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The decision of the Authority follows:
11 FLRA NO. 100 DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS Respondents and OVERSEAS FEDERATION OF TEACHERS, AFT, AFL-CIO Charging Party Case No. 3-CA-2250
This matter is before the Authority pursuant to the Regional Director's "Order Transferring Case to the 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 stipulation of facts and the contentions of the parties, 1 the Authority finds:
The complaint alleges that the Respondent, Department of Defense Dependents Schools (DODDS), violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by directing agency management at the level of exclusive recognition to rescind a grievance award rendered by management at that level, thereby interfering with the collective bargaining relationship of the parties at the level of exclusive recognition. That award directed that the grievant be awarded backpay. At all times material herein, the Overseas Federation of Teachers, AFT, AFL - CIO (OFT), was the exclusive representative for a unit of employees in the Respondent's Mediterranean Region. Prior to a reorganization within DODDS which created the Mediterranean Region, OFT held exclusive recognition for a unit within the Respondent's European Region (DODDSEUR).
The record indicates that, prior to the reorganization referred to above, the management of DODDSEUR and an employee within the unit exclusively represented by OFT successfully resolved a grievance, which had been filed and processed under the parties' negotiated grievance procedure, regarding the employee's date of appointment. As part of the grievance resolution, the employee was awarded backpay. [ v11 p597 ] Upon notification of the award, DODDS, at the headquarters level, informed DODDSEUR that the award was invalid inasmuch as it was based upon a misinterpretation or assumed waiver of an existing agency regulation regarding compensation for overseas teachers. However, no further action was taken at the time. 2 In March 1981, DODDS' Mediterranean Region notified its local servicing personnel office that, in accordance with a directive from higher level management, it was being required to recoup the monies previously awarded to the grievant. Upon notification of this instruction, the grievant instituted a request for a waiver of over-payment. As of the date of the parties' stipulation herein, no backpay previously awarded to the grievant had been recouped and no decision had been made on the request for a waiver which was pending before the Assistant Secretary of Defense for Administration.
The Authority finds that the complaint must be dismissed. As noted above, the complaint alleges that DODDS, at the headquarters level, directed that the grievance award rendered by management at DODDSEUR be rescinded and that all monies paid to the grievant be recovered. However, the stipulated record fails to establish that the directive was ever effectuated. To the contrary, the record clearly indicates that no monies have been paid back and a final decision on the request for a waiver of over-payment has not been rendered. Under these circumstances, where the acts which are alleged to form the basis of the complaint have not been and may never be effectuated, the General Counsel has failed to establish that a violation of the Statute has occurred. Thus, without deciding whether a violation of the Statute would have occurred had the acts alleged in the complaint been effectuated, the Authority shall order that the instant complaint be dismissed. 3 [ v11 p598 ]
IT IS ORDERED that the complaint in Case No. 3-CA-2250 be, and it hereby is, dismissed.
Issued, Washington, D.C., March 14, 1983 Ronald W. Haughton, Chairman Henry B. Frazier III, Member Leon B. Applewhaite, Member FEDERAL LABOR RELATIONS AUTHORITY
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Footnote 1 The Respondent's brief was not timely filed and therefore has not been considered by the Authority.
Footnote 2 Management at the Mediterranean Region, which by then was in existence, did, however, unsuccessfully attempt to obtain DODDS headquarters' concurrence with the grievance award.
Footnote 3 In this connection, the Authority has previously held that the acts and conduct of higher level agency management may constitute an unfair labor practice when such conduct prevents agency management at the level of exclusive recognition from fulfilling its bargaining obligation under the Statute. Department of Health and Human Services, Social Security Administration, Region VI, and Department of Health and Human Services, Social Security Administration, Galveston, Texas District, 10 FLRA No. 9 (1982); Department of the Interior, Water and Power Resources Service, Grand Coulee Project, Grand Coulee, Washington, 9 FLRA No. 46 (1982).