[ v27 p750 ]
27:0750(80)NG
The decision of the Authority follows:
27 FLRA No. 80
FORT KNOX TEACHERS ASSOCIATION
Union
and
FORT KNOX DEPENDENTS SCHOOLS
Agency
Case No. 0-NG-905
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 two proposals.
II. Waiver Issue
The Agency contends that the two disputed proposals are not properly
before the Authority because of a "zipper clause" in the parties'
negotiated agreement. The clause precludes modifying, adding to, or
deleting from the agreement any subject matter, whether included in the
agreement or not, except for matters which must be negotiated by law.
The Agency notes that the agreement has a reopener provision, but
asserts that the two proposals were not introduced in accordance with
that provision's requirements.
The Union contends that the disputed proposals constitute matters
which by law must be negotiated. The Union also asserts that the
disputed proposals were presented to management in conformity with the
reopener provision.
We have held that when a union appeals an agency's allegation that a
proposal is nonnegotiable, the union is entitled to a decision by the
Authority on whether the proposal is negotiable under the Statute
despite the existence of other factual issues allegedly related to the
appeal. The record in this case contains no evidence in support of
either party's position concerning the waiver provision. Further, there
is no documentation to show whether the proposals were or were not
introduced in conformity with the agreement's reopener clause. Hence,
in accordance with our practice in negotiability appeals, we do not
decide here whether the facts surrounding this case relieved the Agency
of any duty to bargain. See, e.g., American Federation of Government
Employees Local No. 12 and U.S. Department of Labor, 25 FLRA No. 83
(1987). Rather, these issues should be resolved in other appropriate
proceedings. See American Federation of Government Employees, AFL-CIO,
Local 2736 and Department of the Air Force, Headquarters 379th Combat
Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302,
306 n.6 (1984).
III. Proposal 1
The FLRA Members have expressed different opinions concerning
Proposal 1. The decision and order on Proposal 1 and Chairman Calhoun's
separate opinion immediately follow the decision and order on Proposal
2.
IV. Proposal 2
Extreme Temperatures
A. On any school day when the temperature as reported by the
Fort Knox Weather Station exceeds 85 degrees, school for that day
will be dismissed at 1:30 p.m.
B. Should the superintendent act upon his authority and
dismiss schools because heat and humidity has become such that it
interferes with the school program (learning process), we propose
that such dismissal be handled as other times when schools are
dismissed early in that when the children are dismissed, the
teachers will remain for building level activities guided by
building principals.
A. Positions of the Parties
The Agency asserts that Proposal 2 is nonnegotiable because it does
not concern conditions of employment of employees in the bargaining
unit. The Agency's assertion is based on the Union's explanation that
the proposal "reflects the Association's concern over the health and
safety of the students during times of extreme heat."
The Union contends that the proposal addresses a condition of
employment. It points out that extreme heat affects the behavior of the
students and that student misbehavior has an adverse effect on the
entire classroom environment.
B. Analysis and Conclusion
It appears from the record that the parties' dispute centers on
paragraph A of Proposal 2. Consequently our analysis and conclusion
will be limited to that paragraph and subsequent references to "Proposal
2" or the "proposal" should be read to apply only to paragraph A.
1. Condition of Employment
In Antilles Consolidated Education Association and Antilles
Consolidated School System, 22 FLRA No. 23 (1986), the Authority stated
that, in deciding whether a proposal involves a condition of employment
of bargaining unit employees, two basic factors would be considered:
(1) Whether the matter proposed to be bargained pertains to
bargaining unit employees; and
(2) The nature and extent of the effect of the matter proposed
to be bargained on working conditions of those employees.
Contrary to the Agency's contention we find that Proposal 2 affects
working conditions of bargaining unit employees. Specifically, and as
previously noted, the Union contends that students tend to become unruly
and inattentive in extreme heat which adversely affects the ability of
bargaining unit employees to carry out their teaching duties. Thus,
while Proposal 2 does not expressly mention bargaining unit employees it
is clearly intended to enable bargaining unit employees to perform more
efficiently. A similar rationale was advanced by the union for Proposal
1 in American Federation of Government Employees, AFL-CIO, National
Council of SSA Field Operations Locals and Social Security
Administration, 25 FLRA No. 50 (1987). Proposal 1 in that case provided
that volunteers and "stay-in-school" appointees would be assigned work
supplementing the assignments of bargaining unit employees. The union
pointed out that the individuals who were the subject of the proposal,
although not bargaining unit members, performed functions which made the
jobs of unit employees "less hectic". On that basis we found that the
proposal affected working conditions within the bargaining unit even
though we held the proposal to be nonnegotiable on other grounds.
Similarly, Proposal 2 here is intended to make the work of unit
employees less trying. Accordingly, based on the reasoning in Social
Security Administration we find the proposal to be concerned with unit
working conditions.
2. Assignment of Work
Our conclusion that the proposal affects unit working conditions is
not dispositive of the negotiability question however. The primary work
of the employees in this bargaining unit is to teach students.
Obviously, when the students are not present, bargaining unit employees
cannot carry out their primary work assignments. In effect, therefore,
Proposal 2 would prevent the Agency from assigning certain kinds of work
to unit employees in the circumstances described. In this regard the
proposal is to the same effect as Proposal 1 which was before the
Authority in International Association of Fire Fighters, Local F-61 and
Philadelphia Naval Shipyard, 3 FLRA 438 (1980). One section of the
proposal in that case would have prevented the assigning of outdoor
training activities to unit employees when the outside temperature was
above or below specified levels or when certain other adverse weather
conditions prevailed. Noting initially that the assignment of training
was the assignment of work, the Authority characterized the proposal as
establishing "arbitrary absolute limits on the assignment of outdoors
training(.)" Consequently, the Authority found that the proposal, "by
placing absolute limits on the agency's ability to assign training to
unit personnel during duty hours violates the agency's right to assign
work under section 7106(a)(2)(B) of the Statute." Because the proposal
here likewise imposes limitations on the assignment of work based on
weather considerations, in accordance with Philadelphia Naval Shipyard,
Proposal 2 is inconsistent with the Agency's right to assign work and is
outside the duty to bargain.
V. Order
The Union's petition for review is dismissed.
Issued, Washington, D.C., June 25, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
DECISION AND ORDER ON PROPOSAL 1
Proposal 1
Salary Schedule
The Fort Knox Teachers Association requests negotiations with
the Fort Knox Dependen(ts) Schools over salary and fringe benefits
for the certified staff.
A. Positions of the Parties
The Agency asserts that Proposal 1 is not sufficiently specific or
delimited in form and content so as to permit a negotiability
determination. On the merits, the Agency contends that the proposal is
inconsistent with Federal law, agency regulations having the force and
effect of law, and an agency regulation for which there exists a
compelling need. According to the Agency, the proposal also interferes
with its right under section 7106(a)(1) of the Statute to determine its
budget and does not concern a "condition of employment" to be negotiated
under section 7117 of the Statute.
The Union asserts that the holding in Fort Bragg Unit of North
Carolina Association of Educators, National Education Association and
Fort Bragg Dependents Schools, Fort Bragg, North Carolina, 12 FLRA 519
(1983) supports the negotiability of Proposal 1.
B. Analysis
In Fort Bragg Dependents Schools it was noted that 20 U.S.C. Section
241(a), which covers employees in this bargaining unit, vests an agency
with the discretion to fix the compensation of employees concerned
without regard to statutes providing for the compensation of most
Federal employees. Consequently, it was held that proposals fixing pay
rates of unit employees were within the duty to bargain because
compensation was a condition of employment not otherwise provided for by
Federal statute, and because the proposals concerned matters over which
the agency head had discretion.
However, in finding the compensation proposals to be negotiable, two
specific agency contentions were examined. The agency first contended
that the proposals violated 20 U.S.C. Section 241(e) which requires
that, to the maximum extent practicable, the agency's per pupil costs
not exceed the per pupil costs for public education expended by
comparable communities in the same state. Although the agency's
argument was rejected, immplicit in the consideration of it was the
possibility that the proposals might have been nonnegotiable had the
agency adequately supported its case. The agency in Fort Bragg
Dependents Schools also contended that the compensation proposals
interfered with its right to determine its budget under section
7106(a)(1) of the Statute. That argument was also rejected because the
agency did not demonstrate that the proposals dictated a particular
program or sum of money to be included in the agency's budget nor did it
make a substantial showing that the proposals would result in
significant and unavoidable cost increases not offset by compensating
benefits. Again, the proposals were found negotiable because the agency
failed to sustain its burden of proof.
Proposal 1 seeks, in part, to obligate the Agency to bargain over
"salary." As has been noted, salaries for employees like those covered
by this proposal are negotiable. However, as has also been shown,
negotiation over teachers' salaries is not without statutory limitation.
The generalized call for bargaining over salaries contained in this
proposal makes it impossible to ascertain whether or not subsequent
negotiations would be within the limits of negotiability. That is, the
proposal's form renders it impossible for either party to advance or to
refute an argument in support of its negotiability. Consequently,
Proposal 2 does not set forth sufficient and specific information so as
to enable us to reach a reasoned decision.
Provision 1 also contains a broad-based call for negotiations over
"fringe benefits." In Fort Bragg Dependents Schools several proposals
concerned matters which fall under the heading of "fringe benefits",
including life, medical and dental insurance. Those proposals were held
to be nonnegotiable because they concerned matters specifically provided
for by Federal statute. Here, it is impossible to determine from the
proposal's language whether or not the bargaining sought would encompass
"fringe benefit" specifically provided for by statute. See also, the
analysis of Proposal 20 in the same case.
C. Conclusion
Proposal 1 does not set forth sufficient and specific information so
as to enable us to reach a reasoned determination on its negotiability
under law and regulation. Accordingly, the petition for review of this
proposal does not meet the conditions for review prescribed in section
7117(c) of the Statute and section 2424.1 of our Rules and Regulations.
See Association of Civilian Technicians, Alabama ACT and State of
Alabama National Guard, 2 FLRA 313 (1979).
D. Order
The Union's petition for review on Proposal 1 is dismissed.
Issued, Washington, D.C., June 25, 1987.
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun
I agree that Proposal 1 is not sufficiently specific to rule on its
negotiability and therefore, concur in the majority's conclusion that
the Union's petition for review as to it should be dismissed. Further,
the proposal concerns the wages and fringe benefits, including
money-related fringes. In my view, a clear expression of Congressional
intent is necessary to find proposals in these areas to be within the
duty to bargain. See my opinions in American Federation of Government
Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin
Air Force Base, Florida, 24 FLRA No. 41 (1986); and Fort Knox Teachers
Association and Board of Education of the Fort Knox Dependents Schools,
27 FLRA No. 34 (1987).
Issued, Washington, D.C., June 25, 1987.
Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY