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In the Matter of )

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DEPARTMENT OF DEFENSE )

DEPARTMENT OF DEFENSE DEPENDENTS )

SCHOOLS )

ALEXANDRIA, VIRGINIA )

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and ) Case No. 92 FSIP 247

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OVERSEAS EDUCATION ASSOCIATION, NEA )

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Following a Notice of Hearing in the above-referenced case, Staff Associate Harry E. Jones conducted a factfinding hearing on December 14, 1992, on the issue of competitive areas for reductions in force (RIFs). At the hearing, a stenographic record was made, testimony and argument were presented, and documentary evidence was submitted. Following the hearing, the parties filed posthearing briefs. The Factfinder's Report, without recommendations, was submitted to the Panel, and it has now considered the entire record.

The proposals and positions of the parties regarding (1) a preliminary negotiability question, and (2) the above-stated competitive-areas issue are set forth in the attached Factfinder's Report.

With respect to the negotiability question raised by the Employer, the Panel is guided by the Federal Labor Relations Authority's (FLRA) decision in Commander, Carswell Air Force Base, Texas and American Federation of Government Employees, Local 1364, 31 FLRA 620 (1988). In that case, the FLRA concluded that the Panel may apply existing case law to resolve duty-to-bargain questions which arise during impasse proceedings. In this regard, the FLRA recently examined a proposal on competitive areas similar to the Union's in this case and found the proposal to be within the duty to bargain.⁽¹⁾ Accordingly, we conclude that the outstanding issue is properly before the Panel for resolution on the merits.

Having examined the evidence and arguments in this case, we conclude that neither party's proposal provides a suitable resolution to the dispute. Adoption of a single competitive area as urged by the Union would undoubtedly have a negative impact on educational programs, as many communities and schools throughout the entire competitive area would be affected by the downsizing or closure of any DODDS school. In this regard, all temporary and career-conditional employees in the competitive area would have to be released before any career employees could be separated. Moreover, a single competitive area would be extremely difficult to administer since military drawdowns or base closures involving different branches of the armed services in different areas of the world could lead to overlapping school closures or RIFs. Since only one RIF can be run at a time, adoption of a single competitive area could result in the workforce being in a constant state of flux. In addition, the cost effectiveness of the proposal is questionable, given that its adoption would likely result in an increased number of permanent change of station (PCS) relocations at an average cost to the Employer of approximately $10,000 per move. Relocation costs would also be increased as some lower graded local hires could become eligible for a full package of relocation expenses. Finally, the Union's proposal could have a negative impact on the agency's ability to retain minority employees, since many are recent recruits.

The Employer's proposal, on the other hand, is inconsistent with Department of Defense (DOD) Directive 1400.13 which requires that competitive areas be established to permit "adequate competition" among educators. Under this proposal, senior employees, especially those in "unique" positions such as guidance counselor and media specialist, could be separated, with junior employees in the same occupation being retained elsewhere. Given that many of the DODDS schools have less than 50 faculty members, adoption of the Employer's plan could result in employees with many years of service being separated without an opportunity to compete for job retention. This result is contrary to the DOD directive and affords inadequate deference to the widely accepted principle of labor-management relations which favors the retention of senior employees during periods of reduced operations.

As a compromise, therefore, we shall order that competitive areas be established on a district-wide basis.⁽²⁾ In our view, this solution should allow for adequate competition among teachers while keeping manageable the overall cost to the Employer for their relocation. Administration of this plan would be workable, especially since the Employer plans to retain personnel specialists in the field at both the regional and district levels. Moreover, since DOD policy provides that school closures will occur only at the end of the school year, the disruptive effect of this provision should be minimal. In addition, it parallels, to some extent, the existing agreement between the Union and the Germany Region which attempts to place teachers at the district level whenever a school closure occurs. This accommodation also most closely resembles the competitive area structure that the parties had agreed to in their collective-bargaining agreement. For these reasons, therefore, we reject the parties' respective proposals and shall order the adoption of a more balanced approach.

Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of the proceeding instituted under the Panel's regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the following:

The parties shall adopt the following district-wide competitive areas: Benelux, UK-East, UK-West, Islands Area, Frankfurt, Hanau, Heidelberg, Kaiserslauten, Nuernberg, Rhein Eifel, Wuerzburg, Japan, Korea, and Okinawa.

By direction of the Panel.

Linda A. Lafferty

Executive Director

April 8, 1993

Washington, D.C.

1. 1/ See National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, Silver Spring, Maryland, 44 FLRA 18 (1992).

2. 2/ The Islands Area of the Panama/Islands Area shall be considered a separate district for purposes of this Decision and Order.