[ v19 p878 ]
19:0878(103)NG
The decision of the Authority follows:
19 FLRA No. 103
FORT KNOX TEACHERS
ASSOCIATION
Union
and
FORT KNOX DEPENDENT SCHOOLS
Agency
Case No. O-NG-893
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and presents issues
concerning the negotiability of five Union proposals. /1/ Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
Unit members who desire a change in grade and/or subject
assignment, or who desire to transfer to another building may file
a written statement of such desire with the Superintendent. Such
unit members will be given prior consideration upon submission of
said written request to the Superintendent prior to April of each
year.
Union Proposal 2
Any unit member who has been involuntarily transferred or
reassigned shall receive prior consideration for any opening which
may subsequently exist for which the unit member is qualified to
fill.
(Only the underlined portion of the proposals are in dispute.)
Union Proposal 1 would require the Agency to give prior consideration
to a bargaining unit employee who has submitted a written request for a
change in grade and/or subject assignment, or for a transfer to another
building. Union Proposal 2 would require that a bargaining unit
employee who has been involuntarily transferred or reassigned receive
prior consideration for any subsequent job opening for which that
employee is qualified. The sole contention of the Agency is that these
proposals are nonnegotiable because they are inconsistent with Federal
Law, i.e., 10 U.S.C. 2304, and its regulations issued pursuant to that
law (Armed Services Procurement Regulation/Defense Acquisition
Regulations (ASPR/DAR)). The Agency in its Statement of Position relies
upon a previous version of 10 U.S.C. 2304 which, insofar as is relevant
herein, is substantively identical to the provision of law currently in
effect. /2/ In this respect, the Agency essentially contends that
insofar as the proposals require the Agency to give prior consideration
for job vacancies filled by personal service contracts under the
authority of 10 U.S.C. 2304, the requirement under that law for full and
open competition is defeated. It also contends that the Union's
proposals would undermine the Agency's affirmative duty to solicit
proposals from the maximum number of qualified sources. The current
version of 10 U.S.C. 2304 requires full and open competition in
conducting a procurement for property or services. The Union, on the
other hand, contends that 10 U.S.C. 2304 does not cover the hiring of
teachers for schools located on Federal property, i.e., bargaining unit
employees.
According to the Union's statement of intent and consistent with the
language of the proposal, the disputed parts of the proposals only
require that a bargaining unit employee receive prior consideration in
the stated circumstances. In other words, the proposals establish the
order in which all applicants will be considered for certain job
openings. Therefore, even assuming that the Agency employs bargaining
unit employees under the authority of 10 U.S.C. 2304, this result is not
inconsistent with its requirement for full and open competition since
the proposals only establish sequential order of consideration for
certain job openings, not substantive preferential treatment of these
employees. Nor are the proposals inconsistent with the Agency's ability
to solicit from the maximum number of qualified sources since the Agency
is able under the proposed language to nonselect bargaining unit
applicants and subsequently solicit and select from any appropriate
source. /3/ Therefore, Union Proposals 1 and 2 are not inconsistent
with 10 U.S.C. 2304 nor the Agency's regulations issued pursuant to that
law. Thus, these proposals are within the duty to bargain. /4/
Union Proposal 3
In determination of requests for voluntary assignment and/or
transfer, the wishes of the individual unit member shall be
honored to the extent that the transfer does not conflict with
instruction requirements of the school system. No requests shall
be denied arbitrarily, capriciously, or without basis in fact.
The employer agrees to base the decisions concerning the transfer
of a unit member on qualifications and seniority and identifiable
needs of the educational program within the school district.
Union Proposal 3 requires that the wishes of a bargaining unit member
for a voluntary assignment and/or transfer will be honored to the extent
they do not conflict with the instruction requirements of the school
system. It further establishes the standard by which the Agency may
deny such requests and the factors upon which the Agency will base its
decisions. In its Reply Brief, the Union characterizes the proposal as
only requesting the Agency to consider the wishes of the employee to be
transferred and to assign the employee only if he complies with the
criteria established by the Agency. Therefore, in the Union's view, the
proposal is negotiable because it does not require that the Agency
select a certain employee for a position. However, the Authority has
consistently held that it will not base a negotiability determination on
a union's statement of intent which is inconsistent with the express
language of the disputed proposal. See, e.g., American Federation of
Government Employees, AFL-CIO, Local 2955 and National Guard Bureau,
Office of the Adjutant General, Des Moines, Iowa, 5 FLRA 617 (1981). In
this connection, the proposal here mandates by its plain language that
vacancies will be filled by the reassignment of bargaining unit
employees and not by any other appropriate source, so long as a
qualified volunteer is available.
Section 7106(a)(2)(C) of the Statute reserves to management the right
to make selections for appointments from among properly ranked and
certified candidates for promotion or from any other appropriate source.
/5/ Thus, the Authority has held that a proposal which limited the
consideration of outside applicants to instances in which there were
fewer than three minimally qualified in-house applicants was
inconsistent with section 7106(a)(2)(C) since management would be
prevented from expanding the area of consideration or from selecting a
candidate from any other appropriate source. National Federation of
Federal Employees, Local 1451 and Navy Exchange, Naval Administrative
Command, Orlando, Florida, 3 FLRA 392 (1980); see also American
Federation of State, County and Municipal Employees, AFL-CIO, Local 2027
and ACTION, Washington, D.C., 12 FLRA 643 (1983) (Union Proposal 3).
The proposal in dispute herein would prevent the Agency from soliciting
and considering outside applicants for a position when there are
qualified volunteers in the bargaining unit available for reassignment
to that position. Furthermore, since the proposal would require the
Agency to honor an employee request for voluntary assignment and/or
transfer as long as it would not "conflict with the instructional
requirements of the school system," it would prevent the Agency from
deciding not to fill the position at all or to fill the position with an
outside applicant.
Therefore, for the reasons set forth in Naval Administrative Command,
Orlando, Union Proposal 3 must be held to be outside the duty to
bargain. /6/
Union Proposal 4
Membership in a PTO/PTA (Parent Teacher Organization/Parent
Teacher Association) organization shall not be required, nor shall
employees be required to attend after-hour PTO or PTA meetings
other than those necessitating their presence, such as the PTO
"Open House" meeting or where the participation of the unit member
is necessary for the adequate presentation of the program.
Attendance at PTO/PTA meetings is not to be construed as a
teaching duty, but rather a professional choice. As such,
attendance at PTO/PTA meetings do (sic) not fall under "extra"
duties as assigned by the school principal. Teachers shall not be
required to sign statements asserting whether or not they were in
attendance at a given PTO/PTA meeting, nor shall any record be
kept regarding such attendance.
It is well established that a union proposal seeking to prohibit the
assignment of specified duties to bargaining unit employees is
inconsistent with management's right pursuant to section 7106(a)(2)(B)
of the Statute "to assign work." See, e.g., Association of Civilian
Technicians and State of Georgia National Guard, 2 FLRA 581 (1980). A
proposal which limits the assignment of certain work to specific
circumstances is likewise violative of section 7106(a)(2)(B). See New
York State Nurses Association and Veterans Administration Medical
Center, Bronx, New York, 11 FLRA 578 (1983); Laborer's International
Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics
Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686 (1984)
(Union Proposal 5). The proposal herein would absolutely bar the Agency
from requiring that an employee attend "after-hour PTO or PTA meetings
other than those necessitating their presence, such as the PTO 'Open
House' meeting where the participation of the unit is necessary for the
adequate presentation of the program." As such, this express limitation
on an agency's ability to require an employee to accept a certain
assignment of work violates management's right under the Statute.
The Union asserts that mandatory attendance at an after-hour PTO or
PTA is not part of normal duty hours and therefore such attendance
should be voluntary. However, whether or not the assignment of work
occurs during the normal duty hours is not germane to whether a proposal
violates management's right to assign. In this regard, it is clear
management has the right to assign, for example, overtime work. Cf.
American Federation of Government Employees, AFL-CIO, International
Council of U.S. Marshals Service Locals and Department of Justice, U.S.
Marshals Service, 11 FLRA 672 (1983) (Union Proposal 2) (wherein the
Authority found that Union Proposal 2 directly interfered with
management's right to assign work under section 7106(a)(2)(B) since it
precluded the agency from assigning work normally performed by unit
employees to supervisors, beyond their normal duty hours, where the work
otherwise would be performed by unit employees on overtime). Similarly,
the assignment of duties outside the normal duty hours is within
management's right to assign work. Thus, Union Proposal 4 is not within
the duty to bargain.
Union Proposal 5
Communication
The Fort Knox Teachers Association will have free access to
communicate with unit members when such will not interfere with
the normal instructional program of the school, including the use
of the intercom system and the opportunity to make announcements
at faculty meetings.
The Association shall be given the opportunity to make
announcements at faculty meetings. The Association shall also be
permitted, during non-pupil contract (sic) time, to call into
meeting members of the bargaining unit for the purpose of
implementing matters subject to the bargaining agreement.
Union Proposal 5 would require, among other things, that the Union be
allowed free access to communicate with its members, including the use
of the intercom system and the opportunity to make announcements at
faculty meetings, unless such access interferes with the normal
instructional program of the school. The Agency states, without
contradiction by the Union, that the Union seeks to make announcements
of union activities at faculty meetings which are held "for the purpose
of discussing mission-related activities" of the Agency. It contends,
therefore, that the Union's proposal violates section 7131(b) of the
Statute /7/ because such meetings constitute duty time.
Section 7131(b) of the Statute requires that activities relating to
the internal business of a labor organization be performed by an
employee while that employee is in a nonduty status, i.e., not on duty
time. The Statute does not expressly define the phrase "internal
business of a labor organization." In American Federation of Government
Employees, AFL-CIO, Local 2823 and Veterans Administration Regional
Office, Cleveland, Ohio, 2 FLRA 4 (1979), the Authority held that
Congress intended to proscribe the use of duty time for activities
relating to the Union as an organization and pertaining to the operation
of that organization, such as union business meetings, communication
with members, contracting for goods and services, payment of bills, and
other similar and associated activities. Thus, insofar as the Union's
stated intent of Union Proposal 5 includes the opportunity to make
announcements of union activities and to call meetings, the proposal
concerns activities relating to internal union business.
Further, the Authority agrees with the Agency's contention that the
faculty meetings in question are for the purpose of discussing
mission-related activities and, thus, such meetings constitute duty
time. Hence, since the proposal herein would require that faculty
meetings during duty time include union communication with its
bargaining unit members, the Authority concludes that under section
7131(b) of the Statute Union Proposal 5 is not within the duty to
bargain, based on the reasoning in Veterans Administration Regional
Office.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning Union Proposal 1
and 2. Furthermore, IT IS ORDERED that the Union's petition for review
as to Union Proposals 3, 4 and 5, be, and it hereby is, dismissed.
Issued, Washington, D.C., August 22, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ In its response to the petition for review the Agency withdrew
its allegation of nonnegotiability as to five additional Union
proposals. Accordingly, there is no longer an issue as to whether those
proposals are within the duty to bargain.
/2/ 10 U.S.C. 2304 (1984), as modified, reads in relevant part as
follows:
Sec. 2304. Contracts: competition requirements
(a)(1) Except as provided in subsections (b), (c), and (g) and
except in the case of procurement procedures otherwise expressly
authorized by statute, the head of an agency in conducting a
procurement for property or services--
(A) shall obtain full and open competition through the use of
competitive procedures in accordance with the requirements of this
chapter and the modifications to regulations promulgated pursuant
to section 2752 of the Competition in Contracting Act of 1984;
and
(B) shall use the competitive procedure or combination of
competitive procedures that is best suited under the circumstances
of the procurement.
. . . .
(g)(1) In order to promote efficiency and economy in
contracting and to avoid unnecessary burdens for agencies and
contractors, the regulations modified in accordance with section
2752 of the Competitive in Contracting Act of 1984 shall provide
for special simplified procedures for small purchases of property
and services.
(2) For the purposes of this chapter, a small purchase is a
purchase or contract for an amount which does not exceed $25,000.
(3) A proposed purchase or contract for an amount above $25,000
may not be divided into several purchases or contracts for lesser
amounts in order to use the small purchase procedures required by
paragraph (1).
(4) In using small purchase procedures, the head of an agency
shall promote competition to the maximum extent practicable.
/3/ Cf. American Federation of Government Employees, AFL-CIO, Local
2782 and Department of Commerce, Bureau of the Census, Washington, D.C.,
6 FLRA 314 (1981) (proposal providing, in relevant part, for the speedy
repromotion of bargaining unit employees who have been involuntarily
downgraded without personal cause and further providing that such
employees will be repromoted at the first opportunity except for good
cause would only require the agency, when it decided to fill a vacant
bargaining unit position, to consider but not necessarily to select the
repromotion eligible employee. Thus, the Authority found that the
proposal did not violate management's rights under section
7106(a)(2)(C)).
/4/ In deciding that Union Proposals 1 and 2 are within the duty to
bargain, the Authority makes no judgment as to their merits.
/5/ Section 7106(a)(2)(C) provides as follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of any
agency--
. . . .
(2) in accordance with applicable laws--
. . . .
(C) with respect to filling positions, to make selections for
appointments from--
(i) among properly ranked and certified candidates for
promotion; or
(ii) any other appropriate source(.)
/6/ In view of the Authority's decision herein, it is unnecessary to
consider the Agency's additional arguments that the proposal is outside
the duty to bargain.
/7/ Section 7131(b) provides as follows:
Sec. 7131. Official time
. . . .
(b) Any activities performed by any employee relating to the
internal business of a labor organization (including the
solicitation of membership, elections of labor organization
officials, and collection of dues) shall be performed during the
time the employee is in a non-duty status.