UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT
Petition for Review of an Order of the Federal Labor Relations Authority.
Wald, Chief Judge, and Starr and Sentelle, Circuit Judges. Opinion for the Court filed by Circuit Judge Starr.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STARR
This case brings before us a determination by the Federal Labor Relations Authority ("FLRA" or "Authority") that three collective bargaining proposals advanced by the Overseas Education Association were not within the agency-employer's duty to bargain under Title VII of the Civil Service Reform Act of 1978, 5 U.S.C. 7114(a)(4)(1982). Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 27 F.L.R.A. 492 (1987). Finding no error in the FLRA's determination, we deny the petition for review. I
OEA, an affiliate of the National Education Association, is the exclusive representative of a rather sizable bargaining unit, consisting of approximately 8,000 teachers, counselors, and other school-level professional personnel employed across the globe by the Department of Defense Dependents Schools . DODDS operates a vast educational network, encompassing approximately 250 elementary and secondary schools situated at or near U.S. military bases overseas. DODDS' purpose, as one might expect, is to provide and operate educational facilities for eligible dependents of both U.S. military and civilian personnel stationed abroad.
Negotiations for the current collective bargaining agreement between OEA and DODDS began in 1982. Three proposals advanced by OEA during these negotiations are the subject of this appeal. The three proposals relate to travel or educational benefits sought by members of the bargaining unit upon their retirement or departure from DODDS service. Specifically, the proposals are: Proposal 22 provides that, upon retirement, covered employees would be authorized for space-available travel on military aircraft; Proposal 43 provides that, upon retirement, a unit employee would be entitled to space-available, tuition-free education for all dependents if the employee continues to reside overseas; and, finally, Proposal 44 provides that dependents of unit employees who are already authorized to attend a DODDS school (or an approved non-DODDS school) can complete their education requirements notwithstanding their employee-parent's (or sponsor's) death or departure from the overseas post.
Confronted with these proposals, DODDS demurred, contending that they fell outside the domain of bargainable subjects. OEA thereupon mounted a negotiability appeal to the FLRA, see 5 U.S.C. 7117(c). The Authority upheld the agency's declination to bargain, on the ground that the proposals failed to comport with the second prong of the FLRA's increasingly familiar Antilles test. That test, which derives its name from the case of Antilles Consolidated Education Association and Antilles Consolidated School System, 22 F.L.R.A. 235 (1986), subjects bargaining proposals to two inquiries: (1) whether the proposal pertains to bargaining unit employees; and (2) the nature and extent of the proposal's effect on the working conditions of unit employees. The first prong of the Antilles test is not in question here. The second prong, which provides the bone of contention between the parties, derives from section 7103(a)(14) of the statute, which defines "conditions of employment" as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions. . . ."
In its decision, the FLRA concluded that the three proposals failed to satisfy the threshold negotiability criterion of "affecting working conditions." The FLRA reasoned that Proposals 22 and 43 did not have a sufficiently direct relationship or nexus with actual working conditions, because they would only affect the rights of unit employees upon retirement. The Authority set forth its conclusion in this respect in the following way:
"It has not been demonstrated that the matter proposed would serve to increase employee retention or to contribute to the ability of the employer to maintain a stable and sufficient work force overseas. Other than providing a promise of benefit during their retirement, the proposal has no relationship to the working conditions of bargaining unit employees. Based on the limited nature and extent to which this proposal would relate to the working conditions or employment relationship of bargaining unit employees, we conclude that it does not concern conditions of employment.
27 F.L.R.A. at 525; Joint Appendix at 79.
Next, the FLRA concluded that the requisite nexus did not exist between the final proposal (Proposal 44) and working conditions of OEA employees. In support of this finding, the Authority distinguished its (uncontested) conclusion that proposals regarding educational benefits for dependents of active employees are negotiable:
The purpose of the legal provisions which form the basis for finding that proposals relating to dependents' education concern conditions of employment is compensating employees for hardships and additional expenses incident to their service overseas as well as facilitating recruitment and retention of employees in overseas posts of duty. Given the circumstances specified in [Proposal 44]--that an employee is no longer ...