[ v22 p815 ]
22:0815(88)NG
The decision of the Authority follows:
22 FLRA No. 88
FORT KNOX TEACHERS
ASSOCIATION
Union
and
FORT KNOX DEPENDENT SCHOOLS
Agency
Case No. 0-NG-978
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)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and concerns the
negotiability of four Union proposals.
II. Union Proposal 1
Unit members will be permitted to use the period during the
instruction of Art for (but not limited to) planning time, parent
conferences and any other duties as assigned by the building
principal.
A. Positions of the Parties
The Agency contends that the proposal would change the current
requirement that teachers remain with their classes during art
instruction even though they do not participate in the instruction
itself. It argues that the proposal therefore interferes with
management's right to assign work under section 7106(a)(2)(B) of the
Statute.
The Union contends that the proposal allows teachers to perform other
assigned duties during the time they now spend in accompanying students
to art instruction. It relies on American Federation of Government
Employees, AFL-CIO, National Joint Council of Food Inspection Locals and
Department of Agriculture, Food Safety and Quality Service, Washington,
D.C., 9 FLRA 663 (1982) to support its view that Union Proposal 1 is
within the duty to bargain.
B. Analysis and Conclusion
Union Proposal 1 is distinguishable from the proposal found
negotiable in Food Safety and Quality Service which only sought to
identify the employee or employees who would be assigned overtime work
when such work was deemed necessary by management. This proposal,
however, seeks to prescribe duties employees will perform.
Specifically, it would eliminate the requirement that teachers be
assigned to remain with their classes during art instruction. Thus it
is to the same effect as Union Proposals 23-28 found nonnegotiable in
American Federation of Government Employees, AFL-CIO, Local 3511 and
Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 76 (1983).
The Authority found those proposals "would directly interfere with the
right to assign work" because they sought to eliminate the performance
by employees of various assigned duties. Thus, based on the reasoning
expressed in Veterans Administration Hospital, San Antonio Union
Proposal 1 is inconsistent with management's right under section
7106(a)(2)(B) of the Statute to assign work.
III. Union Proposal 2
Librarians and Department heads whose Media Center or
Department has a Merit Rating shall be given an additional
planning period per day.
A. Position of the Parties
The Agency contends that Union Proposal 2 would interfere with
management's right to assign work under section 7106(a)(2)(B) of the
Statute. In support the Agency cites National Federation of Federal
Employees, Local 1263 and Defense Language Institute, Foreign Language
Center, Presidio of Monterey, California, 7 FLRA 723 (1982).
The Union argues that the proposal does not interfere with
management's right to assign work as it only "requests negotiations over
additional time to perform these already assigned tasks."
B. Analysis and Conclusion
Union Proposal 2 is to the same effect as the group of proposals
found nonnegotiable in Defense Language Institute. In that case, the
Authority held the proposals directly interfered with the management
right to assign work "by allocating a specific amount of time for the
accomplishment of a specific duty." Union Proposal 2, by providing for
an additional period to be devoted to planning, also seeks to allocate a
specific amount of time to accomplish certain work. Thus, based on the
reasons and case cited in Defense Language Institute it is inconsistent
with the management right to assign work under section 7106(a)(2)(B) of
the Statute.
IV. Union Proposal 3
When the district sets up committees to make recommendations on
textbook adoptions, grade cards, parent conference forms, and
other items or programs to be implemented in the district, the
make-up of the committee shall consist of an equal number of
representatives from all departments or organizational levels
concerned.
A. Position of the Parties
The Agency describes the committees which are the subject of Union
Proposal 3 as groups appointed from time to time by the superintendent
to study and make recommendations concerning the adoption of textbooks,
grade cards, parent conference forms and other items, programs or
materials to be used in the school district. The Agency argues that
Union representation on such committees concerns the methods and means
of performing work and is therefore negotiable only at the discretion of
the Agency under section 7106(b)(1). The Agency contends this proposal
also conflicts with management's right to assign work under section
7106(a)(2)(B) to the extent that it specifies that there be an equal
number of representatives from all departments or organizational levels.
The Union contends that the proposal sets out a procedure to be used
in appointing members to these committees and thus it is negotiable
under section 7106(b)(2).
B. Analysis and Conclusion
As set out above, the Agency describes the committees in Union
Proposal 3 as groups periodically appointed by the superintendent
responsible for studying and recommending adoption of textbooks, various
forms, programs and materials used for teaching students in the
district. The Union did not dispute that description. As described,
the committees have responsibilities similar to those assigned to the
committees or groups addressed by Union Proposals 1 and 8, held
nonnegotiable in Panama Canal Federation of Teachers, Local 29 and
Department of Defense Dependents Schools, Panama Region, 19 FLRA No. 99
(1985). The committees in the cited case were appointed to study and
make recommendations concerning curriculum, pilot programs, selection of
textbooks and teaching materials. The Authority found that the work of
the committees concerned the "means" by which agency work would be
carried out within the meaning of section 7106(b)(1) of the Statute.
Because the committees in Union Proposal 3 are appointed by the
superintendent to study and to recommend on similar matters, their work
likewise falls within the scope of section 7106(b)(1).
It is by now well established that a proposal seeking union
participation in the deliberative process leading to the exercise of
rights reserved to management by section 7106 of the Statute is outside
the duty to bargain. See, for example, National Federation of Federal
Employees, Local 1431 and Veterans Administration Medical Center, East
Orange, New Jersey, 9 FLRA 998 (1982) and the cases cited there. In VA
Medical Center, East Orange, the Authority observed that, "when
management establishes formal organization structures to undertake such
deliberations as an integral part of its substantive decision-making
process, a proposal which would require union participation would have
the effect of directly interfering with management's statutory right to
make the decisions involved."
As with Department of Defense Dependents Schools, Panama Region, the
proposal in this case presents issues slightly different from those
before the Authority in VA Medical Center, East Orange: (1) the right
with which the committees are concerned falls within the scope of
section 7106(b)(1) of the Statute and may be the subject of bargaining
at the Agency's election; (2) the proposal does not expressly seek
Union representation on the committee but, rather, is concerned with the
committee's composition. Those distinctions were examined in Department
of Defense Dependents Schools, Panama Region. The Authority held, in
effect, that management's option not to bargain over a section
7106(b)(1) right was equally applicable to bargaining over a committee
concerned with deciding and acting on a section 7106(b)(1) right. The
Authority also stated in that decision, "where the matter concerned is
encompassed within section 7106(b)(1), . . . and the committee involved
is established to facilitate decision-making related to that matter,
negotiation over composition of the committee is equivalent to
bargaining over the matter itself." Consequently, based on the reasons
and cases cited in VA Medical Center, East Orange and Department of
Defense Dependents Schools, Panama Region, Union Proposal 3 concerns a
management right under section 7106(b)(1) and is negotiable only at the
Agency's election.
Since these committees are an integral part of the process by which
management determines the "means" of performing its work, the tasks
associated with carrying out the functions of those committees involve
the assignment of work. See American Federation of Government
Employees, AFL-CIO, Local 2787 and Defense Mapping Agency, 20 FLRA No.
26 (1985) (Provision 3). Consequently, by mandating the composition of
such committees this proposal effectively requires an assignment of
specific duties to particular employees in violation of management's
right to assign work under section 7106(a)(2)(B) of the Statute. See,
for example, National Treasury Employees Union and Department of the
Treasury, Internal Revenue Service, 7 FLRA 235, 240 (1981). Since the
proposal directly interferes with the exercise of the management rights
discussed, it is not a negotiable "procedure" under section 7106(b)(2).
This case may be compared with the Authority's decision in National
Federation of Federal Employees, Local 2059 and U.S. Department of
Justice, U.S. Attorney's Office, Southern District of New York, New
York, New York, 22 FLRA No. 13 (1986). In that case, the committee on
which the union sought representation was an "uncertified" safety and
health committee, established as a "constructive forum" for the
expression of concerns over health and safety matters. Unlike the
committees in this case, it was not intended to bypass management in its
area of interest nor was it authorized to interject itself into
management's deliberative decision-making process. It was therefore
concluded that participation by union representatives on the committee
did not concern assignment of the agency's work.
V. Union Proposal 4
Unit members shall receive 1/2 year's credit for pay purposes.
For this purpose 1/2 year shall be defined as any period of 100
days or more of teaching in this or any other school system.
A. Position of the Parties
The Agency contends that the Authority cannot make a determination on
the negotiability of Union Proposal 4 because the proposal is not
sufficiently specific and delimited in form and content.
The Union maintains that the proposal is sufficiently specific and
that the Authority should find it negotiable.
B. Analysis and Conclusion
While this proposal requires that bargaining unit employees receive
1/2 year credit "for pay purposes" there is nothing in the proposal or
the accompanying record to indicate how, or to what extent this 1/2 year
credit would affect employee pay. In the absence of information
concerning the intent and operative effect of this proposal, we have no
basis for determining whether it is consistent with applicable law and
regulation. Thus, this proposal is not sufficiently specific and
delimited in form and content to permit a determination on its
negotiability. See Association of Civilian Technicians, ACT and State
of Alabama National Guard, 2 FLRA 314, 317 (1979).
VI. Order
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the petition for review be, and it
hereby is, dismissed.
Issued, Washington, D.C., July 29, 1986.
/s/ JERRY L. CALHOUN
Jerry L. Calhoun, Chairman
HENRY B. FRAZIER III
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY