Overseas Education Association (Union) and Department of Defense, Office of Dependents Schools, Alexandria, Virginia (Agency)

 7 FLRA No. 11
 
 OVERSEAS EDUCATION ASSOCIATION
 Union
 
 and
 
 DEPARTMENT OF DEFENSE, OFFICE
 OF DEPENDENTS SCHOOLS,
 ALEXANDRIA, VIRGINIA
 Agency
 
                                            Case No. O-NG-180
 
                DECISION AND ORDER ON NEGOTIABILITY APPEAL
 
    THIS MATTER IS BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE) (5 U.S.C. 7101 ET
 SEQ.).
 
    SHORTLY AFTER NEGOTIATIONS BETWEEN THE ABOVE-CAPTIONED PARTIES HAD
 COMMENCED, THE UNION TIMELY FILED THE INSTANT APPEAL WITH THE AUTHORITY.
  DURING THE PENDENCY OF THE APPEAL, AN AGENCY REORGANIZATION RESULTED IN
 THE FILING OF A NUMBER OF REPRESENTATION CASES WITH THE AUTHORITY.
 THESE CASES WERE CONSOLIDATED FOR PURPOSES OF DECISION IN DEPARTMENT OF
 DEFENSE DEPENDENTS SCHOOLS AND OVERSEAS EDUCATION ASSOCIATION, NEA, 6
 FLRA NO. 55(1981).  IN THAT DECISION, THE AUTHORITY FOUND THAT THE
 REORGANIZATION HAD RESULTED IN A REALIGNMENT OF THE ORGANIZATIONAL
 STRUCTURE OF THE DEPARTMENT OF DEFENCE DEPENDENTS SCHOOLS SO AS TO CAUSE
 THE EXISTING BARGAINING UNITS TO BE NO LONGER APPROPRIATE.
 CONSEQUENTLY, THE AUTHORITY CONCLUDED THAT SELF DETERMINATION ELECTIONS
 MUST BE HELD TO DETERMINE WHICH OF THE CONTENDING UNIONS, IF ANY, IS THE
 EMPLOYEES' CHOICE AS EXCLUSIVE REPRESENTATIVE AND, DERIVATIVELY, TO
 DETERMINE THE EMPLOYEES' PREFERENCE FOR REPRESENTATION IN A WORLD WIDE
 OR IN REGIONWIDE UNITS OF EXCLUSIVE RECOGNITION (DECISION AT P. 11-12).
 
    AS A RESULT OF THE DECISION FINDING THAT THE EXISTING BARGAINING
 UNITS INVOLVED ARE NO LONGER APPROPRIATE AND DIRECTING THAT ELECTIONS BE
 HELD, THE ISSUE NOW BEFORE THE AUTHORITY IN THE INSTANT CASE IS WHETHER
 THIS APPEAL IS PROPERLY BEFORE THE AUTHORITY AT THIS TIME.
 
    THE STATUTORY DUTY TO BARGAIN IS SET FORTH IN SECTION 7114(A)(4) OF
 THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE WHICH PROVIDES,
 IN PERTINENT PART, AS FOLLOWS:
 
    ANY AGENCY AND ANY EXCLUSIVE REPRESENTATIVE IN ANY APPROPRIATE UNIT
 IN THE AGENCY, THROUGH
 
    APPROPRIATE REPRESENTATIVES, SHALL MEET AND NEGOTIATE IN GOOD FAITH
 FOR THE PURPOSES OF
 
    ARRIVING AT COLLECTIVE BARGAINING AGREEMENT.
 
    ALSO, WITH REGARD TO THE DUTY TO BARGAIN, SECTION 7103(A)(12) OF THE
 STATUTE DEFINES "COLLECTIVE BARGAINING" AS:
 
    (T)HE PERFORMANCE OF THE MUTUAL OBLIGATION OF THE REPRESENTATIVE OF
 AN AGENCY AND THE
 
    EXCLUSIVE REPRESENTATIVE OF EMPLOYEES IN AN APPROPRIATE UNIT IN THE
 AGENCY TO MEET AT
 
    REASONABLE TIMES AND TO CONSULT AND BARGAIN IN A GOOD-FAITH EFFORT TO
 REACH AGREEMENT WITH
 
    RESPECT TO THE CONDITIONS OF EMPLOYMENT AFFECTING SUCH EMPLOYEES(.)
 
    THUS, THE STATUTE CLEARLY INDICATES THAT THE BARGAINING OBLIGATION
 EXISTS IN AN APPROPRIATE UNIT OF EXCLUSIVE RECOGNITION WITH RESPECT TO
 CONDITIONS OF EMPLOYMENT WHICH AFFECT ANY EMPLOYEES WITHIN THE UNIT.
 THEREFORE, WHERE THERE IS NO APPROPRIATE UNIT, THERE IS NO DUTY TO
 BARGAIN.
 
    IN CASES INVOLVING CHANGES IN THE STATUS OF EXISTING UNITS, IN THE
 CONTEXT OF UNIT CONSOLIDATION, THE AUTHORITY HAS HELD THAT A NEW
 BARGAINING OBLIGATION IS CREATED IN LIEU OF SUCH OBLIGATIONS WHICH
 PREVIOUSLY EXISTED REGARDING SMALLER UNITS NOW IN THE CONSOLIDATED UNIT.
  IN OTHER WORDS, IN THOSE CASES, THE DUTY TO BARGAIN WITH A LOCAL UNIT
 OF EXCLUSIVE RECOGNITION WAS HELD NO LONGER TO EXIST AT THAT LEVEL DUE
 TO THE ESTABLISHMENT OF THE APPROPRIATE UNIT AT THE NATIONAL LEVEL.
 DEPARTMENT OF HEALTH AND HUMAN SERVICES, SOCIAL SECURITY ADMINISTRATION
 AND LOCAL 1346, AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1164,
 AFL-CIO AND SOCIAL SECURITY ADMINISTRATION, 6 FLRA NO. 60(1981).
 
    SINCE THE AUTHORITY HELD THAT THE UNIT OF EXCLUSIVE RECOGNITION
 INVOLVED IN THE INSTANT NEGOTIABILITY APPEAL IS NO LONGER APPROPRIATE,
 THE DUTY TO BARGAIN WITH THE EXCLUSIVE REPRESENTATIVE OF THIS UNIT NO
 LONGER EXISTS.  THAT IS, THE AGENCY HAS NO DUTY TO BARGAIN WITH THE
 UNION REGARDING CONDITIONS OF EMPLOYMENT OF EMPLOYEES IN THE UNIT NO
 LONGER DEEMED APPROPRIATE.  HENCE, IN THE ABSENCE OF A DUTY TO BARGAIN
 BETWEEN THE PARTIES TO THIS CASE, ISSUES AS TO THE SCOPE OF BARGAINING,
 I.E., WHETHER THE PROPOSALS IN DISPUTE HEREIN ARE INCONSISTENT WITH LAW
 AND REGULATION UNDER SECTION 7117(A) AND (B) ARE NOT APPROPRIATE FOR
 RESOLUTION BY THE AUTHORITY AT THIS TIME.
 
    FOR THE FOREGOING REASONS, IT IS CONCLUDED THAT THE NEGOTIABILITY
 ISSUES RAISED IN THE INSTANT APPEAL WERE RENDERED MOOT BY THE
 AUTHORITY'S DECISION THAT THE BARGAINING UNIT INVOLVED IS NO LONGER
 APPROPRIATE.  CF. AMERICAL FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO,
 LOCAL 2 AND DEPARTMENT OF THE ARMY, HARRY DIAMOND LABORATORIES, ADELPHI,
 MARYLAND, 5 FLRA NO.  13(1981) (NEGOTIABILITY ISSUES WITH RESPECT TO A
 PAID PARKING PROGRAM WERE RENDERED MOOT BY DISCONTINUANCE OF THE
 PROGRAM
 DURING THE PENDENCY OF THE APPEAL).
 
    ACCORDINGLY, WITHOUT PASSING ON THE MERITS OF THE DISPUTE, IT IS
 ORDERED THAT THE UNION'S APPEAL BE, AND IT HEREBY IS, DISMISSED WITHOUT
 PREJUDICE.
 
    ISSUED, WASHINGTON, D.C., OCTOBER 30, 1981.
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY