50:424(62)CA - - DOD Dependents Schools and Overseas Education Association - - 1995 FLRAdec CA - - v50 p424
[ v50 p424 ]
The decision of the Authority follows:
50 FLRA No. 62
FEDERAL LABOR RELATIONS AUTHORITY
DEPARTMENT OF DEFENSE
OVERSEAS EDUCATION ASSOCIATION
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
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. A