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50 FLRA No. 62

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

DEPARTMENT OF DEFENSE

DEPENDENTS SCHOOLS

(Respondent)

and

OVERSEAS EDUCATION ASSOCIATION

(Charging Party/Union)

WA-CA-20413

_____

DECISION AND ORDER

May 30, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

The Administrative Law Judge issued the attached decision, finding that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by repudiating an agreement between the parties. The Respondent (DODDS) filed exceptions to the Judge's decision and the General Counsel filed an opposition to the exceptions.

Upon consideration of the Judge's decision and the entire record, we adopt the Judge's findings, conclusions, and recommended Order.

II. Judge's Decision

The facts and other relevant matters are fully set forth in the attached Judge's decision, and are only briefly summarized here.

The Union and Patricia Rivera, the Respondent's Chief of Management-Employee Relations, DODDS-Germany, executed a settlement agreement resolving a grievance. Subsequently, Mervin Scott, the Respondent's Director of Personnel, Headquarters, stated to the Director of DODDS-Germany and the Union that the settlement agreement "could not be recognized" because, according to Scott, the settlement agreement was in conflict with the parties' national collective bargaining agreement. General Counsel's Exhibit 4.

The Judge found that, because the Respondent did not take action in accordance with section 7114(c) of the Statute to disapprove the settlement agreement within 30 days of its execution, the agreement became binding on the Respondent. Based on Rivera's credited testimony, the Judge rejected the Respondent's assertion that Rivera was not authorized to enter into the agreement. The Judge found that: (1) the agreement, which was binding on the Respondent, applied to DODDS-Germany; (2) the Respondent had stated to both DODDS-Germany and the Union that the agreement could not be recognized; and (3) the Respondent had taken no subsequent action to countermand that statement. Based on those findings, the Judge concluded, "under all the circumstances[,] that [the] Respondent repudiated the agreement" and, thus, violated section 7116(a)(1) and (5) of the Statute, as alleged. Judge's Decision at 8.

III. Positions of the Parties

A. Respondent

The Respondent excepts to the Judge's decision on three grounds. First, the Respondent excepts to the Judge's finding that the settlement agreement, which applied only to DODDS-Germany, constituted a national-level agreement. According to the Respondent, the agreement was at the regional level and, as such, it is necessary to determine whether the settlement conflicts with the parties' collective bargaining agreement. Second, the Respondent excepts to the Judge's finding that Rivera was authorized to enter into the settlement agreement. Finally, the Respondent excepts to the Judge's finding that Scott's statement to DODDS-Germany and the Union that the Respondent "could not recognize" the agreement constituted a repudiation of the settlement agreement. Judge's Decision at 8.

B. General Counsel

The General Counsel asserts that the Respondent's exceptions raise nothing that was not considered by the Judge, and are no more than a disagreement with the Judge's crediting of Rivera's testimony and the findings he made based on her testimony.

IV. Analysis and Conclusions

We find no merit in the Respondent's first exception. The record supports the Judge's findings that the settlement agreement was executed to resolve a grievance, filed at the national level, as it applied to DODDS-Germany.⁽¹⁾

The Respondent's second exception constitutes disagreement with the Judge's crediting of Rivera's testimony, on which he based his finding that Rivera was authorized to enter into the settlement agreement. The demeanor of witnesses is an important factor in resolving issues of credibility and only the Judge has had the benefit of observing the witnesses while they testified. We will not overrule a judge's credibility determination unless a clear preponderance of all relevant evidence demonstrates that the determination was incorrect. See Redstone Arsenal Exchange Service, Army and Air Force Exchange Service, Redstone Arsenal, Alabama, 50 FLRA 51 (1994), and cases cited therein. We have examined the record and find no basis for reversing the Judge's credibility findings.

Finally, we agree with the Judge that the Respondent repudiated the settlement agreement. The Judge found that: (1) Rivera was authorized to enter into the agreement; (2) the agreement was binding on the Respondent and applied to DODDS-Germany; (3) the Respondent stated to both DODDS-Germany and the Union that the agreement could not be recognized; and (4) the Respondent had taken no subsequent action to countermand that statement. Based on those findings, the Judge concluded that the Respondent repudiated the settlement agreement. We find that the Judge's conclusion is consistent with the approach for determining repudiation set forth in Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211 (1991) (Warner Robins).⁽²⁾ The Judge's findings establish that the Respondent clearly indicated its refusal to honor, in their entirety, the unambiguous terms of the settlement agreement by which it was bound. Accordingly, by its nature and scope, the Respondent's refusal to honor the agreement constituted repudiation and, as such, violated section 7116(a)(1) and (5) of the Statute.

V. Order

Pursuant to section 2423.29 of the Authority's Rules and 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) Failing and refusing to honor the June 19, 1991 agreement concerning teacher identification cards, in resolution of grievance 90-14, applying to its Germany Region, which was reached with the Overseas Education Association, the exclusive representative of certain of its employees.

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

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Implement the June 19, 1991 agreement and ensure that all affected unit employees have corrected identification cards.

(b) Rescind its November 26, 1991 letter to the Overseas Education Association concerning the invalidity of the June 19, 1991 agreement.

(c) Post at its facilities in the Germany Region 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, 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 insure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director of the Washington 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

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to honor the June 19, 1991 agreement concerning teacher identification cards, in resolution of grievance 90-14, applying to our Germany Region, which was reached with the Overseas Education Association, the exclusive representative of certain of our employees.

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

WE WILL implement the June 19, 1991 agreement and ensure that all affected unit employees have corrected identification cards.

WE WILL rescind our November 26, 1991 letter to the Overseas Education Association concerning the invalidity of the June 19, 1991 agreement.

______________________________

(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 its provisions, they may communicate directly with the Regional Director, Washington Regional Office, Federal Labor Relations Authority, whose address is: 1255 22nd Street, NW., 4th Floor, Washington, D.C. 20037-1206, and whose telephone number is: (202) 653-8500.

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

1. In view of our determination, we need not address the Respondent's arguments that are premised on a conclusion that the settlement agreement was not at the national level.

2. In Warner Robins, the Authority stated 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." 40 FLRA at 1218.

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