.e., was the breach clear and patent?); and (2) the nature of the agreement provision allegedly breached (i.e., did the provision go to the heart of the parties' agreement?). The examination of either element may involve an inquiry into the meaning of the agreement provision allegedly breached. However, for the reasons that follow, it is not always necessary to determine the precise meaning of the provision in order to analyze an allegation of repudiation.4/

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4/ . . . to the extent that IRS and other precedent suggest that it is always necessary to determine the precise meaning of an agreement provision in order to resolve an allegation that a respondent repudiated that provision, we will no longer follow that precedent." (id., at 862)

"Specifically, with regard to the first element, it is necessary to show that a respondent's action constituted 'a clear and patent breach of the terms of the agreement[.]' Cornelius v. Nutt, 472 U.S. at 664 . . . . In those situations where the meaning of a particular agreement term is unclear, acting in accordance with a reasonable interpretation of that term, even if it is not the only reasonable interpretation, does not constitute a clear and patent breach of the terms of the agreement." (footnote omitted)

With regard to the second element, the Authority stated,

". . . With regard to the second element, if a provision is not of a nature that goes to the heart of the parties' collective bargaining agreement, then it is not necessary to determine the meaning of the provision because, even if the respondent breached the parties' agreement, that breach would not amount to a repudiation." (id., at 863).

Where, as here, a respondent raises as a defense that a specific provision of the parties' collective bargaining agreement permitted the action alleged to constitute an unfair labor practice, the meaning of the agreement must be resolved. Internal Revenue Service, Washington, D.C., 47 FLRA 1091, 1103 (1993).

A. The Controlling Provisions Of The Agreement.

The original provision ordered by the FSIP was that,

"Current employees who were involuntarily reassigned from the Lajes Air Base Schools at the end of School Year 1991-92 shall be given priority to return to Lajes if: (1) a vacancy occurs; (2) the Employer decides to fill the vacancy; (3) the Employer decides to fill the vacancy . . . from outside of Lajes; and (4) those employees wishing to return to Lajes are fully qualified and have a current performance rating of at least fully successful." (FSIP Release No. 346, July 16, 1993)(Case No. 93 FSIP 22).

The record shows that some employees were, indeed, returned to Lajes; but returns were painfully slow; and "returnees" (i.e., those who had been involuntarily reassigned at the end of the 1991-92 school year and wanted to return to Lajes) were not assured of the right to fill Lajes vacancies. The settlement agreement of April 20, 1995, addressed these concerns principally in two ways: First, the right of returnees to vacant positions in Lajes which the Agency fills from outside Lajes was made absolute as follows:

"2. The Agency agrees that whenever a position in Lajes becomes vacant and management decides to fill the position from outside of Lajes, a qualified former Lajes teacher with a current fully successful performance rating, who was involuntarily reassigned at the end of the 1991-92 school year, will be reassigned to that position." (G.C. Exh. 4)(Emphasis supplied).

Gone is the original provision, ". . . shall be given priority to return" and in its place the directive language, ". . . will be reassigned to that position."

Second, to speed-up the return of returnees, the parties encouraged more Lajes vacancies by giving priority consideration to requests of Lajes teachers for transfer if their transfer would facilitate the return of a returnee. Thus, the settlement provided,

"1. The Agency agrees that teachers, currently assigned to the Lajes schools and occupying positions which may be filled by former Lajes teachers who were involuntarily reassigned at the end of the 1991-92 school year, will receive the highest priority in district, regional, and world-wide transfers/reassignments out of Lajes. This is done to create vacancies and facilitate the return of former Lajes teachers who were involuntarily reassigned from Lajes at the end of the 1991-92 school year." (G.C. Exh. 4).

These two provisions go to the heart of the parties settlement agreement. Other provisions complement these provisions, e.g., "3. The Agency agrees to . . . facilitate the return of former Lajes teachers . . . to positions in Lajes for which they are qualified."; "4. The Agency agrees to refrain from purposefully establishing positions with requirements in order to deny former Lajes teachers . . . the opportunity to return to Lajes"; "6. The Union agrees to provide . . . a list of additional teachers who wish to leave Lajes and where they wish to be reassigned."; "7. The terms of this agreement will be implemented immediately in order that these employees may be considered under the conditions set forth herein in the World Wide Transfer Program now being conducted for SY 95/96"; and "8. The terms of this agreement will remain in effect until all of the former Lajes employees . . . have received an offer to a position in Lajes for which they qualify . . . ." (G.C. Exh. 4).

Respondent views another provision of the settlement agreement as going to the heart of their agreement, namely, paragraph 5 which provides,

"5. The Union recognizes that the Agency reserves the right to determine what positions and requirements are necessary and needed to meet its mission." (G.C. Exh. 4).

I do not consider this provision as going to the heart of the agreement; but, without doubt, as construed by Respondent it not only would go to the heart of the agreement, it would be the heart of the agreement. Indeed, Respondent's treatment of paragraph 5 would be very much like asserting the right to trump when playing a bridge hand and the contract is no-trump. Because Respondent claims paragraph 5 as a defense to the alleged repudiation of the settlement agreement, it is necessary to determine the meaning of the agreement, Internal Revenue Service, Washington, D.C., supra. Paragraph 5 is not ambiguous and there is nothing in the language of paragraph 5 that supports Respondent's interpretation that its reserved right, ". . . to determine what positions and requirements are necessary and needed to meet its mission" negated invocation of the request to transfer provisions of paragraph 1 of the agreement. To the contrary, the plain and literal meaning of paragraph 5 is that Respondent has the right to determine the positions and the requirements for those positions that are necessary and needed for it to meet its mission. It is a clarification of paragraph 4 ("The Agency agrees to refrain from purposefully establishing positions with requirements . . . to deny former Lajes teachers . . . the opportunity to return . . . .") The only witnesses called who took part in the negotiation of the settlement agreement were: Mr. Ernest J. Lehmann, European Director of the Union who signed the agreement on behalf of the Union; and Ms. Sainz-Funaro, President of the Union. Mr. Lehmann testified concerning his understanding of paragraph 5 as follows:

"THE WITNESS: It says that you have -- the management has the right to determine what positions and requirements are necessary and needed to meet its mission. In other words, you can -- you establish the positions, basically.

"The implication is that you do it in a fair and reasonable manner. You don't manipulate." (Tr. 28).

Ms. Sainz-Funaro was not asked the meaning of paragraph 5; but her testimony concerning discussions with Mr. Bransford, who signed the agreement on behalf of Respondent (G.C. Exh. 4; Tr. 24), before and after completion of negotiation of the agreement, show that it was contemplated that, ". . . there would be some openings that could be filled by some people currently in Lajes . . . They knew there was an opening in Okinawa and they knew there would be -- be an opening in Rota . . . ." (Tr. 73, 74, 75; G.C. Exhs. 8, 9). Accordingly, I find that paragraph 5 does no more than recognize Respondent's right to determine positions and the requirements for those positions in order for it to fulfill its mission.

B. Respondent Repudiated Paragraph 2 Of The Agreement In December, 1995.

In December, 1995, a vacancy occurred at Lajes.8) As set forth above, paragraph 2 of the settlement agreement made it mandatory that when a position in Lajes becomes vacant and Respondent elects to fill it from outside of Lajes, a returnee, ". . . will be reassigned to that position." This is wholly without regard to when, how or why the vacancy has occurred. As noted in footnote 8, I reject Respondent's assertion at the hearing that no vacancy existed at Lajes; but even if Respondent's assertion is deemed correct, the moment the authorization was transferred to Lajes to create a vacancy, paragraph 2 of the settlement agreement attached, mandating the reassignment of a returnee. By placing the excess Incirlik employee at Lajes, rather than Mr. James Coyle, Respondent repudiated paragraph 2 of the settlement agreement. Had Mr. Coyle been returned to Lajes, obviously, the excess teacher from Incirlik could have been sent to take his place at Gaeta. The fact that Respondent, on March 19, 1996, offered Mr. Coyle reassignment to Lajes for the 1996-97 school year (Res. Exh. 13), does not excuse its earlier repudiation of paragraph 2 of the settlement agreement.

C. Respondent Repudiated Paragraph1 Of The Agreement During Its World-Wide Transfer Program For The 1995-96 School Year.

At the outset, I fully agree with Respondent in several respects, as follows:

1. The purpose of the settlement agreement was to facilitate the return of employees who had been involuntarily reassigned from Lajes at the end of the 1991-92 school year. (Respondent's Brief, p. 5).

2. Paragraph 1 of the settlement agreement applies only during the world-wide transfer program. (Respondent's Brief, p. 5).

3. Respondent is not obligated by paragraph 1 of the settlement agreement to check all vacancies in the school system, year round, with the transfer wishes of employees currently assigned to Lajes (Respondent's Brief, p. 5).

As the settlement agreement did not exist at the time Respondent began the 1995-96 Transfer Program, obviously, it was not considered at the outset as three other settlements were (Tr. 38-40). It is not questioned that Respondent properly proceeded with the placement of excess employees. Indeed, the Union, as well as the other two labor organizations present, fully recognized that placement of excess employees was the first order of business and participated in completing the task which, as noted, resulted in the placement only of 186 of 350-400 excess teachers.

When the "plotting of the people to the vacancies" (Tr. 144) was completed on Saturday, April 22, 1995, there were no further vacancies; but paragraph 1 of the settlement agreement is not premised on vacancies. To the contrary, it states that teachers in Lajes, "will receive the highest priority in . . . transfers/reassignments out of Lajes . . . to create vacancies and facilitate the return" of returnees (Emphasis supplied). The "placing" of excess employees at this point was no more than, as Ms. Vinci stated, "plotting of the people to the vacancies"; no excess employee had been notified of his/her "placement"; and the record is devoid of any evidence that any excess employee, and in particular Ms. Elaine Hermann and Mr. Dwight Bowen, had requested transfer to the location where placed. Indeed, the record shows that Ms. Hermann, excessed at Nuernberg, Germany, was, ". . . not very happy about being excessed out of Germany" and her requests, "were all for Germany and for Europe." (Tr. 52). At this point, the Union, on April 24, 1995, presented to Mr. Read, two "matches" which would return two returnees, Mr. David Gronke and Ms. Mary Ann Henke-Rebelo, to Lajes, as follows:

(a) Ms. Hermann, the excess employee at Nuernberg, Germany, who had been "plotted" to Rota, Spain, would, instead, be transferred to Naples; Mr. Harry Foley, who was in Lajes, had requested a transfer to Rota, so he would be transferred to Rota; and Mr. David Gronke, a returnee, in Naples would be returned to Lajes.

(b) Mr. David Bowen, the excess employee "plotted" for Okinawa, would, instead, be transferred to Naples; Ms. Gloria Krom, who was in Lajes, had requested a transfer, inter alia, to Okinawa, so she would be transferred to Okinawa; and Ms. Mary Ann Henke-Rebelo, a returnee, in Naples would be returned to Lajes.(9)

The transfers of Mr. Foley and of Ms. Krom were not transfers for the gratification of their desires but were transfers in accordance with paragraph 1 of the settlement agreement to create vacancies for the return of returnees. There had to be a match with the requirements and qualifications of the excess employee, the opening to which the excess employee had been "plotted", the employee from Lajes, who would move to the plotted space of the excess employee, and the returnee, into whose slot the excess employee would be moved. Contrary to Respondent's assertion, while the first phase of plotting people to the vacancies had been completed on April 22, 1995, the transfer program for the 1995-96 school year had not been completed; Ms. Kowalski met further with Mr. Read on Monday, April 24, 1995, at which time she gave him the two "matches" set forth above; and a further transfer meeting was set for May, 1995. It is true that Ms. Krom's original transfer request had shown incorrect numbers for her teaching qualifications, but her corrected application was received by Respondent on April 24, 1995 (Res. Exh. 7; Tr. 128). On April 24, 1995, neither Ms. Hermann nor Mr. Bowen had been informed of the locations to which they had been "plotted" and Ms. Vinci admitted, albeit reluctantly, that the only extenuating circumstances were that, ". . . that would've involved three permanent change of station --" Tr. 140), i.e., you would have three transfers instead of one (Tr. 141). Congress may enact laws an agency considers bad, but, "Congress has put down its pen, and we can neither rewrite Congress' words nor call it back 'to cancel half a Line.' Our task is to interpret what Congress has said. . . ." Director, Office of Workers' Compensation Programs, United States Department of Labor v. Rasmussen, 440 U.S. 29, 47 (1979). In like manner, Respondent may well view the settlement agreement improvident and its negotiators as having been outmaneuvered; nevertheless, the settlement agreement is lawful and it is binding on Respondent whether it likes its terms or not.

With full knowledge of the settlement agreement, of the Foley and Krom transfer requests, and before notification of excess employees Hermann and Bowen of their plotted assignments,(10) Respondent intentionally and purposefully refused to accord Foley and Krom the "highest priority in . . . world-wide transfers/reassignments . . . to create vacancies" for the return of returnees Gronke and Henke-Rebelo in accordance with paragraph 1 of the settlement agreement. In May, 1995, Mr. Ed Turner, Chief of Staffing, told President Sainz-Funaro that, ". . . I can't deal with that settlement agreement. That has nothing to do with me. I'm in staffing. That's Labor Relations." (Tr. 82, 88); that, ". . . we're placing excess employees first; we're not going to deal with that settlement agreement" (Tr. 89); that Hermann and Bowen, having been placed, ". . . they're no longer excess -- they're gone. They're -- that's done. He wasn't about to change anything." (Tr. 89). Ms. Vinci stated that the transfer program was completed on Saturday, April 22 and Respondent wouldn't change anything that had been done as of the 22nd (Tr. 144, 145); she first asserted that, ". . . to undo identified placements would create a ripple effect, and you'd have to look at many factors. . . ." (Tr. 136), but, as noted above, admitted that the only extenuating circumstance was that there would be three transfers instead of one. But this was specifically contemplated by the settlement agreement, namely, that a teacher in Lajes would be transferred to create a vacancy for the return of a returnee. Of course, the excess employee must be transferred in any event. "Highest priority" does not mean a right of first refusal; and it does not mean that it permits the displacement of an excess employee. Rather, as all parties agree, in the transfer program, excess employees are first "plotted" into vacancies. Then, if it is shown by the Union that there is a three-way match, paragraph 1 of the settlement agreement, by according the "highest priority" to the transfer request of the employee in Lajes would permit that employee to move to the plotted slot for the excess employee and the excess employee would move to the slot vacated by the returnee. The excess employee is never displaced in the sense of being deprived of a job; but only the initial plotting of the excess employee to one vacancy is shifted to another vacancy, in order, in accordance with the settlement agreement, that a returnee be returned to Lajes.

D. Respondent Did Not Repudiate Paragraph 1 Of The Agreement By NOT TRANSFERRING MR. MASONE TO KOREA IN OCTOBER, 1995.

As found above, paragraph 1 of the settlement agreement applies only during the transfer program. The agreement is unclear as to duration of the transfer program; however, it is agreed by all parties that it begins in the March-April period each year (Tr. 31, 32, 123). I do not agree with Ms. Vinci's assertion that the transfer program ended on April 22, 1995, for the reason that the record shows that further meetings were held on April 24, 1995, and were scheduled for May, 1995, and, even Ms. Vinci, conceded that April 22, 1995, constituted only the "first round" of the transfer program and which con-tinued into the summer (Tr. 144). Nevertheless, Respondent's interpretation that the transfer program ended during the summer recess, seasonably before the beginning of the school year, if not compelled by the evidence and testimony, is reasonable, is consistent with the agreement and is consistent with the record. As the Authority stated, in Department of The Air Force, 375th Mission Support Squadron, Scott Air Force Base, Illinois, supra, ". . . where the meaning of a particular agreement term is unclear, acting in accordance with a reasonable interpretation of that term, even if it is not the only reasonable interpretation, does not constitute a clear and patent breach of the terms of the agreement. . . ." (51 FLRA at 862). Accordingly, the transfer program had ended before Respondent, "about six weeks into the school year" (Tr. 110), filled the position in Osan, Korea, and Respondent had no obligation under paragraph 1 of the settlement agreement to grant Mr. Masone's request for transfer from Lajes to create a vacancy in in Lajes for the return of Mr. Dan Bose. Moreover, before the Osan, Korea, position was filled, it had been slated for the return of an employee with Administrative Reemployment rights and no vacancy existed during the transfer program. (Tr. 131).

REMEDY

Two discrete provisions constitute the heart of the settlement agreement. First, the provision (paragraph 2) mandating that vacancies in Lajes, to be filled from outside Lajes, be offered to qualified returnees. Respondent repudiated this provision in December, 1995, by failing and refusing to offer to return Mr. Coyle to Lajes. Second, the provision (paragraph 1) granting highest priority to transfer requests of Lajes employees to create vacancies for returnees.(11) Respondent repudiated this provision during the transfer program by refusing to make the matching transfers found by the Union and thereby failing and refusing to return Mr. Gronke and Ms. Henke-Rebelo to Lajes for the 1995-96 school year. Offers have been made to return Mr. Coyle (Res. Exh. 13), Mr. Gronke (Res. Exh. 12) and Ms. Henke-Rebelo (Res. Exh. 11) to Lajes for the 1996-97 school year. Because Respondent's repudiation of its settlement agreement to return returnees to Lajes was knowing and intentional, I agree with General Counsel that Messrs. Coyle and Gronke and Ms. Henke-Rebelo should be made whole for the loss incurred by them by its repudiation. In this regard, General Counsel notes that Lajes teachers receive 5% hardship pay and, had Mr. Gronke and Ms. Henke-Rebelo been returned to Lajes in accordance with the settlement agreement, they would have received the hardship pay for the entire 1995-96 school year and Mr. Coyle would have received the hardship pay from December, 1995, through the end of the 1995-96 school year. In like manner, had Mr. Gronke and Ms. Henke-Rebelo been returned to Lajes in accordance with the settlement agreement, each would have received two Environmental Morale Leave (EML) flights as Lajes employees instead of one as Naples employees. In view of the fact that Mr. Coyle would not have been returned to Lajes until sometime in December, he might, or might not, have been entitled to two EML flights since he would have been in Lajes less than a complete school year. Other matters suggested by General Counsel, such as: lower cost of living in Lajes; and maintenance costs of property in Lajes are not ". . . equal to all or any part of the pay, allowances, or differentials . . . which the employee normally would have earned or received during the period if the personnel action had not occurred. . . ." (5 U.S.C. § 5596(b)(1)(A)(i)) and are not recoverable.

General Counsel also asks for posting at, ". . . DODDS facilities worldwide." (General Counsel's Brief, p. 18). I do not agree. Charging Party represents less than 12% of Respondents educators and only in the Old Mediterranean Region; and the Charging Party is principally, if not exclusively, concerned with compliance with this Order and enforcement of its settlement agreement. Accordingly, posting will be limited to the Charging Party's bargaining unit.

Having found that Respondent repudiated the settlement agreement of April 20, 1995, it is recommended that the Authority adopt the following:

ORDER

Pursuant to § 2423.29 of the Authority's Rules and Regulations, 5 C.F.R. § 2423.29, and § 18 of the Statute, 5 U.S.C. § 7118, it is hereby ordered that the Department of Defense Dependents Schools, shall:

1. Cease and desist from:

(a) Repudiating the settlement agreement entered into with the Overseas Federation of Teachers on April 20, 1995, requiring, inter alia, that: (i) when a position in Lajes becomes vacant and Respondent decides to fill it from outside Lajes, a qualified former Lajes teacher, who was involuntarily reassigned at the end of the 1991-92 school year (hereinafter, "returnee" or "returnees"), with a current fully successful performance rating will be reassigned to that position; and (ii) it give highest priority to transfer requests of teachers in Lajes which will create vacancies for the return of returnees to Lajes.

(b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights assured them by the Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

(a) Comply fully with the provisions of the settlement agreement entered into on April 20, 1995, with the Overseas Federation of Teachers.

(b) Make Mr. David Gronke and Ms. Mary Ann Henke-Rebelo whole for the loss incurred by them for the 1995-96 school year as the result of Respondent's repudiation of the settlement agreement and its failure and refusal to return them to Lajes, pursuant to paragraph 1 of the settlement agreement and the matching transfers found by the Overseas Federation of Teachers, specifically to include the 5% hardship pay for the entire 1995-96 school year which they would have received as Lajes teachers; and one additional EML flight for each, to which they would have been entitled as Lajes teachers.

(c) Make Mr. James Coyle whole for the loss suffered by him from the date in December, 1995, when Respondent repudiated paragraph 2 of the settlement agreement by filling a vacancy in Lajes from outside without offering to return Mr. Coyle to Lajes, specifically by paying him the 5% hardship pay, from the date in December, 1995, that it filled the vacancy, through the end of the 1995-96 school year; and, if Mr. Coyle would have been entitled from December, 1995, through the end of the 1995-96 school year to two EML flights, provide Mr. Coyle one additional EML flight.

(d) Five returnees, Gloria Pena, Keith Ballantine, Tomi Silsbee, Gary Himango and Janeen Hoffman, are the only remaining active returnees to whom the record has shown no offer to return to Lajes. Until an offer to return to Lajes had been made to each remaining active returnee, Respondent shall: (i) fill no vacancy in Lajes from the outside without offering to return a qualified returnee; and (ii) during the transfer program, implement "matches" brought to its attention by the Overseas Federation of Teachers which would permit the return of a returnee to Lajes.

(e) Post at each of its facilities represented by the Overseas Federation of Teachers, the exclusive representative of certain of its employees, 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, Department of Defense Dependents Schools, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where Notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(f) Pursuant to § 2423.30 of the Rules and Regulations, 5 C.F.R. § 2423.30, notify the Regional Director, of the Chicago Regional, Federal Labor Relations Authority, 55 West Monroe, Suite 1150, Chicago, Illinois 60603-9729, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply herewith.

______________________________

WILLIAM B. DEVANEY

Administrative Law Judge

Dated: July 29, 1996

Washington, DC

NOTICE TO ALL EMPLOYEES

POSTED BY ORDER OF THE

FEDERAL LABOR RELATIONS AUTHORITY

The Federal Labor Relations Authority has found that Department of Defense Dependents Schools, violated the Federal Service Labor-Management Relations Statute and has ordered us to post and abide by this notice.

WE HEREBY NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT repudiate the settlement agreement entered into with the Overseas Federation of Teachers on April 20, 1995, requiring, inter alia, that: (i) when a position in Lajes becomes vacant and we decide to fill it from outside Lajes, a qualified former Lajes teacher, who was involuntarily reassigned at the end of the 1991-92 school year (hereinafter, "returnee" or "returnees"), with a current fully successful performance rating will be reassigned to that position; and (ii) we give the highest priority to transfer requests of teachers in Lajes which will create vacancies for the return of returnees to Lajes.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of their rights assured them by the Federal Service Labor-Management Relations Statute.

WE WILL comply fully with the provisions of the settlement agreement entered into on April 20, 1995, with the Overseas Federation of Teachers, the exclusive representatives of certain of our employees (hereinafter, "Union").

WE WILL MAKE WHOLE: MR. DAVID GRONKE and MS. MARY ANN HENKE-REBELO for the loss incurred by them for the 1995-96 school year as the result of our repudiation of the settlement agreement and our failure and refusal to return them to Lajes, pursuant to paragraph 1 of the settlement agreement and the matching transfers found by the Union, specifically to include the 5% hardship pay for the entire 1995-96 school year which they would have received as Lajes teachers; and one additional EML flight for each, to which they would have been entitled as Lajes teachers.

WE WILL MAKE WHOLE: MR. JAMES COYLE for the loss suffered by him from the date in December, 1995, that we, in repudiation of paragraph 2 of the settlement agreement, filled a vacancy in Lajes from outside without offering to return Mr. Coyle to Lajes, specifically by paying him the 5% hardship pay, from the date in December, 1995, that we filled the vacancy, through the end of the 1995-96 school year; and, if Mr. Coyle would have been entitled from December, 1995, through the end of the 1995-96 school year to two EML flights, provided Mr. Coyle one additional EML flight.

WE WILL NOT, until the five remaining active returnees, Pena, Ballantine, Silsbee, Himango and Hoffman, have been offered reassignment to Lajes: (i) fill any vacancy in Lajes from the outside without offering to return a qualified returnee; and (ii) refuse during the transfer program to implement "matches" brought to our attention by the Union.

___________________

(Activity)

Date: __________ 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 any of its provisions, they may communicate directly with the Regional Director, Chicago Region, Federal Labor Relations Authority, 55 West Monroe, Suite 1150, Chicago, Illinois 60603-9729, and whose telephone number is: (312) 353-6306.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 


Authority's Footnotes Follow:

1. Accordingly, pursuant to section 2423.29(a) of the Authority's Regulations, these findings and conclusions are without precedential significance. See Social Security Administration, Baltimore, Maryland, 53 FLRA 1053, 1053 n.2 (1997).

2. Lajes is one of the Azores islands and is governed by Portugal.

3. Because Coyle would not have taught on Lajes for a complete school year, the Judge was uncertain as to his entitlement to EML flights. He therefore recommended that this determination be left to the compliance stage of this proceeding.

4. In view of this provision, we reject the General Counsel's contention that any evidence concerning the employees' receipt of a post allowance should be considered untimely.

5. See also Urbina v. United States, 428 F.2d 1280, 1285 (Ct. Cl. 1970) (employee who was wrongfully dismissed while residing in Japan was entitled to receive a living quarters allowance for the entire period of his dismissal, even though he had returned to the United States for part of that period since he would have received it but for his unjustified removal); Raymond, 59 Comp. Gen. at 261 (based on Urbina, employee who was wrongfully dismissed while residing in Japan was entitled to receive a living quarters allowance and a post allowance for the entire period of her dismissal, even though she had returned to the United States); In the Matter of Ralph C. Harbin, 61 Comp. Gen. 57 (1981) (travel and transportation expenses that an employee would have received but for the employee's improper separation action may be paid under the Back Pay Act).

6. We note, in this connection, that the concept of "constructive cost" has been approved as a means of ascertaining the monetary value of Government-owned, space-available transportation such as the EML flights at issue here. See, e.g., Matter of Nelson P. Fordham, Comp. Gen. B-209957 (June 1, 1984) (permitting reimbursement of employee's costs "up to constructive MAC [Military Airlift Command] cost"); Matter of Associate Director, FGMSD - Claims Group, Comp. Gen. B-197048.0M (April 1, 1980) (permitting reimbursement "for the constructive cost of 1977 space-available transportation").

7. To the extent that the Judge's decision suggests that employees affected by the repudiation of an agreement must establish that they were the intended beneficiaries of the agreement before they are entitled to relief, it must be rejected. The Judge has cited no authority in support of this proposition.

Similarly, to the extent that the Judge's decision suggests that affected employees must establish a monetary loss, Judge's Decision at 19, n.11, as opposed to an adverse effect -- which could result in losses that are monetary or equitable in nature -- it must also be rejected. As the U.S. Court of Appeals for the District of Columbia Circuit has observed,

[t]he Act imposes on the Authority a clear duty to vindicate employee bargaining rights by making whole employees adversely affected by bargaining violations. Section 7118(a)(7) of the Act expresses in mandatory terms the statute's policy to remedy each violation to the fullest possible extent by providing that the Authority 'shall . . . order' some combination of relief[.]

American Federation of Government Employees, SSA Council 220 v. FLRA, 840 F.2d 925, 928-29 (D.C. Cir. 1988). See also United States Department of Justice, United States Immigration and Naturalization Service, El Paso District Office, 39 FLRA 1431, 1439 (1991) (ordering agency to rescind any admonishments or disciplinary actions taken against employees).

8. We note, in this connection, that if the exact positions into which Foley and Krom would have transferred are no longer available, these employees may be offered substantially equivalent positions. Cf. Department of the Navy, Naval Facilities Engineering Command, Western Division San Bruno, California, 45 FLRA 138, 160 (1992); Pension Benefit Guaranty Corporation, 39 FLRA 905, 932 (1991). If such positions are not available, the Respondent may be required to place them on a preferential hiring list. Cf., e.g., Accetta d/b/a Venezia Bread Co., 147 NLRB 1048 (1964).


ALJ's Footnotes Follow:

1. For convenience of reference, sections of the Statute hereinafter are, also, referred to without inclusion of the initial "71" of the statutory reference, i.e., Section 7116(a)(5) will be referred to, simply, as, "16(a)(5)".

2. General Counsel by Motion dated June 3, 1996, and received on June 6, 1996, has moved to strike portions of Respondent's Brief for the asserted reason that certain assertions as to Payne, Macy, Flowers, Pena, Geer, Ballantine, Silsbee, Himango and Hoffman are not supported, ". . . by any record evidence and in fact, certain of these assertions concern facts which occurred after the hearing was closed. . . ." (General Counsel's Motion, p. 2). Respondent filed a Response To Motion To Strike, dated June 13, 1996, and received on June 18, 1996.

General Counsel's motion is granted in part and is denied in part. First, Payne and Macy were referred to in the transcript and exhibits (Res. Exh. 3, G.C. Exh. 5; Tr. 159, 160). Coyle was referred to (Res. Exh. 13; Tr. 135, 136, 145, 151) but there was no reference in the transcript as to whether he had accepted the proffered return to Lajes. Accordingly, Respondent's assertion that Mr. Coyle had declined will be stricken.

Second, General Counsel is correct that Mr. Flower's retirement during the 93-94 school year could have been presented at the hearing. In this regard the Union was remiss in representing in March, 1996, that he still sought to return to Lajes, whereas, he had been retired two years. Respondent was remiss in failing to check its records. General Counsel is correct that Mr. Geer's disability retirement on June 16, 1996, occurred after the close of the hearing. Nevertheless, because their retirement removes them from further consideration as a "returnee"; and is a status as to which there could be no prejudice to General Counsel, General Counsel's request to delete reference to their retirement is denied.

Third, General Counsel's request to delete the Attachment filed with Respondent's Brief, which is a DODDS Educator Certification to Mr. Masone, dated April, 1992, is granted and the attachment has been removed.

Fourth, General Counsel's Motion to Strike the references to Pena, Ballantine, Silsbee, Himango and Hoffman is granted. Nevertheless, by the process of elimination, it is obvious that these five are the only active returnees to whom an offer has not been shown on the record to have been made.

3. The Director of the Department of Defense Education Activity decides each year whether there will be a transfer program. It is not an employee entitlement (Tr. 123).

4. Obviously, not all excess teachers were placed since their numbers greatly exceeded openings available and, of course, not all were qualified for the jobs available. DODDS' list of Placements for the 1995-96 school year, issued May 4, 1995, showed a total of 186 placements (G.C. Exh. 11).

5. All parties agree that in each "opportunity", including one brought out by the Union on June 14 and 16, 1995 (G.C. Exhs. 12, 14), each teacher involved was qualified at each step for the position in question.

6. Ms. Krom had entered incorrect numbers for her teaching certifications on her transfer request so that there was no vacancy for the only legitimate category shown (Tr. 127); however, her corrected application (Res. Exh. 7) was received on April 24, 1995 (Tr. 128).

7. Mr. Masone had not list