09:0184(28)CA - Kaiserslautern American High School, DOD Dependents Schools, Germany North Region and Overseas Federation of Teachers, AFT -- 1982 FLRAdec CA

 9 FLRA No. 28
 
 KAISERSLAUTERN AMERICAN HIGH SCHOOL
 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS,
 GERMANY NORTH REGION
 Respondent
 
 and
 
 OVERSEAS FEDERATION OF TEACHERS,
 AFT, AFL-CIO
 Charging Party
 
                                            Case No. 3-CA-830
 
                            DECISION AND ORDER
 
    THIS MATTER IS BEFORE THE AUTHORITY PURSUANT TO THE ACTING REGIONAL
 DIRECTOR'S "ORDER TRANSFERRING CASE TO THE FEDERAL LABOR RELATIONS
 AUTHORITY" IN ACCORDANCE WITH SECTION 2429.1(A) OF THE AUTHORITY'S RULES
 AND REGULATIONS.
 
    UPON CONSIDERATION OF THE ENTIRE RECORD IN THIS CASE, INCLUDING THE
 PARTIES' STIPULATION OF FACTS, ACCOMPANYING EXHIBITS, AND BRIEFS
 SUBMITTED BY THE RESPONDENT AND THE GENERAL COUNSEL, THE AUTHORITY
 FINDS:
 
    THE COMPLAINT HEREIN ALLEGES THAT THE RESPONDENT, KAISERSLAUTERN
 AMERICAN HIGH SCHOOL, DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS, GERMANY
 NORTH REGION, VIOLATED SECTION 7116(A)(1), (5) AND (8) OF THE FEDERAL
 SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE), WHEN IT POLLED
 BARGAINING UNIT EMPLOYEES ABOUT THEIR MORALE AND LATER PUBLISHED THE
 RESULTS OF THE POLL.  IT IS ALLEGED THAT THE POLL WAS A "FORMAL
 DISCUSSION" WITHIN THE MEANING OF SECTION 7114(A)(2)(A) OF THE STATUTE,
 UNDERTAKEN WITHOUT PRIOR NOTICE TO OVERSEAS FEDERATION OF TEACHERS, AFT,
 AFL-CIO (THE UNION), AND THEREFORE CONSTITUTED A VIOLATION OF SECTION
 7116(A)(1) AND (8) OF THE STATUTE.  IT IS ALLEGED FURTHER THAT THE POLL
 AND ITS PUBLICATION AMOUNTED TO A VIOLATION OF THE PARTIES' NEGOTIATED
 AGREEMENT, /1/ AND A BYPASS OF THE UNION, BOTH IN VIOLATION OF SECTION
 7116(A)(1) AND (5) OF THE STATUTE.
 
    IN DECEMBER 1979, THE NORTH CENTRAL ASSOCIATION (NCA) COMMISSION ON
 SCHOOLS ISSUED A REPORT AND RECOMMENDATION OF ITS EVALUATION TEAM
 CONCERNING THE ACCREDITATION OF THE RESPONDENT.  AMONG OTHER THINGS, THE
 NCA REPORT STATED THAT "GOOD TEACHER MORALE IS NOT IN EVIDENCE."
 THEREAFTER, AT A REGULARLY SCHEDULED MEETING BETWEEN THE PARTIES,
 NUMEROUS TOPICS WERE DISCUSSED, INCLUDING THE NCA REPORT.  ACCORDING TO
 THE JOINTLY SIGNED MINUTES OF THIS MEETING, THE RESPONDENT DECLARED ITS
 INTENT TO SPEAK WITH INDIVIDUAL MEMBERS OF THE SCHOOL STAFF CONCERNING
 THE NCA REPORT AND THE UNION INDICATED THAT IT "DID NOT SEE A PROBLEM"
 INASMUCH AS "THERE WAS NO QUESTION OF WORKING CONDITIONS, BENEFITS OR
 ENTITLEMENTS." THE UNION THEN CONDUCTED A POLL OF THE KAISERSLAUTERN
 FACULTY CONCERNING THE MORALE PROBLEM AND SUPPLIED THE RESULTS TO THE
 SCHOOL PRINCIPAL, DR. OLAN KNIGHT.  SUBSEQUENTLY, ON JANUARY 8, 1980,
 WITHOUT NOTICE TO THE UNION, PRINCIPAL KNIGHT PERSONALLY CONDUCTED THE
 POLL WHICH GAVE RISE TO THE COMPLAINT HEREIN.  KNIGHT INDIVIDUALLY
 HANDED EACH FACULTY MEMBER A QUESTIONNAIRE WHICH READ AS FOLLOWS:
 
    RE THE NCA REPORT
 
    MY PERSONAL MORALE IN KAHS IS:
 
    NORMAL/AVERAGE
 
    HIGHER THAN NORMAL
 
    LOWER THAN NORMAL
 
    IT APPEARS THAT FACULTY MEMBERS VOLUNTARILY COMPLETED THE
 QUESTIONNAIRE ANONYMOUSLY.  IT IS NOT SUGGESTED THAT FACULTY MEMBERS
 WERE COERCED OR THREATENED BY THE POLL.  ON JANUARY 11, KNIGHT MET WITH
 THE UNION ABOUT THE POLL, AND ON JANUARY 14, THE RESPONDENT PUBLISHED
 THE RESULTS OF THE POLL.  /2/ SUBSEQUENTLY, THE RESPONDENT FURNISHED THE
 RESULTS OF THE POLL TO THE NCA AS PART OF ITS ATTEMPT TO OVERCOME THE
 CITATION FOR POOR MORALE.
 
    WITH REGARD TO THE GENERAL COUNSEL'S ALLEGATION THAT THE RESPONDENT'S
 POLL CONSTITUTED A "CLEAR AND PATENT BREACH" OF THE PARTIES' AGREEMENT
 BECAUSE PRIOR APPROVAL OF THE UNION IS NECESSARY THEREUNDER WHERE
 TEACHERS ARE REQUIRED TO RESPOND TO A SURVEY INVOLVING PERSONNEL
 POLICIES, PRACTICES OR WORKING CONDITIONS AND THE RESPONDENT NEITHER
 SOUGHT NOR OBTAINED SUCH PRIOR APPROVAL, THE AUTHORITY FINDS THAT THE
 RESPONDENT'S CONDUCT HEREIN DID NOT AMOUNT TO A VIOLATION OF SECTION
 7116 OF THE STATUTE.  THUS, THE AUTHORITY CONCLUDES THAT THE SINGLE
 INSTANCE OF POLLING WITH REGARD TO THE QUESTION OF EMPLOYEE MORALE IN
 THE CIRCUMSTANCES OF THIS CASE DID NOT CONSTITUTE A REJECTION OF THE
 COLLECTIVE BARGAINING AGREEMENT IN VIOLATION OF SECTION 7116(A)(1) AND
 (5).  FEDERAL AVIATION ADMINISTRATION, ALASKAN REGIONAL OFFICE, 7 FLRA
 NO. 23(1981).  /3/ THEREFORE, THAT PORTION OF THE COMPLAINT RELATING TO
 AN ALLEGED BREACH OF THE PARTIES' AGREEMENT SHALL BE DISMISSED.
 
    THE REMAINING ALLEGATION THAT THE POLL AND ITS PUBLICATION VIOLATED
 SECTION 7116(A)(1) AND (5) IS BASED ON THE THEORY THAT THE RESPONDENT
 THEREBY ATTEMPTED TO DEAL DIRECTLY WITH UNIT EMPLOYEES CONCERNING
 PERSONNEL POLICIES, PRACTICES OR MATTERS AFFECTING WORKING CONDITIONS,
 THUS BYPASSING THEIR EXCLUSIVE REPRESENTATIVE.  TO THE CONTRARY, THE
 AUTHORITY CONCLUDES THAT THE RESPONDENT WAS MERELY GATHERING
 INFORMATION
 TO ENABLE IT TO RESPOND TO A FINDING BY AN INDEPENDENT AGENCY SO THAT IT
 MIGHT OVERCOME AN EVALUATION REPORT AFFECTING ITS ACCREDITATION.  NOT
 ALL DIRECT COMMUNICATION BETWEEN MANAGEMENT AND ITS EMPLOYEES IS
 PROHIBITED.  SEE UNITED STATES DEPARTMENT OF THE AIR FORCE, 47TH AIR
 BASE GROUP (ATC), LAUGHLIN AIR FORCE BASE, TEXAS, 4 FLRA NO.  65(1980).
 SEE ALSO DIVISION OF MILITARY AND NAVAL AFFAIRS, STATE OF NEW YORK,
 ALBANY, NEW YORK, 8 FLRA NO. 71(1982).  SINCE THE POLL HEREIN WAS SIMPLY
 TO GATHER INFORMATION TO SUPPORT THE RESPONDENT'S INDEPENDENT
 ACCREDITATION, WAS REASONABLY UNDERSTOOD TO BE FOR SUCH PURPOSE, AND WAS
 DONE IN A MANNER WHICH IN NO WAY THREATENED OR PROMISED BENEFITS TO
 EMPLOYEES OR OTHERWISE UNDERMINED THE UNION, THE AUTHORITY FINDS THAT
 THE GENERAL COUNSEL HAS FAILED TO ESTABLISH UNLAWFUL DIRECT DEALINGS BY
 THE RESPONDENT WITH EMPLOYEES OVER MATTERS AFFECTING WORKING CONDITIONS
 IN VIOLATION OF SECTION 7116(A)(1) AND (5).
 
    FINALLY, THE AUTHORITY CONCLUDES THAT THE POLLING OF THE TEACHERS
 INDIVIDUALLY BY PRINCIPAL KNIGHT DID NOT CONSTITUTE A FORMAL DISCUSSION
 AT WHICH THE UNION WOULD HAVE THE RIGHT TO BE REPRESENTED UNDER SECTION
 7114(A)(2)(A).  /4/ AS NOTED ABOVE, IT HAS BEEN CONCLUDED THAT THE POLL
 DID NOT CONSTITUTE A DISCUSSION BETWEEN PRINCIPAL KNIGHT AND EMPLOYEES
 CONCERNING PERSONNEL POLICIES OR PRACTICES OR OTHER GENERAL CONDITIONS
 OF EMPLOYMENT AFFECTING THEM, BUT RATHER WAS AN INFORMATION GATHERING
 PROCEDURE FOR THE PURPOSE OF COMMUNICATING WITH NCA, THE ACCREDITING
 AGENCY.  THEREFORE, THE RESPONDENT DID NOT FAIL TO COMPLY WITH THE
 REQUIREMENT TO GIVE PRIOR NOTICE OF A FORMAL DISCUSSION AS REQUIRED BY
 SECTION 7114(A)(2)(A), AND THE SECTION 7116(A)(8) ALLEGATION SHALL BE
 DISMISSED.
 
                                   ORDER
 
    IT IS HEREBY ORDERED THAT THE COMPLAINT IN CASE NO. 3-CA-830 BE, AND
 IT HEREBY IS, DISMISSED IN ITS ENTIRETY.
 
    ISSUED, WASHINGTON, D.C., JUNE 23, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
                       HENRY B. FRAZIER III, MEMBER
                       LEON B. APPLEWHAITE, MEMBER
                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ THE PARTIES' AGREEMENT PROVIDES THAT "NO TEACHER WILL BE REQUIRED
 BY MANAGEMENT TO RESPOND TO ANY SURVEY INVOLVING PERSONNEL POLICIES,
 PRACTICES OR WORKING CONDITIONS WITHOUT PRIOR APPROVAL OF THE UNION."
 
    /2/ THE RESULTS, APPEARING IN THE "DAILY BULLETIN" ALONG WITH A
 NUMBER OF OTHER ITEMS SUBMITTED BY OTHER INDIVIDUALS, STATED:
 
    THANKS TO ALL WHO ANSWERED THE "MORALE" QUESTION FOR ME.  I BELIEVE
 WE HAVE PROVEN NCA
 
    WRONG AGAIN.  RESULTS DEPICT THE FOLLOWING:  NORMAL/AVERAGE:  48%;
 HIGHER THAN NORMAL =
 
    26.6%;  LOWER THAN NORMAL = 25.3%.
 
    /3/ THUS, THE AUTHORITY NEED NOT REACH EXTANT QUESTIONS OF CONTRACT
 INTERPRETATION SUCH AS WHETHER THE FACULTY EMPLOYEES WHO VOLUNTARILY
 RESPONDED TO THE QUESTIONNAIRE WERE "REQUIRED" TO DO SO AND WHETHER THE
 UNION'S STATEMENTS AT THE MEETING WITH THE RESPONDENT SHORTLY AFTER THE
 NCA REPORT WAS ISSUED CONSTITUTED "PRIOR APPROVAL." RATHER, SUCH
 QUESTIONS ARE APPROPRIATELY RESOLVED UNDER THE GRIEVANCE AND ARBITRATION
 PROCEDURES CONTAINED IN THE PARTIES' AGREEMENT PURSUANT TO SECTION 7121
 OF THE STATUTE.
 
    /4/ SECTION 7114(A)(2)(A) OF THE STATUTE PROVIDES:
 
    (2) AN EXCLUSIVE REPRESENTATIVE OF AN APPROPRIATE UNIT IN AN AGENCY
 SHALL BE GIVEN THE OPPORTUNITY TO BE REPRESENTED AT--
 
    (A) ANY FORMAL DISCUSSION BETWEEN ONE OR MORE REPRESENTATIVES OF THE
 AGENCY AND ONE OR MORE
 
    EMPLOYEES IN THE UNIT OR THEIR REPRESENTATIVES CONCERNING ANY
 GRIEVANCE OR ANY PERSONNEL
 
    POLICY OR PRACTICES OR OTHER GENERAL CONDITION OF EMPLOYMENT(.)