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

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[ v36 p871 ]
The decision of the Authority follows:

36 FLRA No. 84








(Charging Party)



August 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

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

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

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

II. Background and Administrative Law Judge's Decision

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

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

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

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

III. General Counsel's Exceptions

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

IV. Analysis and Conclusions

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