30:0508(69)NG - Fort Bragg Association of Educators, NEA and Army, Fort Bragg Schools -- 1987 FLRAdec NG
[ v30 p508 ]
30:0508(69)NG
The decision of the Authority follows:
30 FLRA NO. 69
30 FLRA 508
21 DEC 1987
FORT BRAGG ASSOCIATION OF
EDUCATORS, NEA
Union
and
DEPARTMENT OF THE ARMY
FORT BRAGG SCHOOLS
Agency
Case No. 0-NG-1405
DECISION AND ORDER ON NEGOTIABILITY ISSUES 1
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 44 proposals.
For the reasons which follow, we find Proposals 2, 5, 6, 7,
8, 9, Proposal 23, Proposal 25 in part, Proposal 30, Proposals 32
and 33 in part, and Proposal 42 to be nonnegotiable. We find
Proposals 3 and 4, Proposals 12, 13, 14, 15, 16, 17, 18, 19, 20,
21, 22, 24, Proposal 25 in part, Proposals 28, 29, 31, Proposals
32 and 33 in part, and Proposals 34, 35, 36, 37, 38, 39, 40, 41,
43 and 44 to be within the duty to bargain. We are dismissing the
petition for review of Proposals 10 and 11, Proposal 25 in part,
and Proposals 26 and 27. We are severing Proposal 1 from this
case and will issue our decision on that proposal separately.
II. Background
In its Petition for Review, the Union included two sections
of a proposal, Article 7, sections 2 and 6, which had not
been declared nonnegotiable by the Agency. The Agency withdrew
its declaration that the following parts of proposals were
nonnegotiable: Article 4, sections 3 and 5; Article 7, sections
4, 7 and 8; Article 12 section 8; Article 14, section 5; and
Article 18, section 3. The Union withdrew the following Articles
and sections: Article 4, section 5; Article 6, sections 1, 2, 3
and 6; Article 7, sections 1 and 5; Article 9, section 2;
Article 10, sections 10 and 11; Article 12, sections 2, 4(b),
6(f), 9(d), 9(f), 11, 13 and 15; Article 14, section 6; Article
19, all disputed sections; and Article 24, section 5. The
aforementioned portions of these proposals will not be considered
further.
III. Proposal 1
Article Three - Employee Rights and Obligations
Section 7. When a bargaining unit member is the subject of
a civil or criminal investigation by a civilian agency or by a
government agency outside the Department of the Army, and
Management has knowledge of the investigation, management shall
make every reasonable effort to ensure that such investigation is
conducted in a discreet manner and without any more invasion of
privacy than is absolutely necessary under the circumstances. If
a bargaining unit member is to be served with a warrant or
subpoena or is to be interviewed in connection with a criminal
investigation while at school during the normal duty day and
Management has advance knowledge, it shall attempt to ensure that
such activity is done in private without the knowledge of other
employees or students. Management shall not request that a
bargaining unit member submit to a polygraph examination and/or
urinalysis for purposes of discerning drugs within the system.
(Only underlined portion is in dispute.)
A. Positions of the Parties
The Agency claims that the last sentence of this proposal
violates its right to determine its internal security practices
under section 7106(a)(1) because it prohibits the use of certain
investigative techniques.
The Union argues that this sentence of the proposal is only
intended to prohibit the Agency from using unconstitutional
investigative techniques to uncover illegal off-duty conduct of
unit employees. The Union claims that the Agency does
not need to use these techniques to protect its physical
property, operations, or confidential information. Therefore, the
Union argues that its proposal does not interfere with the
Agency's right to determine its internal security practices.
B. Analysis and Conclusion
As indicated, the only aspect of Proposal 1 in dispute is
the prohibition on polygraph examinations and urinalysis for
purposes of drug testing. The Authority has given parties in
cases involving drug testing an opportunity to take certain
actions in response to legal and regulatory developments
affecting that issue. Accordingly, we will sever Proposal 1 from
this case and issue a decision on it separately. See American
Federation of Government Employees, AFL - CIO, Council of Prison
Locals, Local 1661 and U.S. Department of Justice, Federal Bureau
of Prisons, Federal Correctional Institution, Danbury,
Connecticut, 29 FLRA No. 73, slip op. at 4 (1987).
IV. Proposal 2
Article Three - Employee Rights and Obligations
Section 8. Unit employees will not be requested or required
to enter into personal service contracts as a condition of their
employment.
A. Positions of the Parties
The Agency maintains that Proposal 2 violates its right
under section 7106(a)(1) to establish the organizational
structure it deems most effective by specifically preventing it
from establishing and maintaining an organization of contract
personnel. The Agency also contends that the proposal interferes
with its right under section 7106(a)(2)(B) to contract out.
Finally, the Agency argues that, by specifically prohibiting the
use of contract personnel to perform any functions, the proposal
violates its right under section 7106(a)(2)(B) to determine the
personnel conducting Agency operations.
The Union argues that Proposal 2 is negotiable because the
use of personal services contracts is illegal. Assuming that
their use is legal, the Union contends that the proposal does not
interfere with the Agency's right to determine its organization
or the personnel by which agency operations are to be conducted
because its proposal merely seeks to negotiate over a personnel
practice affecting employees whom the Agency has already
decided to hire. The Union also argues that its proposal does not
interfere with the Agency's right to contract out because the
Authority has determined that the teachers are not "independent
contractors."
B. Analysis and Conclusion
The language of Proposal 2 is identical to that of Proposal
I which was before us in West Point Elementary School Teachers
Association, NEA and The United States Military Academy
Elementary School, West Point, New York, 29 FLRA No. 123
(1987). As in United States Military Academy Elementary School,
the unit employees in this case are employed under the authority
of 20 U.S.C. 241, and the Agency uses personal services contracts
to employ them. In that case, we found Proposal 1 to be
nonnegotiable, but not for the reasons advanced by the agency.
Rather, we viewed the agency's use of personal services contracts
"to be inseparable from the decision to hire." By banning the use
of such contracts, the proposal constituted "a substantive rather
than a procedural limitation on the Agency's right to hire and
thus directly interferes with that right." Consequently, for the
reasons stated in United States military Academy Elementary
School, Proposal 2 in this case is outside the duty to bargain
because it is inconsistent with management's right to hire under
section 7106(a)(2)(A) of the Statute. In so finding, we again
emphasize that the use of personal services contracts does not
allow the Agency to circumvent its obligations under the
Statute.
V. Proposals 3 and 4
Article Four - Association Rights and Obligations
Proposal 3
Section 13. Except for legally permissible informal
discussions between authorized representatives and members of the
unit, official time used by representatives will be with the
knowledge of their principal/supervisor.
Proposal 4
Section 17. Association officers shall be relieved-of work
assignments and be given at least four (4) hours of official time
per week for the purpose of conducting Association business.
These hours shall be determined by the President of the
Association.
A. Positions of the Parties
The Agency argues that both of the proposals provide for
official time, at any time, without supervisory approval and
consideration of mission requirements. Specifically, with respect
to Proposal 3, the Agency contends that under the language of
this proposal an employee could simply walk off the job to
conduct informal discussions. Regarding Proposal 4, the Agency
contends that it empowers the Union rather than the Agency to
determine when to use the 4 hours of official time.
The Union contends that the intent of Proposal 3 is to
acknowledge that there are informal occasions when employees may
"talk union" without supervisory permission, such as paid free
time, and that it is not intended to authorize employees to leave
their work assignments for official time without permission.
Regarding Proposal 4, the Union argues that the choice of how and
when to represent unit employees must be vested with the labor
organization.
B. Analysis and Conclusion
As noted, the Agency objects to these proposals based on
their asserted interference with mission requirements. In
Military Entrance Processing station, Los Angeles, California, 25
FLRA 685 (1987), the agency raised the same argument in defense
of its refusal to bargain over the substance of its decision to
change its policy governing amounts of official time available to
unit employees during the morning hours. Citing American
Federation of Government Employees, Council of Locals No. 214 v.
FLRA, 798 F.2d 1525 (D.C. Cir. 1986), we observed that such a
generalized concern "cannot displace a specific congressional
provision providing for the negotiability of official time
proposals." We also noted that section 7131(d) of the Statute,
authorizing negotiation of official time which the parties agree
"to be reasonable, necessary, and in the public interest," carves
out an exception to management's right to assign work.
Consequently, we concluded:
(T)he use of official time under section 7131 (d)--that is,
its amount, allocation and scheduling--is negotiable absent an
emergency or other special circumstances. . . . See, for example,
section 7106(a)(2)(D). Parties may protect their interests in the
negotiation process. See AFGE Council of Locals No. 214, 798
F.2d at 1530. ("An agency has no obligation to abandon what it
conceives to be the best interests of the agency merely
because it must negotiate on an official time proposal.")
Based on the reasoning in military Entrance Processing
Station, and in the absence of any evidence of "special
circumstances", we find Proposals 3 and 4 to be negotiable.
VI. Proposal 5
Article Six - Emergency Weather Procedures
Section 4. When the operation of any school day or days is
suspended due to adverse weather conditions or for reasons of
health and safety, the period of suspension shall be deducted
from the total of 180 days included for each school year
operation. All employees shall be entitled to normal pay for the
days of school suspended.
A. Positions of the Parties
The Agency argues that Proposal 5 explicitly requires a
school year of 180 days and requires deduction of any suspended
school days from that total. By limiting the number of school
days, the Agency contends, the proposal conflicts with the
Agency's right to determine the methods and means of performing
work because the number of school days or instructional days is a
necessary component of the Agency's determination of how it will
conduct its operation of providing an education for the children
attending the Fort Bragg school.
The Agency notes the Union's statement in its petition that
the proposal is not intended to prohibit scheduling an additional
instructional day. However, the Agency claims that the language
of the proposal does not corroborate this interpretation. In the
event the Authority interprets the proposal in the manner
suggested by the Union, the Agency argues that the proposal will
require that teachers be paid "additional compensation" for any
scheduled make-up days. The Agency argues that the Union's
statement of intent is not sufficiently specific or delimited so
as to permit a negotiability determination because the Union does
not explain what it means by "additional compensation."
The Union argues that its proposal was not intended to limit
the school year to 180 days, or to disallow make-up days. Rather,
it was intended to ensure that make-up days not be counted
towards the 180 regularly scheduled instructional days
for pay purposes so that the teachers would be paid for make-up
days.
B. Analysis and Conclusion
For the reasons set forth below, we conclude that Proposal 5
is outside the duty to bargain.
The plain language of the proposal limits the number of
school days to 180, even where instructional days may have been
suspended due to adverse weather conditions. Like Proposal 7 in
Overseas Education Association and Department of Defense
Dependents Schools, 29 FLRA No. 49 (1987), Proposal 5 places a
limit on the number of instructional days, thus interfering with
the Agency's right to assign work under section 7106(a)(2)(B) of
the Statute.
The Union contends that its proposal should be interpreted
to permit the Agency to make up any suspended days as long as the
employees were provided "additional compensation." We find that
interpretation to be broader than the plain language of the
proposal. The Union should have attempted to bring the proposal
within the duty to bargain by clarifying the language of the
proposal to indicate that it was not intended to limit the
Agency's right to determine the number of instructional days in a
school year. Because the Union did not clarify the language of
the proposal in this manner, we will not interpret the proposal
in the manner suggested by the Union. See Overseas Education
Association, Inc. v. FLRA, 827 F.2d 814, 821 (D.C. Cir. 1987)
("It is for the Union, not the FLRA, to draft proposals that
come fully within the Employer's duty to negotiate.")
VII. Proposals 6 and 7
Proposal 6
Article Six - Emergency Weather Procedures
Section 5. Employees shall be reimbursed for personal
property loss occurring while at work due to adverse weather
conditions.
Proposal 7
Article Seven - Health and Safety
Section 3. The Employer shall replace damaged personal
property i.e. teaching supplies, books, etc. due to unsafe
building conditions.
A. Positions of the Parties
The Agency argues that both of these proposals are
nonnegotiable under section 7117(a)(1) of the Statute because
they do not include the required statutory and regulatory
restrictions. Therefore, the Agency contends that implementation
of these proposals could require violation of law or
Government-wide regulations.
The Union claims that these proposals, while they do not
specifically refer to applicable statutes or regulations, must be
interpreted in accordance with applicable law and regulation.
Additionally, the Union contends that the Agency has failed to
demonstrate how these proposals conflict with either law or
regulation.
B. Analysis and Conclusion
We conclude that Proposals 6 and 7 are outside the duty to
bargain under section 7117(a)(1) of the Statute because they are
inconsistent with Federal law. In each proposal, the plain
language requires that employees be reimbursed for certain
enumerated losses. As noted by the Agency (Statement of Position
at 42), 31 U.S.C. 3721 governs the circumstances under which an
employee of the Government may be reimbursed for the loss of
personal property. Neither Proposal 6 nor Proposal 7 refers to
the applicable Federal law. Nor does either proposal state that
reimbursements will be made in conformity with law or governing
regulations, if any. More specifically, the proposals are silent
as to the statutory requirement that an allowable claim must be
substantiated, that the agency head must decide that possession
of the property was reasonable and useful under the
circumstances, and that the loss was not attributable to
negligence or wrongful conduct on the part of the claimant, his
or her agent or employee. See 31 U.S.C. 3721(f). Moreover,
neither proposal acknowledges the statutory limitation of 2 years
on the filing of such claims.
As we stated with regard to Proposal 5, the Union ought to
have brought its proposals within the scope of bargaining either
prior t? or during the bargaining process by specifying that they
are intended to comply with governing law and regulation.
Consequently, for the reasons discussed in analyzing Proposal 5,
we will not infer that Proposals 6 and 7 are intended to comply
with law and regulation because the express language of the
proposal fails to cite, or even refer to, any statutory or
regulatory limitations upon their application. Therefore,
Proposals 6 and 7 are outside the duty to bargain.
VIII. Proposal 8
Article Nine - Hours of Work
Section 1. The parties recognize and agree that the
professional employees' responsibility to their students and
their profession generally entails the performance of duties and
the expenditure of time beyond the normal working day. However,
teachers are entitled to regular time and work schedules on which
they can rely and which will be fairly and evenly maintained to
the extent possible throughout the school system. Therefore,
except in emergencies and instances of staffing exigencies, the
normal day for employees shall be from:
8:00 A.M. - 3:30 P.M. M - Th
8:00 A.M. - 3:00 P.M. F
A. Positions of the Parties
The Agency contends that Proposal 8 is outside the scope of
conditions of employment, interferes with the Agency's right to
determine its budget, is inconsistent with procurement law and
regulation, violates the Antideficiency Act, and conflicts with
an Agency regulation for which there is a compelling need.
Additionally, the Agency argues that this proposal interferes
with its section 7106(a)(1) right to determine its mission by
establishing a particular time frame in which teachers may work.
Because teaching is its mission and management must determine
what hours are best to accomplish that mission, the Agency argues
that the proposal prohibits it from accomplishing this mission
during the hours it has chosen.
The Union argues that its proposal is intended to define a
normal day for employees who are paid on an annual basis. It
claims that Proposal 8 is not intended to prohibit management
from requiring a teacher's presence during hours other than those
stated in its proposal. Therefore, it argues that its proposal
merely involves starting and quitting times, a matter the
Authority has held negotiable. As to the Agency's mission
argument, the Union argues that the Agency has failed to
establish that there is any particular mission-related reason for
starting school at a different time.
B. Analysis and Conclusion
We find this proposal to be outside the duty to bargain
under section 7106(a)(1) of the Statute. In American Federation
of Government Employees, Local 3131 and Social Security
Administration, 22 FLRA 868 (1987) the first part of Proposal 1
would have established the office hours of a Social Security
field office. The Authority found that the specific office hours
to provide services to the public was mission related and thus,
the first part of the proposal was nonnegotiable under section
7106(a)(1) of the Statute. See also Department of the Air Force,
Lowry Air Force Base, Colorado, 16 FLRA 1104 (1984) (where the
Authority held that the agency had no obligation to bargain over
a change in hours that a Commissary store would be open because
the decision about the store's hours was mission related and
thus, nonnegotiable under section 7106(a)(1) of the Statute).
Further, in West Point Elementary School Teachers
Association, NEA and The United States Military Academy
Elementary School, West Point, New York, 29 FLRA No. 123
(1987), we concluded that Proposal 3 which provided for the
negotiation of the school calendar was outside the agency's duty
to bargain, because, among other things, it directly interfered
with the agency's right under section 7106(a)(1) to determine its
mission. Specifically, we held that the decision as to when
instructional services were to be provided to students was
clearly mission related.
Based on Social Security Administration and United States
Military Academy Elementary School, we find that the decision as
to when instructional services are to be provided includes the
starting and ending time of each instructional day. Therefore,
the decision as to the starting and ending time of each
instructional day is likewise mission related. Consequently,
Proposal 8 is nonnegotiable because it interferes with the
Agency's right under section 7106(a)(1) to determine its
mission.
In view of this determination, it is unnecessary to pass on
the Agency's other contentions.
IX. Proposal 9
Article Nine - Hours of Work
Section 6. All unit members will be granted a 30 minute duty
free lunch period. They may leave the building without requesting
permission during their scheduled duty free lunch period.
A. Positions of the Parties
The Agency contends that Proposal 9 violates its right to
assign work under section 7106(a)(2)(B) because the plain
language of the proposal prohibits the assignment of duties
during the scheduled paid duty-free lunch period.
The Union contends that the proposal should be read as
requiring that employees be paid if work is required during a
scheduled duty-free lunch period.
B. Analysis and Conclusion
For the reasons stated in Overseas Education Association and
Department of Defense Dependents Schools, 29 FLRA No. 61 (1987)
(Proposal 38), we conclude that Proposal 9 is outside the duty to
bargain. As found in Department of Defense Dependents Schools, a
proposal precluding the assignment of duties to employees,
including the monitoring of students, is inconsistent with
management's right to assign work under section 7106(a)(2)(B) of
the Statute. Like the proposal in Department of Defense
Dependents Schools, Proposal 9 prohibits the assignment of duties
during the duty-free period and, thus, conflicts with
management's section 7106(a)(2)(B) rights.
X. Proposals 10 through 16, 18, 19 and Proposal 44
Article Ten - Professional Compensation
Proposal 10
Section 1. Professional compensation for all bargaining unit
members except nurses and instructional assistants will be that
of the base rate of pay established by the North Carolina Salary
Schedule but never less than ten (10) percent increase from the
pay schedule of the previous year, to be effective August 11,
1986. Movement in salary step is automatically one step or more
per year. Movement from the A scale to the G scale schedule is
effective on the date of award of an advanced degree. Advanced
certificate holders and doctoral degree holders will receive
additional compensation on the date of award.
Proposal 11
Section 2. Bargaining unit employees shall be paid longevity
pay in accordance with those rates established and specified in
North Carolina law and shall never be lower than those
percentages paid in the 1985-86 school year. Longevity pay shall
be based on service in any North Carolina or federal school
system and shall be awarded each year in a lump sum on the
anniversary date of hire.
Proposal 12
Section 3. The comparability supplement will be the median
of the three (3) highest supplements in the state of North
Carolina in the current year and will be adjusted yearly.
The local longevity supplement shall be awarded in the
anniversary date after five (5) years of federal service and
shall increase after each additional five years of service:
5 years $500
10 years $1000
15 years $1500
20 years $2000
25 years $2500
30 years $3000
Proposal 13
Section 4. Instructional Assistants shall be paid in
accordance with the base rate of pay established by the North
Carolina Salary Schedule for teacher aides. A supplement of
$2000/year shall be added to the base rate for all instructional
assistants employed by Fort Bragg Schools.
Proposal 14
Section 5. Nurses will be paid in accordance with Womack
Army Hospital salary schedule for registered nurses. Placement on
the scale shall be in accordance with experience as a registered
nurse. Movement in salary step shall be automatically one (1)
step or more per year as per other members of the bargaining
unit.
Proposal 15
Section 6. Bargaining unit employees who serve on
committees, serve as mentors, supervise student teachers,
participate in curriculum development and/or serve as department
or grade chairpersons shall be paid at a step higher on the
salary schedule for each month they are so engaged in such an
activity.
Proposal 16
Section 7. Bargaining unit members engaged for summer
employment shall be paid in accordance with their salary step on
a pro-rated basis for each day of employment. Bargaining unit
members shall also be entitled to payment for all federal
holidays that fall within their extended contract period of
employment.
Proposal 18
Section 12. If an instructional assistant is used in a
capacity as a substitute teacher for one-half day or more, the
instructional assistant will be compensated in accordance with
the pay schedule applicable to this position.
Proposal 19
Section 13. If a teacher participates in training for which
a stipend is accorded, the stipend will be paid in one lump sum
within one (1) month of successful completion of the training.
Article Twenty - Seven - Duration of Agreement
Proposal 44
Section 2. This Agreement shall be opened for salary and
staffing modification on February 1 of each calendar year.
Requests for such negotiations will be submitted in writing and
will include a summary of the proposed amendments two weeks prior
to the re-opener date.
A. Positions of the Parties
The Agency contends that this group of proposals concerning
employee compensation is nonnegotiable because the proposals
violate 1) Federal statutes, 2) Agency regulations having the
force and effect of law, and 3) an Agency regulation for which it
asserts a compelling need. The Agency also argues that the
proposals interfere with its right to determine its budget and
are not within the scope of "conditions of employment," as
defined in section 7103(a)(14) of the Statute, and, consequently,
are nonnegotiable under section 7117 of the Statute.
The Union points out that the Agency's arguments were raised
previously in other cases in which proposals concerning pay and
benefits were found to be negotiable by the Authority. The Union
also argues that the Agency has failed to sustain its burden of
showing that the proposals interfere with the budget
determination process and that the Agency has failed to establish
a compelling need for its regulation. Moreover, the Union asserts
that the disputed proposals do not violate procurement
regulations.
B. Analysis and Conclusion
For the reasons set forth in our separate opinions, we find
Proposals 12 through 16, 18, 19 and 44 to be negotiable, and
dismiss the petition for review as to Proposals 10 and 11.
XI. Proposal 17
Article Ten - Professional compensation
Section 8. Tuition Reimbursement. The Employer shall cover
80% of the cost of six hours of voluntary study and full
reimbursement of the cost for mandatory study to obtain required
in-field certification.
A. Positions of the Parties
Because this proposal is included within a group of
proposals addressing employee compensation, the Agency argues
generally that this and the other proposals are nonnegotiable
because compensation is not a "condition of employment" within
the meaning of section 7103(a)(14) of the Statute, that
negotiation of compensation violates Federal law, Agency
regulations having the force and effect of law, and an Agency
regulation for which a compelling need is asserted. The
Agency also contends that the proposal interferes with its right
to determine its budget under section 7106(a)(1).
The Union asserts that the proposal's intent is to authorize
reimbursement in accordance with the Training Act for academic
study undertaken to enhance professional development. The Union
also points out that the Agency's arguments were previously
raised and rejected in cases already decided by the Authority.
B. Analysis and Conclusion
Contrary to the Agency, we do not view Proposal 17 as
concerning compensation issues. Rather, we find that the proposal
involves reimbursement for training expenses. As the Union
correctly notes, the matters covered by the proposal are governed
by "the Training Act," 5 U.S.C. Chapter 41. Under that Act
employees may be reimbursed for the expense of training which is
or will be "directly related to the performance by the employee
of official duties for the Government(.)" We note that the
reimbursements required by this proposal will be limited to the
cost of training applicable to employees' required "in-field
certification." Hence, we conclude that the proposal meets the
legal requirement that the training relate directly to the
employees' official duties. Moreover, we find nothing in the
proposal which would indicate an intent that it would operate in
a manner inconsistent with the Training Act.
Proposal 17, therefore, is similar in effect to the last
sentence of Proposal 1 in Overseas Education Association and
Department of Defense Dependents Schools, 29 FLRA No. 49
(1987). The last sentence of Proposal 1 in that case similarly
sought reimbursements from the agency for employee training
expenditures. In finding the sentence to be negotiable, we noted
that it did not require reimbursements not authorized by the
Training Act and, therefore, only sought to enforce contractually
the applicable legal standards. Based on Department of Defense
Dependents Schools, we find Proposal 17 in this case to be
negotiable.
XII. Proposals 20 through 22, 24, 25, and 27 through 31
Article Eleven - Sick Leave
Proposal 20
Section 2. Employees with the Fort Bragg School System
having 1-3 years of experience, will be granted sick leave at the
rate of one (1) day per month of employment under
contract; plus the number of sick leave days accrued, but not
used, by the employee in preceding years of Federal employment.
Employees with four (4) or more years of experience in the Fort
Bragg School System will be granted eleven (11) days of sick
leave, with pay, at a rate of one and one tenth (1 1/10) days per
month of employment under contract, and a (sic) plus the number
of sick leave days accrued, but not used, by the employee in
preceding periods of Federal employment.
Proposal 21
Section 7. Employees under contract during the summer shall
be entitled to the prevailing sick leave benefits and shall have
sick leave accumulated for those times of employment on a
prorated basis.
Article Twelve - Other Leave
Proposal 22
Section 1. Bargaining unit employees, except those in a
leave-without-pay status, shall be entitled to all Federal
holidays which fall on regularly scheduled workdays.
Proposal 24
Section 4. Personal leave.
a. Two days of personal leave are earned by each eligible
employee each year and shall be accumulated from year to year for
a maximum of five (5) days. Therefore, it is possible for an
individual to take a maximum of seven (7) days personal leave
during a single school year.
c. Personal leave will be granted in hourly increments.
Proposal 25
Section 5. Annual Leave. Unit members earn two kinds of
annual leave; designated days and discretionary days.
a. Designated days are earned at the rate of one designated
day per month of employment. These days are designated in the
calendar for specific dates and must be taken on those dates.
Designated days do not accumulate and there is no extra pay for
them.
b. Discretionary days are earned at various rates according
to experience in North Carolina. The following chart shows the
number of days earned in a school year based on years of
experience.
Days Granted Each Year
Yrs. of Aggregate Day Per 10 Months 11 Months 12 Months
State Service Month Employee Employee Employee
Less than 2 years 1.00 10.00 11.00 12.00
2 but less than 5 1.15 11.50 12.65 13.80
5 but less than 10 1.40 14.00 15.40 16.80
10 but less than 15 1.65 16.50 18.15 19.80
15 but less than 20 1.90 19.00 20.90 22.80
20 years or more 2.15 21.50 23.65 25.80
c. Employees may not take discretionary annual leave on
instructional days. Employees must have the opportunity to take
annual leave they earn during the year. This means that the
school calendar must provide for 12 available workdays for the
purpose of taking annual leave.
d. Annual leave that is not taken may accumulate without any
maximum until December 31 each calendar year. On that date
everyone's annual leave is reviewed and any days over 30 are
lost.
e. An employee may be advanced 10 days of annual leave.
f. Lump sum payment for leave is made only at the time of
separation. An employee shall be paid in a lump sum for the
accumulated leave not to exceed a maximum of 30 workdays when
separated from service due to resignation, dismissal,
reduction-in-force, death or service retirement.
g. Annual leave may be used for absences caused by adverse
weather conditions when schools are closed. However, employees
cannot be required to take an annual leave day if they wish to
make up the hazardous weather day.
h. Annual leave may be taken in lieu of sick leave when
students are not scheduled for attendance.
i. Only scheduled teacher workdays and the ten (10) annual
leave days scheduled in the school calendar shall be charged in
calculating the amount of leave taken. Federal holidays are not
charged as annual leave days.
Proposal 27
Section 7. Leave without pay will be granted whether or not
an employee has personal or sick leave to his/her credit. Leave
without pay may be granted, upon request, for the following
reasons:
a. Family leave.
b. Recovery from illness and/or disability.
c. Protection of employee status and benefits pending action
on claims for disability retirement or injury compensation.
d. Such other reasons that are approved by the
Superintendent.
Proposal 28
Section 9. Family leave.
a. In accordance with the Equal Opportunity Act of 1972,
female employees shall not be penalized in their condition of
employment because they require time away from work caused by or
contributed to by pregnancy, miscarriage, abortion, childbirth,
and/or recovery. The use of leave in this regard will be treated
in the same manner as any other temporary disability, and female
employees will neither be penalized nor given preferential
treatment for maternity reasons.
b. Any absence for maternity or adoption reasons may be
chargeable to sick leave, personal leave, leave-without-pay, or a
combination of them. An employee may use sick leave when she is
disabled and/or unable to perform the duties of her job as a
result of pregnancy or adoption.
c. Any absences for paternity or for adoption reasons may be
chargeable to sick leave, personal leave, leave-without-pay, or a
combination of them for up to ten (10) working days as a result
of the birth or adoption of a child.
e. There will be no limitation of employment before
childbirth. However, after consultation with her physician, a
decision will be made on an individual basis as to how far into
pregnancy the employee may continue to work and when she may
return to work. Such information should be furnished to an
individual's principal on a form furnished by the Employer and
verified by the attending physician.
g. An employee may be granted a leave of absence without pay
up to one calendar year upon the birth or adoption of a child.
h. Hospitalization and life insurance premiums will continue
in effect during a family leave period in accordance with Federal
regulations.
Proposal 29
Section 10. Military leave with pay not to exceed fifteen
(15) days shall be granted to unit employees who serve in the
National Guard or Reserve Components of the United States Armed
Forces for required periods of active duty training, upon
submission of orders or other appropriate documentation.
Proposal 30
Section 12. Educational leave. Employees involved in
professional growth and development courses which necessitate
early departure will be granted educational leave. This
leave will be granted without loss of existing leave or pay and
shall be arranged on an individual basis with the employer.
Proposal 31
Section 14. Teacher injured during episodes of violence. No
deduction is to be made from the salary of teachers when absent
from school as a result of any injury or disability received
while engaged in the course of employment and arising out of any
episode of violence by one or more persons, nor shall there be
any leave charged.
A. Positions of the Parties
The Agency argues that these proposals do not concern
conditions of employment under section 7103(a)(14). The Agency
also argues that the proposals conflict with 1) management's
rights under sections 7106(a)(1) to determine its budget and
assign work, 2) procurement law and the Federal acquisition
regulation, 3) an Agency regulation for which there is a
compelling need, and 4) management's right under section
7106(a)(2)(B) to assign work. The union disputes the Agency's
arguments and argues that the proposals are negotiable.
B. Analysis and Conclusion
For the reasons expressed in our separate opinions, we (1)
find Proposals 20 through 22, 24, Proposal 25, except for
subsections a and g, and Proposals 28, 29 and 31 to be
negotiable; (2) find Proposal 25, subsection a, and Proposal 30
to be nonnegotiable; and (3) dismiss the petition for review of
Proposal 25, subsection g and Proposal 27.
XIII. Proposal 23
Article Twelve - Other Leave
Section 3. Administrative Leave shall be granted for the
following reasons:
a. Blood donations for which the employee is not
compensated.
b. Adverse weather conditions, acts of God, military
necessity or other circumstances beyond the control of the
Employer.
c. A brief period of absence due to an unavoidable
calamity.
d. Professional Responsibility and Attendance at a
Professional Meeting. For absences approved by the Superintendent
pay will be allowed for a period not exceeding at one time three
days for in-state meetings, five days for out-of-state meetings
and not exceeding a total of ten (10) days for the school year.
This limitation shall not apply to a person who is local or
district president or president-elect or any state or national
officer of an educational professional association, or to a
person selected as National Teacher of the Year from this state.
Disapproval shall be in writing to the employee with stated
reasons. This shall also include collective bargaining workshops
or training sessions.
e. Emergency leave. Emergency circumstances or serious
illness involving the medical confinement of a spouse, child,
brother, sister, parent, grandparent, grandchild, step-parent,
in-laws of the same relation, aunt, uncle or any person with whom
the employee has developed an immediate family-like obligation
due to past personal relationships.
f. Association conferences at State and National levels and
District 10 Day.
g. Educational leave. A maximum of three (3) days
administrative leave shall be granted, upon request, to teachers
who enroll in summer school classes which begin prior to the end
of the school term or which terminate after the opening of the
fall term. Teachers enrolled in late afternoon or evening classes
which meet during the school year will be dismissed early on
those days. Early departure leave will not be charged in this
incidence.
h. Such other reasons that are approved by the
Superintendent.
A. Positions of the Parties
The Agency asserts that the entitlements for administrative
leave under this proposal would prevent management from requiring
an employee to remain on duty when the employee's services are
necessary for the performance of the Agency's work. In this
regard, the Agency argues that the proposal conflicts with
management's right under section 7106(a)(2)(B) to assign work.
The Union argues that the proposal does not conflict with the
right to assign work.
B. Analysis and Conclusion
The Authority consistently has held that union proposals
concerning leave which would prevent management from requiring an
employee to remain on duty to perform necessary work are
nonnegotiable. Such proposals conflict with management's right
under section 7106(a)(2)(B) to assign work. See, for example,
American Federation of Government Employees, AFL - CIO, Local
1770 and Department of the Army, Fort Bragg Dependent Schools,
Fort Bragg, North Carolina, 28 FLRA 493 (1987) (Provision 8 and
Provision 11, Section 3(a)), petition for review filed sub nom.
Department of the Army, Fort Bragg Dependent Schools, Fort Bragg,
North Carolina v. FLRA, No. 87-2661 (4th Cir. Sept. 22, 1987);
American Federation of Government Employees, AFL - CIO, Local
3804 and Federal Deposit Insurance Corporation, Madison Region,
21 FLRA 870 (1986) (Proposal 2) ; National Federation of Federal
Employees, Local 15 and U.S. Army Armament Munitions and Chemical
Command, Rock Island. Illinois, 19 FLRA 48, 48-50 (1985).
The second sentence of subsection d of the proposal does not
conflict with the right to assign work. Based on the wording of
this portion of subsection d, the entitlement to administrative
leave arises after an employee's absence from work has been
approved. This analysis also applies to subsection h. In
providing that administrative leave may be used for reasons which
are approved, this subsection of the proposal preserves
management's discretion to approve or disapprove employee
absences.
The second sentence of subsection d and subsection h,
however, do conflict with the right to assign work insofar as
they require that the task of approving employee absences will be
performed by a particular management official (the
"Superintendent"). American Federation of Government Employees,
AFL - CIO, Local 1858 and U.S. Army Missile Command. The U.S.
Army Test, Measurement, and Diagnostic Equipment Support Group,
The U.S. Army Information Systems Command- Redstone
Arsenal Commissary, 27 FLRA 69 (1987) (Provisions 6, 8 and 10),
petition for review filed as to other matters sub nom. U.S. Army
Missile Command, U.S. Army Test, Measurement, & Diagnostic
Equipment Support Group v. FLRA, No. 87-7445 (11th Cir. July
17, 1987).
However, if these defects in the second sentence of
subsection d and subsection h were corrected, these portions of
the proposal would be negotiable. As we explained in discussing
Proposal 11 in Veterans Administration Staff Nurses Council,
Local 5032, WFNHP, AFT, AFL - CIO and Veterans Administration
Medical Center, Wood, Wisconsin, 29 FLRA No. 62 (1987), a
proposal concerning employee entitlements to leave which
preserves management's discretion to determine whether an
employee may be released from work does not conflict with the
right to assign work.
In its response to the Agency's statement of position, the
Union asserts that the remaining portions of this proposal also
preserve management's discretion to determine whether an employee
may be released from work. We disagree. First, in its petition
for review the Union states that the proposal "is intended to
provide that the employer's discretion to grant excused absence .
. . will be exercised in particular circumstances." Petition for
Review at 13. This Union explanation supports the Agency's view
that the remaining portions of the proposal would not preserve
management's discretion to determine whether an employee's
absence would conflict with the accomplishment of necessary
work.
Second, as explained in connection with the second sentence
of subsection d and subsection h, above, the wording of these
portions of the proposal shows that the Union knew how to draft
proposals which would preserve management's discretion to
determine whether an employee could be absent. In our view, the
Union's failure to include similar wording in the remaining
portions of the proposal indicates an intent to eliminate
management's discretion to determine whether an employee could be
absent from work. See Overseas Education Association, Inc. v.
FLRA, 827 F.2d 814, 821 (D.C. Cir. 1987) ("It is for the Union,
not the FLRA, to draft proposals that come fully within the
Employer's duty to negotiate.").
Therefore, we find that the Union's explanation of the
proposal in its response to the Agency statement of position is
inconsistent with the language of the proposal. Medical Center,
Wood, Wisconsin (Proposal 6) (we will not base a negotiability
decision on a Union statement of intent which is clearly
inconsistent with the language in dispute).
Consequently, we conclude that the remaining portions of the
proposal would interfere with management's discretion to
determine whether an employee can be absent from work and that
these portions of the proposal conflict with the right to assign
work under section 7106(a)(2)(B).
XIV. Proposal 26
Article Eleven - Sick Leave
Section 6.
a. A catastrophic leave bank will be established and
administered by the Association.
b. The bank will be in effect for the life of this
Agreement.
c. All contract employees may join the bank by voluntarily
contributing one (1) sick leave day as defined in Article 12
Section 5 of this Agreement.
d. Contract employees electing to participate in such a bank
shall submit to the Assn. within thirty (30) days of the signing
of this agreement a written waiver of one (1) annual leave day.
New employees shall have the opportunity to contribute one (1)
day during the first thirty (30) days of employment.
e. All contract employees will be eligible to participate,
but employees not electing to waive one (1) day from their annual
leave at the appointed time shall not be eligible to draw from
the bank.
g. Withdrawals from the bank shall be limited to
participating individuals who have first exhausted their annual
leave time. Withdrawals from the bank can be made for, but will
not be limited to, any great and sudden calamity, disaster,
misfortune or event that disrupts the existing order of things.
h. No participating individual can draw more than one-third
(1/3) of the total days in the bank, except by
unanimous agreement of the administering committee.
i. In the event the bank drops to ten (10) days, the
Executive Committee shall afford the opportunity to all
employees, within thirty (30) days, to voluntarily contribute one
(1) annual leave day to replenish the bank.
j. Participating individuals not electing to waive one (1)
annual leave day at the time of replenishment shall not be
eligible to draw from the bank once the ten (10) days remaining
have been exhausted.
k. Resigning employees may donate their unused sick leave to
the leave bank.
A. Positions of the Parties
The Agency argues that the proposal is nonnegotiable because
it does not concern conditions of employment under section
7103(a)(14) of the Statute. It also asserts that the proposal
conflicts with: (1) management's right under section 7106(a)(1)
to determine its budget; (2) procurement law and Federal
acquisition regulations; and (3) an Agency regulation for which
there is a compelling need.
The Union disputes the Agency's arguments and contends that
the proposal is negotiable.
B. Analysis and Conclusion
Proposal 26 governs the establishment of a leave bank. The
proposal states that the leave bank will be "administered" by the
Union. However, the record and the proposal are silent concerning
precisely what administering the bank entails. While the proposal
details how deposits will be made to the bank, it does not
indicate how withdrawals may be made. As we have stated
previously (see our analysis of Proposal 23, above), the granting
and/or approval of various categories of leave involves the
exercise of management's right under section 7106(a)(2)(B) of the
Statute to assign work. In the absence of any information
concerning the leave bank's relationship to management's exercise
of its reserved right, we cannot determine from the record before
us whether this proposal is within the duty to bargain.
The parties bear the burden of creating a record upon which
we can base a negotiability determination. American Federation of
Government Employees, Local No. 12 and U.S. Department of Labor,
25 FLRA 987 (1987) (Proposal 5). Because the Union has not
furnished the information necessary to determine whether or not
the proposal interferes with the right to assign work, it has not
sustained its burden of creating a record which is sufficient for
us to make a negotiability determination. Consequently, we
dismiss the Union's petition for review of Proposal 26.
XV. Proposal 32
Article Fourteen - Evaluation
Section 2. The evaluator shall take into consideration any
circumstances that may adversely affect a teacher'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 teachers. All monitoring or observation of
the work performance of a teacher shall be conducted openly and
with full knowledge of the teacher. The use of eavesdropping,
public address, or audio systems and similar surveillance devices
for monitoring or observing the work performance of a teacher
shall be strictly prohibited. Teacher evaluations shall be
prepared only on the basis of information directly observed by
Management officials. Guidelines as to what information will be
collected along with how this collection will be accomplished
must be presented to all teachers both orally and in written form
at the beginning of each school year or at time of employment if
it is subsequent to the beginning of the regularly scheduled
school year. Any derogatory information received by a Principal
which he/she, at the time of receipt, intends to use in
evaluating a teacher, shall be called to the attention of the
teacher with the nature and source of the complaint identified.
The teacher shall be afforded the opportunity to answer or rebut
such complaint. No interview or meeting between a complaining
parent and teacher shall be set by Management until the teacher
has had a reasonable opportunity to consult with the
Association's representative and to have the representative
present at such meeting or interview. (Only the underlined
portions are in dispute.)
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.
The Union disagrees with the Agency's position and argues
that the proposal would merely guarantee the use of fair and
objective procedures in the exercise of management's rights.
B. Analysis and Conclusion
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. It is identical
to a sentence dealing with student test results which the
Authority found to be outside the duty to bargain in Overseas
Education Association and Department of Defense Dependents
Schools, 29 FLRA No. 61 (1987) (Proposal 6). In that case, the
Authority, citing National Federation of Federal Employees and
Haskell Indian Junior College, Bureau of Indian Affairs,
Department of the Interior, Lawrence, Kansas, 22 FLRA 539
(1986), found the sentence to be nonnegotiable because it would
have required management to bargain over the content of
performance standards in violation of section 7106(a)(2)(A) and
(B) of the Statute. For the reasons discussed in Overseas
Education Association, we find the sentence here to be outside
the duty to bargain.
We find that the second, third, and fourth underscored
sentences of the proposal are similar to the second, third, and
fourth underscored sentences in Proposal 6, which we found to be
nonnegotiable in Overseas Education Association. In that case we
found the sentences, which concerned various techniques used by
management to evaluate employees, to be nonnegotiable because
they interfered with management's rights to assign work and
direct employees under section 7106(a)(2)(A) and (B) of the
Statute. More particularly, we found that the intent of these
sentences was not an attempt to guard against the use of secret
studies as the union therein claimed, but rather was an attempt
specifically to prohibit the use of various techniques to
evaluate employee performance, which management has the right to
determine.
We find, therefore, for the reasons expressed in Overseas
Education Association, that the instant sentences are
nonnegotiable because they, like the sentences in that case,
would place substantive limitations on the Agency's right to
determine the methods it deems most appropriate to
evaluate its employees, in violation of section 7106(a)(2)(A) and
(B) of the Statute.
The Agency claims that the fifth underscored sentence, which
requires management to notify employees at the beginning of the
school year as to what and how information will be utilized by
the Agency to evaluate employees, is nonnegotiable because it
would prohibit management from modifying its performance
evaluation method once the school year had begun. The Agency
further claims that this portion of the proposal would also
prohibit the Agency from engaging in unannounced observations of
employees in violation of its right to direct employees and
assign work under section 7106(a)(2)(A) and (B) of the Statute.
The Union states that the disputed sentence is "not intended to
prohibit management from changing evaluation methods once the
school year has begun . . . it merely requires management to
announce what methods it plans to use at the inception of the
evaluation period. It does not prohibit management from
conducting an unannounced observation of a teacher's classroom so
long as teachers are forewarned at the beginning of the
evaluation period that 'unannounced classroom observations' will
be an evaluation method." Union Reply Brief at 22.
Contrary to the Agency's contentions, we find that the
disputed sentence would not prevent the Agency from modifying its
evaluation methods or from conducting unannounced classroom
visits. The proposal only requires the Agency to provide
bargaining unit employees with information regarding the methods
utilized by management to evaluate them.
We have held that proposals which merely require an agency
to notify employees of matters concerning their conditions of
employment are negotiable procedures. See, for example, American
Federation of Government Employees, AFL - CIO, Local 1760 and
Department of Health and Human Services, Baltimore, Maryland, 25
FLRA 16 (1987) (Proposal 3, paragraph A) (proposal which
required the agency to provide information with respect to
performance standards and ratings found negotiable); American
Federation of Government Employees, AFL - CIO, General Committee
of AFGE for SSA Locals and Social Security Administration, 23
FLRA 329 (1986) (Proposal 5), application for enforcement filed
sub nom. FLRA v. Social Security Administration, No. 87-1118
(D.C. Cir. March 9, 1987) (proposal requiring the agency to give
employees notice of elements which are subject to performance
rating constitutes a procedure and is negotiable); National
Federation of Federal Employees, Local 1263 and Defense Language
Institute, Presidio of Monterey, California, 29 FLRA 61 (1987)
(proposal 4) (proposal requiring the agency to inform employees
of its policy concerning classroom interruptions found
to be a negotiable procedure).
We find that the disputed language in no way restricts
management in the exercise of its rights under section 7106(a) of
the Statute, but rather is concerned only with notifying unit
employees of the methods used by management to evaluate them.
Accordingly, we find the disputed language constitutes a
negotiable procedure under section 7106(b)(2) of the Statute. We
also note the Union's position that the language is not intended
to prohibit management from changing evaluation methods or from
conducting unannounced classroom visits.
The Agency objects to the requirement in the sixth
underscored sentence of the proposal that the "source" of
derogatory information be divulged to the concerned teacher when
a principal, "at the time of receipt," intends to use such
information in evaluating the employee. The Agency contends that
it has a reserved right to determine how employees' work will be
audited. The sentence, therefore, according to the Agency,
interferes with that right by limiting the effectiveness of using
complaints in evaluating employee performance. The Agency reasons
that "(a) feeling of reticence could easily be developed if
parents knew that these complaints, along with their names, were
being transmitted directly to the teacher." Agency Statement of
Position at 5.
We agree that the sixth underscored sentence interferes with
management's reserved right, but not for the reason claimed by
the Agency. Rather, we find that the disputed language interferes
with management's right to discipline employees. We agree that an
employee has the right to know the content of charges made
against him or her in sufficient detail so as to be able to make
a reasoned response to them. However, the effect of this sentence
is that the principal must decide "at the time of receipt"
whether the information will be used in an employee's evaluation.
A management official may not be able to make such a decision on
a complaint at the time of receipt. Further inquiry may be
necessary to establish the complaint's validity, or the complaint
may be only the first of a group of complaints raising questions
concerning a specific teacher's performance. In such cases, the
principal could not decide upon receipt whether a given complaint
ought to be used either in evaluating or disciplining an
employee.
In our view, the sentence's "at the time of receipt"
requirement, in circumstances where the validity and weight of the information cannot be ascertained immediately, would
prohibit management from using legitimate information in
evaluating performance and in imposing discipline against
employees. The disputed sentence is, therefore, analogous to
proposals we have held to be nonnegotiable when the proposal
imposes a contractual limitation on management's right to take
corrective action or discipline an employee under section
7106(a)(2)(A) of the Statute. See, for example, Joint Council of
Unions, GPO and United States Government Printing Office, 25 FLRA
1033 (1987) (Proposal 2). But compare National Treasury Employees
Union and Department of the Treasury, U.S. Customs Service, 9
FLRA 983 (1982), remanded as to other matters sub nom. U.S.
Department of Justice, U.S. Customs Service v. FLRA, No.
82-2225 (D.C. Cir. Jan. 19, 1984) (wherein the Authority held
that the requirement in Article Three, section 13 that employees
be notified "as soon as practicable" after receipt of written
complaints against them did not interfere with the agency's
discretion or judgment on how to meet its investigative
responsibilities).
According to the Agency, the final sentence of Proposal 32
is nonnegotiable because it violates the Agency's right to
establish the methods and means of performing its work under
section 7106(b)(1) of the Statute. The Agency states that "the
right of parents to meet with the child's teacher, without the
presence of a Union representative, is a necessary component of
the child's educational process;" and that the "participants of
these discussions are the parent and the teacher." Agency
Statement of Position at 52.
We find that the final sentence of the proposal interferes
with the Agency's ability to determine the methods and means of
performing its work.
In the context of section 7106(b)(1), "means" refers to any
instrumentality, including an' agent, tool, device, measure, plan
or policy used by an agency for the accomplishing of furthering
of the performance of its work. National Treasury Employees Union
and U.S. Customs Service, Region VIII, San Francisco, California,
2 FLRA 255 (1979). "Method" 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). The term "performing work" which
appears in section 7106(b)(1) of the Statute is intended to
include those matters which directly and integrally relate to the
Agency's operations as a whole. American Federation of Government
Employees, AFL - CIO and Air Force Logistics Command, Wright -
Patterson Air Force Base, Ohio, 2 FLRA 604, 618
(1980), enforced 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 Agency's mission is to educate students. Statement of
Position at 51. The parent-teacher conference is designed to
provide a forum where parents can discuss with the teacher
concerns relating to the education of their child. According to
the Agency, these discussions are between the parent and the
teacher; no management official is involved. The meeting does
not involve an investigation which could result in disciplinary
action, nor does it involve an evaluation of a teacher's
performance, but rather is directed toward providing a vehicle
for parents and teachers to consult in order to resolve problems
related to a student's education.
Given the purpose of the meeting--to foster the educational
process--we conclude that such a meeting is designed to enhance
the ability of the Agency to accomplish its mission and therefore
directly and integrally relates to the Agency's operations. We
find that the parent-teacher conference constitutes an agent,
tool, device, measure, plan or policy for accomplishing or
furthering the performance of the Agency's mission--educating
students. Consequently, we find that the meeting falls within the
meaning of methods and means of performing work under section
7106(b)(1) of the Statute. Inasmuch as the disputed language
would interfere with the Agency's exercise of its elective right
to determine the methods and means of performing work, it is not
within the duty to bargain.
XVI. Proposal 33
Article Fourteen - Evaluation
Section 3. All observations shall be preceded within a two
(2) teacher workday period by a conference between the supervisor
and teacher in order for the teacher to explain his/her
objectives and plans for that class. All observations shall be
followed by a post conference between the supervisor and teacher
in order for the supervisor to explain items observed. This post
conference shall be within ten (10) working days from the date of
observation.
A. Positions of the Parties
The Agency contends that Proposal 33 violates its right to
direct employees and assign work because it would prohibit
unannounced classroom observation of teachers by requiring a
conference between the teacher and the supervisor prior to any
observation. The Agency asserts that management must be free to
audit employees' work by the method it deems most appropriate for
such purposes. The Agency also argues that Proposal 33 violates
its right to assign work by requiring the supervisor to meet with
the employee preceding any classroom observation.
The Union contends that Proposal 33 constitutes a negotiable
procedure by which management can exercise its right to evaluate
employees. The Union has withdrawn the language in the first and
second sentences of the proposal requiring a conference "between
the supervisor and teacher." Union's Response to Agency Statement
of Position at 23.
B. Analysis and Conclusion
We find that the first sentence of Proposal 33 is outside
the duty to bargain. In National Federation of Federal Employees,
Local 1263 and Defense Language Institute, Presidio of Monterey,
California, 29 FLRA 61 (1987) (Proposal 1), we found that a
proposal which required the agency to notify teachers in advance
of classroom visits to evaluate their performance directly
interfered with the agency's right to direct employees and assign
work under section 7106(a)(2)(A) and (B) of the Statute. By
requiring management to use prearranged classroom visits to
obtain a sample of teachers' daily work product, the proposal in
that case prohibited management from auditing employees' work by
the method--unannounced classroom visits--it deemed most
appropriate for the purpose. Id. at 64.
The first sentence of Proposal 33, like Proposal 1 in
Defense Language Institute, prevents the Agency from using
unannounced classroom observation when evaluating teachers'
performance and restricts the Agency's ability to audit employees
by the method it deems most appropriate for the purpose.
Consequently, Proposal 33 directly interferes with the Agency's
right to direct employees and assign work. See also National
Federation of Federal Employees, Local 1454 and Veterans
Administration, 26 FLRA 848 (1987) (Proposals 2-6).
The second sentence of Proposal 33 provides that the Agency
shall arrange a post-observation conference within 10 working
days from the date of observation in order for the
Agency to explain items observed. The second sentence of Proposal
33 is similar to proposals previously found to be negotiable
procedures. See, for example, Illinois Nurses Association and
Veterans Administration Medical Center, North Chicago, Illinois,
27 FLRA 714 (1987) (Proposal 7) (providing a procedure for
counseling employees with unsatisfactory performance) petition
for review filed sub nom. Veterans Administration Medical Center,
North Chicago, Illinois v. FLRA, No. 87-1405 (D.C. Cir. Aug.
17, 1987); American Federation of Government Employees, AFL -
CIO, Local 1760 and Department of Health and Human Services,
Social Security Administration, Baltimore, Maryland, 25 FLRA 16
(1987) (Proposal 3A). By requiring the Agency to meet with
employees to inform them of the results of classroom
observations, the second sentence of Proposal 33 does not
restrict management in the exercise of its rights under section
7106(a) of the Statute, but rather, involves a negotiable
procedure which management will utilize when appraising an
employee's performance. VA Medical Center. North Chicago,
Illinois, 27 FLRA at 736.
We note that the Union has withdrawn the portions of the
proposal which require the assignment of certain tasks to Agency
officials (supervisors). Therefore the Agency arguments
concerning such assignment present no basis for finding the
proposal nonnegotiable. See Illinois Nurses' Association and
Veterans Administration Medical Center, Hines, Illinois, 28 FLRA
212, 217 (1987), petition for review filed sub nom. Veterans
Administration Medical Center, Hines, Illinois v. FLRA, No.
87-1514 (D.C. Cir. Sept. 23, 1987).
XVII. Proposals 34 - 41 and 43
Article Fourteen - Evaluation
Proposal 34
Section 7. Prior to proposing any reduction in grade or
removal based on unacceptable performance, the supervisor will
ensure that the bargaining unit member is provided an opportunity
to demonstrate acceptable performance. To this end, the
supervisor shall provide notice of that individual's failure to
satisfy the performance standards for one or more critical
elements. The notice shall be in writing, and shall be provided
to the teacher at least sixty (60) days in advance of proposing a
reduction in grade or removal based on unacceptable performance.
This notice shall identify:
A. The critical elements of the employee's position for
which performance is unacceptable.
B. The improvements the employee must make to bring
performance to a satisfactory level.
C. The efforts the supervisor will make to help the employee
improve.
D. The time period of at least thirty (30) days within which
the employee must improve the unacceptable performance prior to a
second notice being issued by the supervisor. At the end of the
time period specified, the supervisor shall notify the affected
employee in writing as to whether:
1) The employee is now performing in an acceptable manner;
or
2) The employee's performance remains unacceptable. If so,
this 2nd notice may be accomplished in a notice of proposed
action described in section 8 below.
Proposal 35
Section 8. A teacher who is proposed to be reduced in grade
or removed based on unacceptable performance shall be given
fifteen (15) days advance written notice of the proposed action
which:
A. States the reasons for the proposed action in detail.
B. Identifies specific instances of unacceptable performance
by the teacher.
C. Identifies the critical elements of the teacher's
position for which performance is unacceptable.
D. States that the employee may review the material relied
upon in proposing the action and make reasonable copies
of such material.
E. Informs the teacher of the right to reply orally or in
writing, or both, within fifteen (15) calendar days from receipt
of the proposed notice.
Two copies of the notice of proposed action shall be
provided to the employee so that the employee may provide a copy
to the Association. The notice of proposed action shall not rely
upon any instances of unacceptable performance occurring more
than one year before the date of such notice.
Proposal 36
Section 9. In those cases when a decision is made to reduce
in grade or remove a teacher for unacceptable performance, such
teacher may file a grievance under Article 16 of this Agreement
within ten (10) calendar days after receipt of the final decision
on the proposed action. Two copies of the notice of decision will
be provided to the teacher.
Article Fifteen - Reductions in Force
Proposal 37
Section 1. A Reduction in Force (RIF) is defined as an
action of the employer to reduce the number of employee positions
for reasons such as reorganization, program changes, or
termination, decreased work requirements, or financial
exigency.
Proposal 38
Section 3. The employer will notify the Association when it
is determined that a reduction in force is necessary. Such notice
shall be given to the Association prior to employee notification.
The Association shall have the opportunity to comment, suggest
alternatives, and discuss the impact of the reduction in force.
Proposal 39
Section 4. Once it has been determined that a RIF is
required all personnel affected by the reduction will be notified
by the employer as soon as possible, but no less than 30 days
prior to the effective date of such action.
Proposal 40
Section 6. Personnel whose employment has been terminated as
a result of a RIF will be notified of appropriate vacancies and
will be given priority consideration for a period of one year for
reemployment. Individuals who decline an offer of reemployment
will have their names removed from the notification list.
Proposal 41
Section 7. As soon as employees are given notice of
separation, Management shall utilize all means at its disposal to
assist said employees find continuing Federal employment through
the Interagency Placement Assistance Program and Management shall
insure that the employees' names are placed on the Agency
Reemployment Priority List.
Article Twenty - Four - Guarantee of Employment
Proposal 43
Section 4. An employee receiving a second year appointment
shall achieve Career Status on the first day of the second year
of employment. Career Status employees shall not be dismissed
except for just cause.
A. Positions of the Parties
The Agency claims that the above proposals are nonnegotiable
to the extent that they would limit management's right to
terminate a unit employee in accordance with the employee's
personal services contract. More particularly, the Agency claims
that these proposals conflict with the (1) Federal Acquisition
Regulations (FARs), especially the FAR's termination clause,
which the Agency states is found in each individual's personal
services contract; and (2) Contract Disputes Act, which the
Agency asserts provides the exclusive procedure for
resolving any dispute pertaining to a personal services contract.
Additionally, the Agency claims that Proposals 40 and 41, which
concern reemployment of a unit employee terminated as a result of
a RIF, and the Interagency Placement Assistance Program (IPAP),
are nonnegotiable because they conflict with certain provisions
of the Federal Personnel Manual (FPM).
The Union disputes the Agency's arguments and argues that
the proposals are negotiable for the same reasons as set forth in
American Federation of Government Employees, AFL - CIO, Local
1770 and Department of the Army, Fort Bragg Dependent Schools,
Fort Bragg, North Carolina, 28 FLRA 493 (1987), petition for
review filed sub nom. Department of the Army, Fort Bragg
Dependent Schools, Fort Bragg, North Carolina v. FLRA, No.
87-2661 (4th Cir. Sept. 22, 1987), and Fort Knox Teachers
Association and Board of Education of the Fort Knox Dependents
Schools, 27 FLRA 203 (1987), petition for review filed sub nom.
Board of Education of the Fort Knox Dependents Schools v. FLRA,
No. 87-3702 (6th Cir. July 24, 1987).
B. Analysis and Conclusion
The Union's proposals provide certain procedural protections
that must be complied with by the Agency before an employee could
be separated from his/her position based on 1) an unacceptable
performance, 2) a reduction in force, or 3) a disciplinary
action. The arguments raised by the Agency, as set forth-above,
are similar to the arguments which we considered and rejected in
several previous Authority decisions.
In Fort Bragg Dependent Schools, Fort Bragg, North Carolina,
28 FLRA 493 (Provision 13), which concerned employees employed
under 20 U.S.C. 241, as here, we found that the Department of
Defense Federal Acquisition Regulations dealing with personal
services contracts did not apply to these employees. In Fort Knox
Dependents Schools, 27 FLRA 203 (Provision 2), we found that the
Contract Disputes Act did not bar the agency from negotiating
over a provision which subjected employee complaints to the
negotiated grievance procedure.
In so finding, we determined that: 1) individuals employed
under 20 U.S.C. 241 are employees of the Government subject to
all statutes pertaining to Government employment unless
specifically exempted; 2) there was nothing in the Statute or its
legislative history to indicate that Congress sought to exclude
individuals employed under 20 U.S.C. 241 from its
coverage; and 3) there was no provision in the Contract Disputes
Act indicating that Congress intended to include the Statute
among the provisions of law which were either amended or repealed
by that Act. We, therefore, concluded that the employees in that
case, who were employed under 20 U.S.C. 241, could negotiate a
grievance procedure under section 7121 of the Statute which,
according to section 7103(a)(9), may encompass "any matter
relating to the employment of the employee" or "any claimed
violation, misinterpretation, or misapplication of any law, rule,
or regulation affecting conditions of employment."
Therefore, to the extent that the Agency raises similar
arguments here, we find, for the reasons discussed in Fort Knox
Dependents Schools and Fort Bragg Dependent Schools, that they
provide no basis for finding the proposals nonnegotiable.
We turn now to the Agency's additional arguments concerning
Proposals 40 and 41.
Proposal 40 would require the Agency to establish a
reemployment priority list of bargaining unit employees separated
from the Agency because of a RIF from which the Agency would
offer appropriate positions which it had subsequently decided to
fill. Proposal 41 would require management to utilize all means
at its disposal to assist these employees in finding other
Federal employment. The Agency contends that these proposals are
nonnegotiable because they conflict with certain provisions of
the FPM, namely FPM chapters 330 and 351, which it states require
agencies to establish reemployment priority lists for competitive
service positions. The Agency further states that, in view of the
FPM provisions and as the employees here "are not in the
competitive service", they are not entitled to participate in the
agency reemployment priority program or the IPAP. Agency
Statement of Position at 62.
The Union states that the intent of Proposal 40 is to
"entitle employees who lose their jobs because of a RIF to
notification of, and first consideration for, any vacancies for
which they are qualified for a period of one year." Union's
Petition for Review at 18. It further states that the intent of
Proposal 41 is "to require management to assist employees who are
displaced through a RIF in obtaining other Federal employment."
Id. at 18.
Considering the Union's stated intent, it is our view that
Proposal 40 and Proposal 41, as they relate to an agency
reemployment list, are only directed to positions within the
bargaining unit for which the employee is qualified.
Further, we find nothing in the FPM chapters cited by the agency
which would preclude the Agency from establishing an Agency
reemployment priority list for bargaining unit employees. We find
rather that the proposals here are similar in effect to Provision
7, Section 6, in Fort Bragg Dependent Schools, 28 FLRA 493. We
found Provision 7, Section 6, which required management to fill
positions affected by a RIF from a list of employees whose
employment had been affected by a RIF, a negotiable appropriate
arrangement. Therefore, for the reasons set forth in Fort Bragg
Dependent Schools, we find Proposal 40 and Proposal 41, as they
relate to an agency reemployment priority list, to be negotiable
arrangements under section 7106(b)(3) of the Statute.
The Agency further claims that Proposal 41 is nonnegotiable
because it conflicts with the FPM chapter, cited above, which, in
its view, limits the use of the IPAP to employees in the
competitive service. We find that the agency has not presented
evidence to sustain its position. Contrary to the Agency's claim,
we find that the use of IPAP is not limited to competitive
service employees, but rather is available to employees in
various excepted service positions. See, for example, Office of
Personnel Management's Washington Area Office, Bulletin No. 11,
January 7, 1983. We, therefore, find that the Agency does have
discretion to utilize the IPAP to assist employees in the unit
affected by a RIF. Accordingly, we find that Proposal 41, as it
relates to the IPAP, constitutes a negotiable procedure and is
therefore within the duty to bargain.
Based on the above reasoning, we find that Proposals 34 - 41
and Proposal 43 are within the duty to bargain.
XVIII. Proposal 42
Article Eighteen - Working Conditions
Section 4. If no other duty obligation exists, teachers may
use the last thirty (30) minutes of the duty day to participate
in an adult school activity that promotes the physical fitness
and good mental health of the teacher.
A. Positions of the Parties
The Agency contends that Proposal 42 can be interpreted in
two fashions, both of which conflict with its right to assign
work under section 7106(a)(2)(B). The first interpretation suggested by the Agency, which it contends is the
most valid, would require it to decide at the beginning of each
school year whether an employee would be free to participate in
an adult school activity promoting physical fitness and good
mental health of the teacher. The Agency contends it would then
be committed to assigning no duties during the last 30 minutes
of each day during which the adult school activity was conducted
even in the event of an emergency. The Agency's second
interpretation is that such a determination would have to be made
at the end of each day. Under the second interpretation, the
Agency argues that management would be effectively banned from
assigning work during the last 30 minutes of a day to any
employee who left for an adult school activity.
The Union contests both of these interpretations, arguing
that its proposal is not intended to prohibit the assignment of
duties during the last 30 minutes of the day. Rather, the Union
argues that a "duty obligation" may be imposed at any time, even
at the end of the workday under the proposal. That is, management
may even call an employee back from the "adult school activity"
during the last 30 minutes of the school day.
B. Analysis and Conclusion
In agreement with the Agency, we conclude that Proposal 42
interferes with management's right under section 7106(a)(2)(B) of
the Statute to assign work.
Proposal 42 permits employees to have up to 30 paid minutes
per day to engage in nonwork personal activities. We reject the
Union's claims that this proposal is negotiable because it would
not preclude the Agency from assigning duties so as to prevent
employees from leaving 30 minutes early or preclude the Agency
from calling employees back to work once they left. This proposal
would require the Agency to assign specific duties to be
accomplished during the last 30 minutes of the day in order to
prevent employees from leaving early. In other words, employees
who completed their instructional assignments for the day could
not be expected to remain in the school to perform duties
normally attendant to teaching duties such as grading papers,
preparing lessons, or remaining available for unscheduled
student/teacher meetings or unscheduled parent/teacher meetings
unless expressly directed by the Agency. The U.S. Court of
Appeals for the D.C. Circuit in National Treasury Employees Union
v. FLRA, 793 F.2d 371, 373-74 (D.C. Cir. 1986), stated that,
even if an employee completes assigned tasks before the end of a
specified period of time, the employee is not entitled
to take off the remainder of the period but rather is obligated
to continue to perform assigned work.
In addition, the fact that the Agency is not precluded from
calling an employee back to work once the employee had gone would
have no effect if it was impractical or impossible to locate the
employee before the expiration of the 30 minutes.
Thus, Proposal 42 is to the same effect as proposals
permitting employees a certain amount of time to be used for
personal hygiene and changing clothes which were found to
interfere with management's right under section 7106(a)(2)(B) to
assign work because they precluded the assignment of other duties
during the specified time period. See National Association of
Government Employees, SEIU, AFL - CIO and National Guard Bureau,
Adjutant General, 26 FLRA 515 (1987) (Proposal 8); National
Treasury Employees Union, Chapter 153 and Department of the
Treasury, U.S. Customs Service, 21 FLRA 1116 (1986) (Proposal
7); American Federation of Government Employees. Local 2094, AFL
- CIO and Veterans Administration Medical Center, New York, New
York, 19 FLRA 1027 (1985) (Proposal 1). Consequently, as
Proposal 42 would also preclude assigning duties to employees
engaged in personal activities, it is, based on the above cases,
nonnegotiable.
XIX. Order
The petition for review is dismissed insofar as it relates
to: Proposal 2, Proposals 5 through 11; Proposal 23; Proposal 25,
subsections a and g; Proposals 26, 27 and 30; Proposal 32,
sentences I through 4, sentence 6 and the last sentence; Proposal
33, the first sentence; and Proposal 42. The Agency shall, upon
request or as otherwise agreed to by the parties, bargain
concerning: Proposals 3 and 4; Proposals 12 through 22; Proposal
24; Proposal 25, except for subsections a and g; Proposals 28, 29
and 31; Proposal 32, sentence 5; Proposal 33, sentence
2; Proposals 34 through 41; and Proposals 43 and 44. 2
Issued, Washington, D.C., December 21, 1987.
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun on Proposals 10 through 16,
18 through 22, 24, 25, 27 through 31, and 44
I. Background
I am writing separately because these proposals concern
wages and other compensable matters that, contrary to my
colleague, I have long held to be outside the duty to bargain
under the Federal Service Labor - Management Relations Statute
(the Statute). In 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 377 (1986), I stated that
in the absence of a clear expression of congressional intent to
make wages and money-related fringe benefits negotiable, I would
find that proposals concerning those matters are not within the
duty to bargain. Today, I reaffirm my opinion with respect to
these matters. See also my opinions in West Point Elementary
School Teachers Association, NEA and the United States Military
Academy Elementary School, West Point, New York, 29 FLRA No.
123 (1987); Fort Stewart (Georgia) Association of Educators and
Fort Stewart Schools, 28 FLRA 547 (1987), petition for review
filed sub nom. Fort Stewart Schools v. FLRA, No. 87-3734 (11th
Cir. Sept. 22, 1987); and Fort Knox Teachers Association and Fort
Knox Dependents Schools, 28 FLRA 179 (1987), petition for review
filed sub nom. Fort Knox Dependents Schools v. FLRA, No.
87-3878 (6th Cir. Sept. 18, 1987).
II. Proposals 10, 11, 25 (sections a and g), 27, and 30
Proposals 10 and 11 concern basic compensation and longevity
pay for bargaining unit employees. As in previous cases involving
teachers employed under the provisions of 20 U.S.C. 241, I find
no clear expression of congressional intent that these matters
are negotiable. To the contrary, congress, in my opinion, has
established a comprehensive framework, supplemented by detailed
Agency regulations, governing the determination of wages and
other compensable matters. Within that framework, the
expenditures for the Agency's schools must "to the maximum extent
practicable" be limited to an amount per pupil which will not
exceed the per pupil cost of free public education in the State
where the schools are located. 20 U.S.C. 241(e). The education
provided is considered comparable when enumerated "factors are,
to the maximum extent practicable, equal." Army Regulation 352-3,
subpart 1-7. One of the enumerated factors is "salary schedules."
Accordingly, I find that Proposals 10 and 11 are
nonnegotiable on this basis. Further, I find that sections (a)
and (g) of Proposal 25 are nonnegotiable because these sections
concern wages and money-related fringe benefits and further,
because they conflict with the Agency's right to assign work
under the Statute. In agreement with Member McKee, I find that
section (a) of Proposal 25 would prevent the Agency from
assigning work to unit employees on days previously specified as
"designated days." Section (g) also conflicts with the right to
assign work, in my view. That section would both (1) require the
Agency to grant requests for annual leave on days when schools
are closed for weather related reasons, and (2) require the
Agency to assign work on another day if a unit employee preferred
to "make up the hazardous weather day" rather than take annual
leave. As such, these sections are outside the duty to bargain
under section 7106(a).
I reject the Agency's assertion that Proposal 27 concerns
wages and fringe benefits. Rather, Proposal 27 relates solely to
the situations in which employee requests for leave without pay
are granted. Proposal 27 conflicts with the Agency's right to
assign work, in my view, and is nonnegotiable on that basis. Like
sections (a) and (g) of Proposal 25, I find that Proposal 30 is
nonnegotiable because it concerns wages and fringe benefits and,
in addition, conflicts with the Agency's right to assign work.
With respect to the result, I agree with Member McKee that
the Union's petition for review of Proposals 10, 11, 25 (sections
a and g), 27, and 30 should be dismissed. However, I disagree
with my colleague's determination that Proposals 10, 11, 25
(section g), and 27 should be dismissed because the Union failed
to provide sufficient information to enable the Authority to make
a negotiability ruling. I believe that these proposals are
sufficiently specific for a ruling on the merits. Accordingly, I
do not join in member McKee's reasons for dismissing Proposals
10, 11, 25 (section g), and 27. Further, I agree with Member
McKee that Proposals 25 (section a) and 30 conflict with the
Agency's right to assign work. I would also find them to be
nonnegotiable because they relate to the types of leave available
to unit employees, matters which constitute money-related fringe
benefits that are to be determined consistent with the framework
established by Congress.
III. Proposals 12 through 16, 18 through 22, 24, 25 (except for
sections a and g), 28, 29, 31, and 44
The majority position of the Authority as to the
negotiability of proposals concerning wages and money-related
fringe benefits has been set forth in a long line of decisions,
several of which are now awaiting judicial review. As a member of
the then majority, and consistent with this precedent, Member
McKee finds Proposals 12 through 16, 18 through 22, 24, 25
(except for sections a and g), 28, 29, 31 and 44, which clearly
concern wages and money-related fringe benefits, to be
negotiable. As noted above, I have consistently dissented from
the Authority's position that proposals like these are negotiable
under the Statute.
There is currently a vacancy in the membership of the
Authority. Until that vacancy is filled, the issuance of
decisions requires agreement between Member McKee and me. I
believe that it is vital to the parties' ability to complete
their negotiations that the Authority avoid impasse today. I am
compelled to place these considerations before my personal
adherence to a result my previous dissents would dictate here.
See Public Service commission v. Federal Power Commission, 543
F.2d 757, 777-78 (D.C. Cir. 1974).
Therefore, in order to provide a disposition to this case,
and consistent with the existing precedent of the Authority, I
join Member McKee in the Order on page 41 of this Decision. See
Opinion of Justice Rutledge concurring in the result in Screws v.
U.S., 325 U.S. 91, 113-34 (1945). If this action were not
necessary to resolve the case, I would find that these proposals
are nonnegotiable.
Issued, Washington, D.C., December 21, 1987.
Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
SEPARATE OPINION OF MEMBER MCKEE ON PROPOSALS 10 THROUGH 16, 18
THROUGH 22, 24, 25, 27 THROUGH 31 AND 44
I. Preliminary Matters
The proposals discussed in this opinion are identified by
the Agency as concerning pay and/or money-related fringe
benefits. The Agency advances the same arguments as to all of
these proposals. Consequently, in the interest of brevity, I will
consider those arguments together rather than in each proposal to
which they apply. Each of these arguments was raised and
considered in previous cases involving the Agency's teacher
personnel who are employed under the same or similar authority.
Therefore, I will summarize each argument and my disposition with
citations to the relevant prior decisions.
A. Outside the Scope of Conditions of Employment
The Agency contends that pay or money-related fringe
benefits are not negotiable "conditions of employment" under the
Statute, absent specific authorization. The Agency cites
extensively to the Statute's legislative history in support of
this argument. The Authority considered and rejected this
argument 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) and in a number of subsequent cases. The Authority
consistently has held that nothing in the Statute or its
legislative history prevents bargaining over employee
compensation, 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 involved are not otherwise
inconsistent with law, applicable Government-wide rule or
regulation, or with an agency regulation for which a compelling
need exists. Consequently, a number of proposals concerning
salary schedules and other compensation were found to be
negotiable in Fort Bragg Dependents Schools. See also American
Federation of Government Employees, AFL - CIO, Local 1897 and
Department of the Air Force, Eglin Air Force Base, Florida, 24
FLRA 377 (1986) and Fort Knox Teachers Association and Fort Knox
Dependents Schools, 27 FLRA 750 (1987) (Proposal 1). Based on
the proposals and arguments made by the parties in this case, I
see no reason to depart from the decisions in the cited cases.
B. Interference with the Agency's Right to Determine its
Budget
In order for an agency to establish that a proposal is
inconsistent with its right under section 7106(a)(1) of the
Statute to determine its budget, the agency must make a
substantial showing either (1) that the proposal in question
requires inclusion of a particular program or amount of money in
its budget or (2) that implementing the proposal would result in
significant and unavoidable increases in costs not offset by
compensating benefits. See American Federation of Government
Employees, AFL - CIO and Air Force Logistics Command, Wright -
Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced as
to other matters sub nom. Department of the Air Force v. FLRA,
659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v.
FLRA, 455 U.S. 945 (1982).
The Agency argues that finding proposals involving pay and
money-related fringe benefits to be negotiable would result in
pattern bargaining by similar units in the Agency. Consequently,
it asserts, increased costs would be substantial and unavoidable.
The Agency also contends that the congressional decision to
exempt dependents schools teachers from statutes governing pay
and certain fringe benefits for Federal employees reflects a
legislative finding that increases in teachers' pay are not
offset by compensating benefits.
The same arguments were raised and rejected in Fort Knox
Teachers Association and Fort Knox Dependents Schools, 28 FLRA
179 (1987), petition for review filed sub nom. Fort Knox
Dependents Schools v. FLRA, No. 87-3878 (6th Cir. Sept. 18,
1987). The Authority found that the agency had failed to
establish what increased costs could be expected or even that
such increases would be unavoidable. As to the legislative
finding suggested by the Agency, the Authority noted that nothing
in the governing law, 20 U.S.C. 241, or in its legislative
history reflects a congressional intention to restrict the
Agency's discretion as to the particular employment practices
relating to pay and fringe benefits which could be adopted. The
Authority also reiterated the observation made in Fort Bragg
Dependents Schools. 12 FLRA 519 (1983) that employee
compensation is but one element of the factors involved in
meeting the statutory requirement that per pupil costs not exceed
those of comparable public school systems within the same state.
As in Fort Knox Dependents Schools and Fort Bragg Dependents
Schools, I also reject the Agency's arguments in this case.
C. Violation of Procurement Law and Regulations
The Agency contends that the proposals concerning pay and
money-related fringe benefits violate law, specifically 10 U.S.C.
2304, concerning the solicitation of contract bids in the
procurement process. The Agency further alleges that the
proposals violate Government regulations which have the force and
effect of law, governing the negotiation and administration of
procurement contracts. The Agency also asserts that the
proposals, by obligating the Government to pay for salaries and
other employee expenses in a succeeding fiscal year, violate
provisions of the "Antideficiency Act," 31 U.S.C. 1341.
Essentially the same arguments were advanced by the Agency
in Fort Knox Teachers Association and Board of Education of the
Fort Knox Dependents Schools, 27 FLRA 203 (1984), petition for
review filed sub nom. Board of Education of the Fort Knox
Dependent Schools v. FLRA, Nos. 87-3702 and 87-3853 (6th Cir.
July 24, 1987). The Authority rejected the Agency's arguments in
that case and no new information has been submitted warranting a
change in that conclusion. In Fort Knox Dependents Schools, the
Authority noted the well-established principle that teachers
employed under 20 U.S.C. 241 are employees of the Federal
Government, subject to all statutes regulating Federal employment
unless specifically exempted, rather than independent contractors
subject to procurement law and regulations. See also Senate Comm.
on Post Office and Civil Service, 93d Cong., 1st Sess., Statutory
Exceptions from the Competitive Service 108 (Comm. Print 1973)
(where the then civil service Commission, in preparing a report
on Federal positions exempted from the Competitive Service for a
committee of the House of Representatives, indicated that
teachers in dependents schools were Federal employees).
The Authority also found in Fort Knox Dependents Schools
that the agency had not established that procurement regulations
in any manner applied to or governed the employment relationship
of the teachers involved there. The Authority further found in
that case that salaries of Government employees and obligations
flowing from those salaries also did not violate the
Antideficiency Act.
Thus, based on Fort Knox Dependents Schools, I reject the
Agency's arguments in this case and find that compensation and
money-related fringe benefits are negotiable.
D. Violation of Army Regulations supported by a Compelling
Need
The Agency's position is that 20 U.S.C. 241, which governs
the employment of these teachers, requires equality between their
salary schedules and those of selected school systems within the
state. Thus, the Agency reasons, its regulation, AR 352-3, is
supported by a compelling need under section 2424.11(c) of our
Rules and Regulations because the regulation implements a
legislative mandate in a nondiscretionary manner. This contention
also was raised by the agency in Fort Knox Dependents Schools, 27
FLRA 203, and again in Fort Knox Dependents Schools, 28 FLRA
179. However, in those decisions, the Authority found nothing in
either 20 U.S.C. 241 or in its legislative history which would
restrict the agency's discretion in adopting employment practices
for these teachers. Therefore, the Authority held that there was
no compelling need for the regulation because it did not
implement a legislative mandate in a nondiscretionary manner.
Consequently, based on the reasons fully set out in those
decisions, I reject the agency's compelling need argument in this
case.
II. Proposals 12 through 16, 18 though 22, 24, 28, 31 and 44
The Agency's arguments concerning these proposals are the
arguments I examined above and found unpersuasive, under the
heading "I. Preliminary Matters." Consequently, because the
Agency does not challenge the negotiability of these proposals on
any other grounds, and no other grounds are otherwise apparent
to me, I conclude that the proposals are within the duty to
bargain.
Furthermore, as the Union correctly notes, these same Agency
arguments have been raised and rejected in prior Authority
decisions. Specifically, the Agency's arguments, as they pertain
to employee compensation, were rejected in Fort Stewart (Georgia)
Association of Educators and Fort Stewart Schools, 28 FLRA 547
(1987) (Proposals 1 and 2) petition for review filed sub nom.
Fort Stewart Schools v. FLRA, No. 87-3734 (11th Cir. Sept. 22,
1987), among other cases. The Agency's arguments concerning leave
were considered and rejected in, among other decisions, American
Federation of Government Employees, AFL - CIO, Local 1815 and
U.S. Army Aviation Center and Fort Rucker, Alabama, 29 FLRA No.
119 (1987) (Provisions 2 and 4).
In analyzing the proposals concerning leave (Proposals 20
through 22, 24, 28 and 31), I interpret their provisions as leaving management with the discretion to grant or deny
leave based on workload considerations.
III. Proposal 10
The requirements of the two clauses of the first sentence of
Proposal 10, in my view, are mutually contradictory. The first
clause of the sentence requires that the basic compensation of
certain bargaining unit employees will be the rate of pay
established by the North Carolina salary schedule. However, the
second clause mandates that in each succeeding year the pay rate
will not be less than 10 percent more than the pay rate for the
previous year. Thus, the proposal, on its face, would leave
management in a quandary should the North Carolina legislature
decide not to increase the salary schedule for public school
teachers or to revise the salary schedule downward during the
term of the parties' negotiated agreement. The dilemma facing the
Agency would be to determine which of the two conflicting clauses
is paramount. I recognize that the managerial decision on that
question would probably differ from the Union's. Consequently, I
find that Proposal 10 does not set forth sufficient and specific
information so as to permit me to reach a reasoned decision on
its negotiability under law and regulation.
Furthermore, the majority opinion on Proposal 1 in Fort Knox
Teachers Association and Fort Knox Dependents Schools, 27 FLRA
750 (1987), in which I joined, observed that negotiation over the
pay of teachers, like those in this bargaining unit, is not
without statutory limitation. In that case we held that a
"generalized call for bargaining over salaries contained in this
proposal makes it impossible to ascertain whether or not
subsequent negotiations would be within the limits of
negotiability." The proposal's form, we noted, "renders it
impossible for either party to advance or refute an argument in
support of (the proposal's) negotiability."
Here, under one of the interpretations suggested by the
language of the proposal, basic rates of pay for any year could
not be less than 10 percent more than the rates of pay for the
previous year. A determination as to whether the rate would be
within the scope of bargaining for school years beyond the one
specifically mentioned would be impossible, inasmuch as the
proposal, under this interpretation, imposes a floor under basic
pay rates, The proposal, by its terms, would not allow a revision
of the basic rate to reflect a decision by the state legislature
to lower the rates for public school teachers. Thus, in light of
the contractual floor, it would be impossible for either party to
advance or refute arguments that the proposal conforms
or is inconsistent With the Federal statutory requirement that
the Agency's per pupil expenditures not exceed those of
comparable public school jurisdictions within the state.
Accordingly, based on Fort Knox Dependents Schools, 27 FLRA
750, I find that Proposal 10 does not meet the conditions for
review prescribed in section 7117(c) of the Statute and section
2424.1 of our Rules and Regulations.
IV. Proposal 11
Like Proposal 10, the requirements of the two clauses of the
first sentence of Proposal 11, in my view, are also mutually
contradictory. The first clause of the sentence requires that
longevity pay rates be fixed in accordance with North Carolina
law. However, the second clause forbids the application of
percentage rates lower than those paid in the 1985-1986 school
year. Thus, Proposal 11 on its face, like Proposal 10, would
leave management in a quandary should the North Carolina
legislature for any reason decide statutorily to revise longevity
rates downward during the term of the parties' negotiated
agreement. Again, the dilemma facing the Agency would be to
determine which of the two conflicting clauses is paramount.
Consequently, I find that Proposal 11, like Proposal 10, does not
set forth sufficient and specific information so as to permit me
to reach a reasoned decision on its negotiability under law and
regulation.
Furthermore, under one of the interpretations suggested by
the language of Proposal 11, longevity pay rates could never be
lower than those prescribed by North Carolina law for the
1985-1986 school year. Because the proposal, under this
interpretation, imposes a floor under longevity pay rates, it
would be impossible to determine whether the rate would be within
the scope of bargaining for school years beyond the one mentioned
in the proposal. The proposal, by its terms, wound not allow a
revision of the longevity rate to reflect a decision by the state
legislature to lower the longevity rates for public school
teachers. Thus, because Proposal 11, like Proposal 10 above,
imposes a contractual floor, it would be impossible for either
party to advance or refute arguments that Proposal 11 conforms or
is inconsistent with the Federal statutory requirement that the
Agency's per pupil expenditures not exceed those of comparable
public school jurisdictions within the state.
Accordingly, based on Fort Knox Dependents Schools, I find
that Proposal 11 also does not meet the conditions for
review prescribed in section 7117(c) of the Statute and section
2424.1 of our Rules and Regulations.
V. Proposal 25
The Agency's arguments concerning this proposal are the same
as those I discussed and rejected in "I. Preliminary Matters,"
above. Consequently, Proposal 25 is not outside the duty to
bargain for the reasons advanced by the Agency. Except for
subsections a and g discussed below, it is not apparent to me
that the rest of the proposal is nonnegotiable for any other
reason.
I find that subsection a is nonnegotiable because it
expressly requires that annual leave be used on certain days.
This subsection would divest management of its discretion to
decide that an employee should remain on duty to perform
necessary work. The subsection, therefore, conflicts with
management's right under section 7106(a)(2)(B) of the Statute to
assign work, as explained earlier in connection with Proposal
23.
I find that subsection g of Proposal 25 fails to meet the
conditions for review prescribed in section 7117 (c) of the
Statute and section 2424.1 of the Authority's Rules and
Regulations. My finding is based on the subsection's lack of
clarity. The subsection would support one interpretation which
conflicts with the Agency's right under section 7106(a)(2)(B) of
the Statute to assign work. That is, the first sentence, standing
alone, appears only to permit employees to take annual leave on
days the schools are closed due to hazardous weather., However,
read together with the second sentence, section g as a whole
requires that employees be allowed, at their discretion, to make
up hazardous weather days in lieu of having to take annual leave.
This requirement could be construed as obligating management to
provide work, at the employee's option, whether or not any work
is there to be performed. Such an obligation, in my view,
presents particular problems in a school setting where the
preponderance of work must be performed in conjunction with the
presence of students and the number of days available for student
attendance is limited.
We have held that elements of the right to assign work
include the discretion to determine when the assignments will
occur and when the work which has been assigned will be
performed. See, for example, Overseas Education Association and
Department of Defense Dependents Schools, 29 FLRA 257 (1987).
Because subsection g, in the absence of further Union
elaboration, could arguably interfere with management's discretion to determine when and what kind of assignments could
be performed by certain employees, I conclude that the subsection
should be dismissed.
VI. Proposal 27
I find this proposal fails to meet the conditions for review
prescribed in section 7117(c) of the Statute and section 2424.1
of our Rules and Regulations. I reach this conclusion because the
proposal is susceptible of more than one interpretation, one of
which is inconsistent with management's right under section
7106(a)(2)(B) to assign work.
The first sentence of the proposal states that leave without
pay "will be granted" regardless of whether the employee making
the request has a balance of sick or annual leave to his or her
credit. The second part of the proposal lists conditions under
which a grant of leave without pay would be appropriate. Taken
together, the two parts of the proposal could be construed merely
to permit the Agency to grant leave without pay in the listed
circumstances without regard to whether an employee has a sick or
annual leave balance. On the other hand, the two parts of the
proposal could be construed to require that leave without pay
must be granted in the listed situations. As noted with regard to
Proposal 23, above, the Authority consistently has held that
leave proposals preventing management from requiring employees to
remain on duty to perform necessary work are nonnegotiable. Here,
because the proposal arguably may be interpreted to have that
effect, I conclude that it must be dismissed because it does not
present sufficient and specific information to enable me to reach
a reasoned determination on its negotiability.
Additionally, subsection d of the proposal requires that a
specific task--the establishment of criteria for granting leave
without pay--be performed by a specified management official.
This subsection of the proposal is nonnegotiable because it
interferes with the right to assign work for the reasons
discussed in connection with Proposal 23, above. Should the
parties choose to renegotiate this proposal to clarify its
intent, subsection d would also require revision to eliminate its
violation of the right to assign work.
VII. Proposal 29
The Agency's arguments concerning this proposal are the
arguments which I discussed and rejected above, under "I.
Preliminary Matters." Accordingly, I conclude that the
proposal is not outside the duty to bargain based on these agency
arguments.
I note that Proposal 29 is consistent with the requirements
of 5 U.S.C. 6323 which authorizes release of employees without
loss of pay or charge to leave to enable them to fulfill their
obligations as members of a Reserve component or National Guard.
Consequently, the proposal does not interfere with management's
authority to assign work.
VIII. Proposal 30
The Agency's arguments based on its budget, procurement law,
the Federal Acquisition Regulation, and its regulation are those
I discussed and rejected in "I. Preliminary Matters", above.
Accordingly, I conclude that this proposal is not outside the
duty to bargain for those reasons.
However, the proposal does conflict with management's right
to assign work. Based on the proposal's wording and the Agency's
explanation of its intent, which is not disputed by the Union,
this proposal mandates that employees be released from work for
the purposes stated in the proposal. Since the proposal does not
take account of management's need to disapprove leave requests
based on its work requirements, I conclude that this proposal
(like Proposal 23, above) is nonnegotiable because it conflicts
with the right to assign work under section 7106(a)(2)(B).
Issued, Washington, D.C., December 21, 1987.
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
FOOTNOTES
Footnote 1 Our separate concurring opinions on Proposals 10
through 16, 18 through 22, 24, 25, 27 through 31 and 44
immediately follow this decision.
Footnote 2 In finding these proposals and parts of proposals
to be negotiable, we make no judgment as to their respective
merits.