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28 FLRA NO. 88



OVERSEAS EDUCATION
ASSOCIATION

                    Union

      and

U.S. DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS

                    Agency

Case No. 0-NG-1312

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 three union proposals. The proposals were submitted after the Agency forwarded to the Union for review the final draft copy of DS Manual 2090.3, Procedures Manual for Compensatory Education (the Manual). The Manual states that compensatory education is designed to provide "a program of basic skills instruction which addresses the needs of students of average or above average ability, achieving significantly below grade level."

II. Procedural Issues

As threshold matters, in addition to claiming that the Union's proposals are nonnegotiable because they are inconsistent with applicable law, rule or regulation, the Agency contends that it has no duty to bargain concerning various proposals or portions thereof in this case because (1) they are governed by provisions in the parties' Agreement; (2) no change has been made in the areas covered by the proposals sufficient to give rise to a duty to bargain; or (3) they have been rendered moot by implementation of the Manual. Since these claims do not raise issues as to whether the proposals are inconsistent with applicable law, rule or regulation, they do not meet the conditions for review of negotiability issues under section 2424.1 of our Regulations. American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA No. 89 (1987). 

Where the conditions for review of negotiability issues have been met, however, a union is entitled to a decision by the Authority as to whether a proposal is negotiable under the Statute, despite the existence of additional issues in the case, for example, an alleged conflict between a proposal and a controlling agreement. See American Federation of Government Employees, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983). To the extent that there are additional issues regarding the duty to bargain in the specific circumstances of this case, 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). Accordingly, the claimed existence of threshold duty to bargain questions does not preclude us from determining the negotiability of the proposals in this case since they are otherwise properly before us.

III. Proposal I

The FLRA Members have expressed different opinions concerning Proposal 1. The decision and order on Proposal 1 and Chairman Calhoun's dissenting opinion immediately follow this decision.

IV. Proposal 2

Participating unit employees shall be authorized additional preparation time for additional work required by the duties prescribed in the Compensatory Education Manual.

A. Positions of the Parties

The Agency contends that the proposal interferes with its rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and to assign work. It claims that Proposal 2 is not materially different from a group of proposals which the Authority held nonnegotiable in National Federation of Federal Employees, Local 1263 and Defense Language Institute, Foreign Language Center, Presidio of Monterey, California, 7 FLRA 723 (1982).

The Union characterizes the proposal, an alternative to Proposal 1, as an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute for employees who will have new duties added to their jobs as a result of new procedures in the Manual. It asserts that the Manual effectively eliminates certain "School - Based Planning Committees" and thereby results in additional duties for compensatory education teachers.

B. Analysis and Conclusion

1. The Proposal conflicts with Management's Right to Assign Work.

Proposal 2 requires the Agency to allocate time during the regular workday for employees to prepare for additional work assertedly prescribed by the Manual. It is to the same effect as the group of proposals which were held nonnegotiable in NFFE Local 1236 and Defense Language Institute. In that case, the Authority held that the proposals directly interfered with management's right to assign work "by allocating a specific amount of time for the accomplishment of a specific duty." Proposal 2, by requiring the Agency to authorize additional time to be devoted to preparation, also seeks to allocate a specific amount of time to accomplish certain work. Thus, based on the reasons and case cited in NFFE Local 1263 and Defense Language Institute, it is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. See also Fort Knox Teachers Association and Fort Knox Dependent Schools, 22 FLRA No. 88 (1986) (Proposal 2).

2. The Proposal Does Not Conflict with Management's Right to Direct Employees

The Statute does not define the right to direct employees. In the absence of any indication that the phrase as used in the Statute has a meaning other than its ordinary meaning, the Authority determined that the right to direct employees means "to supervise and guide (employees) in the performance of their duties on the job." National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. NTEU v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). The right to direct employees is exercised through supervising employees and determining the quantity, quality and timeliness of work production and establishing priorities for its accomplishment. For a general discussion of this matter See Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, Local 1760, AFL - CIO, 18 FLRA 437, 439-40 (1985) (deciding methods to audit employees work); Tidewater Virginia Federal Employees Metal Trades Council and Navy Public Works Center, Norfolk Virginia, 15 FLRA 343, 344 (1984) (requiring employees to account for their conduct and work performance); NTEU and Bureau of the Public Debt, 3 FLRA at 776 (establishing critical elements and performance standards).

In our view, the proposal on its face does not concern directing employees within the meaning of section 7106(a)(2)(A). It does not involve supervising employees or determining the quantity, quality and timeliness of work production or establishing priorities for its accomplishment. Moreover, the Agency makes no showing in the record as to how this proposal relates to directing employees, and a relationship is not otherwise apparent to us. The cases cited by the Agency in support of its contention did not involve the right to direct employees, only the right to assign work. Hence, we find that the proposal does not interfere with management's right to direct employees.

3. The Proposal is Not an Appropriate Arrangement

We turn now to the question of whether Proposal 2, in spite of the fact that it interferes with management's right under section 7106(a)(2)(B), is nevertheless negotiable as an appropriate arrangement for employees adversely affected by the exercise of that right within the meaning of section 7106(b)(3). The threshold question is whether the proposal is an "arrangement" for adversely affected employees. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986).

The Union states that the purpose of the proposal is to mitigate the adverse effects on certain unit employees of being required to perform additional duties prescribed in the Manual. Assuming for the purpose of this decision that the Manual prescribes additional job requirements as the Union claims, in our view it follows that Proposal 2 concerns the effects of management's establishing job requirements. The establishment of job requirements, however, does not by itself adversely affect employees. See Department of Health and Human Services, Social Security Administration v. FLRA, 791 F.2d 324 (4th Cir. 1986), reversing National Federation of Federal Employees, Council of Consolidated SSA Locals and Department of Health and Human Services,_Social Security Administration, 17 FLRA 657 (1985), (employees are not adversely affected because the requirements of their jobs are changed--adverse effect comes when action is taken against them based upon application of those job requirements). 

Accord Alford v. Department of Health, Education and Welfare, 1 MSPB 305 (1980) (employees may not appeal from the Agency's development of performance standards for their positions but only from actions taken against them on the basis of those standards). Therefore Proposal 2 does not concern an "arrangement" for adversely affected employees.

Consequently, we need not reach the question whether the proposal is an "appropriate" arrangement, since it does not qualify for consideration under section 7106(b)(3). See Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA No. 29 (1987) (Proposal 3 K), appeal filed sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. March 26, 1987).

4. Conclusion

The proposal is outside the duty to bargain.

V. Union Proposal 3

DODDS shall establish a review committee in each region where unit employees are employed for the purpose of reviewing and evaluating the procedural requirements incorporated in the Compensatory Education Manual. The first review period will run for three months prior to implementation of the manual. Each review committee will report findings to the OEA and DODDS in Washington for the purpose of finalizing negotiations. After implementation of the manual the review committees will continue to monitor and evaluate the manual procedural requirements for one year. After the one year the committees will report findings to the OEA and DODDS in Washington for the purpose of determining whether changes are necessary in the manual. If changes are necessary then the parties shall renegotiate on the manual.

The regional review committees shall consist of at least four members equally divided between the OEA and DODDS. Although each party is free to choose members to the committees it is recommended that some of the participants be compensatory education teachers. 

A. Positions of the Parties

The Agency asserts that Proposal 3 has the effect of requiring that the planning of the Compensatory Education Program be accomplished by joint labor-management committees. In this connection it argues that the proposal impermissibly interjects the Union into the deliberative process leading to the exercise of management's rights under section 7106. In support it cites Authority decisions in Fort - Knox Teachers Association and Fort Knox Dependent Schools, 22 FLRA No. 88 (1986) (Proposal 3) and Panama Canal Federation of Teachers, Local 29 and Department of Defense Dependent Schools, Panama Region, 19 FLRA 814 (1985) (Proposals 1, 6, 8 and 10). The Agency further argues that the proposal concerns the methods and means of performing work under section 7106(b)(1).

The Union characterizes the proposal as a procedure, within the meaning of section 7106(b)(2), to be followed by management in the exercise of its reserved rights under the Statute. The Union states that THE proposal constitutes "ground rules" or "a procedure" for negotiations over the impact and implementation of the Manual. According to the union, the joint management-union committees would review and evaluate the actual impact and implementation problems arising after the implementation of the Manual and thereafter make recommendations to or advise the parties' respective bargaining teams of the committees' findings. The Union does not intend the proposal to require the Agency to accept the recommendations of the committees but intends it to require the Agency to bargain over those recommendations to the extent that they are negotiable. Response at 7-10.

B. Analysis and Conclusion

We conclude that the proposal is within the duty to bargain. It would establish a procedure for review and evaluation of the impact and implementation of the Manual, which might give rise to future bargaining proposals concerning the Manual.

More particularly, the proposal would require establishing joint labor-management committees to review and evaluate the impact and implementation of the Manual. These committees would then advise the parties of their findings and make recommendations. Either party could subsequently propose negotiations, as it considered necessary, to bring about changes in the Manual or its impact and implementation.  Any proposal submitted by the Union in such negotiations would, of course, be subject to the section 7117 procedures if the Agency alleged it to be outside the duty to bargain because of inconsistency with applicable laws and regulations.

In significant part this is a proposal to bargain in the future, to the extent consistent with applicable laws and regulations, over whatever matters related to the Manual the parties may decide, based on the advice and recommendations of the joint committees. The proposal does not itself either mandate changes in the Manual or its impact and implementation, or require negotiation over any particular changes. It only would establish a procedure which might, depending on the results of the committees' reviews and the parties' reactions to them, culminate in proposals for negotiations. Based on the foregoing, we find that the record does not establish that the proposal interferes with any Agency rights under section 7106. If agreed upon, this proposal in the future could give rise to bargaining proposals that are nonnegotiable because, for example, they would impermissibly interject the Union into management's deliberative process leading to the exercise of its statutory rights. This proposal, however, does not purport to obligate the Agency to bargain regarding such new proposals. Rather, the Union explicitly states its intention that the Agency "will only be obligated to negotiate over recommendations the committees make if those recommendations are themselves negotiable." Union Response at 9. In addition while the proposal itself refers only to "renegotiat(ion) on the manual," the Union states that the proposal "merely establishes a procedure for further impact and implementation negotiations(.)" Union Response at 8. Consistent with this statement of intent, we do not interpret the proposal as requiring negotiations on proposals relating to the content or substance of the manual.

In a somewhat analogous situation, a union proposed to establish a joint labor-management committee to develop the agency's training program. The Authority held that the proposal was a negotiable procedure under section 7106(b)(2) of the Statute. American Federation of Government Employees, AFL - CIO, Local 2761 and U.S. Department of the Army Adjutant General, Publication Center, St. Louis, Missouri, 14 FLRA 438 (1984). The Authority found that the committee would serve as a forum through which the union could express its views regarding the agency's training programs but would not require the agency to negotiate concerning the content of those programs, which would have conflicted with management's right to assign work.

Similarly, in American Federation of Government Employee, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217, 229-30 (1981) (proposal 6), the Authority held that a proposal to create a joint labor-management committee to recommend changes in the agency performance appraisal system concerned a negotiable procedure. Under that procedure as under the present proposal, the agency retained its discretion to accept or reject any of the committee's recommendations.

The decisions the Agency cites in support of its position are inapposite. The proposals in those cases provided for union participation on management committees involved in the exercise of a management right and in matters which did not concern conditions of employment, rather than for union involvement in a joint management-union forum to review and evaluate the impact and implementation of the exercise of section 7106 rights and formulate recommendations for bargaining over those matters.

In Department of Defense Dependents Schools, Panama Region, Proposals 1 and 8 and in Fort Knox Dependent Schools, Proposal 3 sought to require bargaining over the composition of committees established by management to study and make recommendations concerning, among other matters, the selection of curriculum, text books and teaching material. In those cases, the Authority found that management had established the committees to undertake deliberations leading to the exercise of its rights reserved under section 7106(b)(1) of the Statute. The Authority, therefore, concluded that while management could elect to bargain over those proposals it could not be required to do so since the committees concerned an integral part of the agency's substantive decision-making process for the exercise of the agency's rights under section 7106(b)(1).

Additionally, in Department of Defense Dependents Schools, Panama Region, Proposal 6 required that the Agency Cooperative Work Experience Programs be accomplished by certain specified individuals, some of whom would be unit employees and others non-employees. Thus, the Authority concluded that to the extent that it concerned unit employees the proposal was inconsistent with management's right to assign work under section 7106(a)(2)(A); to the extent that it related to non-employees, the proposal did not concern  conditions of employment of unit employees within the meaning of section 7103(a)(14) of the Statute.

Similarly, in Department of Defense Dependents Schools, Panama Region, Proposal 10 required a Union representative to participate in the meeting of each School Advisory Council which, among other things, the agency had empowered to act with respect to matters concerned with the school budget and curriculum. In that case the Authority held that the proposal required union participation in the deliberative process leading to the exercise of management's right to determine its budget under section 7106(a)(1).

In contrast, this proposal does not itself concern substantive matters. It does not in any respect interfere with management's statutorily reserved rights. Therefore, we conclude that the proposal is within the duty to bargain.

VI. Order

The Agency must upon request or as otherwise agreed to by the parties bargain concerning Proposal 3. 1 The Union's petition for review as to Proposal 2 is dismissed.

Issued, Washington, D.C., August 21, 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

Participating unit employees shall receive additional compensation for all time required to perform duties, related to the Compensatory Education, beyond the normal duty day.

A. Positions of the Parties

The Agency argues that the employees involved are not covered by section 9(b) of the Prevailing Rate Act of 1972 and section 704 of the Civil Service Reform Act. It claims that, in these circumstances, Congress did not intend Federal agencies to negotiate over wages, and Proposal 1 is therefore inconsistent with law. The Union claims that the proposal is negotiable under the Defense Department Overseas Teachers Pay and Personnel Practices Act (Overseas Teachers Pay Act), 20 U.S.C. 901-907.

B. Analysis and Conclusion

1. Effect of 20 U.S.C. 901-907 on the Negotiability of the Proposals

The proposal would require negotiating additional compensation for certain employees when their duties concerned with compensatory education extend beyond the normal duty day.

The Overseas Teachers Pay Act provides, in pertinent part, as follows:

902. Regulations of Secretary of Defense

(a) . . . the Secretary of Defense shall prescribe and issue regulations to carry out the purposes of this chapter. Such regulations shall govern--

(3) the entitlement of teachers to compensation;

(4) the payment of compensation to teachers; 

(10) such other matters as may be relevant and appropriate to the purposes of this chapter.

903. Administration -- Employment and Salary Practices

(a) The Secretary of each military department in the Department of Defense shall conduct the employment and salary practices applicable to teachers and teaching positions in his military department in accordance with this chapter, other applicable law, and the regulations prescribed and issued by the Secretary of Defense under section 902 of this title.

(d) the Secretary of each military department may prescribe and issue such regulations as he deems appropriate to carry out his functions under this chapter.

The quoted provisions of Overseas Teachers Pay Act vest broad discretion in the Agency concerning the compensation of teachers. It is well established that, to the extent that an Agency has discretion with respect to a matter affecting the working conditions of its employees and that discretion is not intended to be sole and exclusive, the matter is within the duty to bargain. See, for example, National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 759-60 (1980). Insofar as matters relating to the compensation of employees are not specifically provided for by Federal statute but, instead, are within the discretion of an agency, they are conditions of employment. As to these matters, the Authority has recently reaffirmed that nothing in the Statute, or its legislative history, bars negotiation of proposals concerning them insofar as (1) the matters proposed are not specifically provided for by law and are within the discretion of the agency and (2) the proposals are not otherwise inconsistent with law, Government-wide rule or regulation or an agency regulation for which a compelling need exists. 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). 

Here, we find that Proposal 1, regarding additional compensation for duties required to be performed beyond the normal duty day, concerns a matter within the Agency's administrative discretion under the Overseas Teachers Pay Act and it has not been demonstrated that such discretion was intended to be sole and exclusive. The exercise of that discretion is subject to bargaining. See, for example, American Federation of Government Employees, AFL - CIO, Local 3525 and United States Department of Justice, Board of Immigration Appeals, 10 FLRA 61 (1982) (Proposal 1).

2. The Provisions of Law Applicable to Prevailing Rate Employees Cited by the Agency are Inapposite

As we discussed in more detail in National Maritime Union of America, AFL - CIO and Department of the Navy, Military Sealift Command, 25 FLRA No. 8 (1987) appeal filed sub nom. Department of the Navy, Military Sealift Command v. FLRA, 87-3179 (3rd Cir. March 12, 1987), pay of prevailing rate employees is governed by the terms of the Prevailing Rate Act of 1972 (the Act). Section 9(b) of the Act is a savings clause, which allowed prevailing rate employees who had negotiated over, among other things, wages prior to the Act to continue to do so. Section 704 of the Civil Service Reform Act preserved the scope of bargaining for employees covered by this savings clause for negotiations occurring under the Statute. See Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA No. 100 (1986).

We do not rely on section 9(b) or section 704 in ruling on this proposal because the Agency does not claim nor does the record otherwise establish that the employees who are the subject of the proposal are prevailing rate employees as defined in the Act. 5 U.S.C. 5342(a)(2). Consequently, the pay of these employees is not governed by the Act. it follows that section 9(b) and section 704 which preserved bargaining rights on pay matters for certain employees who would otherwise have their pay determined by that pay system have no relevance to the negotiability of proposals on pay matters relating to these employees. National Maritime Union of America and Military Sea Lift Command, 25 FLRA No. 8 (1987), appeal filed sub nom. Department of the Navy Military Sealift Command v. FLRA, No. 87-3179 (3rd Cir. March 16, 1987).

3. Conclusion

The proposal is within the duty to bargain. 

C. Order

The Agency must upon request or as otherwise agreed to by the parties bargain concerning Proposal 1. 2

Issued, Washington, D.C., August 21, 1987

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

Separate Opinion of Chairman Calhoun

In my opinion in Overseas Education Association Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA No. 71 (1987), petition for review filed sub nom. Overseas Education Association v. FLRA, No. 87-1279 (D.C. Cir. June 25, 1987), I stated that in my view the discretion of the Secretary of Defense under 20 U.S.C. 902 to determine the compensation of overseas teachers is exclusive and not subject to negotiations absent a clear expression of Congressional intent to the contrary. As in that case, I find no such expression here. As a result, I would find that Proposal 1 is not negotiable.

Issued, Washington, D.C., August 21, 1987

Jerry L. Calhoun, Chairman

FEDERAL LABOR RELATIONS AUTHORITY

 

FOOTNOTES

Footnote 1 In finding this proposal within the duty to bargain, we make no judgment as to its merits.

Footnote 2 In finding this proposal within the duty to bargain, we make no judgment as to its merits.

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