[ v27 p203 ]
27:0203(34)NG
The decision of the Authority follows:
27 FLRA No. 34
FORT KNOX TEACHERS ASSOCIATION
Union
and
BOARD OF EDUCATION OF THE
FORT KNOX DEPENDENTS SCHOOLS
Agency
Case No. 0-NG-778
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of a negotiability appeal
filed under section 7105(a)(2)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of six provisions of a negotiated agreement which were
disapproved by the Agency head in the course of review under section
7114(c)(1) of the Statute. /1/
II. The Agency Head's Disapproval was Timely
The Union contends that the Agency head's disapproval of provisions
in the locally executed agreement was untimely because it was not
received within the time limit prescribed by section 7114(c)(2) of the
Statute. However, under sectin 2429.27(d) of the Authority's Rules and
Regulations, the date of service is the date on which a document is hand
delivered or deposited in the U.S. mail. The record in this case
establishes that the Agency head's disapproval was served on the Union,
that is deposited in the U.S. mail, within the 30-day time limit
prescribed by the Statute. Thus, the Union's contention cannot be
sustained.
III. Agency Procurement Regulations Do Not Bar
Negotiations
The Agency head disapproved a number of provisions of the locally
executed agreement on the grounds that the provisions were inconsistent
with various procurement regulations for which the Agency claims a
compellling need exists. The Agency argues, in essence, that the
"personal services contracts," under which teachers are employed at Fort
Knox Dependents Schools, must be awarded in accordance with provisions
of the Army Procurement Regulation (ADAR) and the Defense Acquisition
Regulation (DAR). The Agency contends further that the DAR was issued
under statutory authority and has the force of law. The Agency claims
that a compelling need exists for the ADAR because it implements and
supplements the DAR in a nondiscretionary manner. Thus, according to
the Agency, since the terms of "personal services contracts" must
conform to the ADAR and the DAR, any provision of the executed agreement
which conflicts with those terms is nonnegotiable.
In our view, the Agency is arguing, in effect, that the teachers in
this case are independent contractors who provide teaching services
exclusively under the terms of their "personal services contracts." This
position is without merit. The Agency has not identified a specific
conflict between any provision of the executed agreement and provisions
of the ADAR or the DAR or even cited to any specific provision in the
ADAR or the DAR upon which it relies. Moreover, the Agency has not
established that the cited procurement regulations in any manner apply
to the teachers in this case. Instead, it is well established that
teachers employed under 20 U.S.C. Section 241 are not independent
contractors but rather, employees of the Government subject to all
statutes pertaining to Government employment unless specifically
exempted. For example, see the Decision of the Administrative Law Judge
adopted by the Authority in Department of the Army, Fort Bragg Schools,
3 FLRA 364, 370-74 (1980); accord 58 Comp. Gen. 430, 434 (1979). Thus,
we reject the Agency's claim that the cited procurement regulations bar
negotiations on the provisions in dispute in this case. In our opinion,
the "personal services contracts" used by the Agency in this case
constitute nothing more than written statements of the particular terms
and conditions of the employment under which teachers will be employed.
To the extent that those terms are not specifically provided for by law
and are within the discretion of the Agency and are not otherwise
inconsistent with law, Government-wide rule or regulation or other
agency regulations for which a compelling need exists they are within
the duty to bargain. See National Treasury Employees Union and
Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986),
petition for review filed sub nom. Department of the Treasury, U.S.
Customs Service v. FLRA, No. 86-1198 (D.C. Cir. Mar. 27, 1986).
IV. Provision 1
Article VI, No Strike Provision
4. The Employer shall not lock-out its Employees during the
term of this Contract.
A. Positions of the Parties
The Agency points out that "lock-out" is defined elsewhere in the
agreement as a "voluntary cessation of school operation on the part of
the Employer which has as its object preventing Employees from working."
Based on that definition, the Agency contends that the disputed
provision would prevent it from determining voluntarily to cease school
operations for any reason or from laying off bargaining unit employees.
Therefore, the Agency asserts, the provision violates the management
rights to determine its organization and to lay off employees under
section 7106(a)(2)(A) of the Statute.
The Union contends that there is no evidence supporting the Agency's
construction of the provision. It asserts this provision was included
in the agreement to balance the no-strike provision with a statement
protecting employees' rights. The term "lock-out," the Union argues,
was intended by the local parties to convey the meaning commonly
attached to it in the field of labor relations. Union Reply Brief at 2.
B. Analysis and Conclusion
The dispute over Provision 1 concerns the meaning and purpose of the
provision. The Agency notes, "(n)ormally, a lock-out is the withholding
by management of Employment as a means of bringing employees to accept
the Employer's terms during negotiations. The Federal Government is
precluded from locking out its employees to compel acceptance of its
negotiation proposals." Statement of Position at 4. Thus, it appears
that the Agency would not object to the provision if it concerned a
"lock-out," as that term is understood in private sector labor
relations.
The Union expressly states that the term "lock-out" is intended to
convey the meaning commonly applied to it in the labor relations field.
In our view, the Union's explanation of the provision's purpose and
meaning is consistent with the proposal's plain language. The Agency
does not dispute the provision's negotiability if the meaning of
"lock-out" is limited to that commonly applied in labor relations. We
have construed the term to be so limited. Provision 1 does not prevent
the Agency from exercising its rights under section 7106(a)(2)(A) to
determine its organization and to layoff. In essence, therefore, the
proposal simply restates the requirements of existing law. Thus,
Provision 1 is within the duty to bargain.
V. Provision 2
Article VII, Grievance Procedure, Section 1, Definitions
As used in this Procedure:
1. "grievance" means any complaint by an Employee concerning
any matter relating to the employment of said Employee; any
complaint by the Association concerning any matter relating to the
employment of any Employee; or any complaint by any Employee, the
Association, or the Employer as defined in this Contract,
concerning the effect or interpretation, or claim of breach of
this Contract; or any alleged or claimed violation,
misinterpretation or misapplication of any law, rule or regulation
affecting conditions of employment.
Exemptions from this Procedure shall include such subjects as:
a. Any claimed violation of subchapter III of chapter 73 of
Title 5, U.S. Code (relating to prohibited political activities);
b. Retirement, life insurance or health insurance;
c. A suspension or removal under section 7532 of Title 5, U.S.
Code;
d. Any examination, certification, or appointment;
e. The classification of any position which does not result in
the reduction in pay or grade of an employee; and
f. Any matter appropriate for processing under the Contract
Disputes Act of 1978, except where it is in conflict with PL
95-454, Title VII, Federal Service Labor-Management Relations.
(Subsection F of the provision is in dispute.)
A. Positions of the Parties
The Agency asserts that Provision 2 conflicts with the Contract
Disputes Act of 1978, 41 U.S.C. Sections 601-613. The Agency takes the
position that in enacting the Contract Disputes Act, Congress intended
that the procedures contained in that Act be the exclusive method for
resolving disputes arising out of Government contracts.
The Union contends that the provisions of the Contract Disputes Act
are inapplicable to the parties' negotiated agreement. It points out
that the Contract Disputes Act applies to the procurement of services,
among other things. According to the Union, the parties' negotiated
agreement procures no services. Rather, the agreement applies to
employees whose services have already been, or will be procured by other
contractual or statutory means. The Union also argues that the Contract
Disputes Act is expressly limited to four instances, none of which are
applicable to a collective bargaining agreement and does not clearly
state that the procedures are exclusive, "notwithstanding any other
provision of law." On the other hand, the Union notes, a negotiated
grievance procedure under section 7121(a)(1) of the Statute is the
exclusive procedure for resolving grievances falling within its
coverage.
B. Analysis and Conclusion
The Agency's contention as to this provision is apparently based on
its view that because "personal services contracts" are utilized to
employ teachers in the Fort Knox Dependents Schools any dispute over the
terms and conditions of employment set out in those contracts must be
resolved exclusively under the Contract Disputes Act.
This contention cannot be sustained. As we previously stated in
section III of this decision, the teachers in this case are employees of
the Government subject to all statutes pertaining to Government
employment unless specifically exempted. There is nothing in the
express provisions of the Federal Service Labor-Management Relations
Statute, and the Agency does not cite to anything in its legislative
history, which indicates that Congress sought to exclude individuals
employed under 20 U.S.C. Section 241 from its coverage. Further, the
Agency has cited no provision in the Contract Disputes Act, which was
enacted subsequent to the Statute, which indicates that Congress
intended to include the Statute among the provisions of law which were
either amended or repealed by the Contract Disputes Act.
Thus, we conclude that the bargaining unit teachers in this case may
negotiate a grievance procedure under section 7121 of the Statute which,
consistent with section 7103(a)(9), may encompass any "matter relating
to the employment of the employee" or any claimed violation,
misinterpretation, or misapplication of any law, rule, or regulation
affecting conditions of employment." Further, section 7121(a) requires
that except for those matters set out in section 7121(d) and (e), this
grievance procedure must be the exclusive procedure for resolving
grievances within its coverage. Consequently, Provision 2 is
negotiable.
Provision 3
Article VII, Grievance Procedure, Section IV, Powers of the
Arbitrator.
It shall be the function of the arbitrator, and he/she shall be
empowered, except as his/her powers are limited below, after due
investigation, to make an award which shall be final and binding
upon both parties . . . . (The underscored part of the provision
is in dispute.)
A. Positions of the Parties
The Agency contends that the provision seeks to divest management of
its right to appeal arbitration awards under section 7122 of the
Statute.
The Union asserts that terms of the negotiated agreement are subject
to applicable law, including section 7122. Therefore, the provision is
not inconsistent with Federal law.
B. Analysis and Conclusion
Contrary to the Agency's position, we find that Provision 3 does not
conflict with section 7122 of the Statute. Based on the record,
Provision 3 is that portion of the negotiated grievance procedure
setting out the powers of an arbitrator in resolving a grievance which
has not been settled at an earlier stage of the grievance procedure.
Provision 3 merely recognizes that an arbitrator's award is intended to
be the final and binding resolution of the unsettled grievance. This
requirement is entirely consistent with section 7121(b)(3)(C) of the
Statute which provides that a grievance not settled under a negotiated
grievance procedure "shall be subject to binding arbitration." Of
course, under section 7122 of the Statute an arbitrator's award actually
becomes legally binding on the parties only in either of two
circumstances: (1) when neither of the parties files exceptions within
30 days of the award; or (2) when the award is sustained by the
Authority after a timely filing of exceptions. Once an award is final
and binding Section 7122(b) provides, "(a)n agency shall take the
actions required by an arbitrator's final award. This award may include
the payment of backpay (as provided in section 5596 of this title)."
There is nothing in the record in this case which indicates that
Provision 3 was intended to address in any manner whether and under what
conditions a final arbitration award may be appealed to the Authority
under section 7122. There is also no indication in the record that the
Union intended Provision 3 to require the Agency to comply with an
arbitrator's award before that award becomes legally binding on the
parties under section 7122. Thus, we do not view Provision 3 to be
inconsistent with the Statute simply because it does not expressly set
out the right of either party to appeal an arbitrator's award to the
Authority. Consequently, Provision 3 is within the duty to bargain.
VII. Provision 4
The FLRA Members disagree over the negotiability of this provision.
The decision and order on Provision 4 and Chairman Calhoun's dissent
immediately follow this decision.
VIII. Provision 5
Article XIV, Term and General Conditions
1. Term
This Contract shall be effective as of the 31st day following
signature of the Commanding General, and continue in effect
through October 31, 1985 . . . .
A. Position of the Parties
The Agency contends that the provision violates section 7114(c) of
the Statute.
The Union asserts that the parties to the execution of the agreement
had no intention of violating the requirements established by section
7114(c). The Union states that the 31-day period was included to allow
the Agency its 30-day review period. Reply Brief at 5.
B. Analysis and Conclusion
It is well established that an agency head's disapproval of a locally
negotiated agreement under section 7114(c)(3) of the Statute must be
served on the Union involved within 30 days from the date the agreement
is executed by the parties. See, for example, National Federation of
Federal Employees, Local 1862 and Department of Health, Education and
Welfare, Public Health Service, Phoenix, Arizona, 3 FLRA 182 (1980).
The Agency points out that timely notice of disapproval is accomplished
when the notice is desposited with the U.S. Postal Service within the
30-day period. Thus, a notice may be timely even though not received by
the local parties within the prescribed 30 days. However, we do not
find that the provision would invalidate the disapproval in that
situation. We are persuaded that the provision was intended to conform
to statutory requirements. Furthermore, we do not find that the express
language of the provision contravenes the requirement in section
7114(d)(3) that an executed agreement is subject to any applicable law,
rule, or regulation notwithstanding the absence of any agency head
disapproval.
Accordingly, we conclude that Provision 5 is within the Agency's
bargaining obligation.
IX. Provision 6
Article XIV, Term and General Conditions
5. Contract Supremacy
Policies, rules and regulations of the Employer shall be
consistent with agreements in this contract.
A. Positions of the Parties
In its disapproval of the locally executed agreement the Agency
argued that to the extent Provision 5 permitted provisions in the
executed agreement to be paramount over inconsistent provisions in
teacher "personal services contracts" it violated law or various Agency
regulations for which a compelling need existed, namely, the ADAR, the
DAR and AR 352-3. In its Statement of Position the Agency contended
that to the extent Provision 6 reqired Government-wide rules or
regulations in effect at the time the agreement was negotiated either to
conform to provisions of the agreement or otherwise not bar
negotiations, it violated section 7117 of the Statute. In support, the
Agency relied on language in the Union's explanation of the meaning of
this provision which the Agency interpreted to have that effect.
The Union expressly asserts that the provision is intended to protect
bargaining unit employees from changes to activity rules and policy
which would conflict with provisions of the agreement. Reply Brief at
5-6.
B. Analysis and Conclusion
For the reasons set out in section III of this decision we reject the
Agency's claim that a compelling need exists for the ADAR and the DAR.
We also reject the Agency's claim that a compelling need exists for
AR 352-3. In this respect and apart from other considerations, the
Agency has made no showing of any conflict between that regulation and
Provision 6 or otherwise demonstrated that the AR 352-3 is supported by
a compelling need with reference to the illustrative standards set out
in section 2424.11 of the Authority's Regulations. Generalized and
conclusionary reasoning does not support a finding of compelling need.
American Federation of Government Employees, AFL-CIO, Local 3804 and
Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104
(1986) (Proposal 7).
As to the Agency's claim that the provision violates section 7117 of
the Statute, there is nothing in the language of Provision 6 which
indicates that provisions in the executed agreement would not have to be
in compliance with Government-wide regulations in effect when the
agreement was executed. Moreover, as noted above, the Union expressly
stated that this provision was intended only to protect employees from
changes in activity rules and policies which would conflict with
provisions in the agreement. Thus, we find tht Provision 6 is to the
same effect as to the provisions which the Authority found negotiable in
National Treasury Employees Union and Department of the Treasury,
Internal Revenue Service, 13 FLRA 554 (1983) and National Treasury
Employees Union and Department of the Treasury, U.S. Customs Service, 9
FLRA 983 (1982) (Article 2 sections 1A and B, Article 32 section 10A,
and Article 40 section 3). Those provisions similarly provided that the
parties' agreement would take precedence over existing (Internal Revenue
Service) or subsequently-issued (Internal Revenue Service and U.S.
Customs Service) agency rules or regulations with which it conflicted.
Accordingly, for the reasons set forth more fully in Internal Revenue
Service and U.S. Customs Service, we conclude that Provision 6 is within
the duty to bargain. See also International Plate Printers, Die
Stampers and Engravers Union of North America, AFL-CIO, Local 2 and
Department of the Treasury, Bureau of Engraving and Printing,
Washington, D.C., 25 FLRA No. 9 (1987) (Provision 1).
X. Order
The Agency shall rescind its disapproval of the disputed Provisions.
/2/
Issued, Washington, D.C., May 29, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
DECISION AND ORDER ON PROVISION 4
Provision 4 which concerns sick leave, personel leave, emergency
leave, unpaid leave, jury duty leave, in-service leave and temporary
disability leave is set forth in its entirety in the Appendix to this
decision.
A. Positions of the Parties
In its disapproval of the locally executed agreement the Agency
contended that Provision 4 was nonnegotiable because indvidual portions
of the provision were inconsistent with provisions of the ADAR, a
primary national subdivision regulation for which a compelling need was
claimed to exist, or with teacher "personal services contracts" which
conformed to the ADAR. In its Statements of Position the Agency also
contended that the portions of the provision providing for personal
leave, sick leave, emergency leave, unpaid leave, jury duty leave and
temporary disability leave over the life of the agreement violated both
Comptroller General decisions and the Antideficiency Act, 31 U.S.C.
Section 1341(a). Specifically, it asserted that these portions required
the obligation of funds over more than one fiscal year in violation of
requirement that employees' salaries and expenses be payable only from
appropriations for the fiscal year in which services are rendered. In
addition, the Agency claimed that the portions of the provision
concerning unpaid leave and temporary disability leave also were
inconsistent with an Agency regulation for which a compelling need
exists under section 2424.11(c) of the Authority's Rules and
Regulations.
The Union cites 31 U.S.C. Section 712(a) (currently codified at 31
U.S.C. Section 1502(a)), as standing for the proposition that the Agency
may lawfully obligate itself during one fiscal year for sick leave
obligations to be paid in the following fiscal years. It therefore
asserts that leave provisions are not nonnegotiable merely because the
term of the parties' agreement extends beyond one year. The Union also
contends that the portion of the provision concerning unpaid leave and
temporary disability leave offers leave benefits "comparable" to those
granted to teachers by Kentucky law. Therefore the provision does not
violate the regulation relied upon by the Agency.
B. Analysis
1. No Compelling Need for The Agency's Regulations
For the reasons set out in section III of this decision we find tht
the Agency has not established a compelling need for cited procurement
regulations. Thus, they do not bar negotiation of this provision.
The Agency also argued that the portions of Provision 4 concerning
unpaid leave and temporary disability leave were inconsistent with Army
Regulation (AR) 352-3 for which a compelling need exists under section
2424.11(c) of the Authority's Regulations. Specifically, the Agency
contends that this regulation requires equality, to the maximum extent
possible, between the conditions of employment of teachers in the Fort
Knox Dependent Schools and the conditions of employment of teachers in
selected communities in Kentucky. The Agency claims that this
regulation implements the Congressional mandate of 20 U.S.C. Section
241(a)(2) that the Agency take such action as may be necessary to ensure
that the education provided to dependents is comparable to free public
education provided for children in comparable communities in the state
where the dependent school is located, in this case, Kentucky.
According to the Agency, since these portions of Provision 4 are
inconsistent with applicable Kentucky law, they are inconsistent with
the statutory mandate as reflected in the Agency's regulations. In
support of this position the Agency relies upon the applicable
legislative history of 20 U.S.C. Section 241.
Assuming without deciding that this provision conflicts with the
Agency regulation, we find that the Agency has not established a
compelling need under Section 2424.11(c) of the Authority's regulations.
In our view the Agency has not demonstrated by analysis of the
legislative history of 20 U.S.C. Section 241 that Congress intended the
Agency to match exactly the conditions of employment of teachers in
local school districts. Rather, the Senate Report relied upon by the
Agency articulates the "purpose" of the legislation sought as being to
exempt certain teachers from coverage of various provisions of law
relating to civil service employment including, among others, those
relating to pay and fringe benefits. The statement of the Secretary of
the Army quoted in the Senate Report merely illustrated some of the
practices relating to teacher employment which had been adopted by the
Department of Defense and which deviated from provisions of statutes
affecting Federal employees generally. We find nothing in either the
law or its legislative history which persuades us that Congress intended
to restrict the Agency's discretion as to the particular employment
practices which could be adopted. See also Fort Knox Teachers
Association and Fort Knox Dependent Schools, 25 FLRA No. 95 (second
portion of the proposal) (1987). Consequently, the issue of whether the
provision is inconsistent with employment practices in the locality, as
set out in Kentucky law, does not determine the provision's
negotiability.
2. The Provision Does Not Violate Law
Contrary to the Agency's view, we do not find that this provision
violates the Antideficiency Act. Insofar as is applicable to this
dispute, that Act bars the Agency from entering into a contract which
would obligate it to: (1) expend funds in excess of those appropriated
for the fiscal year in which the agreement is negotiated, or (2) expend
funds prior to their appropriation. It is the latter prohibition that
the Agency contends is violated by Provision 4. See Statement of
Position at 14.
In interpreting the Antideficiency Act the Comptroller General has
held that salaries of Government employees, as well as related items
that flow from those salaries such as retirement fund contributions, are
obligations of the Government at the time they are earned, that is, when
the services are provided. See, for example, 38 Comp. Gen. 316 (1958).
In addition, the use of leave obligates appropriations which are current
at the time the leave is taken. 50 Comp. Gen. 863, 865 (1971). Thus,
contrary to the Agency's claim, the obligation of funds resulting from
the taking of leave would not actually occur until the employee took the
leave. Further, there would be no obligation of funds with respect to
paying an employee when the employee returned from leave until the
employee actually provided services. Consequently, the Agency has not
established that negotiation of this provision would obligate funds
prior to their appropriation so as to violate the Antideficiency Act.
C. Conclusion
The Agency has not sustained its burden of establishing that a
compelling need exists for the regulations raised as a bar to
negotiating on Provision 4. Moreover, the provision does not violate
the Antideficiency Act. Accordingly, because Provision 4 concerns a
condition of employment not provided for by Federal statute, it is
within the duty to bargain.
D. Order
The Agency shall rescind its disapproval of Provision 4. /3/
Issued, Washington, D.C., May 29, 1987.
/s/ Henry B. Frazier, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun on Provision 4
Provision 4 concerns various types of leave authorized for bargaining
unit employees. In my opinion in Fort Knox Teachers Association and
Fort Knox Dependent Schools, 26 FLRA No. 108 (1987), I stated that I
would find a proposal providing sabbatical leave for teachers to be
nonnegotiable because in the absence of a clear expression of
Congressional intent to make wages and money-related fringe benefits
negotiable, I would find that these matters are not within the duty to
bargain. For the same reasons that I did not join the majority decision
in Fort Knox Dependent Schools, I do not join the majority decision
here.
Issued, Washington, D.C., May 29, 1987.
/s/ Jerry L. Calhoun, Chairman
--------------- FOOTNOTES$ ---------------
(1) In its Statement of Position, the Agency withdrew its disapproval
of a provision concerning employee dues withholding. Hence, that
provision is not considered here.
(2) In finding these provisions negotiable, we make no judgment as to
their merits.
(3) In finding this provision negotiable, we make no judgment as to
its merit.
APPENDIX
Provision 4
Article IX
Leaves
1. Sick Leave
Full-time Employees employed under contract by the Board shall be
provided ten (10) days sick leave with pay annually. If in any one
school year, the Employee shall be absent for such sickness fewer than
the prescribed number of days, the remaining days shall accumulate
without limit. Employees shall submit a certificate from a physician or
a personal affidavit on the Board-approved form, verifying such
sickness. When sick leave is requested for more than three (3)
consecutive workdays, submission of a medical certificate, or an SF 71
completed by a physician (or practitioner) is required. The medical
certificate, or SF 71, will show the period of time and the reason the
Employee was incapacitated for duty. Submission will be made NLT two
(2) weeks after the Employee's return to duty.
An Employee may utilize sick leave to attend to a member of his/her
immediate family who is ill. "Immediate family" for purposes of this
provision shall include only the Employee's spouse, children to include
stepchildren, parents and spouse's parents without reference to the
location or residence of said immediate family members.
It is understood that these provisions do not apply to any Employee
who is employed by the district on a twelve (12) month basis. Such
employees shall be entitled to sick leave as provided under applicable
Federal Statutes and Regulations.
2. Personal Leave
Full-time Employees employed under contract by the Board may be
granted two (2) days per year for personal leave without loss of pay or
benefits upon written approval of the Employee's building principal.
Employees must make request to their principal for use of such leave
not later than noon of the day preceeding anticipated use, and the
principal shall have the authority to deny such leave in such cases as
when total requests exceed ten percent (10%) of the teaching staff of
the given building for any one (1) day, or for other school-related
reasons, said decisions to be solely at the discretion of the building
principal, and with respect to school related reasons, stated on the
personal leave form. Personal leave shall not be granted on inservice
days or conference days, except by the Superintendent of Schools.
Personal leave granted under this section shall be supported by
personal affidavit of the Employee, stating that the leave taken is
personal in nature. No other reason for the leave shall be required,
except where personal leave is requested for the day immediately
preceding or the day immediately following a holiday or inservice day.
In such cases the Employee must have previously verified, in writing,
the purpose(s) or need(s) for such leave at such time and received
approval as required.
Personal leave shall not accumulate from year to year.
3. Emergency Leave
Full-time Employees employed under contract by the Board may be
granted up to three (3) days emergency leave, for which the Employee may
be absent for emergency reasons without loss of compensation. Employees
requesting leave under this provision shall provide a brief explanation
of need for such leave to the applicable building principal and shall
sign an affidavit to the effect that the leave was taken for
extraordinary reasons. Such reasons may include, but will not be
limited to such cases as death or attendance at the last rites of a
relative by blood or marriage; personal legal matters which cannot be
transacted outside of school hours and which require appearance in court
or consultation with counsel; and emergency situations resulting from
natural disasters. In all cases of leave under this provision, the
exact reason for its use must be specified by the Employee in writing
upon return from such leave. Emergency leave days shall not accumulate
from year to year.
4. Unpaid Leave
An unpaid leave of absence, of not more than one (1) year, may be
granted to any full-time Employee employed under contract, at the sole
discretion of the Superintendent of Schools.
The Employee may return to full-time employment during the period for
which said leave was granted provided:
a. Said Employee notifies the Office of the Superintendent in
writing at least sixty (60) days prior to the date he/she wishes
to return, and
b. There is a position open for which he/she is qualified.
At the end of such leave, if the Employee fails (1) to notify the
Office of the Superintendent at least sixty (60) days prior to the
expiration of such leave that he/she intends to return to employment, or
(2) to accept an offered position for which he/she is qualified, he/she
shall be deemed to have resigned and the obligation of the Fort Knox
Dependent Schools to provide a position shall have ceased.
Upon return to employment by the Employee, the Board shall solely
determine his/her subsequent position and duty assignment(s). The Board
is under no obligation to assign the Employee after his/her return from
said leave to the same school, position, or other assignment(s) he/she
occupied or performed prior to taking said leave of absence.
The granting of said leave to an Employee by the Board of Education
shall not prevent the Board from serving notice to said Employee under
applicable provision of the law, regulations and procedures, that said
Employee's contract will not be renewed, nor will granting such leave
prevent the Board from invoking, initiating, and utilizing the
procedures established by law or rule or regulation for the cancellation
of any contract with an Employee.
5. Jury Duty Leave
An Employee who is called to serve on a jury in any duly constituted
local, state or federal court shall be granted leave with compensation
under the following provisions:
a. The Employee may retain reimbursement for expenses, including but
not limited to, meals and mileage.
b. The Employee shall write a check to "U.S. Army-FAO-Fort Knox" for
the total amount of jury pay received.
6. In-Service Leave
Employees may attend inservice programs and activities external to
the Fort Knox Dependent School District in lieu of required in-service
programs and activities which are planned and carried out internally in
the District, provided, (1) the Board has approved in advance, said
programs and activities to be carried out externally, and (2) Employees
who wish such credit for the approved external in-service activities or
program(s) shall notify their building principals in writing prior to
attendance at such activities.
7. Temporary Disability Leave
Upon application by an Employee and approval by the Board of
Education, a temporary disability leave of absence shall be granted to
full-time Employees under contract to the school district on the
following basis:
A. Application of Provisions:
1. This provision shall apply to leave in all cases where an
Employee is unable to perform assigned duties because of
disability substantial in nature or duration, including major
surgery, pregnancy, childbirth, illness or injury.
2. In cases of a temporary disability caused by pregnancy,
said Employee is entitled to a leave of absence any time from the
commencement of her pregnancy provided said Employee submits with
the timely notice as provided herein, a physician's statement
certifying her pregnancy. If said Employee elects to utilize her
sick leave under the provisions of paragraph C (2) herein and sick
leave is exhausted during her temporary disability caused by
pregnancy, said Employee may be absent without pay subject to all
provisions contained herein.
B. Notification
1. After determination that such leave is imminent, the
Employee shall give timely notice to the Office of the
Superintendent, in writing, of the anticipated date he/she wishes
to commence said leave of absence and anticipated date of return.
C. General Provisions Covering Said Leaves:
1. If said Employee desires to continue his/her duty
assignment prior to the commencement of said leave, such notice
must include a written statement from his/her physician attesting
to the Employee's ability to continue performing the full schedule
of the duties and responsibilities of his/her position and
assignments. The Employee will be permitted to continue on full
active duty until such date, provided she/he does perform the full
duties and responsibilities of his/her position and assignments
and provides from time to time upon request of the Board,
additional certification from his/her physician of his/her full
ability to continue performing the full schedule of the duties and
responsibilities of his/her position and assignments.
2. Said Employee may elect to use his/her accumulated sick
leave during his/her period of temporary disability provided a
physician's statement or SF 71, completed by a physician, is
submitted to the Office of the Superintendent for any said
temporary disability leave or more than three (3) consecutive
days. While on said sick leave, sick leave days will be paid only
for the number of assigned duty days the Employee is absent,
subject to the following conditions: (1) a physician certifies
said Employee to be physically disabled; (2) the leave must occur
during the current contract term; (3) leave is limited to the
extent of the number of sick days accumulated by the Employee at
the time said leave commenced. Additional statements of
certification by a physician of the temporary disability of said
Employee are required, except for temporary disability caused by
pregnancy, for said disability which exceeds a duration of twenty
(20) consecutive days. Said additional certification shall be
submitted by said Employee to the Office of the Superintendent no
later than the first day of each ensuing month after said twenty
(20) consecutive days absence.
3. In all cases where an Employee has been granted temporary
disability leave, he/she may not return to work until a statement
from his/her physician has been presented to the Office of the
Superintendent which certifies that the Employee is physically
able to return to work. In addition, in all cases the Board
reserves the right to require an examination by a Board-appointed
physician(s) to determine the Employee's fitness (1) to continue
performing the full schedule of the duties and responsibilities of
his/her position and assignments, and/or (2) to return to
employment and resume the full performance of the duties and
responsibilities to which he/she may be assigned. The cost of any
such examination shall be borne by the Board.
4. The granting of said leave by the Board shall not prevent
the Board from serving notice to said Employee that his/her
contract will not be renewed, nor will the granting of said leave
prevent the Board from invoking, initiating, and utilizing the
procedures established by law for the cancellation of any contract
with an Employee employed by the school district.
5. No leave under this provision shall be granted for a period
exceeding one (1) year.