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29 FLRA NO. 61

OVERSEAS EDUCATION
ASSOCIATION, INC.

                   Union

          and

DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS

                   Agency

Case No. 0-NG-950

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of 67 proposals. 1

For the reasons which follow, we find Proposals 1, 2, 3, 4, 5, 10, 14, 15, 17, 32, 33, 34, Proposal 36 in part, Proposals 38, 42, 43, Proposal 44 in part, Proposals 45, 46, Proposal 47 in part, Proposals 48, 49, 50, 54, 56, 57, 62, 63, 64, and Proposal 67 in part to be negotiable. We also find Proposals 6, 7, 9, 12, 13, 16, 18, 19, 20, Proposal 36 in part, Proposals 37, 39, 40, 41, Proposal 44 in part, Proposal 47 in part, Proposals 51, 52, 53, 58, 59, 60, 61, 65, 66 and Proposal 67 in part to be nonnegotiable. 

II. Background

In its Statement of Position, the Agency withdrew its negotiability allegations as to Article 9, Section 4 (except for Section 4.h), Article 16, Section 9, Article 20, Section 2, Article 21, Section 1(c), Article 25, Section 6, Article 27, Section 3, Article 32, Sections 2, 3, 4, 5 and 7, Article 38, Section 3, Article 45, Sections 1 and 2, Article 58, Sections 1 and 2, Article 61, Sections 7 and 12, Article 73, Section 2, and Article 79, Section 4. In its Reply Brief, the Union withdraw from consideration Article 26, Section 5, Article 27, Section 4, Article 29, Section 2, Article 35, Sections 21 and 23, Article 37, Section 2, Article 42, Sections 1, 2, and 3, Article 48, Section 1, 3, 4(a), 4(g) and 9, Article 50, Section 2(b), Article 60, Section 1, Article 61, Section 11, Article 62, Sections 1 and 3, Article 63, Section 4, Article 71, Sections 3(a) and 3(b), and Article 79, Section 1. Thus, these matters will not be considered further.

III. Proposal 1

Article 9 - Association/ODE Cooperation, 4 (A-H) -Joint Association - Employer Committees (JAEC)/ Consultations.

H. All meetings shall be held on official time during the instructional day and attendance shall be on official time with travel and per diem when appropriate.

A. Positions of the Parties

The Agency alleges that payment of travel expenses is not a condition of employment under section 7103(a)(14)(C) of the Statute and is not subject to bargaining. The Agency also relies on a decision of the Comptroller General, 46 Comp. Gen. 21 (1966), authorizing payment of travel and per diem expenses to employee representatives when the agency head has certified that the travel would be in the "primary interest of the Government." The general rule, according to the Agency, would be to deny such payments. This certification, it is argued, must be made by the agency head and the decision-making cannot be shared. 

The Union states that the intent of the proposal is that when regional and intermediate level JAEC meetings are held away from the unit employee's worksite, the Association's (Union's) representatives will be entitled to travel and per diem in accordance with Federal Travel Regulations (FTRs).

The Union argues that by agreeing to the proposal, the Agency would be making the determination that payments for travel at meetings scheduled away from the employee representative worksite serve the Agency's interest. The Union further argues that the Agency could exercise its discretion to make travel and per diem payments through collective bargaining and, based on Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) (BATF), that unions may negotiate for such payments in the Federal sector.

B. Analysis and Conclusions

In National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), petition for review filed sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, No. 86-1198 (D.C. Cir. Mar. 27, 1986), issued following the decision in BATF, the Authority rejected the argument that a proposal relating to travel and per diem for employee union representatives did not concern conditions of employment of bargaining unit employees. For the reasons expressed in that decision, we find that the proposal here concerns a condition of employment of unit employees.

In Customs, the Authority also found that the payment of travel and per diem expenses was not inconsistent with Federal law and Government-wide rules and regulations. Thus, under the Travel Expense Act, 5 U.S.C. 5701-5709, and the FTRs, 41 C.F.R. Parts 101-07, as interpreted by the Comptroller General, 46 Comp. Gen. 21, the decision cited in support of the Agency's position here, agencies have discretion to make determinations that travel in the context of union activity is sufficiently within the interest of the Government so as to constitute official business. Once such a determination is made, proper travel and per diem expenses may be paid from agency funds. There is no requirement that the determination must be made only by management or the agency head. See also National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 25 FLRA No. 90 (1987), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 87-1166 (D.C. Cir. Apr. 15, 1987). 

Also, the Authority has consistently held that in the absence of a showing to the contrary, proposals providing for the payment of travel and per diem expenses for union representatives would not prevent management from making individual case-by-case determinations as to the propriety under the FTRs of authorizing particular payments. National Labor Relations Board Union and National Labor Relations Board, 22 FLRA No. 55 (1986), petition for review filed sub nom. National Labor Relations Board v. FLRA, No. 86-1504 (D.C. Cir., Sept. 8, 1986). Compare National Association of Agricultural Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, 22 FLRA No. 45 (1986) (Proposal 2) (Authority unable to conclude based on the record in the case that the provision would allow for compliance with law and regulation). Based on the record here and noting the Union's intent that travel and per diem payments be made in accordance with the FTRs, nothing in the proposal would prevent the Agency from complying with the requirements of law and regulations.

Based on the foregoing analysis, and for the reasons more fully explained in Customs, we find Proposal 1 to be within the duty to bargain.

IV. Proposal 2

Article 10 - Negotiations over Proposed Changes in working conditions or Policies.

Section 2. The Association is entitled to at least (3) three representatives to negotiate over any proposed changes or their impact and implementation. Negotiations shall be held at mutually agreed upon convenient locations.

All negotiations over proposed changes in personnel policies, practices and working conditions shall be held when the Association representatives are otherwise in duty time during the instructional day and negotiators designated by the Association shall be entitled to travel and per diem in addition to official time provided by law for negotiations and impasse proceedings. Association representatives shall be entitled to two days of official time to prepare for each day of negotiations or impasse proceedings. 

A. Positions of the Parties

The Agency notes that the proposal does not require that officials designated to represent the Union travel away from their normal job sites in order to obtain travel and per diem payments. According to the Agency, the proposal conflicts with the FTRs and the Joint Travel Regulations, an Agency regulation for which a compelling need exists. The Agency cites specifically only to 5 U.S.C. 5702 which provides that a Federal employee "traveling on official business away from his designated post of duty . . . is entitled to . . . a per diem allowance" in support of its position. The Agency also reiterates its arguments regarding Proposal 1.

In response, the Union claims that its intent is not to entitle Union representatives to per diem unless they actually travel away from their designated posts of duty. The Union argues that the proposal would not result in an entitlement in contravention of the FTRs if the union representatives were negotiating at their posts of duty. Finally, the Union makes the same arguments as to the negotiability of this proposal as it did with Proposal 1.

B. Analysis and Conclusions

For the reasons set forth with respect to Proposal 1, we find that Proposal 2 is within the Agency's duty to bargain. We note, contrary to the Agency's position, the Union's stated intent that the proposal is not designed to contravene the FTRs and will not apply unless the Union representatives are traveling away from their designated posts of duty.

We also find that the Agency's argument that the proposal is inconsistent with an agency regulation for which a compelling need exists cannot be sustained. In order to establish that a proposal is nonnegotiable on the basis of compelling need, an agency must: (1) identify a specific agency-wide regulation; (2) show that there is a conflict between the regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need with reference to the Authority's illustrative standards set forth in section 2424.11 of the Authority's Rules and Regulations (5 CFR 2424.11). Generalized and conclusionary reasoning does not support a finding of compelling need. See, for  example, National Association of Government Employees, Local R14-32 and Department of the Army, Fort Leonard Wood, Missouri, 26 FLRA No. 73 (1987); American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 7). Here, the Agency has failed to establish that a conflict exists between its regulation and the proposal and has not argued that a compelling need exists for its regulation under any of the Authority's illustrative standards. See also American Federation of Government Employees, AFL - CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania, 2 FLRA 451 (1980). Therefore, Proposal 2 is within the duty to bargain.

V. Proposal 3

Article 10 - Negotiations over Proposed Changes in Working Conditions or Policies.

Section 3. The proposed change(s) shall not be implemented during bargaining, during impasse if a party has invoked impasse resolution procedures, or pending the decision of a negotiability appeal unless a compelling need exists.

A. Positions of the Parties

The Agency claims that the proposal is outside the duty to bargain because it would cause unreasonable delay in implementing matters which are not conditions of employment or which relate to the exercise of management's rights. The Agency argues that this proposal is different from one found negotiable in American Federation of Government Employees, AFL - CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004, 1015-16 (1982). The Agency also claims that the proposal would have the same effect as a proposal found to be outside the duty to bargain in National Association of Government Employees, Local R14-89 and Headquarters, U.S. Army Air Defense Center and Fort Bliss, Texas, 9 FLRA 1033 (1982) (Proposal 1). Finally, the Agency argues that the proposal is inconsistent with the decision in United States Department of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984). 

The Union argues that the proposal is identical in all respects to proposals found negotiable in U.S. Marshals Service and American Federation of Government Employees. AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 603, 623 (1980), enf'd sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). The Union also claims that the Fifth Circuit's decision does not apply to this proposal. Finally, the Union notes that use of the term "compelling need" in the proposal is intended to mean overriding exigency.

B. Analysis and Conclusion

Contrary to the Agency's position, we find that the proposal is within the duty to bargain.

We will first address that part of the proposal which requires that changes not be implemented during impasse if a party has invoked impasse resolution procedures, unless a compelling need exists. In Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466 (1985), the Authority determined that the purposes and policies of the Statute would be effectuated by requiring parties to maintain the status quo to the maximum extent possible after an impasse in negotiations has been reached and the services of the Federal Service Impasses Panel have been invoked in a timely fashion. Such a policy fosters stability in Federal labor-management relations. At the same time, however, the Authority recognized that an agency should be free to make certain changes where those changes are consistent with the necessary functioning of the agency.

The proposal here is consistent with the decision in Department of the Treasury. Therefore, based on the considerations in Department of the Treasury, this part of the proposal is within the duty to bargain. In reaching this conclusion, we find that use of the term compelling need and the Union's explanation as to its meaning are to the same effect as the standard enunciated in Department of the Treasury regarding how certain changes can be made.

We now address the other portions of the proposal which require that changes not be implemented during bargaining or pending the decision of a negotiability appeal unless a compelling need exists. 

In the U.S. Marshals service case, the proposal required management to "keep everything as it is until the collective bargaining and negotiations are completed, finalized and signed, unless there is a dying emergency(.)" 9 FLRA at 1015. The proposal was determined to be a negotiable procedure under section 7106(b)(2), relying, in part, on the earlier decision in the Wright - Patterson case. In Wright - Patterson, the Authority determined that a proposal which required the Agency to hold proposed mid-term changes in conditions of employment in abeyance until completion of possible impasse procedures, except in circumstances involving "overriding exigency" or "unreasonable delay" was a negotiable procedure.

The Agency attempts to distinguish the proposal here from the proposal in U.S. Marshals Service on the basis that the proposal there did not require that proposed changes be held in abeyance during the pendency of a negotiability determination. The Agency claims that the proposal would tie up changes even though the negotiability determination could result in a finding that the proposed matter does not concern a condition of employment or is otherwise nonnegotiable.

This distinction lacks merit. The proposal here is simply a procedure concerning the implementation of changes pending completion of bargaining, which would include resolution of negotiability appeals. While ultimately it may be determined that the Agency has no bargaining obligation with respect to a particular matter, the proposal would not prevent the Agency from implementing changes once a determination is made that the Agency has no bargaining obligation. See also Overseas Education Association and Department of Defense Dependents Schools, 28 FLRA No. 119 (1987) (Proposal 4), in which a majority of the Authority found that a proposal, which required management to hold in abeyance a regulation until impact and implementation negotiations were completed, did not prevent management from acting at all with respect to its statutory rights, but was merely a negotiable procedure which delayed the exercise of such rights. 2

Finally, we find without merit the Agency's arguments based on the Fifth Circuit's decision in United States Department of Justice v. FLRA and the Authority's decision in U.S. Army Air Defense Center that the proposal would improperly prevent the Agency from exercising its rights under section  7106(a) of the Statute. The proposal here is not designed to prevent the Agency from making changes in section 7106(a) matters. As the Union stated, the proposal is applicable only to proposed changes in personnel policies, practices and working conditions that are within the scope of bargaining. Reply Brief at Article 10.

Based on the foregoing analysis, we find that this proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute and is within the duty to bargain.

VI. Proposal 4

Article 11 - Supplemental Agreements:

Section 4. The Association shall be entitled to at least (3) three representatives to negotiate supplemental agreements. Said representatives shall be authorized official time, with travel and per diem when appropriate, for such purposes during the time the representatives would otherwise be in a duty status. Official time shall be granted for preparation for impasse proceedings in an amount ODA/DODDS and the Association agree to be reasonable, necessary, and in the public interest. Negotiations shall be held at mutually determined times, when employees would otherwise be in duty status, and at mutually agreed upon convenient locations.

A. Positions of the Parties

Both the Agency and the Union rely on their arguments regarding Proposals 1 and 2.

B. Analysis and Conclusions

As with Proposals 1 and 2, we find that bargaining over the authorization of travel and per diem payments is within the duty to bargain. This proposal additionally authorizes official time for the Union's representatives in the negotiation of supplemental agreements. The Agency has made no specific arguments with respect to the provision of official time. We note that section 7131(a) of the Statute authorizes official time for such negotiations. See Department of the Treasury, Internal Revenue Service, Columbia District, Columbia, South Carolina, 22 FLRA No. 28 (1986), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 86-1467 (D.C. Cir. Aug. 22, 1986). Accordingly, Proposal 4 is within the duty to bargain.

VII. Proposal 5

Article 13 - Grievance Procedure

Section 4.B(1)(c). If the Association wishes to make an oral presentation prior to the formal decision, such request shall be included in the written appeal and shall be granted. If it is mutually determined that the grievant should be present for the oral presentation, then necessary official time with travel and per diem, where appropriate, shall be granted to the grievant, including time for preparation and presentation. When a request for an oral presentation has been made, the Employer shall promptly arrange for a meeting at a mutually agreeable time and place, but no later than (5) five duty days following the date of the request. If agreement is not reached as to the meeting location, then it shall be held at the worksite of the employee.

Section 6(C). All participants, including witnesses, in the hearing shall be in a duty status and, in the event the hearing is not held at the site within commuting distance, participants, including witnesses,, shall be provided transportion in accordance with applicable travel regulations. A reasonable amount of preparation time shall be granted to all participants.

A. Positions of the Parties

The Agency objects to both sections of the proposal, to the extent they provide for the payment of travel and per diem expenses, for the reasons previously set forth with regard to Proposals 1-4. In response, the Union cites to its earlier position as to the negotiability of travel and per diem payments.

The Union claims that Section 4.B(1)(c) is designed to provide an opportunity for it to make an oral presentation to certain Agency officials before a decision is made on formal grievances. The intent of Section 6(C), as originally expressed by the Union, is to provide all unit employee  participants and witnesses with Government supplied transportation to and per diem for arbitration hearings that are not held within the employees' commuting areas. The proposal is not intended to apply to participants and witnesses who are not in the bargaining unit.

B. Analysis and Conclusions

As with Proposals 1, 2 and 4, we find Proposal 5 to be within the duty to bargain. 3 See also U.S. Department of Agriculture (Proposal 2), slip op. at 4; National Joint Council of Food Inspection Locals, AFGE, AFL - CIO and Food Safety and Inspection Service, U.S. Department of Agriculture, 23 FLRA No. 3 (1986) (Provision 6), petition for review filed sub nom. Department of Agriculture, Food Safety and Inspection Service v. FLRA, No. 86-1476 (D.C. Cir. Aug. 25, 1986) (wherein the Authority found negotiable proposals that authorized payment of travel and per diem expenses for representatives, witnesses and/or participants at arbitration hearings); Department of Defense Dependents Schools and Overseas Education Association, 21 FLRA No. 125 (1986).

VIII. Proposal 6

Article 16 - Performance Appraisal System 4

Section 5(B). In evaluating a unit employee, the supervisor 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 unit employees. Performance standards shall not include activities that do not relate to performance of normal instructional duties. All monitoring or observation of the work performance of a unit employee shall be conducted openly and with full knowledge of the employee. The use of eavesdropping, public address, or audio system or similar surveillance devices for monitoring or observing, is a prohibited practice. Any performance appraisal rating of a unit employee shall be prepared only on the basis of direct observation by the supervisor. Any derogatory or negative information which a supervisor intends to use against a unit employee shall be called to the attention of the employee at the time the supervisor becomes aware of such information. The unit employee shall be afforded the opportunity to answer or rebut such complaint.

A. Positions of the Parties

The Agency argues that the proposal conflicts with management's rights to assign and direct employees under section 7106(a)(2)(A) and (B) of the Statute in a variety of ways. The Union, on the other hand, argues that the proposal would merely guarantee that fair and objective procedures be utilized in the exercise of management's rights.

B. Analysis and Conclusions

The first underscored sentence of the proposal would prohibit the Agency from using student test results as a factor in evaluating the performance of unit employees. Therefore, the proposal is similar to ones found by the Authority to be outside the duty to bargain 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) (Proposals 2 and 3). In that case, the Authority determined that proposals which would have effectively prohibited management from considering enrollment statistics in evaluating an instructor's performance were inconsistent with section 7106(a)(2)(A) and (B). The proposals would have required management to bargain over the identification of critical elements and the content of performance standards. The same result must be reached here since this sentence would require bargaining over the content of performance standards.

According to the Union, the other disputed sentences of the proposal are to the same effect as the proposals found negotiable in American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981) (Proposals 4-6) and American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Missile Command, Redstone Arsenal, Alabama, 7 FLRA 794 (1982) (Proposal 2). In those cases, the Authority found that proposals which, in part, required that "studies" related to performance appraisals not be secret were negotiable procedures under section 7106(b)(2) of the Statute. See also American Federation of Government Employees, AFL - CIO, General Committee of AFGE for SSA Locals and Social Security Administration, 23 FLRA No. 43 (1988) (Proposal 3), petition for review filed sub nom. FLRA v. Social Security Administration, No. 87-1118 (D.C. Cir. March 9, 1987), in which that holding was reaffirmed.

In our view, these sentences of the proposal are nonnegotiable since they would interfere with management's rights to assign and direct employees under section 7106(a)(2)(A) and (B) of the Statute. The effect of these disputed sentences is not an attempt to guard against the use of secret studies, as claimed by the Union, but instead is an attempt to specifically prohibit the use of various techniques to evaluate employee performance. As part of its evaluation process, management has the right to determine the methods it deems most appropriate to conduct the evaluation. See, for example, American Federation of Government Employees, AFL - CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 25 FLRA No. 2 (1987) (Proposal 1C). Because the proposal would place substantive limitations on the Agency's determinations in this regard, the proposal is outside the duty to bargain.

IX. Proposal 7

Article 17 - Not to Exceed Employees (NTE):

Section 2. NTE's shall become entitled to a transportation agreement when said appointment or services equate to the tour of duty of other unit employees assigned to the same work site.

A. Positions of the Parties

The Agency contends that this proposal is nonnegotiable for two reasons. First, the Agency argues that the proposal conflicts with 5 U.S.C. 5722 and 5728 which provide for payment of travel and transportation expenses and vacation leave travel for Federal employees overseas to and from the place of actual residence at the time of appointment. Second, the Agency asserts that the proposal does not have a direct  relationship to the working conditions of NTEs and relates to employees in a nonwork status. NTEs, the Agency points out, are hired in an overseas area and their place of actual residence is the location where they were appointed.

The Union contends that the proposal concerns a working condition because the Agency regularly negotiates transportation agreements with its employees in consideration for their services. Regarding the statutory language, the Union argues that NTEs have a "home of record" in the United States although they have been hired while temporarily overseas. If they do not have an actual place of residence away from the duty post, the Union states that this proposal would not apply.

B. Analysis

Transportation agreements are negotiated between two agencies and certain Federal employees assigned to overseas posts under statute, 5 U.S.C. 5721 through 5734. The FTRs, which are Government-wide regulations, implement these statutory provisions. Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA No. 71, slip op. at 14 (1987), petition for review filed sub nom. Overseas Education Association v. FLRA, No. 87-1279 (D.C. Cir. June 25, 1987). Under initial transportation agreements, the Agency pays the travel and transportation expenses for eligible new appointees and their immediate families and for household goods to and from overseas duty posts. In return, these employees must agree to serve the minimum tour required at their assigned posts.

Transportation agreements include renewal agreement travel (RAT) which allows eligible employees to receive allowances for round trip transportation for themselves and their dependents for vacation leave between tours of duty overseas. The proposal mandates that all NTEs automatically become eligible for transportation agreements, including RAT, upon completion of the tour of duty required at their posts. In Office of Dependents Schools, 27 FLRA No. 71, slip op. at 46 (Proposal 36), we analyzed a similar proposal. Proposal 36 in that case entitled a bargaining unit employee to a transportation agreement when their sponsoring spouse retired, resigned or otherwise left the employment or service of the United States. We found that under the FTRs, a local hire whose presence overseas was a consequence of marriage to, for  example, an employee of the Foreign Service, a member of the uniformed services, or a private individual was not eligible for RAT. Since Proposal 36 entitled local hires, among others, to RAT, we found that it inconsistent with the FTRs and outside the duty to bargain.

In this case, the proposal mandates that all NTE employees, including local hires, qualify for transportation agreements upon completion of the appropriate tour of duty. Thus, the proposal would entitle local hires to RAT in clear contradiction to the FTRs. See FTRs, FPMR 101-7, 2-1.5h(3)(b) (Sept. 8, 1982). Therefore, we hold, based on the reasoning in Department of Defense, Office of Dependents Schools, that this proposal is nonnegotiable. In view of our finding that this proposal conflicts with a Government-wide regulation and is outside the duty to bargain, it is unnecessary to consider the Agency's additional contentions.

X. Proposal 8

The Authority Members have expressed different views on Proposal 8. The decision and order on Proposal 8 and the separate opinion of Chairman Calhoun follow this decision.

XI. Proposal 9

Article 18 - Absence of Unit Employees and Coverage of Duties

Section 2. In an effort to minimize the impact on working conditions of the unit employees who are absent, each school Principal shall make an effort to locate/recruit a sufficient number of substitutes. When a unit employee must be absent frequently or for a prolonged period of time, the Principal shall make an effort to use the same substitute to replace that unit employee. The Principal shall make an effort to assign a qualified substitute, if available, for the grade or subject matter.

A. Positions of the Parties

The Agency argues that the major impact of this proposal is on substitute teachers and not on the absent teacher. According to the Agency, the recruitment and selection of substitute teachers are not directly related to conditions of  employment for bargaining unit employees. The Agency claims that this proposal deals mainly with the conditions of employment of substitute teachers who are not in the bargaining unit. Thus, the Agency claims that there is no duty to bargain since the proposal concerns nonbargaining unit employees.

The Union states that the intent of this proposal is to require each principal to make efforts to recruit a reserve of nonunit employees who could be called when needed to act as substitutes. Also, this proposal is intended to minimize the impact of the additional workload of unit employees when they return from an absence. It also would require principals to make an effort to replace absent unit employees with qualified substitutes.

B. Analysis and Conclusion

In Panama Canal Federation of Teachers, Local 29 and Department of Defense Dependents Schools, Panama Region, 19 FLRA 814 (1980) (Proposal 3), the Authority found that Proposal 3 which required that a particular nonbargaining unit employee perform a specified duty was outside the duty to bargain. Specifically, Proposal 3 required that "Principals" and "Regional Directors" perform certain duties. The Authority found that the proposal interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute and was thus outside the duty to bargain.

Likewise, in this case, Proposal 9 requires school principals to perform certain specified tasks. Accordingly, based on Department of Defense Dependents Schools, Panama Region, we find Proposal 9 to be outside the duty to bargain.

Further, this proposal requires the Agency to recruit a certain number of teachers to serve as substitutes when regular teachers are absent. This requirement clearly interferes with management's right to determine the numbers, types and grades of employees assigned under section 7106(b)(1) of the Statute. It is well-established that proposals concerning the numbers, types and grades of employees assigned under section 7106(b)(1) of the Statute are only negotiable at the election of the Agency. District 1, Pacific Coast District, marine Engineers Beneficial Association and Panama Canal Commission, 26 FLRA No. 48 (1987), petition for review filed on other matters sub nom.  Panama Canal Commission v. FLRA, No. 87-4395 (5th Cir. May 27, 1987). Thus, since the Agency has elected not to bargain, this proposal is outside the duty to bargain.

In addition, because this proposal requires the agency "to make an effort" to use the same substitute teacher every time a regular teacher is absent, it has the effect of compelling management to assign the same substitute in a particular circumstance. Therefore, this proposal also interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. It is well-established that the right to assign an employee to a position includes the discretion to determine which employees will be assigned. Wright - Patterson Air Force Base, Ohio, 2 FLRA 604, at 613 (1980). Accordingly, a proposal which divests management of its discretion to assign employees is inconsistent with section 7106(a)(2)(A) of the Statute and is nonnegotiable. American Federation of Government Employees, AFL - CIO, Local 3529 and Defense Contract Audit Agency, 3 FLRA 301 (1980).

XII. Proposal 10

Article 20 - Excused Absence 5

Section 1. A supervisor shall excuse a unit employee from duty without loss of pay and without charge to leave when such actions cannot be accomplished outside the duty day for:

A. Packing, unpacking, and customs, or administratively required clearance of household goods prior to shipment or upon receipt of shipment and when the unit employee is required to be present.

B. Movement to new quarters when such movement is directed.

D. Conducting official business of a personal nature with military offices to include, but not limited to drivers' licenses, ID cards, passports, housing, finance, and personnel.  

E. Conducting business with official offices and utility companies of the unit employee's host nation, required because of the teacher's status as a foreigner in the host nation.

A. Positions of the Parties

The Agency argues that Proposal 10 would conflict with its right under section 7106(a)(2) of the Statute to determine when work will be performed. The Agency notes, by way of example, that if an employee were to be directed to vacate his or her quarters by a private landlord in the host nation, the Agency would be compelled to excuse the employee for an unlimited time to be chosen by the employee.

In response, the Union claims that the proposal is similar to one found negotiable by the Authority in National Labor Relations Board, Region 5 and National Labor Relations Board Union, Local 5, 2 FLRA 328 (1979). Like that proposal, the Union states that the proposal here permits unit employees to be excused from work for brief, occasional periods without loss of pay or charge to leave when certain actions incident to the employees' employment overseas cannot be accomplished outside of the duty day, and thus, are unavoidable. Union Reply brief at Article 20. The Union also argues that the proposal would not conflict with management's right to determine when to assign work because the proposal would apply only when the absence is unavoidable and because the Agency would still be able to make certain determinations as to when employees would be excused.

B. Analysis and Conclusion

In our view, the proposal does not conflict with the Agency's right under section 7106(a)(2)(A) of the Statute to determine when work will be performed. According to the Union, this proposal is designed to permit excused absences for brief, occasional periods without loss of pay or charge to leave when various activities that are incidental to the employees' overseas employment cannot be accomplished outside the duty day. Where the activities could be accomplished at one of several times or on one of several days, the Agency would be able to determine when, among those times, it would be advantageous to the Agency to excuse the employees, and the Agency could deny requests for leave at particular times.  

Therefore, and as the Agency has not argued any other basis in law, rule or regulation to find the proposal nonnegotiable, we find that Proposal 10 is within the duty to bargain. In other cases where proposals have concerned excused absences or the use of administrative leave, the Authority has addressed the applicability of the section of the Federal Personnel Manual (FPM) which allows agencies to excuse employees from duty without charge to leave. FPM Supplement 990-2, Book 630, subchapter S11-5. See Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 15); Long Beach Naval Shipyard, Long Beach, California and International Federation of Professional and Technical Engineers, Local 174, AFL - CIO and American Federation of Government Employees, Local 2237, AFL - CIO and Federal Employees Metal Trades Council, Long Beach, California, 7 FLRA 362 (1981); National Labor Relations Board, Region 5, 2 FLRA 328. Here, there is no need to address that section of the FPM, because the employees involved are specifically excluded from coverage. See FPM Supplement 990-2, Book 630, subchapter S2-1(d)(ix).

XIII. Proposal 11

The Authority Members have expressed different views on Proposal 11. The decision and order on Proposal 11 and the separate opinion of Chairman Calhoun follow this decision.

XIV. Proposal 12

Article 26 - Community Environment

Section 4. When briefings for unit employees are held during the instructional day, unit employees shall be authorized release time to attend. In the event of an emergency which would require evacuation of the unit employees from the foreign country, the Employer shall attempt to continually inform unit employees of an anticipated evacuation and the procedures to follow.

A. Positions of the Parties

The Agency argues that the first sentence of this proposal requires the release from duty of all unit employees who decide to attend briefings regardless of whether attendance has been directed by management. According to the  Agency, the disputed sentence also leaves management no discretion to determine when employees would attend briefings. Thus, the Agency argues that the first sentence violates management's rights to assign work under section 7106(a) of the Statute.

The Union claims that the first sentence of this proposal is intended to preclude employees from being charged leave to attend briefings. The Union argues that this sentence is negotiable because agencies have the discretion to charge leave or to excuse an employee's absence without loss of pay.

B. Analysis and Conclusions

The right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine what particular duties will be assigned, when work assignments will occur and to whom or to what positions duties will be assigned. National Association of Government Employees, Local R1-109, AFL - CIO and Veterans Administration Medical Center, Newington, Connecticut, 26 FLRA No. 63 (1987) (Proposal 1). Thus, management has the right to determine who will attend these briefings and when they will attend. In contrast, the first sentence of Section 4 permits unit employees to decide when to attend these briefings. Proposal 12 removes management's discretion to determine who will attend and when they will attend briefings. Consequently, we find the disputed first sentence of Section 4 outside the duty to bargain because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

XV. Proposal 13

Article 27 - School Facilities

Section 1. The Employer shall make every reasonable effort to obtain, for the use of unit employees, the equipment, facilities, and supplies which are necessary to the education process.

A. Positions of the Parties

The Agency contends that to the extent that this proposal would require it to obtain materials requested by employees the proposal is not negotiable. The Agency asserts that the proposal would interfere with its right under  section 7106(b)(1) to determine the methods and means and the technology of performing its work. It asserts that the proposal is similar to a proposal found nonnegotiable in National Federation of Federal Employees and Social Security Administration, 13 FLRA 422 (1983), which would have required the issuance of handheld calculators with memory and percentage functions. The Agency contends that the Union's proposal here is inconsistent with management's rights under section 7106(b) of the Statute.

The Union asserts that its proposal is only intended to provide a general, nonquantitative, contractual standard by which the Agency's exercise of its reserved authority can be evaluated, and that its proposal is identical to one held negotiable in National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981). The Union also argues that the case relied upon by the Agency, Social Security Administration, 13 FLRA 422 (1983), is inapposite because the union's proposal in that case absolutely mandated that a particular kind of equipment be provided to employees.

B. Analysis and Conclusion

The Union's proposal is so broad that we find that its implementation would interfere with the Agency's right to determine the technology, methods, and means of performing its work pursuant to section 7106(b)(1) of the Statute. The proposal, therefore, is negotiable at the Agency's election.

In American Federation of State, County and Municipal Employees, AFL - CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578 (1982), enforced as to other matters sub nom. Library of Congress v. Federal Labor Relations Authority, 99 F.2d 1280 (D.C. Cir. 1983), the Authority held that a broadly drafted proposal, using generic terms, which would require negotiations over all equipment and facilities, including those which constitute part of the technical method used by the agency for accomplishing or furthering the performance of its work was negotiable only at the election of the agency under section 7106(b)(1) of the Statute.

Further, in Department of Defense Dependents Schools, Panama Region, 19 FLRA 814 (1985), the Authority found that proposals which would have subjected the selection of textbooks and teaching materials to the decision of committees which included classroom teachers, or which would have  restricted management's purchase and use of books and teaching materials to those materials selected by the teachers, concerned the "technology, methods, and means of performing work" within the meaning of section 7106(b)(1) of the Statute and, hence, were negotiable only at the election of the agency. In that connection, the Authority noted that curriculum and textbooks are tools used in the furtherance of the agency's mission, which is the education of the children of military personnel.

Although this proposal only requires management to "make every reasonable effort" to obtain what is "necessary," the addition of such qualifying language does not remove the limitation imposed on management's exercise of its right to determine the technology of performing work. Rather, this proposal would have the effect of subjecting management's decisions as to what technology is "necessary" and what efforts are "reasonable" in order to obtain the technology to review in an arbitration proceeding. It would permit arbitrators to substitute their judgment for that of management as to what technology is "necessary" and what efforts must be made to obtain that technology. See National Union of Hospital and Health Care Employees, AFL - CIO, District 1199 and Veterans Administration Medical Center, Dayton, Ohio, 28 FLRA No. 65 (1987) (Proposal 1) and the cases cited therein.

We conclude that the Union's reliance on Department of Transportation, Federal Aviation Administration to support its contention that its proposal would merely subject management's determination as to what materials are necessary for the educational process to a general, nonquantitative, contractual standard is misplaced. The proposal in this case compels management to obtain the equipment, facilities, and supplies which are necessary to the education process. The standard of "every reasonable effort" to obtain what is "necessary" is, in reality, a substantive rather than a general nonquantitative standard. Thus, the standard here is materially similar to the standard we found to be outside the duty to bargain as constituting a substantive criterion authorizing the substitution of arbitral judgment for that of management's in VAMC, Dayton, Ohio. We consequently will no longer follow Department of Transportation, Federal Aviation Administration, 6 FLRA 588, 597-98 (1981), relied on by the Union, to the extent it is inconsistent with this decision. 

XVI. Proposal 14

Article 27 - School Facilities

Section 5. Security of classroom facilities and equipment is important to both the Employer and the Association. Accordingly, procedures for improving such security, including the selection of classrooms to be used by non-school organizations, such as university classes, base organizations, and Sunday school classes, may be a subject for JAEC at the school level.

A. Positions of the Parties

The Agency contends that the proposal would limit management's right under section 7106(a)(1) of the Statute to determine the internal security practices of the Agency by requiring that the responsibility be shared with the Union. Further, it contends that the use of classrooms by non-school organizations during nonduty hours is not a condition of employment of bargaining unit employees.

The Union contends that the proposal is designed to make certain security practices a subject of discussion at Joint Association Employer Cooperation (JAEC) meetings held at the school level. The proposal does not seek to negotiate over the Agency's security practices but simply to discuss and make recommendations concerning security in unit employees' classrooms when the rooms are used by non-school organizations after school hours. The Union notes that employees store their personal, professional, and work materials in the classroom.

B. Analysis and Conclusion

We find first that this proposal concerns a condition of employment. In Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23 (1986), the Authority stated that it will consider two basic factors in deciding whether a proposal involves a condition of employment of bargaining unit employees:

1. Whether the matter proposed to be bargained pertains to bargaining unit employees; and

2. The nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees. 

Applying these factors to this case, we find that the proposal pertains to bargaining unit employees and affects their working conditions. The Union notes that employees store personal, professional, and work items in the class-rooms. Clearly, employees have a concern about the security of such items when non-school organizations have access to and use these classrooms.

Having found that the proposal concerns a condition of employment, we must next determine whether the proposal interferes with management's right to determine its internal security practices, as alleged by the Agency. We find that it does not. In Haskell Indian Junior College, 22 FLRA No. 57 (1986), the Authority found that Proposal 8, which required management to take necessary steps to provide for the protection of employees and property located within areas of the campus remaining open for extended periods of time, was negotiable. Under Proposal 8, the Agency had discretion to determine the level of security that would satisfy the contractual standard of "necessary."

In this case, however, the proposal only requires the subject of security to be discussed at JAEC meetings. As determined regarding Proposal 36 in this case, JAECs are vehicles by which the Union can submit its nonbinding views on topics which affect bargaining unit working conditions. Since the Agency is in no manner obligated to adopt any view or recommendation submitted to the JAEC, we find the Agency has not sustained its claim that this proposal violates management's right to determine its internal security practices. Thus, it is negotiable.

XVII. Proposal 15

Article 28 - General Administrative Procedures

Section 4. Unit employees shall not be required to sign in - and/or sign out.

A. Positions of the Parties

The Agency contends that the requirement for teachers to sign in and/or sign out is a means of performing work which is excepted from the bargaining obligation by section 7106(b)(1) of the Statute. It contends that the sign in procedure is the best method for assuring that the children in classrooms are being supervised. In support of its position, the Agency relies on National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255 (1979), where the Authority found that a requirement that Customs' officers wear name tags involved an instrument for performing the agency's mission.

The Agency also contends that the Union's proposal does not represent an appropriate arrangement and, without supporting arguments, that the requirement for a sign in register is a management right to assign work and direct employees under section 7106(a)(2)(A) and (B).

The Union asserts that its proposal has been included in the parties' prior collective bargaining agreements and that there have been no incidents which would warrant its removal. The Union cites Planners, Estimators and Progressmen Association, Local No. 8 and Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 13 FLRA 455 (1983), as supporting its position that a proposal concerning sign in procedures does not interfere with the methods or means of performing work.

B. Analysis and Conclusions

The Agency claims that a sign in/sign out procedure is the best mechanism for insuring that classroom teachers are present in their classrooms and that such a determination constitutes a method and means of performing its work under section 7106(b)(1) of the Statute. In the context of section 7106(b), "means" refers to any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishing or furthering of the performance of its work. U.S. Customs Service, Region VIII, 2 FLRA 255 (1979). "Methods" refers to the way in which an agency performs its work. National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA 270 (1983).

In American Federation of Government Employees, Local 1760 and Department of Health, Education and Welfare, Social Security Administration, Northeastern Program Service Center, Flushing, New York, 8 FLRA 202 (1982), the Authority found that a proposal to require a sign in/sign out register was negotiable because the Agency had not shown how such a procedure would interfere with its right to determine its internal security practices under section 7106(a)(1) or with its right to determine its means of performing work under section 7106(b)(1) of the Statute. In Charleston Naval Shipyard, 13 FLRA 455 (1983), the Authority found that a proposal which allowed employees to record their time manually instead of through the use of a time clock was not inconsistent with the Agency's right to determine methods and means because it did not interfere with the Agency's objective of attaining accurate and reliable time and attendance records.

In this case, the Agency's declared purpose in requiring a sign in/sign out procedure is to insure that classroom teachers are present in their classrooms so that school children are not left unsupervised. The Agency argues, in essence, that a part of its mission is to provide quality education to minor dependents of DOD employees overseas and to prevent injury to the children entrusted to its care. The Agency further argues that alternate means of insuring teacher presence are impractical or inefficient. The Union counters that at least since 1977 the parties have functioned without a sign in/sign out procedure without incident.

Even assuming, as contended by the Agency, that insuring teacher presence constitutes the "methods" or "means" of performing the Agency's work under section 7106(b)(1), the Agency has not established how the proposal would conflict with the Agency's stated objective of choosing such methods or means, that is, the insurance of teacher presence to prevent injury to school children. This proposal does not prevent the Agency from insuring teacher presence but only prevents the Agency from utilizing a sign in/sign out procedure to achieve that purpose. In this respect, the Agency has not shown, and it is not apparent from the record, especially in light of the the Union's argument that such a restriction has been in existence for many years, that the objective of insuring teacher presence can only be achieved by the use of a sign in/sign out procedure.

Therefore, since this proposal is consistent with the Agency's right to determine the "methods" or "means" of performing its work under section 7106(b)(1) of the Statute, it is negotiable. See Charleston Naval Shipyard, 13 FLRA 455.

In addition, we find nothing in this proposal which would prevent the Agency from directing employees or assigning employees the responsibility to account for their presence in the classroom. Rather, this proposal only precludes the  Agency from utilizing a sign in/sign out procedure to achieve that objective. Thus, this proposal does not interfere with management's rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work.

XVIII. Proposal 16

Article 28 - General Administrative Procedures

Section 9. The Employer shall make every reasonable effort to limit the work assignments for unit employees to the confines of a unit employee's duty day.

A. Positions of the Parties

The Agency argues that this proposal violates management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency also claims that this proposal does not constitute a procedure used for assigning work or an appropriate arrangement for employees adversely affected by the assignment of work.

The Union argues that this proposal does not interfere with management's right to assign work because it does not constitute an absolute prohibition for management to assign work. According to the Union, this proposal merely requires that management "make every reasonable effort" to limit work assignments to the normal duty day.

B. Analysis and Conclusions

It is well-settled that management's right to assign work is not limited to work occurring during normal duty hours. See, for example, Fort Knox Teachers Association and Fort Knox Dependent Schools, 19 FLRA 878 (1985) (Proposal 4). Therefore, we find that since this proposal would impose an obligation on the Agency to assign work within normal duty hours, it is outside the duty to bargain.

As we noted in connection with our analysis of Proposal 13, the addition of the phrase "every reasonable effort" does not remove the limitation imposed on management's exercise of its right to assign work. This section has the effect of subjecting management's right to assign work to arbitral review. That is, should a grievance be filed at a later date,  an arbitrator could examine whether management had made "every reasonable effort" to assign work within the duty day and ultimately, upon concluding otherwise, he/she would be permitted to substitute his/her judgment for that of management. See VAMC, Dayton, Ohio, 28 FLRA No. 65 (1987) (Proposal 1). Further, for the reasons stated in our analysis of Proposal 13, we conclude that the Union's reliance on Department of Transportation, Federal Aviation Administration is misplaced. Thus, for the reasons stated above, we find this proposal outside the duty to bargain.

XIX. Proposal 17

Article 30 - Pupils' Grades

A unit employee is free to establish his/her own grading system. However, the employee's record of grades shall contain a key for translating his/her system to the established grading system in use. The integrity of a unit employee's professional responsibility to determine grades for students, including making recommendations for passing or failing, is recognized by the Employer. If the Employer takes action to either change a student's grade without the consent of the affected unit employee, a written statement from the Employer shall be placed in the employee's personnel file at the work site with a copy sent to the employee, stating that the change in grade and/or the passing or failing of the student was done without the consent of the unit employee, and said unit employee shall not be responsible in any way for the changes made or be held liable for any actions arising as a result of said changes.

A. Positions of the Parties

The Agency claims that grades and pass/fail determinations are methods and means of performing work under that section. The Agency states that it has elected not to bargain over the proposal in accordance with section 7106(b)(1) of the Statute. The Agency notes that because students transfer within the school system, the grading system used must be consistent. According to the Agency, allowing employees to establish their own grading systems would make consistency impossible.

The Union argues that its proposal would not prevent the Agency from establishing a uniform, consistent grading system since the proposal would provide for translation of an employee's grading system into the Agency's established system. As to the remainder of the proposal, the Union claims that it is merely a procedure designed to protect employees when management exercises its right to change a student's grade.

B. Analysis and Conclusion

In our view, the proposal is not so integrally and directly related to the methods and means of performing work so as to render the proposal negotiable solely at the election of the Agency. The proposal does not prevent the Agency from using a grading system or from using a consistent system. As explained by the Union, the proposal merely would allow employees to establish their own grading systems for their own use. The Union also indicates that the proposal would obligate the teacher to keep a key to translate his/her grading system into the grading system established by the Agency. We construe the proposal to require the teacher, not the Agency, to translate the particular teacher's grading system to the Agency's. Thus, the proposal conditions the establishment of an employee's grading system on translation into whatever grading system the Agency has established to be used.

Accordingly, since the proposal in no way limits the Agency's ability to determine its methods and means of grading, it is negotiable.

As to the other portion of the proposal concerning changes in students' grades, the Agency has made no arguments to refute the Union's contention that it is a procedure designed to protect employees when management changes a student's grade. The proposal on its face reflects the Union's intent. Therefore, and in the absence of any specific arguments to the contrary, we find this portion of the proposal as to be well within the Agency's duty to bargain. 

XX. Proposal 18

Article 31 - Curriculum Development

Section 1. The Employer will make every reasonable effort to involve unit employees in the development of curriculum changes which have an impact on said unit employees.

Section 2. If curriculum changes are to be accomplished with the involvement of unit employees, then ODE/DODDS shall consider nominees by the Association for representation on the committees at the appropriate levels. The Association shall have the right to select at least one (1) member per committee.

A. Positions of the Parties

The Agency argues that the proposal relates to the methods and means of performing work under section 7106(b)(1) of the Statute concerning which the Agency has elected not to bargain. More particularly, the Agency claims that the curriculum used in its schools is the methods and means by which the Agency's mission of providing a quality education is accomplished. Bargaining over the development of curriculum changes directly and integrally relates to the mission of the Agency.

The Agency also argues that the development of curriculum changes through the use of committees is outside the duty to bargain since it does not concern a condition of employment. Moreover, to the extent that the proposal would allow the Union to select an employee to serve on the committees, the proposal is inconsistent with management's right to assign duties under section 7106(a)(2)(B) of the Statute.

The union originally stated that the intent of the proposal was to provide employee input and recommendations on curriculum development. According to the Union, Section 2 was specifically designed to accomplish this goal by requiring the Agency to consider appointing Union nominees to curriculum committees when the Agency decides to involve unit employees in the decision-making process concerning curriculum changes. The Union argues that the Agency also would be required to apppoint at least one representative selected  by the Union on each curriculum committee on which a unit employee serves. In response to the Agency's statement of position, the Union claims that nothing in the proposal would require the Agency to include employee or union input in determining curriculum. Instead, the Union contends that the proposal would come into effect only after the Agency has decided to involve unit employees in curriculum changes.

The Union further argues that the proposal does not interfere with section 7106(b)(1) of the Statute but that even if it did, the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by the curriculum changes. Finally, the Union claims that without Union participation, the Agency would be unlawfully bypassing the Union in seeking direct employee involvement in curriculum changes and development.

B. Analysis and Conclusions

We find that the proposal concerns a condition of employment but that it is outside the duty to bargain for the reasons set forth below.

1. Proposal Concerns a Condition of Employment

First, we reject the Agency's argument that the proposal does not concern a condition of employment. In Antilles Consolidated School System, 22 FLRA No. 23 (1986), the Authority stated that it will consider two basic factors in deciding whether a proposal involves a condition of employment of bargaining unit employees:

(1) Whether the matter proposed to be bargained pertains to bargaining unit employees; and

(2) The nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees.

Applying the first factor, it is quite clear that the proposal concerns unit employees. It would allow for the participation of unit employees and the Union in the development of curriculum changes which impact on unit employees. Applying the second factor, the proposal has a  direct connection with the working conditions of unit employees. The Agency notes that the curriculum "consists of the courses of study offered, the content of those courses, the instructional objectives and functions, and the materials through which such courses will be taught." Any changes to the curriculum might well have the effect of requiring the employees to teach different or additional courses, to familiarize themselves with new or different subject matters and with new or different instructional materials. Clearly, such changes have an impact on the working conditions of unit employees.

2. Means of Performing Work

While Proposal 18 concerns a condition of employment, we find that it would involve unit employees and the Union in the development of curriculum changes and, therefore, concerns the means of performing work under section 7106(b)(1) of the Statute. As such, the proposal is a matter negotiable solely at the election of the Agency and the Agency has elected not to bargain.

The proposal here is similar to proposals addressed in Department of Defense Dependents Schools, Panama Region, 19 FLRA 814 (1985). In that case, the Authority found that teacher and union participation in the establishment of curriculum and curriculum priorities, pilot programs and the selection of textbooks interfered with the means of performing work. In reaching its conclusion, the Authority noted that curriculum and textbooks constituted the tools used in the furtherance of the agency's mission of providing education for the children of military personnel. In this case also, the development of the curriculum constitutes the means by which the Agency's mission of providing a quality education is performed.

Additionally, it is by now well-established that a proposal seeking union participation in the deliberative process leading to the exercise of reserved management rights under 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 cases cited therein. In VAMC, East Orange, the Authority noted 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." 9 FLRA at 999. Similarly, when an agency elects not to bargain over a section 7106(b)(1) right, the election extends to bargaining over committees that are concerned with deciding and acting on section 7106(b)(1) matters. See Department of Defense Dependents Schools, Panama Region; Fort Knox Teachers Association and Fort Knox Dependent Schools, 22 FLRA No. 88 (1986) (proposal that would have allowed for union participation on committees to make recommendations on textbook adoptions, grade cards, parent conference forms, and other items or programs was found to concern management's right under section 7106(b)(1) of the Statute).

Here, we find that Proposal 18 concerns a section 7106(b)(1) matter and is negotiable solely at the Agency's election. We also find that the proposal does more than the Union asserts; that is, it comes into effect once the Agency determines to involve unit employees. Rather, we conclude the proposal imposes an affirmative obligation on the Agency to "make every reasonable effort to involve unit employees" in curriculum development and then automatically requires the Union's participation in matters that concern section 7106(b)(1) of the Statute.

3. Appropriate Arrangement

The Union argues that even if Proposal 18 concerns a section 7106(b)(1) matter, it would be negotiable as an "appropriate arrangement" under section 7106(b)(3) for employees adversely affected by the exercise of management's right. In National Association of Government Employees. Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), the Authority set out the following factors to be considered in deciding whether a proposal is negotiable under section 7106(b)(3). The threshold question is whether the proposal, in fact, is intended to be an arrangement for employees adversely affected by the exercise of a management right. In order to answer this question, the union must identify the particular management right(s) claimed to produce the alleged adverse effects, the effects or foreseeable effects on employees flowing from the exercise of the management right(s), and how the effects are adverse. Thus, the burden is on the union to articulate how the employees will be affected adversely by management's actions and how the matter proposed for bargaining is intended to address or compensate for the actual or anticipated adverse effects of management's right(s). If we conclude that a proposal is in fact intended as an arrangement, we will then determine  whether the proposed arrangement is appropriate or whether it is inappropriate because it excessively interferes with the exercise of a management right.

In our view, Proposal 18 is not an appropriate arrangement for employees adversely affected by the exercise of management's right to determine the means of performing work. While the Union points to certain adverse effects on employees caused by curriculum changes, such as employees having to be retrained, to take additional course work, or to get recertified, the proposal would allow for employee and Union participation in all curriculum changes which have an impact on unit employees, not just those having one of the cited effects. Moreover, there may be occasions when curriculum changes would have a beneficial effect on employees. For example, additional training and certification may lead to greater career opportunities or expanded pay benefits. Thus, in our view, the adverse effect and, conversely, the benefits to unit employees under the proposal are speculative.

Finally, we note that the Union originally stated that the proposal was designed to provide input and recommendations on curriculum development and not as an appropriate arrangement for employees adversely affected by curriculum changes. We believe that the chilling effect on management's right to deliberate with respect to determining the means by which its work will be performed resulting from the Union's presence on all committees outweighs the benefits to unit employees. Accordingly, we find that Proposal 18 excessively interferes with the exercise of management's section 7106(b)(1) right. Therefore, it does not constitute an appropriate arrangement under section 7106(b)(3).

4. Assignment of Work

The Agency also has argued that to the extent the proposal would allow the Union to select an employee to serve on each committee, the proposal is nonnegotiable under section 7106(a)(2)(B) of the Statute because it would conflict with managment's right to assign duties. We agree. In the Fort Knox Dependent Schools case referenced above, the Authority also found that since the committees were an integral part of the process by which the means of performing work were determined, the tasks associated with carrying out the functions of the committees concerned the assignment of work. There, as in this case, the proposal effectively would have required the 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. 

In conclusion, we find that Proposal 18 concerns a condition of employment. It is outside the duty to bargain, however, since it concerns a section 7106(b)(1) matter about which the Agency has elected not to bargain, is not an appropriate arrangement under section 7106(b)(3) concerning the exercise of management's right under section 7106(b)(1), and also because it conflicts, in part, with section 7106(a)(2)(B).

XXI. Proposal 19

Article 33 - Grade Level and Department Chairpersons

Section 3. It is understood that the duties of unit employees who serve as Grade Level and Department Chairpersons relate to matters within their grade level or department; however, their normal duties shall not be those of a management official or supervisor as defined in 5 U.S.C. 7103.

A. Positions of the Parties

The Agency states that the proposal would limit the Agency's right to assign supervisory duties to employees and is therefore outside the duty to bargain under section 7106(a)(2)(B) of the Statute.

The Union argues that the proposal would not preclude the assignment of discrete or occasional supervisory duties to the named individuals who are unit employees.

B. Analysis and Conclusions

Proposal 19 is outside the duty to bargain because it would interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Like the proposal found nonnegotiable in American Federation of Government Employees, AFL - CIO, Local 3385 and Federal Home Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA 398 (1981) (Proposal 1), which would have prohibited the Agency from assigning rating duties to unit employees, the proposal here would prohibit the assignment of supervisory or managerial responsibilities to unit employees on a regular basis. As such, Proposal 19 is outside the duty to bargain. 

XXII. Proposal 20

Article 34 - Teacher Aides/Paraprofessionals

Section 2. The Employer shall make every reasonable effort to provide aides for unit employees, if requested, for:

A. Each regular class with more than 25 students;

B. Each special education class with more than 8 students;

C. Each kindergarten class with more than 20 students.

A. Positions of the Parties

The Agency argues that this proposal interferes with management's right to determine the numbers and types of employees and positions under section 7106(b) of the Statute. The Agency also argues that because this proposal affects teacher-aides who are not members of the bargaining unit, it is outside the duty to bargain.

The Union argues that teacher-aides and para-professional employees are part of the bargaining unit. The Union also argues that this proposal does not interfere with management's right to assign work because it only requires management to make "every reasonable effort" to provide aides for unit employees, and it does not prevent the Agency from exercising its reserved rights. To support its argument, the Union cites Department of Transportation, Federal Aviation Administration, 6 FLRA 588, where the Authority found a proposal with the phrase "every reasonable effort" to be negotiable.

B. Analysis and Conclusion

We find that Proposal 20 imposes an obligation on the Agency to assign aides for teachers if they so request when any of the circumstances enumerated in the proposal are met. The proposal expressly requires management to provide teacher-aides for unit employees. This requirement imposes an obligation on management to hire and assign aides when requested by the teachers. Thus, Proposal 20 interferes with management's right under section 7106(b)(1) of the Statute to determine the number of employees assigned to any work project. It is well-established that proposals concerning the numbers, types and grades of employees assigned under  section 7106(b)(1) of the Statute are only negotiable at the election of the agency. Panama Canal Commission, 26 FLRA No. 48 (1987). Since the Agency has elected not to bargain, we find this proposal outside the duty to bargain.

As we noted in connection with our analysis of Proposal 13, the use of the phrase "every reasonable effort" does not remove limitations on management's right to act in a certain manner otherwise imposed by a proposal. Thus, we find that the use of such a phrase here also does not remove the limitation on management's right to determine the numbers, types and grades of employees. Furthermore, this phrase would subject to arbitral review whether the Agency had made "every reasonable effort" to provide aides for teachers, and ultimately would permit arbitrators to substitute their judgment for that of management. See VAMC, Dayton, Ohio, 28 FLRA No. 65 (1987). Thus, for the reasons stated above, we find Proposal 20 outside the duty to bargain.

XXIII. Proposals 21-31

The Authority Members have expressed different views on Proposals 21-31. The decision and order on these proposals and the separate opinion of Chairman Calhoun follow this decision.

XXIV. Proposals 32-34

Article 35 - Basic Compensation

Proposal 32

Section 5. When the finance records of a unit employee have been lost, destroyed, or delayed because of transfer, or reassignment, the unit employee shall be paid on the basis of his/her last "Leave and Earnings" statement and/or other official pay documents until the pay records have been reconstructed. In the absence of said records, unit employees shall be paid, as a minimum, at the B.A., Step 2, salary schedule.

Proposal 33

Section 12. Unit employees shall have the option of receiving their pay during the school year or of having it extended over a 12-month period. Such option shall have no effect on any other aspect of unit employee pay. 

Proposal 34

Section 25. Unit employees shall be paid by separate check, unless they choose otherwise, for each form of income, e.g., regular salary, extracurricular activity pay, and retroactive pay or adjustments in pay.

A. Positions of the Parties

The Agency contends that it is without discretion to bargain over these three proposals. The pay of unit employees is disbursed by the finance offices of the various military departments. Therefore, the Agency cannot guarantee compliance with the proposals.

The Union contends that the Agency has the authority to conclude servicing agreements with the military departments in a manner that would incorporate the requirements of these proposals.

B. Analysis and Conclusion

In Federal Employees Metal Trades Council, AFL - CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 25 FLRA No. 31 (1987), we examined the question of whether the method of paycheck delivery was a matter concerning conditions of employment. In concluding that it was, we stated at page 5 of the slip opinion:

In our view, the manner of paycheck delivery clearly falls within this definition. The receiving of paychecks is the culmination of the employment contract between the employee and employer. It consummates an agreement to exchange compensation for work performed, and therefore, it is inextricably bound to a fundamental condition of employment: pay.

Consequently, based on Mare Island Naval Shipyard, we find these proposals, dealing with last pay records, paycheck delivery and how various types of pay will be disbursed, likewise concern conditions of employment of employees in the bargaining unit and are negotiable.

We reject the Agency's argument that, because the matters addressed are within the control of other elements of the Department of Defense, it has no obligation to bargain over the proposals. In Overseas Education Association, Inc. and Department of Defense Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 5), petition for review filed sub nom. Overseas Education Association, Inc. v. FLRA, No. 86-1491 (D.C. Cir. Sept. 3, 1986), the Authority held that a component of an agency is obligated to bargain with the exclusive representative of its employees over conditions of employment even though control over a particular condition of employment resides in another component of the same agency. The only exceptions to that obligation occur when the discretion is limited by law, Government-wide rule or regulation, or agency regulations supported by a compelling need. Here, the Agency adverts to no such exception. Consequently, the proposals are negotiable.

XXV. Proposal 35

The Authority Members have expressed different views on Proposal 35. The decision and order on this proposal and the separate opinion of Chairman Calhoun follow this decision.

XXVI. Proposal 36

Article 38 - Employee Workday

Section 2 - Planning Time

It is understood by the parties that planning time is an essential part of the unit employee's instructional day. The parties agree that whenever possible, all unit employees shall have a minimum of one class period or its equivalent per day or 200 minutes per week during their instructional time for the purposes of planning and preparation. In the event elementary teachers are involved in special programs that require block planning time, upon request of the Association, the parties shall jointly develop the planning schedule in accordance with Article 9, Section 4.

B. Positions of the Parties

The Agency asserts that Proposal 36 interferes with its right to assign work pursuant to section 7106(a)(2)(B) of the Statute. The Agency cites the Authority's decision in National Federation of Federal Employees, Local 1263 and Defense Language Institute, Foreign Language Center, Presidio of Monterey, California, 7 FLRA 723 (1982), in which a similar proposal was found to be nonnegotiable.  

The Union contends that Proposal 36 is different from the proposal found to be nonnegotiable in Defense Language Institute because it does not mandate a preparation period in all circumstances. According to the Union, Proposal 36 merely attempts to establish a general, nonquantitative contractual standard by which the Agency's exercise of its reserved authority can be evaluated. Finally, the Union contends that the last sentence of Proposal 36 only requires the Agency to consult with its employees through the Joint Association - Employer Cooperation (JAEC) committees provided for in Article 9 of the proposed agreement.

B. Analysis and Conclusion

Read together, the first two sentences of Proposal 36 are to the same effect as the group of proposals found nonnegotiable in Defense Language Institute, where the Authority held that 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." These sentences set forth a specific amount of time to accomplish certain work. Thus, based on the reasons cited in Defense Language Institute, the first two sentences are inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. See also Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA No. 88 (1987) (Proposal 2), petition for review filed sub nom. Overseas Education Association v. FLRA, No. 87-1468 (D.C. Cir. Sept. 8, 1987); Fort Knox Dependent Schools, 22 FLRA No. 88 (1986) (Proposal 2).

Although the first two sentences of this proposal only require management to assign preparation periods "whenever possible," the addition of such qualifying language does not remove the limitation imposed on management's exercise of its right to assign work. Rather, these sentences would have the effect of subjecting management's decisions as to when it was possible to assign preparation periods to review in an arbitration proceeding. That is, they would permit arbitrators to substitute their judgment for that of management as to when it was possible to assign preparation periods. See VAMC, Dayton, Ohio, 28 FLRA No. 65 (1987) (Proposal 1) and the cases cited therein. similarly, as we noted in our analysis of Proposal 13, the Union's reliance on Department of Transportation, Federal Aviation Administration is misplaced. Thus, for the reasons stated above, we find the first two sentences of this proposal outside the duty to bargain.  

The last sentence of Proposal 36 states that the parties would "jointly develop" a planning schedule for the affected employees in accordance with Article 9, Section 4. The Union asserts that this sentence merely subjects the question of block planning time to consultations through the JAEC meetings provided for in Article 9 of the proposed agreement. According to the Union, these JAEC meetings are "a process short of negotiations whereby . . . (the parties) . . . discuss matters of mutual concern." Union Reply Brief at Article 38, Section 2. Thus, the Union asserts that it could make recommendations concerning the planning schedules through the JAECs without interfering with management's reserved rights.

We agree. Proposals which provide for joint labor-management committees (such as the JAECs) whose purpose is to make recommendations concerning the improvement of the workplace have consistently been found to be negotiable. See U.S. Department of Defense Dependents Schools, 28 FLRA No. 88 (1987) (Proposal 3), petition for review filed on other matters sub nom. Overseas Education Association v. FLRA, No. 87-1468 (D.C. Cir. Sept. 8, 1987) and the cases cited therein. Thus, because the last sentence of the Union's proposal merely subjects the question of planning schedules for affected employees to discussions rather than to negotiations through the forum provided by the JAECs, the proposal places no limitation on the Agency's right to assign planning work to its employees. Therefore, we conclude that the last sentence of Proposal 36 is negotiable.

XXVII. Proposal 37

Article 38 - Employee Workday

Section 6. The Employer shall ensure that in those schools where a lunch period exists, employees shall have a duty free lunch period. Upon request of the Association, the parties shall jointly develop the amount of time for the duty-free lunch period in accordance with Article 9, Section 4.

A. Positions of the Parties

The Agency contends that Proposal 37 would require it to ensure that teachers would be allowed to eat their lunch without being required to perform work simultaneously. The Agency contends that this requirement interferes with its  right to assign work and direct employees under to section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that many of its secondary school teachers have a duty-free lunch period, but some teachers must monitor the lunchrooms on a rotating basis. In elementary schools, some of the teachers are required to eat lunch with their students. In support of its position, the Agency cites the Authority's decision in American Federation of Government Employees, Local 3511 and Veterans Administration Hospital, 12 FLRA 76 (1983), where the Authority found that there would be occasions when management would deem it necessary to assign work to employees during their meal periods.

The Agency further argues that the Union's proposal interfere with management's right to determine the numbers, types and grades of its employees under section 7106(b)(1) of the Statute because the proposal would require the hiring of additional staff to fulfill the function of monitoring lunchrooms now accomplished by the teachers.

The Union contends that the language of its proposal does not explicitly relate to the numbers, types and grades of employees or positions assigned to a tour of duty because nothing in the proposal precludes the staggering of meal periods to assure student lunchroom coverage. The Union concludes that the Agency has failed to demonstrate that the proposal would be determinative of numbers, types or grades, citing the same Veterans Administration Hospital decision relied on by the Agency.

The Union further contends that the last sentence of its proposal does not obligate the Agency to negotiate the length of its proposed duty-free lunch period. This matter would be left subject to consultation through the Joint Association - Employer Cooperation (JAEC) meetings provided for in Article 9 of the proposed agreement. The Union concludes that the discussion of matters such as the length of a duty-free lunch period in a forum such as the JAEC, which merely has the power to make recommendations, does not interfere with management's reserved rights.

B. Analysis and Conclusion

Proposal 37 requires that bargaining unit employees would be given a duty-free lunch period and that the   length of the lunch period would be developed jointly by the Agency and the JAEC. To the extent that a duty-free lunch period is required, the proposal is to the same effect as proposals found nonnegotiable in Overseas Education Association, Inc. and Department of Defense, Dependents Schools, 29 FLRA No. 56 (1987 (Proposals 5a and 7e). In that case, the proposals were found to preclude the agency from assigning duties, including the duty of monitoring students during lunchtime, to unit employees who were on their duty-free lunch period. As such, the proposals were inconsistent with management's right to assign work under section 7106(a)(2)(B). The same result must be reached here.

Since there is no obligation to bargain over granting employees a duty-free lunch period, there is no obligation to bargain over the remainder of the proposal which would allow for joint development of the amount of time for the lunch period. Also, in view of our conclusion, we need not address the Agency's additional contention that the proposal also concerns a section 7106(b)(1) matter.

For the reasons stated above, we find Proposal 37 is outside the Agency's duty to bargain.

XXIII. Proposal 38

Article 38 - Employee Workday

Section 7.

Upon request of the Association, the parties shall develop the starting and closing times for the school day and the use of "flex" time where appropriate in accordance with Article 9, Section 4.

A. Positions of the Parties

The Agency contends that, to the extent that Proposal 38 seeks to establish a school day for students, it is nonnegotiable because it goes to the methods and means of conducting the Agency's operations. The Agency contends that the "flex" time aspects of the proposal would improperly limit management's rights under section 7106(b)(1) of the Statute.  

The Union contends that "school day" refers to the teacher workday rather than the instructional day. Thus, the proposal is not intended to interfere with management's right to determine the methods and means of conducting the Agency's operations by establishing the school day for students.

The Union further contends that its "flex time" proposal does not require the Agency to negotiate starting or closing time, or flex time. The Union contends that "flex time" is a negotiable matter pursuant to the Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. 3401, 6101 and note, 6106, 6120-6133), which was made permanent in 1986, Pub. L. No. 99-196, 99 Stat. 1350. The Union argues that this proposal seeks to make starting and closing times, and the use of flex time, a subject of discussions for the JAECs provided for in Article 9 of the parties' proposed agreement. The JAEC process only requires a discussion of matters of mutual concern and the submission of recommendations to management, a process the Union characterizes as being short of negotiations. The Union concludes that the establishment of a committee with the limited power to make such recommendations does not interfere with the Agency's reserved rights, citing American Federation of Government Employees. Local 2761 and U.S. Department of the Army, U.S. Army Adjutant General Publication Center, St. Louis, Missouri, 14 FLRA 438 (1984); American Federation of Government Employees, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217, 229-230 (1981).

B. Analysis and Conclusion

In this case, the Union is not seeking to negotiate on the starting and closing times of the schoolday or on alternate work schedules. Rather, the Union merely proposes that the JAECs consider that issue. As previously determined with respect to Proposal 36, JAECs are a vehicle by which the Union can submit its nonbinding view on topics which affect bargaining unit employees. Since the Agency is in no manner obligated to adopt any view or recommendation submitted to the JAECs by the Union, including recommendations as to alternate work schedules, we find that the Agency has not sustained its claim that this proposal violates any management right. Thus, this proposal is within the duty to bargain.  

XXIX. Proposal 39

Article 38 - Employee Workday

Section 8.

A. The Employer shall make every effort to avoid assigning a unit employee more than three consecutive lessons or periods (45-60 minutes per lesson or period) or teaching assignments, except where the affected unit employee agrees otherwise.

B. In the secondary schools, the Employer will make every effort to limit the number of lesson preparations to three, except where the affected unit employee agrees otherwise.

A. Positions of the Parties

The Agency asserts that part A of Proposal 39 is substantially the same as a proposal which the Authority found directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute in Defense Language Institute, 7 FLRA 723 (1982).

The Agency asserts that part B of this proposal also interferes with management's right to assign duties under section 7106(a)(2)(B) of the Statute. The Agency argues that this proposal would limit management's right to assign to teachers classes in more than three different subject areas. According to the Agency, for these purposes, Algebra I and Algebra II would be considered different subject areas. The Agency contends that many of its schools are small and that management is often required to assign teachers with qualifications in one subject area to teach classes in other subject areas.

The Union contends that this proposal is not an infringement on management's right to assign work because each part only requires the Agency to "make every effort" to avoid such assignments. Thus, the Union argues that the proposal only establishes a general, nonquantitative contractual standard by which the Agency's exercise of its reserved authority can be evaluated, citing Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981). 

The Union further contends that both parts of the proposal are "appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials," within the meaning of 5 U.S.C. 7106(b)(3), because they seek relief for unit employees adversely affected by the Agency assignment of a "professionally unreasonable and highly demanding class schedule or teaching load."

B. Analysis and Conclusion

We find that both parts of Proposal 39 involve the assignment of work. In National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982), the Authority held that the right to assign work under section 7106(a)(2)(B) of the Statute includes "the right to assign general continuing duties, to make specific periodic work assignments to employees, to determine when such assignments will occur and to determine when the work which has been assigned will be performed." The principles set forth in Bureau of the Public Debt, 3 FLRA at 775 were applied to a group of 20 proposals in Defense Language Institute, 7 FLRA 723. Those proposals sought to establish certain schedules and time frames in which employees of the agency were to carry out instructional work. In holding that the proposals were nonnegotiable, the Authority stated that "each of the proposals in this case would directly interfere with the right to assign work by allocating a specific amount of time for the accomplishment of a specific duty." 7 FLRA at 725.

While this proposal does not seek to prescribe the amount of duty time to be devoted to preparation or planning time, as in Proposal 36 in this case, both parts of this proposal would place limitations on management's right to prescribe either a teacher's daily work schedule and/or the number of different "subjects" to be assigned to any particular teacher. As noted above, the Authority has held that the right to assign work "includes the right to assign general continuing duties," which would encompass the right to assign the number of subjects deemed necessary to fulfill its mission. Bureau of Public Debt, 3 FLRA at 775. The right to assign work also includes the right to determine "when the work which has been assigned will be performed;" this encompasses the right to adjust a teacher's daily schedule to accomodate management's needs. Id. Therefore, we conclude that both parts of this proposal a also interfere with the Agency's right to assign work and are outside the duty to bargain.

The Union also asserts that both parts of this proposal are distinguishable from the proposals found nonnegotiable in Defense Language Institute. The Union also argues that Proposal 39 only requires the Agency to "make every effort" to seek the scheduling objectives encompassed by the proposal. As we noted there, however, such language would have the effect of subjecting management's decisions concerning the scheduling of teachers to review in an arbitration proceeding. That is, such language would permit arbitrators to substitute their judgment for that of management as to whether it were possible to avoid scheduling teachers to teaching assignments for more than three consecutive lessons or periods, or as to whether it were possible to avoid scheduling teachers so that they have no more than three lesson preparations. See VAMC, Dayton, Ohio, 28 FLRA No. 65 (1987) (Proposal 1) and the cases cited therein.

Similarly, as we noted in connection with our analysis of Proposal 13, the Union's reliance on Department of Transportation is misplaced. In that case, the proposal at issue did not affect, in any manner, managment's rights. In contrast, the proposal in this case compels management to schedule its teaching employees in a prescribed manner, thus infringing on its management right under section 7106(a)(2)(B) of the Statute to assign work to its employees.

As to the Union's assertion that this proposal constitutes an appropriate arrangement, for reasons fully set forth in our decision on Proposal 18, we find it is not. We find that even assuming that this proposal constitutes an "arrangement" for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3), it is not an "appropriate arrangement." Although the Union's proposal would benefit employees by limiting the number of lesson preparations which they could be assigned, it would eliminate management's flexibility to schedule teachers to fulfill its educational mission. Since the Union's proposal would eliminate management's flexibility, we find that it would excessively interfere with the Agency's right to assign work and, thus, does not constitute an "appropriate arrangement" under section 7106(b)(3). See VAMC, Ft. Lyons, 25 FLRA No. 66 (1987) (Proposal 2).  

XXX. Proposal 40

Article 38 - Employee Workday

Section 9. Unit employees shall not be expected to perform duties that are not job-related. The Employer will make every effort to avoid the assignment of nonprofessional duties to unit employees. Such nonprofessional duties include, but are not limited to, the following:

A. Duty on buses carrying children between home and school.

B. School-wide detention.

C. Duties as to certification of residence, enrollment and registration cards.

D. Duties on buses carrying children to and from school activities other than:

1. activities initiated by the employee;

2. activities beginning during the school day and

3. class projects.

E. Clerical work that is not an integral part of the unit employee's work assignment.

A. Positions of the Parties

The Union withdrew the first sentence of this proposal in its response to the Agency's statement of position.

The Agency contends that Proposal 40 is nonnegotiable because it conflicts with management's right to assign duties to employees pursuant to section 7106(a)(2)(B). The Agency relies on New York State Nurses Association and Veterans Administration, 11 FLRA 578 (1983), in which the Authority found a proposal seeking to prohibit the assignment of nonprofessional duties to nurses to be nonnegotiable.

In its response, the Union contends that its proposal is distinguishable from the one found to be nonnegotiable in New York State Nurses Association because the proposal here  would only require the Agency to make every effort to avoid making certain "nonprofessional" assignments to teachers.

B. Analysis and Conclusion

In Haskell Indian Junior College, 22 FLRA No. 57 (1986), the Authority held that a proposal which would require the agency to ensure that duties beyond an instructor's normal teaching assignment be related to the instructor's position was outside the duty to bargain because it interfered with the agency's right to assign work under section 7106(a) of the Statute. The Authority further held that the addition of language which only sought to ensure that such assignments would be made "as fairly as possible" did not alter the conclusion that the proposal was nonnegotiable because it would still expressly prohibit the agency from assigning duties to an instructor which were not related to the instructor's position. Slip op. at 7.

In Fort Knox Teachers Association and Fort Knox Dependent Schools, 25 FLRA No. 95 (1987), petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3395/3524 (D.C. Cir. Apr. 27, 1987), we held that a proposal which would have provided that bus chaperone duty be voluntary was not negotiable. We found that while the proposal presumed that there were no specific qualifications necessary to perform such duty and that all teachers, therefore, would be equally qualified to perform them, the proposal effectively deprived management of the discretion to make judgments as to "(1) the personnel requirements of the work of the position, that is, the qualifications and skills needed to do the work, as well as such job-related individual characteristics as judgment, and (2) as to which employees meet those requirements." Slip op. at 3.

In VAMC, Dayton, Ohio, 28 FLRA No. 65 (1987), we held that a proposal which would have required that management "make every effort" to minimize the assignment of "nonprofessional" duties to registered nurses was nonnegotiable because it imposed a substantive condition on management's right to assign work and established a criterion by which management must justify its action in assigning nonprofessional duties to staff nurses.

Based on the cases cited above, it is clear that Proposal 40, even with the first sentence withdrawn, is outside the duty to bargain because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.  

XXXI. Proposal 41

Article 39 - Extracurricular Activity and Compensation

Section 2. Members of the bargaining unit are encouraged to notify the Employer at the local level of any interest they might have with regard to filling extracurricular positions which might become available. The Employer will make every effort to fill extracurricular positions in accordance with the expressed preferences of the qualified employees in the bargaining unit at the local level. In the event the Employer does not fill all available positions in accordance with the preferences of the employees, then the Employer agrees to actively seek qualified volunteers from the bargaining unit at the local level. Further, the Employer agrees that the filling of extracurricular positions shall be done in a fair and equitable manner and shall not be arbitrary and capricious. No employee in the bargaining unit shall be required to accept an extracurricular activity, except in the case of temporary emergencies, when said activity is a voluntary activity for students and is required to be performed beyond the normally recognized duty day for other members of the bargaining unit. When assignments are made due to temporary emergencies said unit employees shall be compensated as provided in Article 35, Section 10.

A. Positions of the Parties

The Agency asserts that Proposal 41 would improperly limit its right under section 7106(a)(2)(A) and (B) of the Statute to assign overtime work to its employees. In the Agency's view, extracurricular activities are similar to planned overtime. Most extracurricular activities would be subject to the limitations set forth in the Union's proposal, as they involve voluntary activity by the students taking place after the instructional day. In support of its  contentions, the Agency cites the Authority's decision in International Association of Firefighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438 (1980), which indicated that the right to assign work is not limited to the normal duty day.

The Union contends that the purpose of this proposal is to establish a procedure to be utilized when the supervision of extracurricular activities is assigned to unit employees. The Union further asserts that the purpose of the next to the last sentence is to maintain a policy established by its prior negotiated agreement.

B. Analysis and Conclusions

It is well-established that a proposal may not prohibit assigning duties to bargaining unit employees and that management's right to assign work is not limited to work occurring during normal duty hours. Fort Knox Dependent Schools, 19 FLRA 878 (1985) (Proposal 4) (agency's requiring teachers to attend afterhour Parent Teacher Association meetings held to be an assignment of work); Overseas Education Association and Department of Defense Dependents Schools, 28 FLRA No. 119 (1987) (Proposal 1) (agency's right to assign teachers to Student Activity Fund Councils which frequently meet after normal duty hours held to be an assignment of work). This proposal is similar to Proposal 4 in Fort Knox and Proposal 1 in Department of Defense Dependents Schools, inasmuch as it would deprive the Agency of its right to assign particular employees whom it deemed qualified to supervise extracurricular activities, which frequently occur after normal duty hours, by making such participation subject to a voluntary system. Accordingly, for the reasons set forth in Fort Knox Dependents Schools and Department of Defense Dependents Schools, we find that this proposal violates management's right to assign work.

Having found that the voluntary system encompassed by Proposal 41 is nonnegotiable, we need not reach the question of whether overtime pay for extracurricular assignments due to temporary emergencies is a negotiable matter, as such circumstances are intrinsically related to the entire proposal we have found to be nonnegotiable. We note, however, that we have found the question of overtime pay for extracurricular assignments as provided for in Proposal 29, Article 35, Section 10 to be negotiable. 

XXXII. Proposal 42

Article 41 - Passport/Visas/Identification Card

Section 2. The Employer shall take what action it can to ensure that identification cards issued to unit employees have no geographical restrictions overseas printed or stamped on them.

A. Positions of the Parties

The Agency argues that Proposal 42 does not relate to a condition of employment because it involves unit employees' access to bases and certain facilities when employees are off duty, engaged in nonwork activities, and at overseas locations other than their posts of duty. Furthermore, the Agency asserts that if an employee is placed on temporary duty at another overseas location, the employee is issued official orders. Finally, the Agency argues that even if the proposal does relate to a condition of employment, it has no authorization to issue identification cards and no control over the geographic restrictions which are placed on the cards by various military departments.

The Union contends that the geographic restrictions on identification cards do relate to conditions of employment because unit employees travel to bases in other countries for meetings, training, and courses and Union representatives travel to perform representational duties. The Union argues that management controls geographic restrictions placed on identification cards because the Agency supplies information for the cards and endorses employees' applications.

B. Analysis and Conclusion

1. Proposal Concerns a Condition of Employment

In Antilles Consolidated School System, 22 FLRA No. 23 (1986), the Authority set forth two factors which it would consider in deciding whether a proposal involves a condition of employment of bargaining unit employees..

(1) Whether the matter proposed to be bargained pertains to bargaining unit employees.

(2) The nature and extent of the effect of the matters proposed to be bargained on working conditions of those employees.  

There is no dispute that this proposal pertains to bargaining unit employees. Unit employees are issued identification cards with or without geographic restrictions stamped on the cards. Therefore, we find it meets the first factor set out in Antilles.

Turning to the second factor, it is undisputed that employees are issued identification cards enabling them to gain access to bases and base facilities in the countries where they are employed. The issue here is whether the geographic restrictions stamped on unit employees' identification cards constitute a condition of employment.

We find, in agreement with the Union, that unit employees travel to professional meetings, training workshops, and courses at military bases in countries outside their assigned country for educational purposes in connection with their employment. Furthermore, insofar as unit employees travel as Union representatives to bases in various countries in order to administer the collective bargaining agreement, such travel is a condition of employment. See Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA No. 34, slip op. at 16-18 (Proposal 10) (1987), affirmed on other grounds sub nom. Overseas Education Association v. FLRA, No. 86-1491 (D.C. Cir. Aug. 28, 1987) (proposal requiring agency to provide bargaining unit employees with travel orders for transportation for the purpose of conducting representational duties held negotiable). Thus, travel to bases outside their assigned country undertaken by unit employees for professional and representational purposes is a condition of employment.

Unit employees may not have travel orders for professional travel and trips for representational duties. In these circumstances, if they have geographic restrictions on their identification cards, unit employees would be unable to use facilities--such as billeting, post exchanges, and the officers' club and mess--they might need for professional purposes or representational duties. Inasmuch as unit employees need access to these military facilities for employment-related purposes, it follows that the geographic restriction stamps on identification cards which control access to these facilities are directly related to conditions of employment. Overseas Education Association Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA No. 71, slip op. at 21-22 (1987) (Proposal 14), petition for review filed sub nom. Overseas Education Association v. FLRA, No. 87-1279 (D.C. Cir. June 25, 1987) (proposal requiring  agency to provide transportation and transient Government facilities for employee attendance at union-sponsored workshops held directly related to employment relationship). Thus, the second factor of the Antilles analysis has been met, and we find that Proposal 42 concerns a condition of employment.

2. Proposal is Within the Duty to Bargain

The Agency contends that military departments control the geographical restrictions placed on the identification cards and that it has no discretion regarding these restrictions. Thus, the Agency argues that it cannot negotiate concerning geographic restrictions on identification cards. We reject this argument for the same reasons expressed in Department of Defense, Office of Dependents Schools, 22 FLRA No. 34, slip op. at 11 (Proposal 5). As noted in that decision, where a union holds exclusive recognition in a component of an agency, that component is obligated to bargain over conditions of employment despite the fact that control over a particular condition of employment rests with a different organizational component in the same agency. The only limits on an agency's obligation to bargain over conditions of employment, in that circumstance, are those placed on its discretion by provisions of law, Government-wide rule or regulation, or agency regulations for which a compelling need exists. Therefore, based on Department of Defense, Office of Dependents Schools, 22 FLRA No. 34, we conclude that control of the geographical restrictions on identification cards, which are the subject of the proposal, by components of DOD other than the Agency does not present a basis for finding Proposal 42 nonnegotiable.

In summary, we conclude that geographical restrictions on unit employees' identification cards are a condition of employment. Further, since components of DOD other than the Agency have control of the issuance of the cards and the geographical restrictions placed on them, we find that Proposal 42 is within the Agency's duty to bargain. 

XXXIII. Proposals 43-44

Article 41 - Passport/Visas/Identification card

Proposal 43

Section 3. The Employer shall reimburse any fees charged unit employees for any required passport and/or visas.

Proposal 44

Section 4. The Employer shall inform unit employees of their eligibility to have both an official and tourist passport and shall assist unit employees in acquiring both passports, upon request.

A. Positions of the Parties

The Agency interprets Section 3 of Proposal 43 as requiring it to reimburse unit employees for fees incurred for passports and visas for tourist travel as well as travel required for employment. Therefore, to the extent that the proposal refers to passports and visas for tourist travel, the Agency argues that it does not relate to a condition of employment. The Union contends that the Agency has misread Proposal 43 which it states is limited to reimbursement of expenses to employees for the cost of passports and visas which are required to travel to their overseas posts.

The Union claims that Section 4 of Proposal 44 is self-explanatory. Neither party takes a position with regard to its negotiability.

B. Analysis and Conclusion

Proposal 43

1. Section 3

The Agency states, without controversion, that an official passport, a no-fee passport, as well as a visa is obtained by the employer free of charge to the unit employee when travel is directed for employment purposes. According to the language of the proposal ("required passport and/or visas") and the Union's statement of intent, the Agency would incur no obligation under Section 3 to reimburse unit employees for expenses they incur for passports and visas for  tourist travel. Based on this information, it appears that the Union intends only to contractually guarantee the existing practice. Since Section 3 pertains to travel directed by management for employment purposes, we find that it is negotiable.

Proposal 44

2. Section 4

Section 4 would require that the Agency inform employees they are eligible for both official and tourist passports and visas and assist unit employees in acquiring them. As discussed above, employees receive passports and visas required for employment at no cost. The Agency does not assert that informing employees about official passports and assisting employees, upon request, to obtain them is outside the duty to bargain. Therefore, to the extent that Section 4 pertains to official passports and visas it is negotiable.

On the other hand, tourist passports and visas, by their very nature, do not appear to concern the employment relationship, and the Union offers no evidence to the contrary. Antilles Consolidated School System, 22 FLRA No. 23, slip op. at 4 (1986) (union provided no evidence that matter proposed was in any manner related to employment relationship). Therefore, we find that to the extent Section 4 concerns tourist passports and visas, it does not relate to a matter concerning employees' working conditions.

In summary, because Section 3 pertains only to passports and visas required for travel for employment purposes, is negotiable. Section 4 is negotiable with regard to its requirement that the Agency inform and assist employees with official passports and visas. However, to the extent it concerns tourist passports and visas, it is outside the duty to bargain.

XXXIV. Proposal 45

Article 43

Section 4. Grade Equivalency In the event a unit employee is downgraded or reduced in rank through no fault of the employee, the unit employee shall continue to receive his/her previous highest equivalent grade unless prohibited by government-wide regulations.  

A. Positions of the Parties

The record in this case indicates that in order to determine a teacher's entitlement to housing allowance, travel and other employment related benefits, the military departments, which generally control such matters, convert a teacher's grade into equivalent military and GS grades. The Agency argues that it has no control over the grade equivalency and since the Agency has no discretion in the matter, it is not negotiable.

The Union contends that the proposal would only require management to retain the unit employee's previous highest grade on his/her identification card application (a military branch performs the ministerial function of issuing the "i.d." card), or to place the employee's previous highest grade in DODDS executed travel order. The Union contends as the military departments utilize the grade designation to convert it to a equivalent military grade for housing, travel and other employment-related purposes, it would allow the employee to enjoy the benefits of his/her highest grade.

B. Analysis and Conclusion

We reject the Agency's argument that because control over the matters addressed by this proposal rest with other components of DOD it has no obligation to bargain. Rather, it is well-established that where a component of an agency is obligated to bargain with the exclusive representative of its employees over condition of employment even through control over a particular condition of employment resides in another component of the same agency. See for example, Overseas Education Association Inc. and Department of Defense Office of Dependent Schools, 22 FLRA No. 34 (1986) (Proposal 5), affirmed sub nom. Overseas Education Association Inc., v. FLRA, No. 86-1491 (D.C. Cir. Aug. 28, 1987).

The Agency claims that Department of State Standard Regulations (DSSRs) provides a grade equivalency chart for housing allowance rates. However, the Agency makes no specific claim that Proposal 45 is violative of any law, rule, or regulation, including the DSSRs.

We view this proposal as a save grade provision for DODDS teachers similar to the save grade provisions applicable to GS and prevailing rate employees under 5 U.S.C. 5362. While the Agency indicates that the DSSRs address   grade equivalency, it does not claim that this proposal is in any manner inconsistent with the DSSRs. Of course, since the DSSRs are Government-wide regulations within the meaning of section 7117(a), proposals which are inconsistent with them would be nonnegotiable. See Department of Defense, Office of Dependent Schools, 22 FLRA No. 34 (1986), (Proposal 2). Nevertheless, even assuming that this proposal is inconsistent with some portion of the DSSRs, we find this proposal to be negotiable. That is, it expressly limits management's obligation to utilize a save grade provision "unless prohibited by Government-wide regulations." As such, it would not require the Agency to act in any manner which is inconsistent with Government-wide regulations, including the DSSRs. Accordingly, Proposal 45 is negotiable.

XXXV. Proposal 46

Article 47 - Staffing Procedures

When school vacancies exist and the Principal has determined to fill the vacancies, the following order of consideration for assignment shall be used:

1. Qualified unit applicants that are Excepted Appointment - Conditional or Excepted Appointment Without Condition unit employees in the school where the vacancy exists. Selection to fill a vacancy shall be based on seniority where the employees are equally qualified and capable of performing;

2. Qualified unit applicants that are Excepted Appointment - Conditional or Excepted Appointment - Without Condition unit employees within the complex-wide locality where the vacancy exists. Selection to fill a vacancy shall be based on seniority where the employees are equally qualified and capable of performing;

3. Assignments through the negotiated transfer program under this Agreement;

4. Local hires;

5. CONUS hires;

6. Assignments made through the involuntary Reassignment Program under Article 49 of this Agreement.  

A. Positions of the Parties

The Agency contends that Proposal 46 clearly limits the candidates that management can consider in filling a vacant position, and since it requires selection of applicants based on their category, it conflicts with management rights under section 7106(a)(2) of the Statute and is nonnegotiable.

The Union contends that the proposal establishes an order of consideration when management decides to fill a vacancy and does not mandate selection from any of the six categories identified, but merely requires the employer to consider applicants or candidates in order according to the six categories. The Union further contends that seniority only comes into play when the Agency has more than one qualified candidate in either category 1 or 2.

B. Analysis and Conclusion

This proposal first establishes an order of consideration for filling vacant positions under which unit employees receive first condideration. Proposal 46 requires seniority to be utilized where two or more employees are equally qualified to fill the vacant position.

The Authority has consistently held that proposals which required that consideration be given to employees within a bargaining unit in filling vacant positions but which did not prevent management from considering other applicants or expanding the area of consideration, to be within the duty to bargain. International Federation of Professional and Technical Engineers, Local 4 and American Federation of Government Employees, Local 2024, AFL - CIO and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 14 FLRA 52 (1984).

Based on the express language of this proposal and the Union's stated intent, it is clear that Proposal 46 requires only that consideration be given to the employees within the bargaining unit in filling vacant positions and does not prevent management from considering other applicants even if qualified employees are found in any of the listed categories. Because Proposal 46 establishes an order of consideration, it does not interfere with management's right under section 7106(a)(2)(A) and (C) to hire and select.  

This proposal also requires seniority to be utilized as a tie breaker in situations where two or more employees in category 1 or category 2 "are equally qualified and capable of performing." According to the Union, this portion of the proposal applies only when management has decided to fill a vacancy with a candidate from either category 1 or category 2 and has determined that two or more candidates are equally qualified. Reply Brief at Article 47.

It is well-established that when management finds that two or more employees or candidates for an assignment are equally qualified and capable of performing under the criteria management chooses to apply, the procedure by which one of the qualified employees will be selected is negotiable under section 7106(b)(2) of the Statute. Laborers International Union of North America, AFL - CIO, Local 1276 and Veterans Administration, National Cemetery Office, San Francisco, California, 9 FLRA 703 (1982). See also Local Lodge 830, International Association of Machinists and Aerospace Workers, AFL - CIO and U.S. Naval Ordnance Station, Louisville, Kentucky, 20 FLRA 848 (1985) (second and third sentences of section 9 (a) and section 9(b)(1)), enforced sub nom. United States Naval Ordnance Station, Louisville, Kentucky v. FLRA, 818 F.2d 545 (6th Cir. 1987).

This proposal applies only after management has decided to fill a vacant position with a candidate from category 1 or category 2 and in addition, has determined that two or more employees are equally qualified and capable of performing. In other words, management's rights to select or not select and to select from any other appropriate source are maintained. Moreover, management's rights to establish the qualifications necessary for the vacant position and determine whether any of the candidates possess such qualifications are also preserved. Thus, we view this portion of the proposal to be to the same effect as Proposal III found negotiable in Wright - Patterson Air Force Base, Ohio, 2 FLRA 604, 613-14. Proposal III in that case provided that unless the agency decided to use competitive procedures, temporary assignments would be made on the basis of seniority. The Authority found that such a proposal did not interfere with management's right under section 7106(a)(2)(A) to assign or with management's right under section 7106(a)(2)(C) to select because the proposal preserved management's right to use competitive procedures to select from any appropriate source.

Consequently, based on the above, we find that Proposal 46 is negotiable.  

XXXVI. Proposal 47

Article 50 - Reduction-in-Force, Reorganization Transfer of Function, Job Abolishment, and Technological Change

Section 5A. The Employer will make a maximum effort to place affected unit employees in positions for which they qualify, had been working in, or were grandfathered into. The Employer will counsel affected unit employees as to what types of training would be necessary or useful to qualify for vacant positions. The Employer shall provide appropriate training for unit employees affected by an Employer decision to the extent permitted by the Training Act and this Agreement, provided said training would qualify the unit employee for an available position.

A. Positions of the Parties

The Agency contends that the first sentence of the proposal is inconsistent with management's right to assign work under section 7106(a)(2)(B) since it would deprive management of the right to determine the qualifications necessary to perform work. The Agency claims that the proposal would require management to treat as qualified in a subject area or grade, any employee who was in that same grade or subject, even if the employee does not meet certain qualification standards, including changed qualifications. The Agency argues that the last sentence of the proposal violates section 7106(a)(2)(B) since it would require the Agency to provide training for employees.

The Union argues, as to the first sentence, that the qualifying language "make a maximum effort" merely establishes a general nonqualitative contractual standard which does not limit the Agency's reserved authority. The Union also claims that the proposal gives management wide latitude to select the kind of position in which to make the maximum effort to place the displaced employee, including positions for which management deems the employee qualified. As to the last sentence of the proposal, the Union contends that it is negotiable because it does not mandate training during duty  hours. Finally, the Union argues that to the extent the proposal is found to violate management's rights, it is negotiable as an appropriate arrangement under section 7106(b)(3).

B. Analysis and Conclusion

1. First Disputed Sentence

The Authority has consistently held that management's rights under section 7106(a)(2)(A) and (B) include the exercise of judgment in establishing the particular skills and qualifications needed to perform the work to be done and in determining which employee possesses the requisite skills to do the work to be assigned. See, for example, National Cemetery Office, San Francisco, California, 9 FLRA 703, 706 (1982). The first sentence in Section 5 (A) would require that the Agency place employees into appropriate positions if management conducts a reduction-in-force (RIF), reorganization, transfer of function, job abolishment, or technological change.

Use of the qualifying language "make a maximum effort" in placing employees does not alter this result. Decisions as to whether the Agency had made a maximum effort would, if challenged by the Union, be subject to arbitral review. By authorizing an arbitrator to substitute his or her judgment as to these matters, the proposal conflicts with management's rights under section 7106(a)(2)(A) and (B). See VAMC, Dayton, Ohio, 28 FLRA No. 65, slip op. at 4 (1987) (Proposal 1).

Under the test set forth in Kansas Army National Guard, 21 FLRA No. 4 (1986), we find that the first disputed sentence in Section 5(A) is intended to be an arrangement for employees adversely affected by a reduction-in-force, transfer of function, technological change, and job abolishment. As to whether the proposed arrangement is appropriate within the meaning of section 7106(b)(3), we find that it is similar in effect to Provision 32 in 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, slip op. at 28-31 (1987), which provided for the internal placement of employees affected by a RIF. Provision 32 in that case specifically reserved to management the right to determine whether to fill vacant positions. Here, we find nothing in the proposal that would interfere with the Agency's right to decide whether to fill vacancies.  

We also conclude that, like Provision 32 in Bureau of Engraving and Printing, this proposal leaves the Agency discretion to determine whether employees are qualified for vacant positions. Although the proposal would appear to require that management place employees in positions they "had been working in" without regard to changed qualification standards, the Union's statement regarding employees' qualifications in its Reply Brief clarifies this phrase. The Union states "the proposal gives Management wide latitude to select the kind of position in which to 'make maximum effort' to place the displaced employee, including those positions for which Management itself deems the employee qualified." Reply Brief at Article 50. Thus, under Section 5(A) the Agency would determine if an employee was qualified for a vacant position regardless of whether the employee had previously occupied that position.

The proposal concerns the consequences of various situations in which unit employees may be transferred, reassigned, or laid off because of a management action. Clearly, he potential impact on employees is quite serious. By requiring management to make an effort to place employees, the benefits to be gained from the proposal outweigh the effects on the exercise of management's rights. Therefore, we conclude that the first sentence in Section 5(A) constitutes an appropriate arrangement within the meaning of section 7106(b)(3).

2. Second Disputed Sentence

The second disputed sentence in Section 5(A) would obligate the Agency to provide training that would qualify unit employees for available positions if management conducted a RIF, reorganization, transfer of function, job abolishment, or instituted a technological change. The Union argues that since training is available during nonduty hours through extension services offered by universities in the United States, this proposal does not involve the assignment of work. While the Union may have intended that the proposal be limited to a requirement that the Agency reimburse employees for training under the Training Act, 5 U.S.C. 4101-4119, this intention is not supported by the proposal's language. The Union could easily have written a proposal that is so limited. Overseas Education Association v. FLRA, No. 86-1491, slip op. at 7 (D.C. Cir. Aug. 28, 1987). In these circumstances, we conclude that the disputed sentence would obligate the Agency to assign training to the extent that training will qualify affected employees for available positions and is consistent with the Training Act. 

The proposal as written does not give the Agency discretion to determine, among other matters, which employees will be trained, the extent or type of training, or the number of employees who will receive training. Accordingly, the second sentence is unlike Provision 32 in Bureau of Engraving and Printing which specifically preserved management's discretion to determine the extent and type of training, the numbers and types of employees to be trained given available funding and training authority, and the methods and means by which the training would be accomplished. Here, training is required for all affected employees to the extent that the training would qualify them for vacant positions. Furthermore, we note that any dispute that might arise under this proposal concerning whether training is appropriate, available to affected employees, or qualifies an employee for an available position would be resolved in arbitration. Thus, this proposal excessively interferes with management's discretion to determine training needs and to assign training to employees and is not an appropriate arrangement.

In conclusion, we find that the first sentence in Section 5(A) is inconsistent with management's rights under section 7106(a)(2)(A) and (B). However, for the reasons set forth above, we find that it constitutes an appropriate arrangement for employees adversely affected by the exercise of those rights. Therefore, the first sentence in Section 5(A) is negotiable under section 7106(b)(3) of the Statute. However, the second sentence in Section 5(A) excessively interferes with the exercise of the Agency's rights under section 7106(a)(2)(B) and is outside the duty to bargain.

XXXVII. Proposal 48

Article 54 - Reclassification and Downgrading of Employees

In the event any unit employee covered by this Agreement is reclassified/downgraded, or both, through no fault of the unit employee, said unit employee shall continue to receive such additional salary and benefits for at least two (2) years. If the new position requires special/additional qualifications, said unit employee shall be provided necessary training to meet the new requirements in accordance with the Training Act, 5 U.S.C. 4101.  

A. Positions of the Parties

The Agency argues that the proposal would require it to provide training to employees and is therefore inconsistent with section 7106(a)(2)(B) of the Statute.

The Union claims that the proposal does not mandate training during duty hours and is not inconsistent with management's right to assign work. The Union states that the proposal is materially identical to one found negotiable in American Federation of Government Employees, Social Security Local No. 1760 and Department of Health and Human Services, Social Security Administration, 9 FLRA 813 (1982) (Proposal 2). However, even if the proposal is found to conflict with the exercise of management's rights, the Union contends that the proposal would nonetheless be an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

Proposal 48 obligates the Agency to provide employees who were reclassified or downgraded the necessary training to qualify them for the new position. The Authority has held that proposals which require an agency to provide training for its employees violate management's right to assign work under section 7106(a)(2)(B) of the Statute. See for example, Bureau of Engraving and Printing, 25 FLRA No. 9, slip op at 28. By requiring the Agency to provide training for employees who were reclassified or downgraded, Proposal 48 directly interferes with management's right to assign work.

It is clear that a reclassification or downgrade has a significant adverse impact on affected employees. The Union intends this proposal to be an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute for unit employees adversely affected by the Agency's decision to reclassify or downgrade them.

We find that Proposal 48 is intended as an arrangement for employees who have been reclassified or down-graded. As to whether the arrangement is appropriate within the meaning of section 7106(b)(3) of the Statute, we find that the disputed portion of Proposal 48 is similar to Provision 32 determined to be an appropriate arrangement in Bureau of Engraving and Printing. slip op. at 28-31. We held that Provision 32 in that case which similarly required that employees selected for reassignment would be provided with  such additional training as was necessary to perform the requirements of their new position did not excessively interfere with the Agency's rights under section 7106 to assign work. We found that Provision 32 specifically left with the agency the discretion to determine the extent and type of training, the numbers and types of employees to be trained given available funding and training authority, and the methods and means by which the training would be accomplished. See also Social Security Administration, 9 FLRA 813 at 814.

Proposal 48 in this case provides that the affected unit employees "shall be provided necessary training to meet the new requirements" of the position to which they were reclassified or downgraded. This leaves the Agency with the discretion to determine the extent and type of training, the content of the training and the methods and means by which the training would be accomplished. Moreover, there is nothing in the express language of the proposal which mandates training during duty hours. In this regard, Proposal 48 is much more limited in scope than Proposal 47 which we have found to be nonnegotiable. Proposal 48 requires training only to the extent that employees have been reclassified or downgraded into a position for which they need training in order to qualify.

Accordingly, we find Proposal 48 does not excessively interfere with the Agency's rights and is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

XXXVIII. Proposal 49

Article 56 - Student Discipline and Employee Protection

The Employer shall make every reasonable effort to give all necessary support and assistance to employees with respect to the maintenance of an appropriate learning environment in the schools. The Employer at all levels shall take the responsibility not only for supporting the unit employees in their efforts to maintain discipline according to established regulations, but shall take final responsibility in cases where all else has failed. 

A. Positions of the Parties

The Agency argues that the disputed portion of the proposal is outside the duty to bargain for two reasons. First, the Agency claims that maintenance of discipline in the classroom concerns the methods and means of performing work under section 7106(b)(1) of the Statute by which the Agency's mission of providing a quality education can be accomplished. Second, the Agency argues that the proposal conflicts with its right to assign work under section 7106(a)(2)(B) of the Statute because employees have been assigned the task of maintaining proper discipline in the classroom. According to the Agency, allowing employees to refuse to perform that work and instead requiring the Agency to take final responsibility for disciplining students is inconsistent with the right to assign that duty to employees.

The Union, on the other hand, argues that the proposal does not interfere with the Agency's discretion to identify the particular position to which the task of disciplining students will be assigned or to relieve employees of this task. Rather, the proposal would require the Agency to support the employees' efforts to discipline in general, nonqualitative terms and to take final responsibility when employees are unable to maintain discipline through no fault of their own. The Union also notes its view that the Agency is never actually relieved of final responsibility in matters such as these.

B. Analysis and Conclusions

We find that the proposal does not directly and integrally relate to the methods and means of performing work and that it is not inconsistent with the Agency's right to assign work. Rather, it is within the duty to bargain.

In our view, the proposal does not prescribe how employees shall perform the task of disciplining students nor does it relieve employees of that responsibility. In fact, the proposal references the employees' responsibility to maintain discipline according to established regulations. The proposal merely states that the Agency will support employees' efforts in this regard and take final responsibility where all else, including these efforts, has failed. We do not view this statement as relieving employees of the responsibility of maintaining discipline. Thus, we find that the Agency has failed to demonstrate how the proposal would permit employees to refuse to perform work or how it would establish the method and means of maintaining discipline in the classroom.  

Our conclusion in Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA No. 79 (1987) (Proposal 10), petition for review filed sub nom. Veterans Administration Medical Center v. FLRA, No. 87-1405 (D.C. Cir. Aug. 17, 1987) is not to the contrary. In that case, the union proposed that management recognize and support appropriate actions recommended by nurses as part of their professional responsibility. Because the agency's responsibilities under the terms of the proposal were not defined and the record was otherwise unclear as to the intended scope of the proposal, we were unable to make a negotiability determination concerning the proposal's merits.

In this case, however, it is clear that the intended scope of management's responsibilities is limited to supporting employees in their efforts to maintain discipline. Moreover, we note that the Agency did not object to the first sentence of the proposal which requires that it make every reasonable effort to give all necessary support and assistance to employees with respect to the maintenance of an appropriate learning environment in the schools. It would appear that both parties were aware of elements which comprise the "necessary support and assistance" to be given employees in order to maintain an appropriate learning environment, including the maintenance of discipline.

Based on the foregoing analysis, we find that the proposal is within the Agency's duty to bargain.

XXXIX. Proposal 50

Article 60 - ODE/DODDS Accreditation Program

Section 2. When unit employees are required to prepare reports to meet NCA requirements, they shall be placed in a duty status with all pay and benefits. Time and dates shall be determined at the local level by the Employer and the Association in accordance with Article 9, section 4.

A. Positions of the Parties

The Agency claims that insofar as this proposal would subject assignments of work to JAEC meetings, it violates management's right to assign work and direct employees under section 7106(a) of the Statute. The Agency argues that  management has the right to assign general continuing duties, to make periodic work assignments and to determine when the work that has been assigned will be performed. In addition, the Agency notes that such duties are normally assigned within the school workday.

The Union claims that this proposal does not interfere with management's right to assign work. Rather, it merely requires that employees be paid for the time they spend completing the duties assigned.

B. Analysis and Conclusion

The first sentence of this proposal to which the Agency did not specifically object requires that employees be in a paid status when preparing certain required reports. There is nothing in the record to indicate that employees are not in a paid status when preparing these reports. In fact, the Agency states that the task of preparing these reports is assigned during the normal workday. Thus, we find the first sentence to be negotiable.

The second sentence in this section, which the Agency does claim is nonnegotiable, provides that the time and dates of performing the task of preparing the required reports will be subject to the JAEC procedures set out in Article 9, section 4. We have determined in this case that the JAECs are a vehicle by which the Union may offer its nonbinding views concerning topics that affect bargaining unit working conditions. Since the Agency is not required to adopt any particular suggestion presented by the Union in a JAEC meeting, including ones related to the time and dates of preparing the required reports, the Agency has not established how this proposal in any manner violates its management rights. Thus we find the second sentence also to be within the duty to bargain.

XL. Proposal 51

Article 61 - Certification/Recertification:

Section 1.

Each ODE/DODDS unit employee employed by ODE/DODDS on or after April 1, 1980 shall be given an initial ODE/DODDS certificate. ODE/DODDS Certification/Recertification is required only in one position category.  

A. Positions of the Parties

The Agency contends that this proposal would prevent management from determining employees' qualifications by limiting the certification requirement to one position category. Relying on Authority precedent, the Agency argues that inherent in the right to assign work under section 7106(a)(2)(A) of the Statute is the right to determine the qualifications and skills needed to do the work.

The Union argues that while management has the right to establish qualifications for positions, the number of positions in which an employee must be qualified is negotiable. According to the Union, the proposal does not interfere with the Agency's right to assign work and does not prevent the Agency from establishing unnecessary qualifications.

B. Analysis and Conclusion

This proposal would limit the Agency's certification requirement to one position category for teachers employed on or after April 1, 1980. In effect, this proposal would prevent the Agency from changing its regulation, DODDS Certification and Recertification Program, 5000.9 (Dec. 19, 1979), to require certification in more than one position category.

The Authority has held that the determination of the personnel requirements of a position--that is, the qualifications, skills, and abilities needed to perform the work of a position--is encompassed within management's right under section 7106(a)(2)(A) to assign employees. See Wright - Patterson Air Force Base, Ohio, 2 FLRA 603, 612-14. The determination also involves management's right under section 7106(a)(2)(C) to select for a position. See National Federation of Federal Employees, Local 1497 and Headquarters, Lowry Technical Training Center, (ATC), Lowry Air Force Base, Colorado, 11 FLRA 565, 568 (1983) (Proposals 1 and 2). By defining the qualifications necessary for a teaching position, we hold that this proposal directly interferes with management's right to assign employees. Thus, Proposal 51 is outside the duty to bargain. 

XLI. Proposals 52-53

Article 61 - Certification/Recertification

Proposal 52

Section 2. Each ODE/DODDS unit employee employed-by ODE/DODDS prior to April 1, 1980 shall be grandfathered in each position category occupied from August 1979 until April 1, 1980, until such time as he/she receives necessary training in accordance with Article 21 to enable him/her to meet the revised requirement for certification.

Proposal 53

Section 3. Those unit employees covered by the grandfather clause shall not be required to meet revised qualification standards in order to be recertified in those position categories for which they were grandfathered.

A. Positions of the Parties

The Agency argues that Proposal 52 mandates that it provide training which will qualify an employee for a position. Thus, according to the Agency, it is clearly inconsistent with management rights. With regard to Proposal 53, the Agency argues, as it did concerning Proposal 51, that this proposal would prevent it from determining the qualifications necessary for a position and is, therefore, nonnegotiable.

The Union argues that both proposals are appropriate arrangements under section 7106(b)(3) of the Statute for employees who are adversely affected by the exercise of the Agency's authority to change certification requirements for a position (Proposal 52) and qualification standards (Proposal 53).

B. Analysis and Conclusion

1. Proposals Violate Management Rights

The Union points out that DODDS Regulation 5000.9 D.1.b. (Dec. 19, 1979) provides that all educators employed prior to April 1, 1980, will receive certification for the  position to which they are currently assigned. The Union's intent in Proposal 52 is to "grandfather" unit employees employed prior to April 1, 1980, into the position category, rather than just the actual position currently encumbered, until such time as those employees receive training to meet revised certification requirements. Regarding Proposal 53, the Union states that it merely contractually guarantees the existing provision of DODDS Regulation 5000.9 D.2.b. This section of the regulation provides that educators employed prior to April 1, 1980, are not required to meet revised qualification standards in order to be recertified.

In effect, these proposal would require that the Agency negotiate the qualifications necessary for a teacher employed prior to April 1, 1980. Such a requirement directly interferes with management's right to determine and implement qualifications and thus its right to assign employees under section 7106(a)(2)(A) because that right includes not only the right to assign an employee but also the discretion to determine the qualifications and skills needed to do the work. See Wright - Patterson Air Force Base, Ohio, 2 FLRA 603, 612-14 (1980) (Proposals IV, V, and VI). See also American Federation of Government Employees, Local 2182, AFL - CIO and Propulsion Laboratory, U.S. Army Research and Technology Laboratories, 26 FLRA No. 74, slip op. at 9 (1987) (Provision 6) (provision defining "qualified" for the purpose of assignment of overtime held nonnegotiable).

2. Proposals Are Not Appropriate Arrangements

Proposal 52, the Union argues, constitutes an appropriate arrangement for teachers who are affected by management's revision of certification requirements. It would require that those teachers hired prior to April 1, 1980, receive training to enable them to meet revised certification requirements.

It is unclear what the Union intends by the phrase "receives necessary training." The Union's only explanation of its proposal is that it does not intend to require that management assign training during duty hours. If the Union intended, for example, that management grant a reasonable period of time to employees to meet revised requirements for certification or that management reimburse employees for training under the Training Act, 5 U.S.C. 4101-4119 (1982), it could easily have written a proposal that was so limited. In the absence of any clarifying information, we  conclude that Proposal 52 must be read to require that management provide employees training before management may impose its revised requirements for certification. Overseas Education Association v. FLRA, No. 86-1491, slip op. at 7 (D.C. Cir. Aug. 28, 1987). Thus, we find that Proposal 52 conditions the Agency's right under section 7106(a)(2)(A) to implement certification requirements upon its prior exercise of its right to determine training needs. National Federation of Federal Employees, Local 108 and U.S. Department of Agriculture, Arkansas State Office of the Farmers Home Administration, 14 FLRA 19, 21 (1984) (proposal conditioning assignment of new duties upon completion of prescribed training held nonnegotiable). By conditioning the exercise of a management right on the prior exercise of another management right, we hold that Proposal 52 excessively interferes with management's right and is not a negotiable appropriate arrangement.

The Union argues that Proposal 53 is an appropriate arrangement to assist employees who find it more difficult to be recertified because of a management-initiated change in qualification standards. Proposal 53 would alleviate the impact of a change on teachers hired prior to April 1, 1980, as it would permit those teachers to be recertified without meeting the changes in standards. Essentially, the section would prevent management from applying recertification requirements to teachers hired prior to April 1, 1980. Proposal 53 would totally prevent management from implementing new qualification standards.

In conclusion, we hold that Proposals 52 and 53 excessively interfere with management rights and, therefore, do not constitute negotiable appropriate arrangements.

XLII. Proposal 54

Article 61 - Certification/Recertification

Section 14. When recertification requirements are changed, a unit employee shall have a minimum of six (6) years to meet the new requirements. The six (6)-year period shall commence from the date the employee received written notification of the changes.  

A. Positions of the Parties

The Agency argues that the proposal would prevent it from taking any action, including reassignment, for 6 years concerning an employee who no longer satisfies certification requirements. In support, the Agency argues that management cannot be required to hold the exercise of its rights under section 7106(a) and (b)(1) in abeyance.

The Union contends that the proposal is an appropriate arrangment for employees adversely affected by the exercise of the Agency's authority to change recertification requirements within the meaning of section 7106(b)(3) of the Statute. Therefore, the Union contends that it is negotiable even if it directly interferes with management's rights under section 7106(a).

B. Analysis and Conclusion

Proposal 54 prevents the Agency from taking any action for 6 years concerning an employee who fails to meet its revised requirements for recertification. By preventing the Agency's implementation of revised requirements, this proposal directly interferes with management's right to establish job qualifications, a right that is included in management's right to assign employees under section 7106(a)(2)(A).

As we read Proposal 54, noting particularly the second sentence, it grants a teacher 6 years to achieve recertification from the time the Agency revised recertification requirements. The Agency has failed to show that this period of time is unreasonable. In fact, Agency regulations allow teachers 6 years to earn the 120 renewal units necessary to meet the Agency's requirement that educators be recertified for each successive 6-year period of employment. DODDS Regulation 5000.9 C.2. Thus, it appears that Proposal 54 would assist employees to meet changes that management institutes in its recertification requirements by granting employees additional time to accumulate the necessary renewal units. In our view, the burden imposed on management's right to implement job qualifications is outweighed by the benefit that employees receive. In this regard, we emphasize that employees must be recertified as a condition of employment, according to Agency regulations. Therefore, in agreement with the Union, we find that Proposal 54 is a negotiable appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. See, for example, American Federation of Government Employees, Local 32 and Office of  Personnel Management, 26 FLRA No. 76, slip op. at 3 (1987) (Proposal 1), petition for review filed sub nom. Office of Personnel Management v. FLRA, No. 87-1268 (D.C. Cir. June 18, 1987).

XLIII. Proposal 55

Article 63 - Part-time Employees

Section 1. "Part-time employee" within the meaning of this Agreement shall be any unit employee with a work schedule less than a full normal workday. Part-time unit employees shall be given a preparation period.

A. Positions of the Parties

The Agency asserts that Proposal 55 interferes with its rights to direct employees and to assign work under section 7106(a)(2)(A) and (B) because it would require the assignment of a preparation period. The Union responds that Proposal 55 does not interfere with the right to assign because part-time teachers, as well as regular full-time teachers, are already required to prepare for their classes. By changing the definition of a part-time employee and designating a particular period of time for preparation, the Union intends to assure that part-time teachers are paid for preparation work.

B. Analysis and Conclusion

The first sentence of Proposal 55, according to the union, is intended to create a definition of part-time employee which would be applicable only to this collective bargaining agreement. The Agency made no argument concerning this definition. Accordingly, it does not appear that there is any dispute concerning the negotiability of this sentence and we will dismiss the Union's petition as to the first sentence.  

In agreement with the Agency, we hold that the second sentence of Proposal 55 interferes with management's right to assign work because it would require that the Agency allocate a specific amount of time for the accomplishment of a specific duty. In Defense Language Institute, 7 FLRA 723 (1982), proposals which required that the agency to establish specific amounts of time for activities related to teaching were found nonnegotiable. For example, various amounts of time were granted teachers to prepare for quizzes, tests, and final examinations. In this case, the second sentence would require that any part-time teacher, as defined by the first sentence of the proposal, be granted a daily preparation period. Thus, like the proposals in Defense Language Institute, the second sentence also requires the Agency to assign work.

In summary, the first sentence in Proposal 55 is within the duty to bargain. The second sentence is nonnegotiable because it interferes with management's right to assign work.

XLIV. Proposal 56

Article 63 - Part-time Employees

Section 2. All other benefits of full-time unit employees shall be granted to part-time unit employees to the extent not prohibited by law and/or government-wide regulations.

A. Postions of the Parties

The Agency asserts that since certain benefits are not available to part-time employees under the Department of State Standardized Regulations (DSSRs), Proposal 56 is nonnegotiable. The Union argues the proposal is negotiable because it merely requires that the Agency grant part-time employees whatever benefits they are entitled to by law or Government-wide regulations.

B. Analysis and Conclusion

Proposal 56 would require that the Agency grant benefits to part-time employees to the extent allowable under law and Government-wide regulation. In this case, governing regulations are the DSSRs which we have held are Government-wide regulations and generally applicable to overseas teachers. Department of Defense Office of Dependents Schools, 22 FLRA No. 34, slip op. at 4-6 (1987) (Proposal 2). As the Agency points out, part-time employees are prohibited from receiving  certain benefits under the DSSRs. Specifically, the regulations state that part-time employees "shall not be granted allowances, post differential, special incentive differential, or advances of pay(.)" DSSR 031.5 (Aug. 18, 1985). However, despite the fact that part-time employees are not entitled to certain benefits, we find that Proposal 56 is negotiable because it expressly limits the Agency's obligation to provide benefits to those "not prohibited by law and/or government-wide regulations." Thus, Proposal 56 is within the duty to bargain.

XLV. Proposal 57

Article 66 - Qualification Standards

Section 2. ODE/DODDS shall reimburse unit employees for costs spent by said employees in meeting changes in qualification standards since the beginning of the 1979-80 school year, in accordance with the Training Act, 5 U.S.C. 4101 et seq., for each affected year.

A. Positions of the Parties

The Agency contends that the reimbursement required by Proosal 57 is prohibited by FPM Chapter 410. Under the Agency's interpretation, the proposal would require that management pay for all types of training received by employees. Furthermore, the Agency claims the proposal would require reimbursement if a teacher chose to maintain qualifications for subjects that there was no reasonable expectation the employee would teach. Finally, the Agency asserts that this proposal conflicts with its right to assign employees under section 7106(a)(2)(B) of the Statute.

The Union contends that the proposal is intended to assist employees in meeting changes the Agency instituted in qualification standards. According to the Union, the proposal is limited to reimbursement for training that employees undertake to maintain qualifications for positions required by the Agency.

B. Analysis and Conclusion

By its plain language, the proposal would require the Agency to reimburse teachers in accordance with 5 U.S.C. 4104 for training costs incurred to meet changes in qualification standards which management instituted since the beginning of the 1979-80 school year. Thus, contrary to the  Agency's assertions, the proposal is limited. It would require only that the Agency reimburse unit employees to the extent that statute permits for training enabling teachers to meet qualification standards.

Reimbursement for training expenses will be permitted where an employee's training "will be directly related to the performance by the employee of official duties for the Government." 5 U.S.C. 4101(4) (1982). Official duties are defined in the FPM as "authorized duties which the employee is presently doing or can be reasonably expected to do in the future." FPM Chapter 410, subchapter 1, 1-12.a.(9) (Oct. 22, 1981). Therefore, reimbursement for training under this proposal would be consistent with statute only if it is reasonably related to future teaching assignments. Compare National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA 508 (1982) (Proposal 1) (although attorney's license required for employment, reimbursement for courses required to maintain license held inconsistent with statute). In summary, we find that because the proposal provides that it be administered according to statute, it would not require the Agency to reimburse a unit employee for training to meet qualification standards that there is no reasonable expectation are related to future assignments.

Contrary to the Agency's contention, the proposal does not require that management assign training to employees. Therefore, the Agency's reliance on Federal Aviation Administration, 6 FLRA 588 (1981) (Proposals I through III) is misplaced. In that case, the Authority found that the requirement that the agency assign training to employees during duty hours was a direct interference with the agency's right to assign work. However, in this case, the disputed proposal does not require, nor does the Union argue that it intends, that unit employees be trained during duty hours. Therefore, contrary to the Agency's argument, Federal Aviation Administration is not precedent for finding this proposal nonnegotiable.

In summary, we hold that this proposal does not violate a Government-wide regulation nor does it interfere with management's right to assign work. Therefore, Proposal 57 is within the duty to bargain.  

XLV. Proposals 58-61

Article 66 - Qualification Standards

Proposal 58

Section 3.

A. A unit employee who has taught in a position category for ODE/DODDS shall remain eligible to teach in the same position category or any position category that replaces it regardless of ODE/DODDS changes in qualification standards, titles, and coding until such time as the unit employee is provided necessary training in accordance with the Training Act, 5 U.S.C. 4104 et seq., to meet the revised standards.

B. A unit employee who is affected by ODE/ DODDS changes in school level concepts, such as Junior High School vs. Middle School vs. 7-12 vs. K-8, etc., shall remain qualified to teach the same grade level.

Proposal 59

Section 4. A unit employee shall be eligible for reassignment and transfer regardless of ODE/DODDS changes in position category qualification standards, titles, coding, or experience requirements.

Proposal 60

Section 6. A unit employee shall be eligible to compete in all competitive levels (position categories) that he/she has taught in for ODE/ DODDS, was qualified in at the time of appointment, or became qualified in after initial appointment during a RIF action regardless of ODE/DODDS changes in position category qualification standards, titles, or coding.  

Proposal 61

Section 7. Unit employees shall retain certification in all position categories identified on their certificate or like position categories regardless of ODE/DODDS changes in position category qualification standards, titles, or coding until such time as they are provided necessary training in accordance with the Training Act.

A. Positions of the Parties

The Agency contends that these proposals require that employees be considered qualified for a position to which they have been assigned for all purposes. According to the Agency, the proposals would require that management consider employees qualified based solely on their previous incumbency in a position. Thus, the Agency argues that these proposals are inconsistent with management's rights to assign and lay off employees and assign work.

The Union argues that these proposals are designed to aid teachers who are affected by management's changes in qualification standards, titles, coding, or experience requirements. In particular, Proposals 59 and 60 would assist teachers who might lose their positions if a school closed or management abolished positions in a reduction-in-force (RIF) action.

B. Analysis and Conclusion

These proposals would require that the Agency consider unit employees eligible for positions regardless of changes in qualification standards, titles, coding, or experience requirements. Thus, they directly interfere with management's right to determine the qualifications necessary for positions under section 7106(a)(2)(A).

Proposals 58 and 61 would permit unit employees to remain in positions for which they were once qualified until the Agency provides the training necessary for them to meet new standards. Specifically, Proposal 58 would provide that employees remain eligible to teach in the position category or grade level in which they are teaching when standards change as well as any replacement position category or grade  level. Proposal 61 would permit a teacher to retain certification in all position categories, or like position categories, identified on the employee's certificate. Thus, Proposals 58 and 61 interfere with management's right to assign employees under section 7106(a)(2)(A).

Proposals 59 and 60 would require that management consider unqualified unit employees for new positions. These proposals would preserve their eligibility for reassignment and transfer to new positions (Proposal 59) and the right to compete in all position categories that unit employees have taught in, were qualified in, or became qualified in after initial appointment during a RIF (Proposal 60). In agreement with the Agency, we find that these proposals clearly interfere with management's rights under section 7106(a)(2)(A) to assign and lay off employees.

Moreover, Proposals 58, 59 and 61 would be effective until unit employees are provided training to meet changes in qualification standards. In fact, according to the Union, Proposal 59 is intended to remain effective until an employee is provided the required training. Petition for Review at 100. Thus, these proposals would condition the Agency's right under section 7106(a)(2)(A) to establish qualification standards upon its prior exercise of its right to provide training needs. Farmers Home Administration, 14 FLRA 19, 21 (1984) (proposals concerning training found nonnegotiable because they conditioned assignment of new duties upon completion of prescribed training).

Each of the proposals would directly interfere with management's rights to assign and layoff employees and assign work. They are, therefore, outside the duty to bargain as they interfere with management's rights under section 7106(a)(2)(A) of the Statute.

XLVII. Proposal 62

Article 66 - Qualification Standards.

Section 11. The Employer shall provide the Association with copies of all records maintained by the Overseas Dependents Schools Committee (ODSC) that relate to unit employee qualification standards. 

A. Positions of the Parties

The Agency explains that the Overseas Dependents Schools Committee (ODSC) is a committee of the North Central Association of Colleges and Schools (NCA) with which it has contracted for accreditation services. Complete records relating to unit employee qualification standards are maintained by NCA and the Agency asserts that it has no control over them. However, the Agency states that it does maintain some records concerning unit employee qualification standards, and we are unaware of any such prohibition.

The Union's response is that since DODDS employees constitute a majority of ODSC members, the Agency has effective control of the requested records and is able to provide them to the Union. However, the Union also states that it intends in the proposal to require DODDS to provide it with copies of all ODSC records regarding unit employee qualification standards which are in DODDS' possession or control.

B. Analysis and Conclusion

Proposal 62 would require that the Agency provide the Union with copies of all records maintained by ODSC regarding unit employee qualification standards. The Agency does not argue that any law, rule, or regulation prevents it from releasing records within its control to the Union concerning unit employee qualification standards, and we are unaware of any such prohibition.

Moreover, we note that the Statute requires in section 7114(b)(4) that an agency provide a union with information which is "normally maintained" by an agency in the regular course of business and which is reasonably available and necessary for discussion and negotiation of subjects within the scope of collective bargaining. The Authority has held that section 7114(b)(4) is a statutory "floor" on the provision of information, not a "ceiling." National Treasury Employees Union and Department of Energy, 22 FLRA No. 12 (1986) (proposal requesting reports on agency's reduction-in-force actions held consistent with law and negotiable).

Therefore, we hold that Proposal 62 is negotiable. 

XLVIII. Proposal 63

Article 73 - Renewal Agreement Travel

Section 3. Travel authorization may be based upon a unit employee's current place of residence in the United States unless prohibited by law and/or government-wide regulation. A. Positions of the Parties

The Agency argues that this proposal conflicts with 5 U.S.C. 5728 because that provision limits payment of travel expenses for home leave to an employee's actual place of residence at the time of appointment or transfer. In response, the Union argues that the Federal Travel Regulations (FTRs) allow an employee returning from an overseas duty post on home leave to travel to an 'alternate destination.'

B. Analysis and Conclusion

Proposal 63 would require the Agency to authorize travel to a unit employee's current place of residence on home leave unless such authorization is prohibited by statute or a Government-wide regulation. As we read the proposal, and there is nothing in the record which indicates otherwise, it is applicable only to employees who are eligible under the FTRs for renewal agreement travel. See FTRs, FPMR 101-7, 2-1.5.h.(1) (Sept. 8, 1982). According to statute, if certain requirements are met, transportation is paid for an overseas Federal employee for home leave "to the place of his actual residence at the time of appointment or transfer." 5 U.S.C. 5728(a) (1982). Renewal agreement travel is implemented in the FTRs, Government-wide regulations. Office of Dependents Schools, 27 FLRA No. 71, slip op. at 14 (1987). Thus, this proposal must be examined under that regulatory framework.

Under the FTRs, employees eligible for renewal agreement travel may travel to alternate destinations, that is, locations other than the place of actual residence. However, the FTRs limit the amount allowed for travel to an alternate destination to an amount which does not exceed the cost of travel to and from the post of duty by a usually traveled route to the place of actual residence. FTRs, FPMR 101-7, 2-1.5h(2)(c) (Sept. 8, 1982). See also Unpublished Decision of the Comptroller General, B-186310 (Feb. 16, 1977). Thus, within the statutory limitations concerning  eligibility for renewal agreement travel and the expenses allowable for travel to an alternate destination, we find that Proposal 63 within the duty to bargain.

IL. Proposal 64

Article 76 - Joint Educational Advisory Committees

Section 1. For the purposes of this Agreement there shall be a joint educational advisory committee established at each level of administration (school, intermediate, regional, and national).

Section 2. The primary purpose of each committee is to advise the appropriate level administration on all matters affecting the operation of ODE/ DODDS schools.

Section 3. Representation on the committees shall be jointly determined at the appropriate level by the Employer and the Association.

A. Positions of the Parties

The Agency contends that Article 76 directly interferes with its management rights under section 7106(a) of the Statute and is outside the duty to bargain. The Agency argues that Article 76 requires management to establish committees to advise the administration on all matters affecting the operation of schools and to jointly determine representation on the committees. The Agency argues that the phrase "on all matters affecting the operation of ODE/DODDS schools" includes contracting out, content of performance standards, school curriculum and retention and selection of employees. Therefore, Article 76 allows the Union to interject itself into the process by which management decisions are made and prevents management from engaging in free and open deliberation.

The Union contends that Article 76 is within the duty to bargain based upon Authority precedent. The Union argues that Article 76 is intended to establish a procedure by the creation of Joint Educational Advisory Committees (JEAC) for the Union to make recommendations to the Agency concerning the operations of the DODDS schools. The Union argues that JEACs are purely advisory and that Article 76 (1) does not mandate joint determination of the substantive aspects of the Agency's programs or (2) open administrative matters to substantive negotiations.  

B. Analysis and Conclusion

We find Proposal 64 to be within the duty to bargain. Proposals which provide for joint labor-management committees, such as the JEACs, whose purpose is to make recommendations concerning the improvement of the workplace have consistently been found to be negotiable. See U.S. Department of Defense Dependents Schools, 28 FLRA No. 88 (1987) (Proposal 3). It is clear from the express language of this proposal and from the record that Proposal 64 is intended to establish purely advisory committees which are forums for the Union and the Agency to express their views regarding the Agency's operations. Union Petition for Review at 107; Union Response at Article 76. It is equally clear that Proposal 64 is not intended to require Union participation in the deliberative process leading to the exercise of management's rights under section 7106 of the Statute. Union Response at Article 76. Thus, Proposal 64 merely subjects those "matters affecting the operation of ODE/DODDS schools" which are not subject to management's statutory reserved rights to discussions through the forum provided by the JEACs. Therefore, we conclude that Proposal 64 is negotiable.

L. Proposal 65

Article 88 - Resignation

Section 2. Unit employees shall retain all benefits and allowances to the extent authorized by law following the date of resignation.

A. Positions of the Parties

The Agency contends that the proposal relates solely to former bargaining unit employees who have resigned and inasmuch as the obligation to bargain extends only to conditions of employment for employees in the bargaining unit, the proposal is not negotiable. The Union contends that the proposal means that employees who have resigned shall retain all benefits and allowances to the extent authorized by statute or Goverment-wide regulation.

B. Analysis and Conclusion

This proposal is to the same effect as Proposal 22 in Office of Dependent Schools, 27 FLRA No. 71 (1987). Proposal 22 in that case required that bargaining unit employees who  retired would continue to receive certain travel benefits authorized for civilian employees. Because that proposal was limited to seeking benefits for current employees, rather than current retirees, we found that it met the first of two factors established by the Authority in Antilles Consolidated School System, 22 FLRA No. 23 (1986) to be used in determining whether a matter proposed to be bargained involved working conditions of unit employees. However, we found that the union there had not demonstrated that providing promise of a benefit during a bargaining unit employee's retirement had any relationship to current working conditions of those bargaining unit employees. Accordingly, based on the limited nature and extent to which that proposal related to working conditions we found that it did not meet the second factor set out in Antilles and thus, did not concern a condition of employment.

In this case, we find that Proposal 65, like Proposal 22 in Office of Dependent Schools, is focused on current bargaining unit employees and thus meets the first test set out in Antilles. However, other than promising a benefit to current employees after they resign from employment, the record in this case does not demonstrate that this proposal has any relationship to the working conditions of bargaining unit employees.

Therefore, we find this proposal also does not concern conditions of employment of bargaining unit employees and is nonnegotiable.

LI. Proposal 66

Article 89 - Payroll Deductions for PAC Contributions

Upon receipt of properly signed membership enrollment and authorization forms, ODE agrees to make deductions for the purposes indicated on the forms.

A. Positions of the Parties

The Agency contends that this proposal is intended to establish automatic deductions from employees' pay for the Union's "political arm" and is, therefore, nonnegotiable. Relying on substantially similar proposals in Federal Aviation Administration, 6 FLRA 588, 592-93 (1981), and International Organization of Masters, Mates and Pilots and  Panama Canal Commission, 13 FLRA 508, 526-27 (1983), the Agency argues that the proposal is not directly related to a condition of employment affecting bargaining unit employees.

While conceding that the intent of the proposal is to permit allotments to the Union's political arm, the Union argues that the Department of Defense already has established a broad program for sending allotments to various entities on behalf of employees. Negotiations over the proposal would include an allotment for political action committees. The Union claims that because payroll deductions constitute a personnel policy or practice relating to payroll administration, bargaining over such matters is within the Agency's discretion. Finally, the Union argues that the Agency's policy of permitting allotments to be made to a host of entities including associations, but not political action committees, violates the First Amendment and the Equal Protection Clause of the Fifth Adendment.

B. Analysis and Conclusion

We note that the proposal does not concern an employee's right to make contributions to political organizations. Rather, it involves the question of whether the Agency is obligated to bargain on the establishment of a payroll deduction for such purposes. Therefore, Proposal 66 is to the same effect as proposals found to be outside the duty to bargain in the Federal Aviation Administration and Panama Canal Commission. In both those cases, the Authority determined that allotments to political funds did not concern a condition of employment of bargaining unit employees. Nothing in the Union's arguments persuades us to reach a different result here. Accordingly, this proposal is outside the duty to bargain.

LI. Proposal 67

Article - 90 Academic Freedom

Section 1. It is recognized that many important areas of study involve issues on which differing positions are held by important individuals or groups and that study of these issues is a vital part of the education of pupils. It encourages a scientific and unprejudiced study of pertinent issues in the classroom, including ones which are publicly controversial. The role of the teacher   is that of an impartial moderator who does not attempt directly or indirectly to limit or control the students' judgements (sic) concerning controversial issues, but to make certain that full and fair consideration is given to both sides of an issue, and that facts are carefully examined as to their accuracy and interpretation. The democratic way of life rests on learning the respect for facts and an impartial search for truth.

Section 2. Whereas the above refers to the role of the teacher as a moderator in the classroom in the study of controversial issues, this is not intended to place unit employees in a position of not having opinions of their own, when appropriate to express them, and when asked. Teachers must be sure that the student recognizes such expressions as their personal opinion.

Section 3. it is recognized that unit employees should fill their places in the adult community and that their rights to express their opinions and work for the community in the molding of the public opinion is a professional right.

A. Positions of the Parties

The Agency argues that Sections 1 and 2 of the proposal interfere with the methods and means of performing work by allowing the teachers to determine what will be taught. The Agency argues that the proposal is inconsistent with its ability to determine its mission of providing a quality education for dependents of various military and civilian employees. The Agency also argues that Section 3 is inconsistent with its right under section 7106(a)(2)(A) of the Statute to take disciplinary action against employees. The Agency acknowledges that, for the most part, employees are entitled to do whatever they choose with regard to off-duty conduct. However, there are occasions when there is a nexus between off-duty conduct and the employee-employer relationship. Thus, according to the Agency, adherence to the proposal would limit the Agency's right to take disciplinary action, where warranted, in such circumstances. The Agency alleges without elaboration, possible violations of the Hatch and Privacy Acts.  

The Union contends that the sections of the proposal are simply general statements of free expression; that a teacher's classroom speech cannot be arbitrarily censored; that, in the case of Sections 1 and 2, the proposal does not seek to prohibit the Agency from taking action when a teacher's speech interferes with the obligation to teach, is coercive, or arbitrarily inculcates doctrinaire views in the minds of students; and, as to Section 3, that the proposal does not seek to protect speech or conduct outside the school which impedes the proper performance of a teacher's classroom duties or which interferes with the regular operation of the schools and, further, that it does not seek to protect the exercise of speech when there is an established overriding public interest in limiting that speech, as in the examples cited by the Agency.

B. Analysis and Conclusions

We find that Sections 1 and 3 of Proposal 67 are outside the duty to bargain. However, Section 2 is within the duty to bargain.

First, as to Section 1, we agree with the Agency that the proposal would interfere with the methods and means of performing work under section 7106(b)(1) of the Statute. The effect of this section is to give employees control over what is being taught in the classroom. Employees essentially would be able to make determinations regarding course content and classroom discussion. As we discussed with regard to Proposal 18, determinations concerning curriculum, which includes course content, pertain to the means of performing work. As such, the matter is negotiable only at the election of the Agency and the Agency has elected not to bargain here. Accordingly, this section is outside the duty to bargain. In view of this result, we need not address whether this section would be inconsistent with management's right to determine its mission under section 7106(a)(1) of the Statute.

Section 2, on the other hand, does not interfere with the Agency's right to determine its mission or the methods and means of performing work. Unlike Section 1, under which unit employees could have played a role in determining the course content, Section 2 would not have that result. Rather, it would allow unit employees to express their own personal views, when asked, on particular matters. It provides the safeguard of requiring employees to ensure that   the students recognize that the personal opinions are just that. It would not allow employees to substitute their own personal views for what they are required to teach. Moreover, we find no basis to conclude that this section would interfere with management's right to determine its mission of providing a quality education since the section is merely designed to allow employees to express their personal opinions.

Section 3 does not concern the working conditions of bargaining unit employees and is outside the Agency's duty to bargain. As we noted in Proposal 14, in Antilles Consolidated School System, 22 FLRA No. 23 (1986), the Authority held that a proposal concerns a condition of employment if: (1) it pertains to bargaining unit employees; and (2) there is a direct connection between the proposal and the work situation or employment relationship of those employees. In applying the first factor to Section 3, we find that the proposal expressly pertains only to bargaining unit employees. No claim is made that the proposal has any impact on nonbargaining unit employees. In applying the second factor to Section 3, we find that the proposal does not affect bargaining unit employees working conditions. It is undisputed that the conduct referred to in Section 3 would occur primarily during the employees' nonduty hours. Further, the Union has provided no evidence and the record does not otherwise establish that the conduct referred to in section 3 is in any manner related to the work situation, the employment relationship, or is otherwise linked to the employees' assignments within the schools. Thus, Section 3 does not directly affect working conditions of bargaining unit employees and is outside the Agency's obligation to bargain.

LIII. Order

Proposals 6, 7, 9, 12, 13, 16, 18, 19, 20, Proposal 36 the first and second sentences, Proposal 37, 39, 40, 41, Proposal 44 to the extent it concerns matters unrelated to bargaining unit working conditions, Proposal 47 the second sentence, Proposals 51, 52, 53, 55, 58, 59, 60, 61, 65 and 66, and Proposal 67 sections I and 3 are dismissed. The Agency shall upon request or as otherwise agreed to by the parties, bargain concerning Proposals 1, 2, 3, 4 and 5,  Proposals 10, 14, 15, 17, 32, 33, 34, Proposal 36 the last sentence, Proposals 38 and 42, 43, Proposal 44 to the extent it pertains to official documents, Proposals 45 and 46, Proposal 47 the first sentence, Proposals 48, 49, 50, 54, Proposals 56, 57, 62, 63, 64, and Proposal 67 section 2. 6

Issued, Washington, D.C., October 2, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY  

DECISION AND ORDER ON 8, 11, 21-31 AND 35

I. Proposal 8

Article 18 - Absence of Unit Employees and Coverage of Duties.

Section 1. The parties agree that when unit employees are absent from duty, the use of substitutes is appropriate to help ensure that unit employees' duties are carried out. Substituting is not considered as part of a unit employee's normal duties. The Employer shall make every effort to exhaust all other reasonable alternatives, including, but not limited to, the utilization of supervisory personnel and/or substitutes, before assigning unit employees to provide coverage for students resulting from the absence of another unit employee. If said assignment results in the loss of scheduled preparation time or otherwise causes additional work beyond the normal duty day, then the unit employee shall be compensated at a rate consistent with Article 35, Section 9 or otherwise provided with compensatory time.

A. Positions of the Parties

The Agency contends that Proposal 8 requires it to exhaust alternatives, including the assignment of duties to supervisory personnel or to substitute teachers, before assigning a bargaining unit employee, either by detail or reassignment, to cover the class of an absent teacher. The Agency argues that the proposal thereby violates section 7106(a)(2)(B) by limiting the right to assign work to bargaining unit employees when nonbargaining unit employees are available. The Agency also argues that the proposal affects the types of employees who will be used, that is, substitutes, rather than temporary employees, and is therefore negotiable at the election of the Agency under section 7106(b)(1) of the Statute. The Agency claims that use of the qualifying language "shall make every effort to exhaust all other reasonable alternatives" does not remove the limitations on the exercise of management's rights. According to the Agency, this is so because management would be unable to assign work to a bargaining unit employee if a reasonable alternative existed. Finally, the Agency contends that the last sentence of the proposal which requires compensation for an employee  whose preparation period is lost as a result of a detail to another teacher's class is contrary to 5 U.S.C. 5533 and 5535.

The Union merely states that the purpose of the proposal is to minimize the impact on working conditions of unit employees who are assigned as a substitute teacher or who have their classes covered by a substitute teacher in their absence. As to that portion of the proposal requiring compensation, the Union argues that when employees are assigned to substitute for one or more periods in addition to their regularly assigned duties, which causes them to work beyond their normal duty day, the employees will be paid overtime or granted compensatory time.

B. Analysis and Conclusion

We find the first, second and fourth sentences of Proposal 8 negotiable and the third sentence nonnegotiable.

The first and second sentences, to which the Agency did not specifically object, merely provide that the use of substitutes is appropriate and that substituting duties are not considered as part of the employee's normal duties. As such, they do not in any manner restrict the assignment of duties or impose any criterion whereby management is limited to making assignments only where specified conditions exist. Thus, they are negotiable. See Illinois Nurses' Association and Veterans Administration Medical Center, Hines, Florida, 28 FLRA No. 35 (1987) (Proposal 4).

The third sentence, however, requires management to "exhaust all other reasonable alternatives" before assigning substitute duties to bargaining unit employees. The effect of this requirement is to impose a substantial limitation on management's right to assign work. This sentence, therefore, is to the same effect as the proposal which we found nonnegotiable in Colorado Nurses Association and Veterans Administration Medical Center, Ft. Lyons, Colorado, 25 FLRA No. 6 (1987) (Proposal 4), petition for review filed sub nom. Colorado Nurses Association v. FLRA, No. 87-1104 (D.C. Cir. Feb. 25, 1987). In that case, we found that the sentence of Proposal 4 which required the Agency to make "every attempt" to avoid assigning nonprofessional duties to professional employees imposed a substantive condition on management's right to assign work and established a criterion by which management must justify its action in assigning work. Thus, for the reasons set forth in VAMC, Ft. Lyons, we find the  third sentence directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is nonnegotiable.

The last sentence of Proposal 8 provides that if a substituting assignment results in a loss of scheduled preparation time or otherwise causes additional work beyond the normal duty day, the employee will be paid overtime or be granted compensatory time.

Contrary to the Agency's position, we do not find that this sentence was intended to authorize extra payment for performing substitute duties so as to violate either the 5 U.S.C. 5533 prohibition on dual pay for one position or the 5 U.S.C. 5535 prohibition on extra pay for details. Rather, the Union expressly stated that the overtime/compensatory time provisions would apply where the substituting assignment caused the "employee to work beyond the normal duty day to complete all assigned duties." Petition for Review at 15. As we explained in greater detail in our discussion regarding Proposal 29, that is Article 35, Section 10 (not Section 9 as indicated in the proposal), the payment of overtime for performing duties beyond the normal workday is negotiable. Consequently, based on our reasoning at Proposal 29, we find the last sentence of this proposal authorizing overtime for work beyond the normal duty day to be negotiable.

II. Proposal 11

Article 25 - Health Care

Section 1. The Employer shall provide access to and payment for health and dental care for all unit employees, including diagnostic, preventive, elective, (and holistic medicine) to the maximum extent permitted by law. (The union withdrew the bracketed portion.)

A. Positions of the Parties

The Agency contends that Proposal 11 is outside the duty to bargain. The Agency argues that Proposal 11 establishes a health insurance policy for employees, without employee contribution, other than the one provided Federal employees by Statute, 5 U.S.C. 8901-8913. The Agency argues that because DODDS employees, including those in the union's bargaining unit, are covered by the provisions of   5 U.S.C. 8901-8913, their health insurance policy is a condition of employment under section 7113(a)(14)(C) of the Statute which is specifically provided for by law. Therefore, according to the Agency, since 5 U.S.C. 8906(b) limits the contributions that can be made for health insurance by management, Proposal 11 is outside the duty to bargain. The Agency also argues that even if Proposal 11 were within the duty to bargain, it does not have the discretion to implement it. The Agency notes that Proposal 11 is intended to provide free health care in military hospitals and health care facilities. According to the Agency, 24 U.S.C. 34 and section 728 of Title 32, Code of Federal Regulations, which govern hospital care for DoD civilian employees, do not give DODDS the authority to operate hospitals, or set the rate for hospitals and do not include members of the Union's bargaining unit. Therefore, the Agency claims that Proposal 11 is nonnegotiable.

The Union contends that Proposal 11 is not contrary to law or regulation and is within the duty to bargain. The Union argues that Proposal 11 specifically states that the Agency will provide payment for employees' health care only "to the maximum extent permitted by law." The Union argues that 5 U.S.C. 8906(b)(2) gives employing agencies the discretion to pay up to 75 percent of the cost of employees' health insurance. Therefore, the Union claims that Proposal 11 seeks only to negotiate whether the Agency's contribution will be up to 75 percent, the maximum allowable amount within the Agency's discretion. The Union further argues that Proposal 11 requires DODDS to contract for bargaining unit employees to receive medical care in military hospitals and health care facilities as provided for in 32 C.F.R. 728.51.

B. Analysis and Conclusion

We find Proposal 11 to be within the duty to bargain. It expressly limits the Agency's obligation to provide access to and payment for health and dental care to the "maximum extent permitted by law." Thus, Proposal 11 does not require the Agency to provide any health and dental care which is inconsistent with law and regulation governing health care matters. We conclude that the provision is not contrary to law because by its terms, it is circumscribed by law. See United States Department of Agriculture, Food and Nutrition Service, Midwest Region and National Treasury Employees Union, 28 FLRA No. 72 (1987), slip op. at 2-3. 

In our view, Proposal 11 does not provide that members of the bargaining unit are entitled to free health and dental care. This decision, however, should not be construed as an explicit or implicit finding that any law, rule, or regulation allows the employees in this case to receive health and dental care without cost or at military hospitals or health care facilities. Rather, we find this proposal negotiable solely because, as it is written, it is not inconsistent with law, rule or regulation.

In finding Proposal 11 to be within the duty to bargain, we note that the Union stated that the intent of this proposal is to require the Agency to negotiate the amount of its contribution, up to 75 percent, to employees' health insurance plans and to provide free access for bargaining unit employees to military hospitals and health care facilities. Contrary to the Union's intent, however, the amount an agency may contribute to employees' health insurance plans is governed by the provision of 5 U.S.C. 8906 and access to military hospitals and health care facilities is governed by 24 U.S.C. 34 and section 728 of Title 32, Code of Federal Regulations. Therefore, these matters are specifically provided for by law. They are excluded from the duty to bargain by Section 7103(a)(14)(C) of the Statute.

III. General Arguments relating to Article 35--Basic Compensation Proposals 21-31

A. General Positions of the Parties

Based on its interpretation of the Statute and legislative history, the Agency asserts that Congress did not intend that Federal sector employees be permitted to bargain over pay and money-related fringe benefits. The only exception to this general prohibition, according to the Agency, is found in section 704 of the Civil Service Reform Act of 1978 (CSRA) which provided for the continuation of wage negotiations for certain employees who had been authorized to bargain over wages prior to the effective date of the CSRA. The Agency points out that this sole exception is inapplicable to unit employees because they have never been authorized to bargain over pay.

The Agency also claims that the basis for finding certain proposals negotiable in Fort Bragg Unit of North Carolina Association of Educators, National Education Association and Fort Bragg Dependents Schools. Fort Bragg, North Carolina, 12 FLRA 519 (1983), does not apply to the  proposals in Article 35. The Agency asserts the residual discretion to bargain over wages found to exist in Fort Bragg has not been granted to the Agency with respect to the employees covered by these proposals.

The Union points out that the Teachers Pay Act (the Act) establishes a comparability standard applicable to fixing the basic pay of unit employees. The Act does not set specific dollar amounts as Congress has done with the pay of General Schedule employees. According to the Union, the methodology used by the Agency in determining what the comparable stateside teachers' salaries are is left to administrative discretion. The Union contends that the matters included in Article 35 are not intended to set the actual dollar amount of teachers' salaries. Rather, the proposals are intended to establish a consistent procedural mechanism assuring compliance with the legislative mandate. Thus, the Union asserts that its proposals concern matters over which the Agency has discretion and argues that the proposals in Article 35 are negotiable.

B. Applicable Law and Precedent

The Authority consistently has held that, to the extent an agency has discretion over a matter affecting the working conditions of its employees, the matter is within the agency's duty to bargain. See, for example, National Treasury Employees Union, Chanter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 737 (1980). Applying that principle to proposals concerning employee pay, we held in Eglin Air Force Base, 24 FLRA No. 41 (1986) that nothing in the Statute, or its legislative history, bars negotiation of proposals relating to pay and fringe benefits 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 with an agency regulation for which a compelling need exists. In Eglin Air Force Base we held a proposal to be negotiable which would have obligated the agency to pay up to 75 percent of the premium cost of employee health insurance for employees of a nonappropriated fund instrumentality. See also Fort Knox Teachers Association and Fort Knox Dependents Schools, 28 FLRA. No. 29 (1987).

In this case, the employees involved are overseas teachers whose pay is fixed and annually adjusted in accordance with 20 U.S.C. 902(a)(2) and 902(c). In March v. United States, 506 F.2d 1306 (D.C. Cir. 1974), the court  considered whether the practice of the Agency here in fixing overseas teachers' salaries in accordance with the preceding year's salaries for stateside teachers complied with the cited provisions of the Teachers Pay Act. The court concluded that only "basic compensation" for overseas teachers had to equal the average of the range of rates of basic compensation for teachers employed in the United States by school jurisdictions with 100,000 or more population. The court held that salary, grade, steps and credit for past teaching experience were all essential ingredients of "basic compensation" and therefore were included in the "equal to" mandate of the Teachers Pay Act. Because the Act calls upon the Agency to determine the "average of the range of rates" in the specified school jurisdictions, the court held that the salary grades and steps, that is, the basic compensation of overseas teachers, must match those of the average, grade by grade, and step by step.

On the facts presented in March v. United States, the court held that the Agency violated the Act by using the prior year's survey results to determine the current year pay rates for overseas teachers. The court also found that the Agency had violated the "equal to" requirement of the Act by calculating the overseas teachers' daily compensation rate on a school year figure other than the total of workdays in the school year used by the surveyed school system in computing daily pay rates.

The court, however, rejected the overseas teachers' contention that all facets of their compensation were subject to the equality requirement of the Act. Specifically, noting that teachers in the surveyed jurisdictions may accumulate compensatory time for attending PTA meetings, preparation time and grading papers, the court found that those aspects of compensation were not elements of "basic compensation" under the Act. Rather, the Court held that such matters were committed to Agency discretion by 20 U.S.C. 902(a)(8) and (9).

IV. Proposal 21

Article 35 - Basic Compensation

Section 1. All elements of basic compensation for unit employees are governed by statutory mandate that they be equal to the amount provided for certain stateside school districts. ODE/DoDDS shall establish an annual salary schedule in accordance with the provisions of  P.L. 86-91 (20 U.S.C. 902 et seq.), as amended. The survey system procedures established to gather the wage data necessary to establish the salary schedule shall be negotiated between the Association and the Employer. A copy of data collected shall be shared by the parties. The survey results shall be analyzed and agreed to by the parties prior to the establishment of the annual salary schedule. Both parties shall attain a prompt and expeditious determination of the salary schedule each year.

A. Positions of the Parties

The Agency argues that, by requiring agreement on the survey results used to establish the salary schedule, the proposal is inconsistent with the Congressional intent that wages not be subject to negotiation.

The Union asserts that the proposal reflects, with minor modifications, the parties' existing practice of reaching an agreement that the Agency has properly conducted its survey and analyzed the resultant data before implementing the new salary schedules.

B. Analysis and Conclusion

Although the Agency appears to dispute the negotiability of the sentence in Proposal 21 concerning "survey system procedures," it offers no argument to support its position. Accordingly, we will not address the negotiability of that part of the proposal.

Contrary to the Union's position, as set out under the heading "General Positions of the Parties", the second disputed sentence of Proposal 21 does not concern the methodology of data collection. The matter of methodology is addressed earlier in the proposal where the parties are required to bargain over the "survey system procedures" used in gathering the wage data. The second disputed sentence of the proposal concerns the processing of the data derived from the survey.

The governing law is quite clear on how this data is to be processed. Specifically, 20 U.S.C. 902(a)(2) and 903(c) require that basic compensation "at rates equal to the average of the range of rates of basic compensation for similar positions of a comparable level of duties and responsibilities in urban school jurisdictions in the United States of 100,000 or  more population." The Congressional intent is underscored by an excerpt of the legislative history cited by the court in March v. United States. Citing the House report on the bill ultimately enacted and signed into law, the court noted with regard to the analysis of the pay fixing procedures: "(t)his language echoes the plain import of the statutory language, which, as Congress intended, leaves 'no room for the substitution of independent views or judgments by any Federal civilian or military official." 506 F.2d at 1317. Hence, we find that the pay fixing procedure in the Teachers Pay Act is intentionally not a matter left to the Agency head's discretion, but rather is a statistical and mathematical process provided for by law. The procedure, therefore, is not a negotiable condition of employment within the meaning of section 7103(a)(14)(C) of the Statute.

Turning now to the language of the proposal's disputed sentence, it would require that the survey results be "agreed to." Proposal 21 is, therefore, not materially different from Proposal 4, found by the Authority to be nonnegotiable in American Federation of Government Employees, AFL - CIO, Local 2849 and Office of Personnel Management, New York Regional Office, 7 FLRA 571 (1982). The proposal in that case required that performance elements and standards be "agreed to." Because the establishment of performance standards and critical elements is not negotiable and because the term "agreed to" was construed as requiring bargaining over the establishment of elements and standards, the proposal was held to be outside the duty to bargain. Based on Office of Personnel Management, we find that the disputed part of Proposal 21 is also outside the duty to bargain under section 7117(a)(1) of the Statute because it calls for bargaining over a proposal which is inconsistent with Federal law.

Additionally, we note the finding in March v. United States that the Agency is under a statutory mandate to pay its teachers at a rate equal to the average of the rate ranges paid to teachers in the surveyed school systems in the current school year. However, Proposal 21, by requiring agreement on the survey results, places control over the implementation of yearly pay schedules in the hands of the Union. The Union in fact could postpone the application of current pay schedules by refusing to agree to them and therefore thwart the Congressional intent that salary schedules be adjusted annually to reflect any changes in the surveyed jurisdictions. We find such a potential consequence to be inconsistent with the legislative objective. Hence, under  section 7117(a)(1) Proposal 21 is outside the duty to bargain on that basis also.

V. Proposals 22-26

Proposal 22

Section 3. Pay lanes, at a minimum, in the employee salary schedule shall be:

   BA     BA+15    BA+45     BA+60     BA+75       BA+90

   MA     MA       MA+15     MA+30     MA+45       MA+60

                             Educ.     Educ.       Educ.
                             Spec.     Spec. +15   Spec. +30

                                                   Doctorate

Proposal 23

Section 6. Not inconsistent with the annual survey of stateside school systems in accordance with P.L. 86-91 (20 U.S.C. 902 et seq.), as amended, unit employees shall be paid monetary supplement for each three (3) years of service beyond the maximum number of steps on the salary schedule.

Proposal 24

Section 16. All government service performed by a unit employee shall be credited in determining the individual's correct placement on the salary schedule.

Proposal 25

Section 17. Each unit employee shall receive credit toward salary steps for each school year of Federal service. A school year equals to 95 or more school days.

Proposal 26

Section 19. Unit employees working on a part-time basis shall be paid at rates equal to 1/2 day (3 hours) or a full day (6 hours). Unit employees working less than three (3) hours shall be paid at the 1/2 day rate.  

A. Positions of the Parties

The Agency contends that these five proposals are outside the duty to bargain because the governing Teachers Pay Act prohibits bargaining over matters concerning basic compensation.

The Union argues, variously, that: (1) unless pay levels are specifically established by law, they are negotiable; (2) that some of its proposals reflect the results of the 1983 wage survey and the proposals insure the implementation of those results; (3) the Agency has failed to demonstrate that some of the proposals are inconsistent with the survey results; and (4) proposals concerning the pay of part-time teachers are negotiable because those types of employment are not governed by the Teachers Pay Act.

B. Analysis and Conclusions

In agreement with the Agency, we find that all of these proposals share a common characteristics: they are all concerned to one degree or another with the fixing of basic compensation of unit employees. That is, they all address either: (1) length and/or type of prior service to be used in calculating pay levels; (2) the amount and type of education which will move employees from one pay level to another; or (3) how pay rates will be determined for employees working less than full time.

As previously discussed, all elements of basic compensation for the Agency's teachers are governed by the statutory mandate that such compensation be "equal to" the average amount paid to similar positions in specified stateside school districts. Salary grade, number of steps within a particular salary grade, and credit for past teaching experience are elements of basic compensation and, consequently, are within the scope of the "equal to" requirement. March v. United States. We previously noted that Congress intended the statutory scheme for determining these teachers' salaries to leave no room for the substitution of Federal civilian or military officials' views in the process. Thus, these proposals concern matters over which management has no discretion, but, rather, are provided for by law.

The Union also argues that some of its proposals reflect the results of the 1983 survey of the appropriate stateside school districts. That argument, however, does not justify the inclusion of such proposals in the negotiated  agreement. The term "equal to," as used in the Teachers Pay Act, means that teachers' basic compensation must be fixed at an average level equivalent to the present compensation level in the surveyed jurisdictions, rather than equivalent to either a past or future level of compensation. March v. United States. Inclusion in the parties' negotiated agreement of any element involved in establishing the levels of basic compensation would prevent any change in that element over the life of the agreement--or would at least make any change in that element dependent upon the parties' mutual agreement in the future. Department of Transportation, Federal Aviation Administration, 6 FLRA 588, 591 (1981). Therefore, inclusion of any of these proposals concerning the fixing of basic compensation in the parties' negotiated agreement is inconsistent with the statutory requirement that all components of basic compensation be adjusted annually to comport with the practices prevailing in the surveyed school districts. Therefore, Proposals 22-26 are outside the duty to bargain under section 7117(a)(1) of the Statute.

VI. Proposal 27

Article 35

Section 20. Summer school unit employees shall be paid at an hourly rate equal to their daily rate divided by six (6) hours. A minimum of 1/2 day rate shall be paid for each day worked.

A. Positions of the Parties

The Agency contends that the proposal is inconsistent with the Congressional intention that wages not be negotiated.

The Union asserts that the fixing of pay for summer school employees is within the Agency's discretion. It also argues that the Teachers Pay Act does not address the questions of whether such employees be paid at an hourly rate or whether they should be guaranteed at least 1/2 day's pay for any day worked. Consequently, in the Union's view, the Agency has not shown that the proposal conflicts with the Teachers Pay Act.

B. Analysis and Conclusion

With respect to employee pay, the Authority has held that nothing in the Statute or its legislative history bars   negotiations over proposals concerning compensation and money-related fringe benefits insofar as: (1) the matters proposed are not expressly provided for by law and are within the discretion of the agency head and (2) the proposals are not otherwise inconsistent with law, Government-wide rule or regulation or with any agency regulation supported by a compelling need. Eglin Air Force Base, 24 FLRA No. 41.

The governing Teachers Pay Act (the Act) defines "teaching position," in part, as having duties and responsibilities which "are performed on a school-year basis(.)" It also defines "teachers," in part, as individuals "whose services are required on a school-year basis in a teaching position." 20 U.S.C. 901(2)(c). The Act then assigns to the Secretary of Defense and the secretaries of the military departments responsibility for issuing regulations and fixing compensation "for teachers and teaching positions" in the statutorily prescribed manner. 20 U.S.C. 902(a)(2) and 903(c). The term "school year," as used in the Act is not intended to be coextensive with the calendar year. See, for example, 20 U.S.C. 904 which provides for teachers' accrual of leave and provides special treatment "if the school year includes more than 8 months(.)" See also 20 U.S.C. 907.

Based on the the Act, as set out above, we find that the Act's pay fixing provisions are inapplicable to teachers employed in teaching positions outside the regular school year. We find that teachers employed by the Agency to teach summer school do not fall within the definition of "teacher" as defined in the Act. Nor are they employed in "teaching positions" as that term is defined by the Act. Consequently, in the absence of any citation by the Agency to a Government-wide rule or regulation or to an Agency regulation supported by a compelling need which would limit the Agency's discretion in establishing the compensation level of summer school teachers, we conclude that Proposal 27 is within the duty to bargain. Eglin Air Force Base, 24 FLRA No. 41.

VII. Proposals 28 and 29

Article 35 - Basic Compensation

Proposal 28

Section 9. The compensation for unit employees who perform extracurricular duty outside the unit employee workday shall be at an hourly  rate, each hour of which is determined by dividing their daily pay by six (6) as computed in section 4.

Proposal 29

Section 10. The hourly rate assigned to unit employees outside their normal day or normal duty week shall be as follows:

A. Weekdays and Saturday - 1 1/2 times their regular hour rate;

B. Sundays and holidays - Two (2) times their hourly rate.

Daily rate of pay shall be determined by provisions of Section 4.

A. Positions of the Parties

The Agency contends that negotiation on Proposals 28 and 29 concerning wages conflicts with the Congressional intention to prohibit bargaining over such matters.

The Union contends that the overtime compensation of teachers is not provided for by the Teachers Pay Act. Therefore, in its view, Proposals 28 and 29 are within the Agency's discretion and, hence, are negotiable.

B. Analysis and Conclusion

The Teachers Pay Act (the Act) governs, among other matters, the compensation of teachers employed overseas by the Agency. It requires that "basic compensation" be fixed at rates equal to the average of the range of rates of basic compensation paid to similar positions in urban school jurisdictions of 100,000 or more population within the United States. 20 U.S.C. 903. It also requires the Secretary of Defense to promulgate regulations governing, among other things, the fixing of basic compensation of teachers in accordance with the method described, the entitlement of teachers to compensation, the payment of compensation to teachers and their entitlement to "additional compensation." 20 U.S.C. 902. While the scheme prescribed by the Act imposes certain constraints on the establishment of overseas teachers' basic compensation, it vests the Department of Defense with discretion over matters other than basic compensation. Overseas Education Association and Department of Defense Dependents Schools, 3 FLRA 676 (1980).  

Particularly relevant to the dispute here is the holding in March v. United States. In that case, the court was called upon to determine the scope of the term "basic compensation," as used in the Act. The issue presented was whether the plaintiffs were entitled to compensatory time under the pay-fixing provisions of the Act. In finding that no such entitlement existed under the Act itself, the court stated:

It may be that stateside teachers accumulate compensatory time for such activities as attending PTA meetings, lesson preparation and grading papers. We hold, however, that these aspects of compensation are not part of "basic compensation" under (5 U.S.C. 902(a)(2) and 903 (c)), but rather are committed to the Department's discretion under (20 U.S.C. 902(a)(8) and (9)) dealing with "the leave system" and "additional compensation." (Footnote omitted.) 506 F.2d 1319.

Proposals 28 and 29 concern the fixing of overtime pay rates, a matter analogous to compensatory time. Both over-time pay and compensatory time are compensation to which a teacher becomes entitled when directed by management to perform work beyond normal duty hours. Consequently, we conclude, consistent with the holding in March v. United States, that the fixing of overtime pay rates is not within the scope of the Act's procedures for establishing "basic compensation." Rather, overtime pay rates are within the Agency's discretion to establish. In Fort Bragg Dependents Schools, 12 FLRA 519 (1983), it was held that proposals fixing pay rates of unit employees were within the duty to bargain because compensation was a condition of employment not otherwise provided for by Federal statute, and because the proposals concerned matters over which the agency head had discretion. Because the fixing of overtime compensation is a matter over which the Agency head has discretion, rather than a matter dictated by law, Proposals 28 and 29 likewise are within the Agency's duty to bargain. See also Eglin Air Force Base, 24 FLRA No. 41.

VIII. Proposal 30

Article 35 - Basic Compensation

Section 13. All unit employees shall receive a full year's retirement credit for any year in   which they are in a working status for more than 95 days, unless more generous terms are provided the unit employee under the terms of other Articles of this Agreement, the law or regulation.

A. Positions of the Parties

The Agency asserts that Proposal 30 is nonnegotiable because it conflicts with a Government-wide regulation.

The Union denies the existence of the conflict alleged by the Agency.

B. Analysis and Conclusion

The employees herein are covered by the Civil Service Retirement System, 5 U.S.C. 8331-8348. 5 U.S.C. 8332(b) which provides, with regard to creditable service for retirement purposes, "(t)he service of an employee shall be credited from the date of original employment to the date of separation on which title to annuity is based in the civilian service of the Government." Proposal 30 would require crediting of a full year's employment for retirement credit if the employee worked no more than 95 days. Under the proposal's terms, an employee would receive a full year's credit even if he or she resigned or was separated after having worked for only 95 days. Such a result is in conflict with the statutory prescription that creditable service not be assigned beyond the date of an employee's separation from Government service. Consequently, Proposal 30 is nonnegotiable under section 7117(a)(1) of Statute.

IX. Proposal 31

Article 35 - Basic Compensation

Section 22. Instructor salaries shall be commensurate with their academic qualifications. Additional compensation realized from military retirement shall not be used to reduce their regular salary. Additional military benefits shall not be used to reduce their regular salary and other extra compensation from allowances and differentials required by law.  

A. Positions of the Parties

The Agency contends that the proposal conflicts with 10 U.S.C. 2031 which governs the pay to be received by Junior Reserve Officers' Training Corps instructors.

The Union denies that the proposal conflicts with the statutory provision cited by the Agency.

B. Analysis and Conclusions

10 U.S.C. 2031, cited by the Agency, prescribes the pay to which JROTC instructors are "entitled" when such instructors are retired military members. Such instructors are authorized to receive their retired or retainer pay plus the difference between that pay and the amount they would receive if ordered to active duty. section 2031 requires that the secretary of the military department concerned pay to the employing school one-half of the difference between the instructor's retired or retainer pay and the pay he or she would receive if on active duty.

The Agency contends that 10 U.S.C. 2031 prescribes the maximum amount payable to JROTC instructors who are retired military members. However, the Department of Defense itself applies a different interpretation to the provision. In DOD Directive 1205.13, the Department states that "(t)he amount due from the institution is at least the amount equal to the difference between retired or retainer pay and the active duty pay and allowances(.)" That amount, the Department further states, "is the minimum salary the institution shall pay JROTC instructors." However, the Directive notes, an institution's election to pay a higher salary shall not result in an increase in the reimbursement from the Government. Thus, the Department does not construe 10 U.S.C. 2031 as imposing a ceiling on the pay of JROTC instructors, but, rather, as establishing a cap on the amount of reimbursement the secretary of the concerned military department can pay from funds appropriated for that purpose.

Proposal 31 does not conflict with 10 U.S.C. 2031 and, in fact, is consistent with the Department of Defense's interpretation of that statute, we find it to be within the Agency's duty to bargain.  

X. Proposal 35

Article 38 - Employee Workday

Section 1. Hours of Work

A. The normal workday for unit employees, except for resident hall advisors, shall not exceed six (6) hours.

B. The normal work week for unit employees, except for resident hall advisors, shall not exceed thirty (30) hours.

C. All assigned duties beyond the normal workday shall be compensated in accordance with Article 35, Section 10.

If it becomes necessary to alter the existing practice at the local level regarding unit employees' required attendance at one Open House (or its equivalent), and such change results in additional meetings beyond the normally recognized duty day, the affected unit employee will be compensated in accordance with Article 35, Section 10.

A. Positions of the Parties

The Agency contends that it has established the normal duty day for teachers at approximately 6 hours and 50 minutes. The Agency claims that by reducing the normal duty day to a maximum of 6 hours, the proposal results in a 12 percent reduction in the amount of time teachers are normally available at the school. Thus, according to the Agency, it would be required to increase by 12 percent the number of people assigned in order to make up for the 12 percent reduction in teacher availability. Therefore, the Agency concludes that this proposal is integrally related to its right under section 7106(b)(1) to establish the numbers, types and grades or positions assigned to a tour of duty and is nonnegotiable.

The Union indicates that the import of its proposal is that the teachers would have a "normal" workday of 6 hours and that any additional duties performed by the teachers would require the payment of overtime pay consistent with other parts of the proposed agreement. In that context, the Union states that the proposal does not seek to limit the Agency's prerogatives in assigning work to employees beyond  the 6 hour workday, but only goes to the question of compensation for performing work beyond the 6-hour workday. The Union argues that as no law or Government-wide regulation defines a normal duty day or workweek for overseas teachers, the matter is discretionary with the Agency and thus subject to negotiation. In further support of its position, the Union included as exhibits to its Reply Brief Agency documents the Union claims indicate that the Agency itself considered the normal workday for teachers to be 6 hours. See Reply Brief, Exhibits 18 and 21.

B. Analysis and Conclusion

Teachers employed under 20 U.S.C. 901 are excluded from coverage of 5 U.S.C. 6101 which establishes the length of a normal duty day for most Federal employees at 8 hours. See 5 U.S.C. 6101(a); 5 U.S.C. 5541(2)(c)(xiii). Further, there is nothing in 20 U.S.C. chapter 25 concerning the pay and personnel program for overseas teachers which establishes the length of a teacher's normal work day. Rather, under this chapter such matters are left to the Agency's discretion. See 20 U.S.C. 902, 903. In this case, the Agency has cited no law, rule, or regulation, including any Agency regulation, which establishes the length of a teacher's normal duty day. In addition, there is nothing in the record in this case which establishes that the length of a teacher's duty day is an integral part of basic compensation determinations made under the Teachers Pay Act (the Act). That is, the Agency does not argue or otherwise establish, for example, that the length of a teacher's duty day reflects the average length of a duty day of teachers in school jurisdictions with 100,000 or more population. Further, the Agency has not argued or otherwise established that the addition of 50 minutes to the teachers' 6-hour duty day in this case was necessary to meet accreditation requirements. Compare Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA No. 56 (1987) (Proposal 7k). Proposal 7k in that case sought additional compensation for time added to the duty day of certain teachers. In that case, the duty day was lengthened to meet accreditation requirements established by North Central Association of Colleges and Schools. We determined that the amount of compensation for the duty day was fixed under procedures prescribed by the Act. We concluded that Proposal 7k seeking extra compensation for the time added to the duty day was inconsistent with those procedures prescribed by the Act for fixing basic compensation and thus, nonnegotiable. 

In this case, on the other hand, the Union submitted Agency documents indicating that full-time employment for teachers is defined as 6 hours per day of classroom instruction including authorized preparation time. See Exhibit 18 of the Reply Brief (defining full-time at page 9 of the DODDS Educator Applicant Evaluation Guide). See also Exhibit 21 of the Reply Brief (Enclosure 5 of the May 3, 1983, Letter of the Director, Technical Staff, Office of the Assistant Secretary of Defense, Department of Defense Wage Fixing Authority establishing the daily rate of pay for four instructional hours for summer school teachers at two-thirds of the daily rate of pay for the prior school year).

Thus, in agreement with the Union, we find that unless otherwise nonnegotiable because it is inconsistent with the Statute, the matter of the length of a teacher's normal duty day is within the Agency's duty to bargain.

As previously mentioned, the Agency's claims that because Proposal 35 would reduce the length of a teacher's work day by approximately 50 minutes it directly affects staffing patterns, that is, the numbers, types and grades of employees or positions assigned. Specifically, the Agency asserts that the proposal would have the effect of reducing the teachers' present 6 hour and 50 minute workday to a 6-hour day, thereby requiring a 12 percent increase in personnel to make up for the 12 percent reduction in the normal tour of duty. The Agency asserts that such a result would be clearly inconsistent with its right to determine its staffing patterns under section 7106(b)(1) of the Statute.

We find this claim to be without merit. There is nothing in the language of this proposal which in any manner limits the Agency's right to assign work at any time, including outside the proposed 6-hour workday. In this respect, the Union expressly states that "(m)anagement still retains the right to assign extra duties to unit employees beyond what is defined as the normal 'work day' but it must compensate employees who are assigned those duties with extra compensation for this work in accordance with Article 35, Section 10." Reply Brief at Article 38, section 1.

Thus, consistent with the express language of Proposal 35 and the Union's arguments, we find this proposal would define the length of the normal duty day for the purpose of establishing when employees become entitled to overtime compensation. Since this proposal would not preclude the assignment of work outside the confines of the six hour duty day, we find that the Agency has not sustained its claim that  Proposal 35 would directly affect staffing patterns. Consequently, we find it within the duty to bargain.

Having concluded that Proposal 35 is negotiable insofar as it seeks to establish that the normal duty day for teachers shall be 6 hours, we further conclude that it is negotiable insofar as it would provide that any work performed beyond the boundaries of the normal work day be compensated at an overtime rate. We have explained in detail in our discussion regarding Proposal 29 (Article 35, Section 10) why the payment of such overtime is negotiable. As the proposals are integrally related, there is no need to repeat that discussion here.

XI. Order

The Union's petition for review is dismissed as to Proposal 8 the third sentence, Proposals 21, 22, 23, 24, 25, 26 and 30. The Agency shall upon request or as otherwise agreed to by the parties, bargain concerning Proposal 8 the first, second and fourth sentences, Proposals 11, 27, 28, 29, 31 and 35. 7

Issued, Washington, D.C., October 2, 1987.

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY  

Separate Opinion of Chairman Calhoun Concurring ana Dissenting on Proposal 8, Concurring on Proposal 11, and Dissenting on Proposals 21 through 31, and Proposal 35

There are four sentences in Proposal 8. They provide, respectively, that (1) when unit employees are absent, the use of substitutes is "appropriate"; (2) substitute duty is not part of a unit employee's "normal duties"; (3) the Agency will make every effort, including assigning substitute duties to supervisors and substitute teachers, to avoid assigning substitute duties to unit employees; and (4) if a unit employee's assignment to substitute duties results in a loss of preparation time or work beyond the normal duty day, the employee will receive additional compensation. My colleagues conclude that the first two sentences are negotiable, the third sentence is nonnegotiable because it violates the Agency's right to assign work, and, and the fourth sentence is negotiable for reasons discussed in connection with Proposal 29.

I agree that the third sentence is nonnegotiable for the reasons expressed by my colleagues. I disagree, however, with respect to the first two sentences. In my view, the first two sentences are not severable from the third, and as a result, the first three sentences should be considered together. When viewed in this manner, the purpose of the three sentences is clear: substitute duties should not be assigned to unit employees. The use of substitutes is not only "appropriate," as provided in the first sentence, but also required in some circumstances because (1) substitute duties are not the "normal duties" of unit employees (second sentence), and (2) the Agency must "exhaust all other reasonable alternatives" prior to assigning those duties to unit employees (third sentence).

I agree that the Authority should consider separate parts of proposals independently when doing so is consistent with the meaning of the proposals. See Defense Logistics Council of American Federation of Government Employees Locals v. FLRA, 810 F.2d 234, 241 (D.C. Cir. 1987). In my view, severing the first two sentences of Proposal 8 from the third in this case distorts their meanings. Accordingly, I would find that the first three sentences are nonnegotiable. For reasons discussed in connection with Proposals 21 through 31, and Proposal 35, below, I would also find the fourth sentence of Proposal 8 to be nonnegotiable.

Proposal 11 requires the Agency to provide payments for unit employees' health and dental care "to the maximum extent permitted by law." My colleagues conclude that the proposal is "not contrary to law because by its terms, it is circumscribed by law." I agree. I note, however, that the proposal concerns money-related fringe benefits. Consistent with my opinion in American Federation of Government Employees, AFL - CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No 41 (1986), I believe that proposals concerning wages and money-related fringe benefits are nonnegotiable absent a clear expression of congressional intent to the contrary. Compare my opinion concerning Proposal 11b, which in my view did not constitute a money-related fringe benefit, in Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA No. 56 (1987). Therefore, although I agree with my colleagues that Proposal 11 is negotiable because it references applicable law, I believe that under that law, the Agency's discretion concerning this subject matter is not subject to negotiations.

The fourth sentence of Proposal 8, Proposals 21 through 31, and Proposal 35 concern employee compensation. My colleagues conclude that Proposals 21 through 25 are nonnegotiable because they relate to employees' "basic compensation." They further conclude that the fourth sentence of Proposal 8, Proposals 26 through 31, and Proposal 35, which concern additional compensation for various duties, are negotiable. I agree with the conclusions that Proposals 21 through 25 are nonnegotiable; I disagree with the conclusions that the fourth sentence of Proposal 8, Proposals 26 through 31, and Proposal 35 are negotiable.

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. OEA 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. See also my opinions in overseas Education Association and Department of Defense Dependents Schools, 28 FLRA No. 88 (1987), petition for review filed sub nom. OEA v. FLRA, No. 87-1468 (D.C. Cir. Sept. 8, 1987); Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA No. 49 (1987); and Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA No. 56 (1987). As in those cases, I find no such statement here.

Consistent with my opinion in Eglin Air Force Base, I make no distinction between proposals relating to basic compensation and those relating to additional compensation. Rather, I believe that the discretion of the Secretary of Defense to determine not only basic but also additional compensation for teachers is circumscribed only by the standards in 20 U.S.C. 902. In my view, the court's decision that the Secretary's discretion as it relates to basic compensation and additional compensation is derived from and circumscribed by different subsections of section 902, in March v. U.S., 506 F.2d 1306 (D.C. Cir. 1974), does not compel a different conclusion. Further, I believe that the length of the normal workdays and workweeks of unit employees in inextricably linked to determinations as to their compensation. See Overseas Federation of Teachers v. United States, 674 F.2d 34, 37 (D.C. Cir. 1982) ("In the final analysis, in order to accurately determine whether overseas teachers actually work longer than the stateside school teachers in large urban areas, it would be necessary to consider additional factors such as the length of the school day, leave time allowances, and the length of lunch periods and recesses.") As such, I would find subsections A and B of Proposal 35 to be nonnegotiable.

Therefore, I would find that the fourth sentence of Proposal 8, Proposals 21 through 31, and Proposal 35 are nonnegotiable.

Issued, Washington, D.C., October 2, 1987.

Jerry L. Calhoun, Chairman

FEDERAL LABOR RELATIONS AUTHORITY 

 

FOOTNOTES

Footnote 1 When underscoring appears within a proposal only the underscored portion of the proposal is in dispute. Otherwise the proposal is disputed in its entirety.

Footnote 2 Chairman Calhoun concurred in the conclusion reached in that case on the basis that the proposal was essentially a restatement of the agency's bargaining obligations under the Statute. He reaches the same conclusion here.

Footnote 3 In reaching this result, we find that while Section 6(C) references payment of "transportation," the parties' arguments indicate that this section was designed to provide for payment of travel expenses.

Footnote 4 The Union has withdrawn from its proposal the sentence that reads: "Performance standards shall not include activities that do not relate to performance of normal instructional duties." This sentence, therefore, is not before us. See Reply Brief at Article 16.

Footnote 5 As submitted to the Authority, the proposal contained no reference to a subsection C.

Footnote 6 In finding these matters to be within the duty to bargain, we make no judgment as to their respective merits.

Footnote 7 In finding these matters to be negotiable, we make no judgment as to their respective merits.

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