[ v39 p153 ]
39:0153(10)NG
The decision of the Authority follows:
39 FLRA No. 10
FEDERAL LABOR RELATIONS AUTHORITY
WASHINGTON, D.C.
OVERSEAS EDUCATION ASSOCIATION
(Union)
and
DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS
(Agency)
0-NG-1115
(29 FLRA 628)
and
0-NG-1312
(28 FLRA 700)
DECISION AND ORDER ON REMAND
January 30, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
These cases are before the Authority on remand from the United States Court of Appeals for the District of Columbia Circuit in Overseas Education Association, Inc. v. FLRA, 876 F.2d 960 (D.C. Cir. 1989) (OEA v. FLRA). In that decision, the court reversed the Authority's decisions in Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA 700 (1987) (DODDS) and Overseas Education Association, Inc. and Department of Defense, Dependents Schools, 29 FLRA 628 (1987) (OEA), holding that "the Authority erred in deciding, without consideration of the facts bearing on the issue" that employees were not adversely affected, within the meaning of section 7106(b)(3) of the Statute, by the imposition of new work requirements. OEA v. FLRA, 876 F.2d at 974. The court remanded the cases to the Authority for proceedings consistent with its opinion.
The court's decision encompassed 17 proposals concerning the work requirements of teachers that the Authority had found nonnegotiable because they directly interfered with management's rights. All except Proposal 2 are the subject of Case No. 0-NG-1115; Proposal 2 is at issue in Case No. 0-NG-1312. On reconsideration of whether these proposals constitute "appropriate arrangements" negotiable under section 7106(b)(3) of the Statute, we conclude as follows.(1) Proposals 1c, 1d, 5a, 7i, 7j, and 8c excessively interfere with management's rights and are not negotiable. Proposals 5b, 5c, 5d, 7b, 7c, 7e, 7f, 8a, 8b, and Proposal 2 constitute appropriate arrangements and are negotiable under section 7106(b)(3) of the Statute.
II. Background
In the earlier consideration of these cases, the Authority held that management's establishment of job requirements, by itself, did not adversely affect employees within the meaning of section 7106(b)(3); employees were adversely affected only when management took action against the employees based on the application of those job requirements. DODDS, 28 FLRA at 703; and OEA, 29 FLRA at 631. The court reversed the Authority's decision concluding that the Authority's construction of section 7106(b)(3) and related provisions of the Statute improperly restricted the scope of management's duty to bargain. OEA v. FLRA, 876 F.2d at 965-66. The court held that under section 7106(b)(3) an "adverse effect" may follow from the exercise of any management right, and should not be restricted to situations where new job requirements are being applied to employees through "unfavorable job actions such as removals, demotions and reductions in pay." Id. at 965. The court stated that the Authority had erred because it "never measured the impact of management's changes upon the unit employees." Id. at 973. The court, therefore, remanded the cases to the Authority to consider the facts bearing on whether the job requirements in question adversely affected bargaining unit employees and, if so, whether the arrangements proposed were appropriate. Id. at 973-74.
The Authority adopted the court's fact-based analytical approach in West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1011-14 (1990) (West Point). In West Point, we stated as follows:
Under section 7106(b)(3), "[t]he question whether employees are adversely affected by an exercise of a reserved management right necessitates close analysis of the relevant facts. Not every change in work requirements, or every added burden of job performance, will present an occasion for Section 7106(b)(3) collective bargaining." OEA v. FLRA, 876 F.2d at 973. As a threshold matter, to determine whether a proposal is an arrangement for employees adversely affected by management's exercise of its rights, we look to "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986). Proposals addressing "purely speculative or hypothetical concerns, or which are otherwise unrelated to management's exercise of its reserved rights," are excluded in this threshold analysis from being considered as appropriate arrangements. American Federation of State, County and Municipal Employees, Local 3097 and Department of Justice, 24 FLRA 453, 458 (1986).
In view of the decisions in OEA v. FLRA and West Point, we ordered the parties to these cases to file new submissions concerning the 17 proposals encompassed by the court's decision in OEA v. FLRA to replace those originally filed in these cases. The parties were directed to present the relevant facts and circumstances as fully as possible in their new submissions to enable the Authority to apply the analytical framework that it had articulated in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard) for determining whether proposals constitute appropriate arrangements that are negotiable under section 7106(b)(3) of the Statute.
Under the analytical framework set forth in Kansas Army National Guard, the Authority first determines whether, as a threshold matter, a proposal is an arrangement for employees adversely affected by management's exercise of its rights. This is accomplished by examining the record to determine how employees may be detrimentally affected by management's exercise of its rights and how the matter proposed for bargaining is intended to address or compensate for the actual or anticipated adverse effects of management's actions. Id. at 31. Once the proposal is determined to be an arrangement, the Authority determines whether the proposed arrangement is appropriate, or whether it is inappropriate because it excessively interferes with management's rights. This is accomplished by weighing the competing practical needs of employees and management. Id. at 31-32.
Based on the parties' submissions we reach the following conclusions.
III. Proposals 1c and d
1c. Unit employees will not be assigned the responsibility for covering classes of absent teachers solely because substitutes are not hired.
1d. To compensate for the loss of preparation time, unit employees will not be assigned non-professional duties.
A. Positions of the Parties
1. The Agency
According to the Agency, these proposals address the adoption in its Atlantic Region of a policy of not hiring substitute teachers for absent specialists who are not scheduled for regular classes. This policy applied to those specialists, such as art, music and physical education teachers in elementary schools, who periodically take over a classroom teacher's class and provide instruction in their particular specialty. It also applied to specialists in such areas as special education and media, who perform their duties by "pull[ing] out" individual students or small groups from a regular class while the classroom teacher remains with the rest of the class. Agency supplemental statement of position at 3.
The Agency asserts that the impact of this change in policy was minimal. Specifically, the Agency contends that, normally, a single class would not receive instruction from a specialist for more than one hour in any given week and that, in the absence of a specialist, the classroom teacher "would provide the normal classroom instruction." Id. at 4. Additionally, the Agency contends that because teachers receive a limited amount of leave during the school year and because long-term absences are excepted from the policy of not hiring substitutes, the policy of not hiring substitutes would affect individual teachers infrequently.
The Agency further asserts that teachers would not lose preparation time because of the new policy. Specifically, it contends that elementary school teachers, unlike secondary school teachers, do not have regularly scheduled preparation periods each day. Thus, the Agency contends that while the elementary school classroom teacher may plan to use the time during which the class is receiving instruction from a specialist for preparation, the teacher is subject to having other work assigned during that period. As to secondary school teachers, the Agency asserts that because they have one period a day in which no classes are scheduled, which is unrelated to the time during which their classes are taken over by specialists, the absence of a specialist would have no impact on their regularly scheduled preparation time. Moreover, the Agency contends that teachers are normally expected to perform some preparational and professional tasks outside of their duty day and that as a quid pro quo, teachers are not normally required to remain at school for 8 hours each day.
The Agency argues that there is no potential for a classroom teacher to receive a poor performance rating because a substitute was not hired for an absent specialist.
The Agency contends that Proposal 1c would prevent it from assigning a unit employee to cover an absent colleague's classes under any circumstances, even, for example, when a substitute was not available or time did not permit obtaining one. The Agency argues that because it is responsible for the education and safety of the students, it must retain the ability to assign the duties of covering an absent teacher's classes to another teacher.
The Agency contends that Proposal 1d would prevent the assignment of lunchroom or bus monitoring duties to teachers. It asserts that teachers are normally assigned such duties once or twice a month or for one week each school year. The Agency contends that such duties are considered part of a teacher's normally assigned duties and are not "particularly onerous or overly burdensome to employees." Agency supplemental statement of position at 8. The Agency argues that the performance of such duties is, nevertheless, essential to the effectiveness and efficiency of school operations.
The Agency argues that, comparing the speculative and limited benefits that the proposals provide employees to the limits placed on its ability to meet its educational mission and ensure the safety and security of the students, the proposals excessively interfere with management's right to assign work to employees.
2. The Union
The Union argues that the Agency's policy of not hiring substitutes for absent specialists results in adverse effects on both the absent educator and other teachers. In particular, with regard to classroom teachers who are required to cover for an absent specialist, the Union claims that they lose an opportunity to perform preparation activities on duty time in lieu of devoting additional personal time to such activities. In addition, the Union claims that the classroom teacher is required to provide the music, art or physical education lesson that would have been given by the absent specialist. The Union describes Proposals 1c and 1d as intended to alleviate the adverse effects of failing to hire substitutes when music, art, physical education and media specialists are absent.
The Union asserts that Proposal 1c, which it describes as applying only to the absence of specialists and not to the absence of teachers in general, places limited restrictions on the Agency. In this regard, the Union contends that the proposal does not preclude assigning a teacher to fill in for an absent specialist in those circumstances where no substitute is hired because none is available--it only precludes assigning a teacher to fill in as the first recourse when a specialist is absent. Additionally, the Union states that the proposal leaves the Agency free to use non-unit employees on the staff, such as Educational Program Managers, Assistant Principals, or paraprofessional aides to cover the classes of absent specialists. The Union contends that using paraprofessional aides, rather than professional unit employees, is a better use of resources and, consequently, would promote efficient and effective Government operations.
The Union states that when a classroom teacher loses preparation time because of having to fill in for an absent specialist, Proposal 1d would require management to relieve that teacher of nonprofessional duties for an equivalent period of time within a reasonable period after the cancellation of the specialist's visit. The Union contends that this proposal leaves the Agency the option of assigning such nonprofessional duties to nonprofessional staff and, consequently, only minimally infringes on the Agency's ability to assign the work involved. The Union argues that on the other hand, the proposal significantly benefits unit employees by limiting the extent to which they are forced to perform more job-related duties on their own time.
B. Analysis and Conclusions
In OEA, 29 FLRA at 630-31, the Authority concluded that Proposals 1c and 1d directly interfered with management's right to assign work. Here we address whether they, nevertheless, are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute.
Although the parties provided disparate accounts of the frequency with which specialists take over classes, it appears that this occurs regularly. It also appears that, while those times may not have been formally scheduled as preparation periods for the classroom teachers, the classroom teachers nonetheless used the periods for such purposes or to perform other job-related functions. Both parties concede that teachers, as a matter of course, perform some job-related duties such as planning and preparation outside of their duty day, i.e., on their personal time. It follows that teachers would attempt to reduce the demands on their non-duty, or personal, time by taking advantage of opportunities such as the periods during which their classes were taken over by specialists to perform job-related tasks. Moreover, there is no assertion, or basis for concluding, that those periods are idle or unproductive time for classroom teachers or devoted to "make-work" projects. It follows that the elimination of that time would increase the amount of a classroom teacher's non-duty time that must be devoted to job-related duties. The Agency does not show that the previously existing demands on teachers' non-duty time were less than reasonable and that an increase in those demands would not reasonably be viewed as an adverse effect.
Based on the record before us, we find that the effect on teachers of the Agency's policy of not hiring substitutes for absent specialists is not insignificant and that the concerns of the teachers are not "purely speculative or hypothetical." Consequently, we conclude that Proposals 1c and 1d, which are intended to address or compensate for the increased demands on a classroom teacher's non-duty time that would result from the Agency's decision not to hire substitutes for specialists, are "arrangements" within the meaning of section 7106(b)(3) of the Statute.
Having concluded that these proposals satisfy the threshold determination required by the Kansas Army National Guard analysis, we now address whether the proposed "arrangements" are "appropriate." The Agency's policy affected classroom teachers by diminishing the duty time during which they could perform job-related duties and, correspondingly, by increasing the demands on their non-duty, personal, time. As noted earlier, the parties offer differing versions as to how frequently classroom teachers have their classes taken over by specialists. However, the frequency or regularity with which specialists take over the classes of classroom teachers does not necessarily determine the frequency with which a classroom teacher would be required to fill in for an absent specialist. This is because the limitations on the amount of leave available to specialists(2) and the fact that extended absences are excepted from the Agency's no-substitutes policy operate to limit considerably the frequency with which any one classroom teacher would actually be required to fill in for an absent specialist. The Agency's adoption of the policy of not hiring substitutes was not something that was within the teacher's control. Moreover, while the teachers may have some control over their workload and the extent to which they need to perform job-related duties during their non-duty hours, this is in large part governed by the demands inherent in their jobs and the demands placed on them by the Agency.
Proposal 1c would absolutely prohibit the Agency from assigning a unit employee to cover for an absent specialist in those circumstances where the Agency had elected not to hire a substitute. Thus, the Agency would have the option of either abandoning its policy of not hiring substitutes or foregoing its ability to assign a teacher in the bargaining unit to cover the classes of an absent specialist. The proposal allows no exception, even where the Agency may have a legitimate reason for its policy of not hiring substitutes and, under the circumstances, a valid need to assign the work of covering for an absent specialist to a teacher in the bargaining unit. Proposal 1d would absolutely require that teachers be excused from performing nonprofessional duties for an amount of time equivalent to the time spent covering for an absent specialist. Proposal 1d does not allow for the consideration of particular circumstances, including whether excusing a particular teacher from nonprofessional duties would unduly hamper the Agency's ability to efficiently and effectively conduct its operations.
While these two proposals offer significant benefits to employees, the absence of any provision for exceptions or the weighing of individual circumstances places a significant burden on the Agency. In our view, the absence of any qualification in the proposals that would allow for assessing the effect of the proposal's requirements on the Agency's ability to conduct its operations effectively and efficiently places a burden on the Agency that outweighs the benefits that accrue to employees. On balance, we conclude that Proposals 1c and 1d excessively interfere with the Agency's right to assign work and are not appropriate arrangements negotiable under section 7106(b)(3) of the Statute. See West Point, 34 FLRA at 1011-14.
IV. Proposals 5a, 5b, 5c and 5d
5a. Affected unit employees shall be provided a duty-free lunch period if requested by the unit employee. The time allocated shall be decided between the OEA representatives and ODE/DODDS representatives in each affected school.
5b. ODE/DODDS shall make every reasonable effort to seek volunteers and/or donated funds to meet the need for lunchtime supervision.
5c. ODE/DODDS shall make every reasonable effort to solicit funding from appropriate offices to meet the need for lunchtime supervision.
5d. DODDS shall make every reasonable effort to use the services of presently employed para-professional/teacher aides for lunchtime monitoring when the duties are not in conflict with their primary duties of assisting teachers and the duties fall within the prescribed duty day.
A. Positions of the Parties
The Agency argues that lunchroom monitoring is a duty that is routinely performed by teachers and is included in the standardized position description of teachers. It asserts that the duty is normally assigned on a rotating basis and may be assigned to an individual teacher one week each semester or once or twice each month. The Agency describes lunchroom monitoring as a "passive activity" in which the teacher eats his/her lunch with the students. Agency supplemental statement of position at 10.
The Agency asserts that in some schools teachers have always been assigned lunchroom-monitoring duties, and in others the withdrawal or reduction of funding for hiring lunchroom monitors has recently resulted in teachers being assigned lunchroom-monitoring duties where such had not previously been the practice. It argues that these proposals are similar to Provision 1 in West Point and should be found nonnegotiable based on the same analysis used in that case. It contends that the potentially adverse effects of performing lunchroom monitoring are limited and far from inevitable, and that "[t]he proposals would be devastating to the Agency by preventing it from fulfilling its mission in circumstances where it becomes necessary to assign lunchroom monitoring duties to teachers." Agency supplemental statement of position at 12.
The Union argues that a duty-free lunch period is hardly a "limited, speculative benefit" as compared to eating lunch while supervising "hundreds of rambunctious school children." Union supplemental reply brief at 6. Moreover, the Union asserts that, while teachers regularly use their lunch periods for preparational activities and grading papers, such duties are more compatible with eating lunch than is monitoring students, which requires "unerring vigilance." Id.
The Union contends that these proposals do not prohibit assigning unit employees to lunchroom-monitoring duties if there are not other viable alternatives. According to the Union, Proposals 5b, 5c, and 5d require the Agency only to pursue alternatives to assigning lunchroom-monitoring duties to unit employees and do not absolutely prohibit the assignment of lunchroom-monitoring duties to unit employees. It describes Proposal 5a as applying to those teachers who are assigned to lunchroom-monitoring duties and as allowing those teachers some time during the duty day "to eat lunch without performing other duties and to use a rest room." Id. at 7.
B. Analysis and Conclusions
In OEA, 29 FLRA at 639-40, the Authority concluded that these proposals directly interfere with management's right to assign work. We now address whether they are appropriate arrangements negotiable under section 7106(b)(3).
In our view, the Agency's description of lunchroom monitoring as a "passive activity" is strained and the Union's description of it as being an arduous task is more accurate. While it may be reasonable to view lunchroom monitoring as an appropriate incidental duty of teachers, the requirement that it be done while, or in lieu of, eating lunch makes it a more burdensome task. Reasonably or not, employees have an expectation that they will be allowed to eat lunch in a more relaxing environment than one in which they are responsible for monitoring a large group of school children. This expectation, in combination with the general resistance of teachers to requirements that they spend an increasing amount of time performing "nonteaching" duties, leads to a conclusion that requiring lunchroom monitoring in lieu of a normal lunch break is reasonably perceived as adverse in nature. Thus, while perhaps it is not as severe as other adverse effects that can be encountered in an employment career, it is an assignment that nevertheless imposes a burden on a teacher. In addition to the stress involved in eating lunch while monitoring a school lunchroom, the teacher is deprived of what would otherwise be a respite from activities entailing direct supervision of school children and the opportunity to utilize the period in preparation and other job-related activities of the teacher's choosing. In our view, given the burdensome nature of the requirement that teachers monitor the lunchroom during their lunch period, the concerns that Proposals 5a, 5b, 5c and 5d address are more than purely speculative or hypothetical. We conclude that these proposals are intended to address and compensate for the effects of the exercise of management's right to assign those duties.
Having concluded that these proposals constitute "arrangements," we next address whether they are "appropriate" or whether they excessively interfere with management's rights.
As discussed above, we find that the requirement that teachers perform lunchroom monitoring during their lunch period requires them to eat lunch while performing the demanding task of keeping order among a large number of school children. It deprives them of a respite from the demands of dealing with a group of school children as well as the option of performing whatever other job-related duties they deem necessary to the accomplishment of their teaching duties that day. Although they exercise some control over the need to perform job-related tasks during their lunch period, they have no control over the requirement that they perform monitoring duties during their lunch period or the loss of a lunch period in a less demanding environment.
Proposal 5a would place an absolute requirement on the Agency to provide teachers who are assigned to lunchroom monitoring with a duty-free lunch period upon request. Consequently, it precludes the Agency from assigning other duties during the duty-free lunch period even where the Agency may have a legitimate need for the employee's services. Clearly, an entitlement to a duty-free lunch period is beneficial to employees. However, the proposal makes no provision for any exceptions to the requirement for a duty-free lunch period in circumstances where providing such would hamper the Agency's ability to accomplish its operations effectively and efficiently. Consequently, we find that the negative effect of the proposal on management's right to assign work and conduct its operations effectively and efficiently outweighs the benefit to employees and that Proposal 5a is not negotiable because it excessively interferes with the Agency's right to assign work. See West Point, 34 FLRA at 1011-14.
Proposals 5b, 5c, and 5d require only that the Agency make "every reasonable effort" to obtain volunteers and funding to hire lunchroom monitors and to assign the task of lunchroom monitoring to aides instead of assigning those tasks to teachers. Clearly, teachers would benefit if the Agency's "reasonable efforts" produced an alternative to assigning lunchroom-monitoring duties to them. As worded, these three proposals require the Agency to do only what is "reasonable." In view of this qualification, we do not read the proposals as requiring the Agency to do anything that is incompatible with efficient and effective Government operations. The restrictions placed on management's ability to assign the work of lunchroom monitoring are limited; it must only make every reasonable effort to develop or use the specified alternatives to assigning the duties to teachers. If the alternatives are not reasonable, or attainable, the Agency retains the ability to assign the tasks to teachers. On balance, the benefits to unit employees outweigh the burdens placed on the Agency. Consequently, we conclude that Proposals 5b, 5c, and 5d do not excessively interfere with management's right to assign work and are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute.
V. Proposals 7b, 7c, 7e, 7f, 7i
7b. The Employer shall make every reasonable effort to provide a reasonable amount of preparation time for each impacted unit employee during the employee's instructional day.
7c. The Employer shall made [sic] every reasonable effort to provide substitutes for absent elementary specialists to ensure preparation time for classroom.
7e. The Employer shall make every reasonable effort to provide a duty-free lunch period of a least thirty minutes for all impacted unit employees.
7f. The Employer shall make every reasonable effort to relieve impacted unit employees from non-instructional duties during the instructional day. Such duties include, but are not limited to, the following activities: playground monitoring, lunchroom monitoring, bus duty, hallway monitoring, substitute teaching.
7i. The Employer shall make every reasonable effort to provide aides to all impacted unit employees.
A. Positions of the Parties
The Agency asserts that these proposals address its action in lengthening the school day for some teachers in grades 1-3 by 15 minutes and that this action was in response to the discovery that some schools had fallen below accreditation standards for the length of the instructional day. The Agency asserts that this change merely made the duty day of the affected teachers uniform with that of other teachers. The Agency argues that requiring teachers to provide instruction for 15 additional minutes is of minor significance and does not justify the actions proposed by the Union.
The Agency asserts that the cumulative effect of the proposals has a much greater negative impact on the Agency's right to assign work than Provision 1 in West Point, which the Authority found excessively interfered with management's right to assign work. The Agency asserts that Proposals 7b, 7c, 7e, and 7f excessively interfere with management's right assign work. Specifically, as to Proposal 7b, the Agency argues that a requirement that teachers provide an additional 15 minutes of instruction per day does not require additional preparation time. As to Proposal 7c, the Agency argues that the change was not sufficient to justify the hiring of substitutes for absent specialists who do not have regularly assigned classes. As to Proposal 7e, the Agency asserts that a duty-free lunch period of 30 minutes would prevent the Agency from assigning duties during that period. Finally, the Agency contends that Proposal 7f would prohibit it from assigning "non-instructional duties" that are included in the standardized position description of teachers.
The Agency asserts that Proposal 7i excessively interferes with management's right to determine the numbers, types, and grades of employees assigned to an organizational unit. The Agency contends that the minor significance of the change does not justify a proposal to hire aides for the teachers affected by the change.
The Union states that the change that Proposals 7b, 7c, 7e, 7f, and 7i are intended to address was not the 15-minute extension of the school day that the Agency describes but, rather, a 30-minute increase in the length of the school day for all elementary school grades 1-3. The Union asserts that this particular change was not made for "pedagogic reasons," but to make the school days for grades 1-3 uniform to that of grades 4-6 in order "to accommodate the needs of working parents and to make the bus schedule uniform." Union supplemental reply brief at 8. The Union argues that the effect of the change was to lengthen the workday of those teachers by 30 minutes per day, which is a substantial, detrimental change in working conditions. Additionally, the Union argues that increasing the amount of instruction required concomitantly increases the amount of preparation required of teachers. The Union argues that lengthening the instructional day added to the demands on the teachers' personal time.
The Union describes Proposal 7b as requiring the Agency to allocate some additional time during the duty day as preparation time. It asserts that part or all of the added thirty minutes can be allocated for this purpose without any negative effect on the Agency's operations, because the instructional day was not extended for "pedagogic reasons." Union supplemental reply brief at 9. According to the Union, Proposal 7c would afford affected teachers the opportunity to perform preparational activities during duty hours and minimize the need to use their own time for preparation. The Union describes Proposal 7e as intended to compensate unit employees for the lengthening of the school day by providing them with a duty-free lunch period of duration equal to the amount of time the school day was lengthened. The Union contends that a duty-free lunch period is essential to employee health and safety and "has no adverse impact on the school's educational program because the school day was not lengthened for pedagogic reasons." Id. at 10. The Union asserts that Proposal 7f is intended to afford teachers additional duty time in which to perform preparational activities in lieu of using their own time in the evening.
The Union contends that Proposal 7i would provide affected unit employees with teacher's aides to mitigate the extra workload created when the instructional day was lengthened. The Union argues that such a measure would enhance the quality of the educational program and would, consequently, promote efficient and effective government operations.
B. Analysis and Conclusions
While the Agency contends that these proposals address a 15-minute increase in the instructional day at some schools, the Union contends that these proposals were prompted by a 30-minute increase in the school day which preceded the 15-minute increase to which the Agency refers. The Union made the same assertion in a submission made prior to the issuance of OEA, 29 FLRA 628. Union reply brief at 9. The Agency makes no assertion that the 30-minute increase, which the Union describes, did not occur. Consequently, for purposes of this decision we adopt the Union's account of the nature of the change that prompted these proposals.
Initially, we must determine whether these proposals constitute arrangements for employees adversely affected by management's exercise of its rights. See Kansas Army National Guard, 24 FLRA at 31. Here, the Agency lengthened the instructional day of elementary school teachers in grades 1-3 by 30 minutes. This effectively lengthened their duty day by 30 minutes. See OEA, 29 FLRA at 642 (teachers are required to remain at school for 30 minutes following completion of the instructional day); Agency supplemental statement of position at 13 and attachment 2. It follows that the personal time available to them was diminished by 30 minutes each school day. While this addition to each teacher's workday in Grades 1-3 may have resulted in the length of their workday being comparable to that of the teachers in Grades 4-6, it was, nevertheless, a substantial increase over what previously had been demanded of them. There is no showing that their previous workday had been unduly abbreviated. Moreover, they were required to perform instructional duties for an additional 30 minutes each school day--not an inconsequential addition to their workload. There is no basis for concluding that the increase in the instructional day and corresponding increase in the workday merely eliminated idle or unproductive time; rather, it is reasonable to conclude that the longer instructional day constituted an additional burden and a diminution of their personal time that detrimentally affected those particular employees. We conclude that each proposal is intended to address or compensate for the adverse effects of the Agency's exercise of its right to assign the work of teaching for an additional 30 minutes each day. They address an effect that was not insignificant and concerns that are not purely speculative or hypothetical.
Having concluded that these proposals are "arrangements," we now address whether they are "appropriate." As for the Agency's arguments concerning the "cumulative effect" of these proposals, we do not know the extent to which the Union intends these proposals to operate as alternatives or as a unit. Assuming any or all of these proposals are found to be negotiable, the extent to which they would operate as alternatives or in combination with each other is largely dependent on the success of each in the negotiation process. Thus, we cannot predict the extent to which there will be a "cumulative effect," as that is dependent on factors outside of the proposals themselves. Consequently, we will consider each proposal independently and not in conjunction with the other proposals in this group in determining whether any or all of these proposals are negotiable as appropriate arrangements.
The impact experienced by the employees is an increase in workload--that is, additional teaching time and whatever additional preparation might be necessary--and a corresponding loss of off-duty time. The circumstances giving rise to these additional burdens are largely beyond the control of the employees.
If implemented, each of these proposals would offer benefits to employees by minimizing the demands on their off-duty time by allowing them opportunities during the duty day to perform preparational and other job-related activities that otherwise would have to be performed outside the duty day or providing them with assistance in performing their teaching duties. Proposals 7b, 7c, 7e, and 7f would also offer them some respite during the day from duties that entail direct supervision of school children, which the 30-minute addition to the instructional day effectively prolonged. Except for the requirement contained in Proposal 7i, which will be discussed in more detail later, each of the proposed ameliorations are reasonably proportional to the detriment suffered by the affected teachers. Proposals 7b, 7c, 7e, and 7f would require the Agency only to make every reasonable effort to assign work in a manner that would accomplish the results specified in each of those proposals, for example, a reasonable amount of preparation time, a duty-free lunch period, etc. Those proposals do not absolutely require the Agency to accomplish the specified action, but only require reasonable efforts. This qualification would allow exceptions to the limitations otherwise placed on management's right to assign work where, under the circumstances, exceptions are necessary and reasonable. Consequently, Proposals 7b, 7c, 7e, and 7f would not require action that is antithetical to the effective and efficient accomplishment of Government operations. Given their qualified nature and the fact that they offer benefits to the teachers who were adversely affected by the Agency's exercise of its management right that are reasonably proportional to the detriment suffered, we conclude that Proposals 7b, 7c, 7e, and 7f do not excessively interfere with management's right to assign work and are negotiable as appropriate arrangements.
Proposal 7i would require that every reasonable effort be made to provide each affected teacher with an aide. See OEA, 29 FLRA at 646. In OEA, the Authority interpreted Proposal 7i as requiring that one aide be provided for each affected teacher and that by such effect the proposal "explicitly relate[d] to the numbers and types of employees assigned[.]" Id. The Union does not dispute this interpretation of the proposal in its supplemental reply brief. Relying on this interpretation, we find that providing aides to affected teachers on a one-to-one ratio would overcompensate for the work attendant to the addition of 30 minutes to the instructional day and would place a disproportionate burden on the Agency's right to determine the numbers, types and grades of employees assigned to an organizational subdivision. The qualification that the Agency need only "make every reasonable effort" to provide the aides does not offset the inherent disproportionate effect of the proposed arrangement on management's rights. In our view, it would not be consistent with effective and efficient Government operations to require the Agency to make reasonable efforts to provide an aide to each employee to compensate for an addition of 30 minutes to the instructional day. Consequently, we conclude that Proposal 7i excessively interferes with management's right to determine the numbers, types and grades of employees assigned to an organizational subdivision and is not negotiable.
VI. Proposal 7j
7j. For each minute added to an impacted unit employee's instructional day, one minute shall be subtracted from the current required 30-minute stay following the instructional day.
A. Positions of the Parties(3)
Specifically as to Proposal 7j, the Agency argues that it would require a minute-for-minute reduction in the amount of time that teachers are required to remain at school after the end of the instructional day to offset the increase in the length of the instructional day. The Agency contends that such a reduction would prevent it from assigning work during that period, something that would undermine the effectiveness and efficiency of school operations. Among other things, the Agency contends that this proposal would preclude many meetings between teachers and administrators and would negatively affect the safety and welfare of the students. The Agency argues that the burdens placed on it by the proposal are disproportionate to the benefits afforded employees and that the proposal excessively interferes with management's right to assign work.
The Union describes Proposal 7j as being "simply definitional" and contends that it does not interfere with management's rights because it would not prevent the Agency from requiring early elementary school teachers to remain at school for 30 minutes after the end of the instructional day. Union supplemental reply brief at 11. The Union contends that this proposal is intended to define the end of the duty day for purposes of basic compensation and must be read in conjunction with proposals that it has made for extra duty compensation, which have been held negotiable. The Union asserts that if the end of the duty day is defined as the end of the instructional day, proposals for extra compensation beyond that point no longer concern basic compensation and become negotiable.
B. Analysis and Conclusions
The Union's statement as to the intent of the proposal is not consistent with the wording of the proposal. Specifically, while the Union describes the proposal as not preventing the Agency from requiring employees to stay at school for 30 minutes after the end of the instructional day, the proposal specifically requires that for each minute added to an employee's instructional day "one minute shall be subtracted from the current required 30-minute stay following the instructional day." [Emphasis added.] Moreover, this proposal has previously been interpreted as shortening or eliminating the required 30-minute period during which teachers must remain at school following the completion of the instructional day. OEA, 29 FLRA at 642. We do not base negotiability determinations on a union's statement of intent that is inconsistent with the plain wording of the proposal. See, for example, International Federation of Professional and Technical Engineers, Local 4 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 35 FLRA 31, 35 (1990).
As worded, Proposal 7j would effectively require that the Agency eliminate its requirement that early elementary school teachers remain at school for 30 minutes after the completion of the instructional day to offset the 30-minute increase in the length of the instructional day. For the reasons expressed in conjunction with Proposals 7b, 7c, 7e, and 7f, we conclude that Proposal 7j constitutes an arrangement within the meaning of section 7106(b)(3). We conclude that Proposal 7j, like those proposals, would benefit employees who have had their workload increased by circumstances beyond their control by minimizing the intrusion into their off-duty time and relieving them of the obligation to perform whatever duties they might have been required to perform during the 30-minute period following the end of the instructional day. Unlike Proposals 7b, 7c, 7e, and 7f, however, this proposal makes no provision for any exception to the elimination of the requirement. Thus, the limitation that it places on the Agency's ability to exercise its management right to assign work is more stringent than those resulting from the other proposals in this group. As worded, Proposal 7j would prevent the Agency from imposing the 30-minute requirement even in circumstances where the teacher's presence at the school for that period might be necessary to ensure the safety and welfare of students, to accommodate the need for meetings between administrators and teachers, or for other mission-related reasons. On balance, we conclude that the limitations placed on the Agency's ability to exercise its right to assign work and to accomplish its operations in an effective and efficient manner outweigh the benefits to employees. We conclude that Proposal 7j excessively interferes with the Agency's right to assign work and is nonnegotiable.
VII. Proposals 8a, 8b and 8c
8a. ODE/DODDS shall make every reasonable effort to provide each affected unit employee with adequate preparation time during each instructional day of exams to prepare, administer, and grade required semester examinations.
8b. Unit employees required by the Employer/Designee to prepare, administer, and grade semester examination[s] shall be granted, to the fullest extent possible, an adequate period of time following the end of semester examinations to record and/or report examination scores.
8c. In an effort to reduce any adverse impact on unit employees required to administer semester examinations, the Employer/Designee shall make every reasonable effort to provide administrative assistance to those unit employees affected by this requirement.
A. Positions of the Parties
The Agency asserts that prior to the 1983-84 school year, there was no uniform policy in its Pacific Region on the number of days over which examinations could be spread. According to the Agency, during the 1983-84 school year its Pacific Region established a requirement that semester examinations in all middle and secondary schools be conducted during not more than 2 full instructional days. The Agency argues that the impact of this change on employees is de minimis and that the change in scheduling did not result in any increase in the workload of employees. The Agency contends that the number of exams that employees are required to prepare, administer, and grade did not change; only the timing of when those duties are to be performed changed. The Agency argues that the "worst possible scenario" would be that unit members would not have a separate preparation period on the 2 examination days but that, on the other hand, preparation periods on subsequent days would not be affected as might otherwise be the case.
The Agency argues further that the proposals excessively interfere with management's rights by restricting the Agency's ability to schedule semester examinations and to determine its staffing needs. The Agency contends that the circumstances involved here are similar to those in West Point in that any potentially adverse effect would arise in limited circumstances while these proposals would significantly diminish the Agency's discretion and judgment in assigning work.
The Union states that prior to the change in scheduling semester examinations, they had been conducted over a period spanning 4, and usually 5, days. According to the Union, on those days the examination period lasted one-half day and the teachers had the remaining one-half day to grade the examinations and compute final semester grades. The Union asserts that the Agency's action in requiring that examinations be conducted over a 2-day period deprived teachers of the 5 one-half days of paid time for correcting examinations and computing grades and generated an additional 6 days in the year when teachers would be required to teach. The Union further contends that, because of this change and because teachers are required to grade exams and compute grades within a very short period of time, teachers must spend an increased amount of their own time in the evening performing those tasks. The Union contends that none of these proposals would have a negative impact on educational programs, but would promote effective and efficient Government operations by affording teachers an adequate amount of time to perform tasks "thoughtfully" and "without error." Union supplemental reply brief at 13.
B. Analysis and Conclusions
As we noted in the Background section of this decision, we issued an Order on May 11, 1990, directing the parties to this case to submit new pleadings presenting "the relevant facts and circumstances as fully as possible in light of the court's decision . . . and the Authority's decision in West Point, and the analytical framework that the Authority set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986)[.]"
As to the facts and circumstances underlying these proposals, the Union's account of the practice that existed prior to the change that generated these proposals is more detailed than that provided by the Agency. As the Union describes the previous practice, the examinations occurred for one-half day for a 4 to 5-day period and the remaining one-half day was available to the teachers to spend correcting the examinations and computing grades. By contrast, the Agency asserts only that "there was no uniform policy on the number of days over which student exams could be spread," without providing any details as to what the practice or practices actually had been. Agency supplemental statement of position at 20. For purposes of this decision and assessing the effect of the change on employees, we will rely on the Union's more detailed account as to what the practice had been prior to the adoption of a 2-day schedule for semester examinations in the middle and secondary schools of the Agency's Pacific Region.(4)
Based on that account, we conclude that the Agency's adoption of a 2-day exam schedule would deprive teachers of 4 to 5 half-days of duty time that had previously been available for performing such duties as correcting exams and computing grades. The foreseeable effect was an additional demand on the teachers' off-duty time. Additionally, the teachers were required to provide instruction on 4 to 6 additional days per year as a consequence of limiting the exam period to 2 days per semester, which further increased their workload. There is no showing that the teachers' time had previously been underutilized or that the demands on their off-duty time had been less than reasonably could be expected of their profession. We conclude that the additional workload and demands on their off-duty time had an effect on teachers that was, by reasonable standards, detrimental in nature and not insignificant in extent. Moreover, the additional demands on their personal time were more than purely hypothetical or speculative concerns on the part of teachers. We further conclude that these proposals are intended to address or compensate for the adverse effects of the Agency's action in adopting a 2-day schedule for semester examinations and are arrangements within the meaning of section 7106(b)(3).
Now we consider whether the proposals are appropriate arrangements or whether they excessively interfere with the Agency's management rights. The affected teachers experienced an increase in the job-related demands on their off-duty time. Given the time constraints that teachers face for correcting exams and computing final grades, teachers would have little control over scheduling the related duties and, consequently, would have little leeway to temper the effect of the additional demands on their off-duty time during the relevant time frames. Based on the record, it appears that teachers would have to compensate for the loss of 4 to 5 half-days of duty time per semester in which to perform examination-related duties by using a substantially equivalent amount of off-duty time for these purposes.
Proposal 8a requires that the Agency make "every reasonable effort" to provide "adequate preparation time" during the instructional day of exams to prepare, administer, and grade examinations. As found in OEA, this proposal interferes with management's right to assign work. 29 FLRA at 648. However, the proposal does not place an unconditional requirement that the preparation time be provided. Rather, it requires only that "reasonable" efforts be made to do so. Whatever preparation time results from the proposal would offer a significant benefit to teachers in offsetting the demands on their off-duty time. Thus, this proposal expressly allows for some judgment to be made concerning the Agency's needs for the teachers to perform duties other than preparation. We do not read the proposal, as written, as requiring that preparation time be granted in circumstances where such would be antithetical to the concept of effective and efficient Government operations. Rather, all the proposal requires is that the provision of preparation time be given a priority that must be weighed in conjunction with the Agency's other priorities and needs in making decisions as to the utilization of the teachers' duty time during examination periods.
In view of the qualified nature of the requirement placed on the Agency to allocate duty time for preparation purposes, we conclude that the benefits afforded the teachers outweigh the burdens placed on the Agency in exercising its management right to assign work and accomplishing its operations in an effective and efficient manner. We conclude that Proposal 8a does not excessively interfere with management's right to assign work and is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute.
Proposal 8b requires that affected teachers be granted "to the fullest extent possible" an "adequate" period of time following semester examinations to record and report examination scores. The Union describes this proposal as ensuring that employees have sufficient time after the examinations and before they have to turn in students' semester grades.
Similar to Proposal 8a, this proposal interferes with the right to assign work; however, it does not place any unqualified requirements on the Agency. This proposal would afford employees the benefit of more flexibility to manage their time and temper the demands on their off-duty time during the time period around semester exams by providing a less stringent deadline for the completion of examination-related tasks. Thus, the proposal could reasonably be expected to offer some amelioration of the detriment suffered by employees as a consequence of the increased demands on their off-duty time. The qualifications in this proposal that the time allowed be "adequate" and granted "to the fullest extent possible" permit some judgments as to what is reasonable under the circumstances and what is consistent with the concept of effective and efficient Government operations. In view of the qualified nature of Proposal 8b, we conclude that, on balance, it does not excessively interfere with the Agency's management right to assign work and is negotiable as an appropriate arrangement under section 7106(b)(3).
In OEA, 29 FLRA at 648-49, the Authority interpreted Proposal 8c as intended to require the Agency to make every reasonable effort to provide during the examination period one assistant to each affected unit employee. Based on this interpretation, the Authority concluded that Proposal 8c directly interfered with the Agency's right under section 7106(b)(1) to determine the numbers, types and grades of employees assigned to an organizational subdivision. Nothing in the Union's supplemental statement of position leads us to conclude that this interpretation of the proposal was in error. Consequently, we interpret Proposal 8c as establishing as an objective a staffing complement that would allow, during the examination period, a ratio of one assistant to each teacher affected by the change in examination scheduling. In our view, establishing such a staffing ratio as an objective is a response that is disproportionate to the loss of preparation time suffered by the teachers. In this respect, Proposal 8c is similar to Proposal 7i and, as in our analysis of this proposal, we conclude that the qualification that only "every reasonable effort" be made to achieve the established objective does not offset the disproportionate character of the objective itself. Proposal 8c is distinguishable from Proposals 8a and 8b in that the latter proposals require only that efforts be made to allocate "adequate" time for the purposes specified. Thus, those proposals, by their terms, provide for a compensation or amelioration that is in proportion to the detriment suffered.
On balance, we find that the burdens that Proposal 8c places on the Agency's right to determine the numbers, types and grades of employees assigned to an organizational subdivision are disproportionate to the benefits that would accrue to employees as a consequence of Proposal 8c. Therefore, we conclude that Proposal 8c excessively interferes with that management right and is nonnegotiable. If, however, Proposal 8c were redrafted to include qualifying language such as that contained in Proposals 8a and 8b and only required reasonable efforts to provide "adequate" assistance to affected employees, it might be found, like those two proposals, to constitute a negotiable appropriate arrangement.
VIII. Proposal 2
Participating unit employees shall be authorized additional preparation time for additional work required by the duties prescribed in the Compensatory Education Manual.
A. Positions of the Parties
The Agency argues only that, because the Procedures Manual for Compensatory Education, DS Manual 2090.3, was not implemented and it has no current plans to implement the manual, there is no management right being exercised and that bargaining under section 7106(b)(3) is not appropriate.
The Union states that it has never received notification from the Agency that the manual, which the Agency had proposed to implement, was not or will not be implemented. The Union argues that the issue of the status of the change that was proposed by the Agency is not a proper matter for resolution in the context of a negotiability appeal and that the Authority should render a decision on the negotiability of this proposal based on the likely consequences if the proposed manual is implemented. The Union incorporates by reference the arguments made concerning this proposal in its earlier submission in the case.
According to the Union, approximately one-third of all Agency schools are eligible for a compensatory education program based on a large population of students who are not keeping up with the rest of their class in basic skills. The Union asserts that a 1983 Compensatory Education Manual assigned the responsibility for designing and managing the compensatory education program at each school to a committee. According to the Union, the new draft manual proposed by the Agency, which is the subject of this proposal, eliminates the committee and assigns the responsibilities that were, under the 1983 Manual, shared by the committee entirely to the Compensatory Education teachers. The Union contends that this would substantially increase the workload of the Compensatory Education teachers and effectively require them to devote more of their off-duty time to job-related duties.
The Union argues that Proposal 2, which grants additional preparation time to the Compensatory Education teachers, would have no more than a minimal effect on management rights in that it does not require the assignment of work or relieve employees of the responsibility for any other work assignments. The Union contends that, other than requiring that the preparation period be during the duty day, the proposal does not specify when the prescribed preparation time should occur or how much preparation time must be allocated.
B. Analysis and Conclusions
The Agency argues that this proposal is moot because it has not issued and has no intention of issuing the new Compensatory Education Manual. The Union does not concede that the issue is moot and asserts that it is entitled to a decision on the negotiability of its proposal. Thus, the parties are in dispute as to whether the new Compensatory Education Manual continues to be a viable issue.
The record in this case does not allow a definitive determination of whether this proposal is moot. Therefore, we will address the issue of the negotiability of this proposal that was raised as a consequence of the Agency's claim that this proposal was inconsistent with management's right to assign work under section 7106 of the Statute. Compare National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 38 FLRA 263 (1990) (Proposal 1) (based on the fact that the proposal required action by a specific date that had passed, the proposal was moot); and International Association of Machinists and Aerospace Workers, Local Lodge 2424 and U.S. Department of the Army, Aberdeen Proving Ground, Maryland, 33 FLRA 512, 519 (1988) (the Authority dismissed a petition for review as moot in circumstances where the union did not contest the agency's assertion that the proposal was moot).
The Union asserts that the new Compensatory Education Manual that was proposed by the Agency effectively assigned only to the Compensatory Education teachers responsibilities for the compensatory education program that, under the 1983 Manual, were assigned to a "School-Based Planning Committee," consisting of several faculty members in addition to the Compensatory Education teachers. As the Agency does not dispute this explanation of the intended effects of the Manual, we accept the Union's description for purposes of this decision.(5) It is reasonable to conclude that this change, if made, would result in an increase in the workload of the Compensatory Education teachers.
Although there is some question as to whether this change will actually be implemented, we do not find that this uncertainty renders the employees' concerns about what would happen in the event that the proposed Manual were implemented "purely speculative or hypothetical." Rather, the proposal concerns reasonably foreseeable effects that would occur in the event that the Agency implements the new Compensatory Education Manual as it originally proposed. Moreover, the Agency submits nothing to show that any increase in workload would not result in additional demands on the Compensatory Education teachers' off-duty time. That is, there is no claim that the on-duty time of Compensatory
Education teachers has been underutilized or that the demands on their off-duty time have been less than what can reasonably expected from their profession. Based on the record before us, we must conclude that an increase in the workload of the Compensatory Education teachers would have the reasonably foreseeable effect of increasing the demands on the teachers' off-duty time--something that we have noted earlier is reasonably viewed as detrimental in nature by the affected teachers. Consequently, we conclude that proposal 2 is intended to address or compensate for the anticipated adverse effects of the Agency's exercise of its right to assign work to the Compensatory Education teachers.
Having concluded that Proposal 2 is an "arrangement" within the meaning of section 7106(b)(3), we next determine whether it is "appropriate." As noted above, the foreseeable effect of the increase in the Compensatory Education teachers' workload would be an increase in the amount of their off-duty time that they must devote to job-related activities. This is a matter over which they have limited control. Thus, while the teachers may have some ability to work more efficiently to offset the time demands of the increased workload, in large measure the demands on the teachers' time is a result of outside forces; increasing their workload will necessarily increase the time required to perform their work. Here, the Union provides no estimation as to how much additional time might be required to perform the additional work; however, the proposal as written would not require any more additional preparation time than is appropriate for the additional work required. The management right to assign work would be affected, in that the Agency would be required to allocate some duty time to be devoted to preparation as opposed to other tasks that the Agency might wish to assign.
While the proposal requires that some additional time for preparation must be allotted for any additional work that might result from the proposed manual, it does not specify the amount of time. Moreover, other than providing that the time be "during the paid duty day," it does not mandate when the time must be scheduled. Union reply brief at 7. Under Proposal 2, the Agency retains the flexibility to schedule the additional preparation time in a manner that is compatible with its other needs for the Compensatory Education teachers' services. In view of that flexibility, we conclude that the proposal places only a limited burden on the Agency in that it would have to arrange the affected teachers' work assignments in a manner that allows some additional preparation time to compensate for their additional duties. We find that such a limited requirement would not unduly hamper the Agency's ability to accomplish its operations in an effective and efficient manner. On the other hand, the requirement that they be provided additional preparation time would afford a significant benefit to employees by limiting the job-related demands on their personal time.
On balance, we conclude that the benefit to employees afforded by this proposal outweighs the burden placed on the Agency and that it is negotiable as an appropriate arrangement. Compare American Federation of Government Employees, Local 2024 and U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 249, 256 (1990) (provision requiring training for employees whose jobs were eliminated and who possessed the ability to benefit from training was an appropriate arrangement, as long as the provision preserved management's discretion to determine the extent and type of training, the number of employees to be trained given available funding and training authority, and the methods and means by which training would be accomplished).
IX. Order
The Agency must negotiate on request, or as otherwise agreed to by the parties, concerning Proposals 5b, 5c, 5d, 7b, 7c, 7e, 7f, 8a, 8b, and Proposal 2.(6)
The petition for review is dismissed as it relates to Proposals 1c, 1d, 5a, 7i, 7j, and 8c.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. In a submission filed with the Authority subsequent to the court's remand of these cases, the Union states that Proposal 10(c) was intended as a "one-time method to alleviate" the adverse impact of the addition of an additional class period at the beginning of the 1984-85 school year and that the proposal is now moot. Union supplemental reply brief at 12. In view of the Union's position, we will not consider the merits of this proposal further.
2. The Union offers no rebuttal to the Agency's statements to this effect. Moreover, under 20 U.S.C. º 904, teachers accrue paid leave only at the rate of one day for each month of a school year and may use such leave only in limited circumstances.
3. The parties make the same assertions concerning the circumstances that prompted Proposal 7j that they did with regard to Proposals 7b, 7c, 7e, 7f and 7i. Those assertions will not be repeated here.
4. The parties bear the burden of creating a record upon which the Authority can make a negotiability determination. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). A party failing to meet its burden acts at its peril. See, for example, U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration Payment Center Locals, Local 1760, 36 FLRA 466, 475 (1990).
5. See note 4 above.
6. In finding that these proposals are negotiable, we make no judgment as to their merits.