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28 FLRA NO. 114


DEPARTMENT OF DEFENSE,
OFFICE OF DEPENDENTS
SCHOOLS

                     Agency

        and

OVERSEAS EDUCATION ASSOCIATION

                     Union

Case No. 0-AR-976

DECISION

I. Statement of the Case

This matter is before the Authority on exceptions to the interest arbitration award of Arbitrator Jerome H. Ross filed by the Agency under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations.

II. Background

The dispute before the Arbitrator concerned the negotiation impasse of the parties regarding a new collective bargaining agreement. The interest arbitration proceeding had been approved by the Federal Service Impasses Panel as an appropriate procedure for resolving the impasse. The Arbitrator resolved the impasse by directing the adoption of the collective bargaining agreement provisions set forth as his award. The Agency has filed exceptions with the Authority contending that the award is deficient to the extent that it directs adoption of the following provisions of the collective bargaining agreement. 1  

III. Article 61 - Certification and Recertification

The text of Article 61 is set forth in the Appendix.

A. Position of the Parties

In its exceptions to Article 61, the Agency primarily contends that the award is deficient by directing that the parties' collective bargaining agreement include an article on the certification and recertification of professional personnel. The Agency argues that it "maintained consistently throughout negotiations that teacher certification was nonnegotiable." The Agency claims that pursuant to the Defense Dependents' Education Act of 1978, Pub. L. No. 95-561, 92 Stat. 2365, the duty to bargain does not extend to teacher certification. The Agency also argues that the inclusion of any certification standard, and particularly the standards set forth in section 2 and 5 of Article 61, conflicts with several management rights under section 7106(a) of the Statute.

In opposition the Union maintains that the certification article directed by the Arbitrator derived from the Agency's own proposals during the impasse proceedings.

B. Analysis and Conclusions

We conclude that the award is deficient as it pertains to Article 61 because, in the circumstances presented, the Arbitrator did not have the authority to resolve the impasse on the issue of teacher certification.

In Social Security Administration and National Council of SSA Field Operations Locals (NCSSAFOL). American Federation of Government Employees, AFL - CIO (AFGE), 25 FLRA No. 17 (1987) and Department of Defense Dependents Schools (Alexandria, Virginia), 27 FLRA No. 72 (1987) we discussed in detail the resolution of duty to bargain issues raised in an interest arbitration proceeding. In NCSSAFOL we reiterated Authority rulings that interest arbitrators do not have the authority to resolve duty to bargain questions. Negotiability disputes which arise between an agency and an exclusive representative under section 7117 (c) of the Statute must be resolved by the Authority as required by section 7105(a)(2)(E). We also reiterated that when an arbitrator resolves a duty to bargain question, the award will be found deficient and will be set aside. We stated that in cases involving allegations of nonnegotiability made during an interest arbitration proceeding, we will carefully examine the record in the case to determine whether the arbitrator  made a negotiability ruling or merely applied existing Authority case law to resolve the impasse. When the arbitrator has made a negotiability ruling, the award will be set aside without addressing the merits of the ruling. When the arbitrator has merely applied existing case law, we will resolve any exceptions to the award on the merits, and we will deny the exceptions if the existing case law was correctly applied. In DODDS we further stated that in instances where the award is set aside because an interest arbitrator has improperly asserted jurisdiction over a duty to bargain question, we will provide a meaningful course of action for the parties to follow so that the matter is not left unresolved. We specified that the appropriate course of action is to require the parties to return to the bargaining table "with a sincere resolve to reach agreement." Slip op. at 11.

In this case, after examination of the record, we find that the Agency asserted to the Arbitrator that under applicable law the duty to bargain did not extend to the issue of teacher certification. We further find that this allegation was not obviated by the Agency assertedly submitting proposals on the issue in apparent compliance with the resolution procedures of the Arbitrator. Because there is no clear precedent on this issue, the Arbitrator did not have authority to resolve the impasse on this issue and his award is therefore deficient. Accordingly, we will modify the award by striking Article 61 without addressing the Agency's management rights arguments, and we will order that the parties return to the bargaining table with a sincere resolve to reach agreement on the issue of teacher certification. 2

IV. Article 14 - Non Discrimination

Section 2C. EEO counselors who are unit employees shall not be used in any way to evaluate the performance of other unit employees. 

Article 33 - Grade Level and Department Chairpersons

Section 3. The duties of grade level and department chairpersons who are unit employees relate to matters within their grade level or department, but not to supervision or direction. Their duties shall not include nor be construed as involving personnel supervision as defined in 5 U.S.C. 7103.

A. Positions of the Parties

The Agency contends in its exceptions that the award is deficient because the provisions are contrary to management's right to assign work in accordance with section 7106(a) (2)(B). Specifically, the Agency argues that the Article 14 provision conflicts with management's right because the provision prevents management from assigning to a unit employee who is an EEO counselor any duties related to the evaluation of the performance of any other unit employee. The Agency similarly argues that the Article 33 provision conflicts with management's right because it absolutely prevents management from assigning to the chairpersons any duties involving personnel supervision. The Agency does not contend that it raised questions concerning the negotiability of these provisions before the Arbitrator.

In opposition the Union argues that the Article 14 provision does not prevent management from assigning any duties to unit employees. The Union maintains that the provision merely prohibits the use of information gained during the EEO process by the EEO counselor from being used to evaluate other unit employees. With respect to the Article 33 provision, the Union contends that if management seeks to assign chairpersons supervisory duties, they should file a petition to clarify the unit to remove the chair-persons from coverage by the collective bargaining agreement.

B. Analysis and Conclusions

We conclude that the award as it pertains to the disputed provisions of Article 14 and Article 33 is contrary to section 7106(a)(2)(B) of the Statute.

The express language of the disputed provisions prohibits management from assigning certain duties to bargaining unit employees. The Article 14 provision prohibits management from assigning EEO counselors any duties relating to the evaluation of the performance of other unit employees. The Article 33 provision prohibits management  from assigning supervisory duties to unit employees who are grade level or department chairpersons. The Authority has specifically held that proposals which prohibited management from assigning duties of evaluating the performance of other unit employees and from assigning supervisory duties directly interfered with management's right to assign work and consequently conflicted with section 7106(a)(2)(B). American Federation of Government Employees, AFL - CIO, Local 3385 and Federal Home Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA 398 (1981) (Proposal I - evaluation duties); 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) (Proposal 1 - supervisory duties). Accordingly, the award is deficient by directing inclusion of these provisions in the collective bargaining agreement; we will strike Article 14, Section 2C and Article 33, Section 3.

V. Article 16 - Performance Appraisal

Section 2. The performance of all unit employees shall be evaluated according to appropriate Office of Personnel Management requirements. The evaluator shall take into consideration any circumstances that may adversely affect an employee's performance, such as class size, special learning disabilities of students or physical facilities. Student test results shall not be used in any way to evaluate employees. All monitoring or observation of the work performance of an employee shall be conducted openly and with full knowledge of the unit employees. Unit employees evaluations shall be prepared only on the basis of information directly observed by Employer officials. Any derogatory information received by a Supervisor which he/she, at the time of receipt, intends to use in evaluating an employee shall be called to the attention of the employee and the employee shall be afforded the opportunity to answer or rebut such complaint. Unless the situation convinces the Employer that time is of essence in resolving the matter, no interview or meeting between a complaining parent and employee shall be set by the Employer until the employee has a reasonable opportunity to consult with the Association's Representative. (Only the underlined provisions of Section 2 are in dispute.)

Section 4. Critical elements and performance standards shall be fair, reasonable, and realistic within the duties and responsibilities stated in the employee's position description. 

A. Positions of the Parties

The Agency contends in its exceptions that the award is deficient because the disputed provisions are contrary to management's rights to direct employees and assign work in accordance with section 7106(a)(2)(A) and (B). Specifically, the Agency argues that the first and second disputed sentences of Section 2 interfere with management's rights by proscribing and preventing, in the evaluation of employees, the use of student test results and the use of information which was gathered without full knowledge of the employee. The Agency similarly argues that the third disputed sentence of Section 2 interferes with management's rights by limiting the performance rating to matters directly observed by the supervisor. The Agency argues that Section 4 interferes with management's rights because it is not limited to a general, nonquantitative requirement by which the application of performance standards established by management could subsequently be evaluated in a grievance. Instead, it provides that the elements and standards themselves shall be fair, reasonable, realistic and within the duties and responsibilities stated in the employee's position description. The Agency does not contend that it raised questions concerning the negotiability of these provisions before the Arbitrator.

In opposition, the Union claims that the provisions do not interfere with management's right to establish performance standards, but instead only constitute procedures and arrangements to be used in the context of applying the established standards to employees. The Union argues that the first disputed sentence merely provides, consistent with studies that test results do not reflect teacher quality, that in applying the standards, test results shall not be used. The Union argues that the second and third sentences have the same effect as the proposal prohibiting secret studies found negotiable in American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981) (Proposal 4). As to Section 4, however, the Union consents to a modification of the award to expressly limit the section to application of the standards.

B. Analysis and Conclusions

We conclude that the award as it pertains to the disputed provisions of Article 16 is contrary to section 7106(a)(2)(A) and (B) of the Statute.

The Authority has held that proposals which would eliminate a specific element from the performance appraisal   process directly interfere with management's rights to direct employees and assign work and consequently conflict with section 7106(a)(2)(A) and (B). For example, in National Federation of Federal Employees and Haskell Indian Junior College, Bureau of Indian Affairs, Department of the Interior, Lawrence, Kansas, 22 FLRA No. 57 (1986), Proposal 3, which provided that enrollment statistics should not be used negatively against instructors in the performance appraisal process, was found to be nonnegotiable. In addition, the Authority distinguished this proposal from proposals which were found negotiable as merely establishing, in effect, a general, nonquantitative standard by which application of performance standards established by management could be evaluated in a subsequent grievance. Slip op. at 4 (citing American Federation of Government Employees, AFL - CIO, Local 2849 and Office of Personnel Management, New York Regional Office, 7 FLRA 571 (1982) (Proposal 3) and American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981) (Proposal 2)). In contrast, the Authority held that the enrollment statistics proposal concerned a specific element of the performance standards and would prohibit the agency from considering statistics in appraising an instructor's performance. In this case we similarly find that by prohibiting the use in any way of student test results in evaluating teachers, the first disputed sentence directly interferes with management's rights under section 7106(a)(2)(A) and (B).

Having determined that this provision directly interferes with management's rights, we will find the award deficient and we will not consider whether the provision constitutes an appropriate arrangement under section 7106(b)(3). As with an allegation of nonnegotiability raised by an agency during the interest arbitration proceeding, we view the question of whether a provision constitutes an appropriate arrangement to be a negotiability issue which must be resolved by the Authority unless the interest arbitrator relied on established precedent to find that a provision is a negotiable appropriate arrangement. In this case it is not apparent that the Arbitrator applied established precedent to find that this provision constituted an appropriate arrangement. Consequently, the award is deficient by directing inclusion of the first disputed sentence of Article 16, Section 2 in the collective bargaining agreement and we will strike this sentence.

As to the second and third disputed sentences of Section 2, we have also held that proposals which prohibit an agency from using information gathered by means of a   particular evaluation method or technique, National Federation of Federal Employees, Local 1454 and Veterans Administration, 26 FLRA No. 99 (1987) (Proposals 2-6); Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, Local 1760, AFL - CIO, 18 FLRA 437 (1985) (Proposals 1, 2, 5, and 7), or which limit management's ability to collect data for purposes of performance evaluation, American Federation of Government Employees, Local 1760, AFL - CIO and Department of Health and Human Services, Social Security Administration, 15 FLRA 90 (1984) (measuring productivity Proposal 1), directly interfere with management's rights to direct employees and assign work and consequently conflict with section 7106(a)(2)(A) and (B). In this case we similarly find that the second and third disputed sentences of section 2 directly interfere with management's rights.

The second disputed sentence effectively prohibits management from using information gathered by means of monitoring or observation for purposes of performance evaluation when the monitoring or observation is not conducted openly and with the full knowledge of the employee. The third disputed sentence limits the information which management may use in evaluating employees to that information directly observed by management officials. Contrary to the argument of the Union, these provisions are not similar to proposals which were limited to prohibiting secret studies bearing on performance standards. For example, American Federation of Government Employees, AFL - CIO, Local 1708 and Military Ocean Terminal, Sunny Point, Southport, North Carolina, 15 FLRA 3 (1984) (Proposal 1) and American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981) (Proposal 4). Those proposals were concerned only with procedures to be observed in the development of performance standards and were negotiable under section 7106(b)(2). In contrast to the provisions in this case, they did not interfere with management's rights by prescribing the methods and means to be used or not used by management in evaluating employees.

As with the first disputed sentence, it is not apparent that the Arbitrator applied established precedent relating to section 7106(b)(3), and therefore we will not consider whether the provisions are appropriate arrangements. Accordingly, the award is deficient by directing inclusion of these provisions in the collective bargaining agreement, and we will strike these provisions of Article 16, Section 2.

With respect to Section 4, it is well established that proposals which prescribe the content of performance   standards rather than relating to the application of those standards directly interfere with management's rights under section 7106(a)(2)(A) and (B). Specifically, the Authority has found nonnegotiable proposals which prescribe that performance standards themselves, rather than merely their application, must be fair or reasonable. For example, American Federation of Government Employees, AFL - CIO, Local 1603 and U.S. Naval Hospital, Patuxent River, Maryland, 22 FLRA No. 60 (1986); American Federation of Government Employees, Local 32 and Office of Personnel Management, Washington, D.C., 16 FLRA 948 (1984) (Proposal 3). Accordingly, the award is deficient by directing inclusion of Section 4 as presently worded in the collective bargaining agreement. Furthermore, contrary to the concession of the Union, we will not modify the award to limit Section 4 solely to the application of the established standards. We leave to the parties the task of rewording this provision to make it consistent with management's rights.

VI. Article 45 - Summer School

Section 1. Summer employment shall be voluntary, and shall be open to all currently employed unit employees. (Only the underlined provision is in dispute.)

A. Positions of the Parties

The Agency contends in its exceptions that the award is deficient because the disputed provision is contrary to management's rights to assign work in accordance with section 7106(a)(2)(B) and to determine the methods of performing work in accordance with section 7106(b)(1). The Agency does not contend that it raised questions concerning the negotiability of this provision before the Arbitrator.

In opposition, the Union contends that the provision is consistent with the Overseas Teachers Pay and Personnel Practices Act, 20 U.S.C. 901-907, and 5 U.S.C. 5722 pursuant to which unit employees are entitled to transportation agreements. Essentially, the Union argues that the teachers are unique in that these legal provisions restrict their duty obligations to a school year which can be no more than 190 workdays. Accordingly, the Union maintains that management's exercise of its rights under section 7106 must be in accordance with these legal provisions and that unit employees, therefore, cannot be compelled to teach summer school. 

B. Analysis and Conclusions

We conclude that the award as it pertains to the disputed provision of Section 1 is contrary to section 7106(a)(2)(B) of the Statute. We find that management's right to assign work in accordance with section 7106(a)(2)(B) encompasses the assignment of teaching duties for summer school; such an assignment is not precluded by the Overseas Teachers Pay and Personnel Practices Act or 5 U.S.C. 5722.

It is well established that a proposal prohibiting the assignment of specified duties or conditioning the assignment on the volunteering of the employee directly interferes with management's right under section 7106(a)(2)(B) "to assign work." For example, Fort Knox Teachers Association and Fort Knox Dependents Schools, 19 FLRA 878 (1985) (Proposal 4); International Organization of Masters, Mates, and Pilots and Panama Canal Commission, 11 FLRA 115 (1983) (Provision). In Ft. Knox Teachers Association, Proposal 4 would have absolutely barred the agency from requiring teachers to attend parent teacher organization or association meetings after school unless the teacher's presence was necessary. The union argued that mandatory attendance at such meetings is not part of normal duty hours and that therefore attendance should be voluntary. In finding that the proposal conflicted with section 7106(a)(2)(B), the Authority held that management's right to assign work encompasses the assignment of duties outside of normal duty hours. The conflict with management's right was not avoided because the assignment related to an assignment of duties to be performed after normal duty hours. In this case, we similarly find that management's right to assign work encompasses the assignment of teaching duties during summer school. The conflict with management's right is not avoided because the provision relates to an assignment of teaching duties to be performed after completion of the regular school year.

In addition, we have examined the provisions of law cited by the Union and we find that they do not operate to preclude or prevent the Agency from compelling a teacher to teach summer school. We do not interpret the provisions of the Overseas Teachers Pay and Personnel Practices Act or 5 U.S.C. 5722 as making voluntary the performance by a teacher of teaching duties during summer school. We reject the union's argument that by using the terms "school year" and "recess period," the definitions and the compensation and allowance provisions of the Act restrict management's right to assign work after the completion of the regular school year. Similarly, we reject the Union's argument that the  authorization under section 5722 for the Agency to pay travel expenses of a teacher restrict management's right to assign work after completion of the regular school year. Section 5722 specifically permits the Agency to pay travel expenses for a teacher to return to the teacher's residence only after the teacher has served a minimum of one school year. It does not pertain to the Agency's assignment of work and in no manner "obligate(s) the (teacher) to serve only during the school year" as argued by the Union. Accordingly, the award is deficient by directing inclusion of the disputed provision of Section 1 in the collective bargaining agreement and we will strike this provision of Article 45. 3

VII. Article 9 - Association/DODDS Cooperation

Section 2. Upon request, the Employer at the school level shall provide a listing to the Association of all formal incentive awards and performance ratings granted employees during the school year.

A. Positions of the Parties

In its exceptions the Agency contends that the award is deficient because release of the specified information violates the Privacy Act, 5 U.S.C. 552a, and encompasses nonunit employees. In opposition the Union argues that release of the specified information would not violate the Privacy Act.

B. Analysis and Conclusions

We conclude that the Agency has failed to establish that the award is deficient as it pertains to formal incentive awards. We conclude that the award as it pertains to performance ratings is contrary to the Privacy Act to the extent that it fails to provide for a sanitized listing.

The question presented by the Agency's exceptions is whether release or disclosure to the Union of the specified information is barred by the Privacy Act. The Privacy Act generally prohibits disclosure of personal information about Federal employees without their consent. Section (b)(2) of the Privacy Act provides that the prohibition against disclosure is not applicable if disclosure of the information is required under the Freedom of Information Act (FOIA),  5 U.S.C. 552. Under exemption (b)(6) of FOIA, 5 U.S.C. 552(6)(a), information contained in personnel files is not required to be disclosed if disclosure would constitute a clearly unwarranted invasion of personal privacy.

In determining whether information is exempt from disclosure under FOIA (b)(6), it is necessary to balance an individual's right to privacy and the public interest in having information disclosed. For example, American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA No. 34 (1987) (Proposals 4-5). In striking this balance in cases where the information is to be disclosed to an exclusive representative, we have stated that in view of the congressional findings in section 7101 of the Statute, release of information which is necessary for a union to perform its statutory representational functions promotes important public interests. For example, Army and Air Force Exchange Service (AAFES), Fort Carson, Colorado and American Federation of Government Employees, AFL - CIO, Local 1345, 25 FLRA No. 89 (1987). In this case, considering the interests of the Union as the exclusive representative and the personal privacy interests of unit employees, we find that the balance of interests favors disclosure and release of listings of recipients of formal incentive awards, but prohibits disclosure and release of name-identified listings of performance ratings.

Although the incentive awards provision requires disclosure of personal information, the Agency does not argue that the information which would be released is stigmatizing. In fact, the opposite is likely to be true. See Celmins v. Department of Treasury, 457 F. Supp. 13, 15 (D.D.C. 1977). Consequently, we find on balance that the need of the Union for such a listing in order to perform the full range of its statutory representational functions, including enforcement of the collective bargaining agreement and incentive award program and representation of potentially aggrieved employees, outweighs any interests in withholding this nonstigmatizing information. The invasion of privacy that would be caused by the release of such a listing is not clearly unwarranted. See Veterans Administration Central Office, Washington, D.C., 25 FLRA No. 52 (1987); Celmins, 457 F. Supp. at 16. Consequently, release and disclosure of this information is not a violation of the Privacy Act. In addition, the Agency fails to establish that the provision's use of the word "employees" encompasses other than unit employees. Accordingly, the Agency's exceptions as they pertain to this information are denied.  

However, to the extent that Article 9, section 2 fails to provide for a sanitized listing of performance ratings without names or personal identifiers, the award is contrary to the Privacy Act. Both the Authority and the courts have recognized the strong privacy interests of employees in personally identified performance ratings. See Department of Health and Human Services, Region IV, Health Care Financing Administration, FLRA No. 60 (1986); U.S. Equal Employment Opportunity Commission, Washington, D.C., 20 FLRA 357 (1985); Bureau of Alcohol, Tobacco and Firearms, National Office. Washington, D.C., 18 FLRA 611 (1985); Celmins, 457 F. Supp. 13. See also American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Missile Command, U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, U.S. Army Information Systems Command - Redstone Arsenal Commissary, 27 FLRA No. 14 (1987) (Provision 3). The Authority generally has permitted disclosure and release of performance ratings only when they have been sanitized of names and personal identifiers, see id., and specifically has permitted the release of a name-identified performance rating only after noting that the rating of the individual employee involved would not contain any stigmatizing information, Internal Revenue Service, Washington, D.C., 25 FLRA No. 13 (1987). In contrast to name-identified recipients of incentive awards, disclosure of personally or name-identified performance ratings of all unit employees may in fact contain stigmatizing information.

We find that the interests of the Union as the exclusive representative do not outweigh the invasion of the personal privacy of unit employees which would result if their performance ratings were released in an unsanitized form. See Celmins, 457 F. Supp. at 17. Thus, on balance, we find that release and disclosure of personally or name-identified performance ratings of all unit employees, which we view to be required under the provision as presently worded, constitutes a clearly unwarranted invasion of personal privacy. As a result, by providing for a blanket disclosure of performance ratings granted unit employees, Article 9, Section 2 is deficient because it makes no allowances for instances where disclosure is contrary to the Privacy Act. See Overseas Education Association and Department of Defense Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 4), petition for review filed sub nom. Overseas Education Association v. FLRA, No. 86-1491 (D.C. Cir. Sept. 3, 1986). As with Article 16, Section 4, we will not modify the award. Again, we leave to the parties the task of rewording this provision to make it consistent with the Privacy Act.  

VIII. Decision

For the reasons stated above, the award is modified as follows:

A. Article 14, Section 2C, the three disputed sentences of Article 16, Section 2, Article 16, Section 4, Article 33, Section 3, and Article 61 are struck from the award. With respect to Article 61, we order that the parties return to the bargaining table with a sincere resolve to reach agreement to the extent consistent with the Statute on the issue of teacher certification.

B. The disputed portion of Article 45, Section I is struck from the award such that Article 45, Section 1 provides as follows:

Summer employment shall be open to all currently employed unit employees.

C. The portion of Article 9, Section 2 relating to performance ratings is struck from the award such that Article 9, Section 2 provides as follows:

Upon request, the Employer at the school level shall provide a listing to the Association of all formal incentive awards granted employees during the school year.

Issued, Washington, D.C., September 4, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY  

APPENDIX

Article 61 - Certification and Recertification

Section 1.

The Employer shall determine the requirements for certification and recertification for all full and part-time unit employees.

Section 2.

All unit employees are required to be certified initially for a 6-year period and recertified for each successive 6-year period of employment with the DODDS in accordance with the requirements established by the Employer (DS Regulation 5000.9, currently undated.)

Section 3.

Certification Review Board: A Board whose five members are appointed by the Director, DODDS to review and make recommendations on appeals received from educators regarding the rulings of certification staff. The members of the Board will serve a one-year term and meet at the call of the Director. The Chief of the Certification and Recertification Section will serve as a non-voting member.

Certification: Certification is a process that verifies that an individual has satisfactorily completed specified requirements for a given certificate.

Recertification: Recertification is the periodic renewal of the certification process.

Section 4.

The Employer shall ensure that all unit employees are in possession of a current, valid certificate; initiate appropriate corrective action when unit employees fail to meet Certification and Recertification requirements; upon request, assist any unit employee in reviewing and evaluating recertification credentials; and ensure that appropriate guidance, assistance, and counseling are provided to all unit employees regarding the requirements of the regulation.

Each unit employee shall be responsible for maintaining a valid Department of Defense Dependents Schools certificate, earning the required recertification units, presenting documentary evidence of completion of the required renewal units, and providing copies of official college/university transcripts. 

Section 5.

Those certified unit employees employed by DODDS on June 14, 1985, shall meet the requirements set forth in the applicable regulation and this Article when their current certificates expire. Until their current certificate expires, all provisions of DS Regulation 5000.9, dated December 19, 1979, "DODDS Certification and Recertification Program," remain in effect only for that group of unit employees.

Those unit employees hired on or after June 15, 1985, and those current unit employees applying for certification in a new skill on or after June 15, 1985, shall meet the requirements set forth in the applicable regulation and this Article.

For initial certification, unit employees must meet the qualification standards published by the Employer for the school year in which they are hired or in which a request for certification is received.

For recertification, unit employees must satisfactorily complete six (6) semester hours of graduate-level course work at an accredited educational institution in areas related to the current teaching assignment. If a unit employee is teaching more than one subject area, the course work shall be divided between or among the subject areas for a total of at least six (6) semester hours. To encourage the development of skills and training in other academic subjects or grade levels taught within the school system, three (3) of the six (6) semester hours of credit may be earned in a new subject area or grade level which will qualify for a position category within DODDS. The unit employee must also meet the qualification requirements as published by DODDS for any one of the last three school years of the certification period.

Section 6.

Requested reassignments to new positions are possible with a valid teaching certificate for the new positions and with evidence that the current qualifications as published by DODDS for the pertinent school year have been met. A unit employee may apply for reassignment to a new position if the unit employee does not currently hold a teaching certificate, but meets the qualifications as published by DODDS for the pertinent school year. Upon acceptance of the position offer, a unit employee shall apply for the certificate. 

FOOTNOTES

Footnote 1 The Agency's exceptions pertaining to provisions concerning official time were withdrawn. The Agency head also disapproved these provisions under section 7114 (c) of the Statute over which the Union filed a negotiability appeal with the Authority. That petition for review was dismissed in 28 FLRA No. 115 (1987).

Footnote 2 Insofar as the Union's proposals pertain to qualification standards and selective factors for Agency positions, the parties should refer to, for example, National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565, 568 (1983). Insofar as the Union's proposals pertain to employee training assignments, the parties should refer to, for example, 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) (Proposals 19, 20, and 30).

Footnote 3 In view of this decision, it is not necessary to address the Agency's contention concerning section 7106(b)(1).

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