[ v42 p197 ]
42:0197(15)NG
The decision of the Authority follows:
42 FLRA No. 15
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of five proposals involving the Agency's open house program at Binictican Elementary School, Republic of the Philippines.
Proposal 1 requires that the open house be scheduled during the day. We find that the proposal directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is nonnegotiable.
Proposal 2 requires that the Agency dismiss students for one-half day so that teachers can prepare for the open house. Proposal 2 directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is nonnegotiable.
Proposal 3 states that the guidelines regarding the open house program established the previous year will remain the same. We conclude that the proposal is nonnegotiable because it directly and excessively interferes with management's right to assign work.
Proposal 4 states that the open house program will be held on October 2 or one day during the first week of October. We find that the proposal directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and is nonnegotiable.
Proposal 5 does not meet the conditions governing review of a negotiability appeal.
II. Background and Preliminary Matter
Each year Binictican Elementary School schedules an open house for the parents of students who attend the school. The purpose of the open house is to provide parents an opportunity to meet with the faculty, visit the school, and familiarize themselves with the school's educational programs. The open house is held sometime during the first five weeks of the school year.
Prior to the 1988-89 school year, the Agency scheduled the annual open house during evening hours. For the 1988-89 school year, however, the open house was held during the school day. The Agency states that the open house was scheduled during the day on a one-time trial basis, to determine whether more parents would attend. The Agency states that attendance was poor because most parents work during the day. Consequently, the Agency decided to return to the practice of scheduling the open house during the evening so that more parents could attend.
Subsequently, on September 5, 1989, the principal of the Binictican Elementary School notified the Union that the open house for the 1989-90 school year would be held on September 25, 1989, beginning at 6:30 p.m. Thereafter, the parties met to discuss what the Union characterized as "new Open House procedures . . . ." Petition for Review, Attachment. According to the Agency, the Union suggested that the open house be held during the school day on October 2, 1989. The open house was in fact held on October 2, 1989, commencing at 6:00 p.m.
The proposals now before the Authority were submitted by the Union during the course of negotiations and were declared nonnegotiable by the Agency. The record indicates that the Agency advised the Union that there was no obligation to bargain over the proposals because the Agency had not changed its practice regarding school open house activities. The Agency also stated that the open house procedures for school year 1988-89, when the open house was held during the day, were used on a trial basis. Therefore, no past practice had been established. Finally, the Agency notes, in its statement of position to the Authority, that in a decision dated June 29, 1979, an arbitrator determined that unit employees could be required to participate in open house programs held during the evening hours, without any additional pay.
The Agency argues that it is not under an obligation to bargain over the matter of holding an open house during the day because this dispute does not involve a change in past practice. We reject the Agency's claim. A union is entitled to a decision on negotiability issues under part 2424 of our regulations if the parties are in dispute over whether the union's proposals are inconsistent with law, rule, or regulation, and the union's petition is otherwise procedurally correct. It is entitled to a decision despite the claimed existence of additional duty to bargain issues. See American Federation of Government Employees, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983); National Federation of Federal Employees, Local 341 and U.S. Department of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Washington, 39 FLRA 1272, 1275 (1991), request for reconsideration denied, 40 FLRA 1009 (1991). Additional issues regarding the duty to bargain should be resolved in other appropriate proceedings. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984).(1) Here it is clear that the Agency declared Proposals 1-4 nonnegotiable on the ground that they would interfere with management's rights under section 7106 of the Statute. The Union disagreed with the Agency's allegation and filed a petition for review. In our view, the conditions governing review of a negotiability appeal set forth in section 2424.1 of our Rules and Regulations have been met. Consequently, Proposals 1-4 are properly before us.
Additionally, we find that the petition for review is not moot on the basis that the open house program for the school year 1989-90 has taken place. The proposals do not refer to any particular school year and do not otherwise require action on dates that have passed. The Union is seeking to negotiate over open house procedures generally. Therefore, the proposals relating to the scheduling of the open house program are intended to apply prospectively. See, American Federation of Government Employees National Veterans Administration Council and U.S. Department of Veterans Affairs, Washington, D.C., 41 FLRA 73 (1991) request for reconsideration denied, 41 FLRA No. 87 (1991) (proposals that did not refer to any particular furlough and did not otherwise require action on dates that have passed are not moot; however, proposal expressly relating to furlough that was not implemented and to dates that had already passed was dismissed as moot).
Although we find that Proposals 1-4 are properly before us because the petition for review as to these proposals meets the conditions governing review of a negotiability appeal, we reach a different result as to Proposal 5. The Agency does not dispute the negotiability of Proposal 5 by claiming that it is inconsistent with law, rule or regulation. The Agency contends only that the subject matter of Proposal 5 is covered by the parties' master agreement and that, therefore, negotiations at the regional level are not appropriate. Under these circumstances, the petition for review as to Proposal 5 does not meet the conditions governing review of negotiability issues. Accordingly, we will dismiss the Union's petition for review as to this proposal, without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met and if the Union chooses to file such an appeal. See National Association of Government Employees, Local R1-109 and U.S. Department of Veterans Affairs Medical Center, Newington, Connecticut, 38 FLRA 928, 931 (1991). To the extent that the parties continue to dispute whether the subject matter of this proposal is covered by the parties' agreement, that dispute should be resolved in other appropriate proceedings, such as the parties' negotiated grievance procedure or the unfair labor practice procedure under section 7118 of the Statute. Id.
III. Proposal 1
Open House be held during the school day as was held last school year.
A. Positions of the Parties
1. Agency
The Agency contends that Proposal 1 is nonnegotiable because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency argues that the proposal would limit management's determination as to when the assignment of work could occur. The Agency states that in other cases involving unit employees who are teachers, the Authority has determined that management can assign work after normal duty hours and, further, that the right to assign work is not limited to work occurring during normal duty hours. In support, the Agency relies on Overseas Education Association and Department of Defense Dependents Schools, 28 FLRA 936 (1987), enf'd as to other matters by en banc order sub nom. Department of Defense Dependents Schools v. FLRA, No. 88-1004 (D.C. Cir. June 22, 1990); Fort Knox Teachers Association and Fort Knox Dependent Schools, 19 FLRA 878, 883 (1985) (Fort Knox Dependent Schools).
2. Union
The Union states that Proposal 1 requires that the open house program be held during the duty day instead of in the evening. The Union concedes that Proposal 1 "impact[s] upon management's reserved right to assign work." Union Response at 1. However, the Union contends that the proposal is negotiable as an appropriate arrangement for employees adversely affected by management's right to assign "extra duties (ie. participation in after school open house program)." Id. The Union argues, generally, as to Proposals 1-4, that assigning employees to participate in open house activities adversely affects those employees in two ways: (1) they are required to spend several hours preparing for the open house by decorating classrooms and reviewing student performance, among other things; and (2) they are not compensated for the additional work that is performed when the open house is held in the evening.
More specifically, the Union maintains that by scheduling the open house during the duty day, the proposal would mitigate the adverse effects of the assignment of "uncompensated 'extra hours' [of] work . . . ." Id. at 2.
B. Analysis and Conclusions
We find that Proposal 1 directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Therefore, the proposal is nonnegotiable.
Proposal 1 provides that the open house program will be held during the day, instead of during the evening. According to the Union, the proposal seeks to prevent the assignment of work to teachers outside their duty hours. As such, the proposal is substantively similar to Proposal 4 in Fort Knox Dependent Schools, which would have prevented the agency from requiring teachers to attend parent-teacher organization or association meetings after normal school hours unless the teachers' presence was necessary. The Authority found that the proposal directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute. We reach the same conclusion here. See also Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 760 (1987) (Department of Defense Dependents Schools), enf'd as to other matters by en banc order sub nom. Department of Defense Dependents Schools v. FLRA, No. 87-1735 (D.C. Cir. June 22, 1990) (proposal that would have imposed an obligation on the agency to assign work during normal duty hours found to interfere with management's right to assign work).
The Union claims, however, that Proposal 1 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. In determining whether a proposal constitutes an appropriate arrangement under that section, it is first necessary to determine whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. If the proposal is intended to be an arrangement, the Authority next examines whether the arrangement is appropriate because it does not excessively interfere with the exercise of the management right. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986).
The Union asserts that Proposal 1 is intended to mitigate the adverse effects flowing from the assignment of work to teachers after their normal duty day. The Union states, without contradiction, that teachers spend extra hours preparing for the open house. The Union also states, and the Agency concedes, that the teachers are not compensated for the time spent participating in open house programs that are scheduled during the evening. Under the circumstances, we find that Proposal 1 is intended to be an arrangement for employees adversely affected by the exercise of management's right to assign work.
We conclude, however, after weighing the competing practical needs of employees and the Agency, that the proposal excessively interferes with the exercise of management's right. Proposal 1 places an absolute requirement on the Agency that the school open house program be scheduled during the duty day, rather than in the evening. Consequently, the proposal would preclude the Agency from assigning such duties outside the duty day, even where the Agency has compelling reasons for so doing. In this regard, the Agency states that the purpose of the open house is to enable parents of students to visit the school, meet with teachers, and familiarize themselves with the school's educational programs. Therefore, the open house is designed primarily for the parents. A schedule that enables a greater number of parents to attend is clearly preferred over any other schedule. The Agency notes that on the one occasion when the open house was held during the school day, attendance was poor, prompting the Agency to return to the evening open house. Given the stated purpose of the open house, and the persons for whom the open house is designed, we find that the Agency's ability to schedule the open house to best meet those needs is of paramount concern.
On the other hand, we recognize that there are significant benefits to employees of scheduling the open house program during duty hours. The benefits to employees include compensation when such duties are performed during the workday and a minimal intrusion into employees' personal lives by avoiding work assignments on off-duty hours. However, on balance, we conclude that the benefits to employees accruing under the proposal are outweighed by the Agency's need to schedule the open house program at such times as will best meet the purpose of the program and attract the greatest number of participants. Therefore, we conclude that Proposal 1 excessively interferes with the Agency's right to assign work and is not an appropriate arrangement under section 7106(b)(3) of the Statute.
IV. Proposal 2
Students be dismissed for 1/2 day so teachers can prepare to orientate [sic] parents.
A. Positions of the Parties
1. Agency
The Agency argues that the proposal is nonnegotiable because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute, management's right to determine the mission of the Agency under section 7106(a)(1) of the Statute, and management's right to determine the methods and means of performing work under section 7106(b)(1) of the Statute. The Agency also contends that the proposal is not a negotiable procedure under section 7106(b)(2) or an appropriate arrangement under section 7106(b)(3) of the Statute. Finally, the Agency states that the proposal concerns individuals, namely students, who are outside the bargaining unit.
More specifically with regard to its assertion that the proposal interferes with the right to assign work, the Agency argues that Proposal 2 seeks to allocate a specific amount of time "for the accomplishment of the task of preparing for Open House[,]" and, therefore, the proposal would limit the Agency's right to prescribe the daily work schedule. Statement of Position at 5. As such, the Agency asserts that the proposal is similar to a proposal found nonnegotiable in National Federation of Federal Employees, Local 1263 and Defense Language Institute, Foreign Language Center, Presidio of Monterey, California, 7 FLRA 723 (1982) (Defense Language Institute) which sought to allocate a specific amount of time for the accomplishment of a specific task. The Agency also argues that Proposal 2 is similar to a proposal found nonnegotiable in Fort Knox Teachers Association and Fort Knox Dependents Schools, 27 FLRA 750 (1987) (Fort Knox) which would have required the Agency to release students early based on certain weather conditions. The Agency states that just as the Authority found in that case that the primary work of the employees was to teach students, who must be present for the teachers to carry out their primary work, the primary duty of the employees here is to teach. As the proposal would require the Agency to dismiss the students, the Agency argues that the proposal similarly interferes with management's right to assign work.
In support of its contention that the proposal interferes with management's right to determine its mission and the methods and means of performing work, the Agency argues that "[m]anagement has determined that students will receive a certain number of instructional days per year. By proposing that students be dismissed 1/2 day so that teachers can prepare for the Open House, . . ." the proposal interferes with the exercise of management's rights. Statement of Position at 6.
2. Union
As with Proposal 1, the Union concedes that Proposal 2 has an impact upon management's right to assign work, but contends that it is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. The Union states that the assignment of teachers to participate in the open house program adversely affects them because it requires them to spend several hours or more preparing for the event "by decorating their rooms, reviewing student performance, etc.[.]" Union Response at 1. The Union states that "Proposal 2 would require management to free teachers from their instructional duties for one-half day so that they could prepare for the open house program during hours for which they are compensated rather than on their own time without compensation." Id. at 2.
B. Analysis and Conclusions
For the following reasons, we find that Proposal 2 directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
Initially, we note that the proposal is directed toward unit employees and involves their conditions of employment. Thus, although the proposal also references students, whom the Agency properly identifies as non-bargaining unit employees, we do not view such reference as a basis on which to remove the proposal from our consideration or to warrant its dismissal from the petition for review. See Fort Knox, 27 FLRA at 751-53 (proposal to dismiss school at prescribed time which did not specifically reference bargaining unit employees was clearly directed toward bargaining unit employees' conditions of employment).
As to the merits of the proposal, we find that it would require the Agency to dismiss students for one-half day to free teachers from instructional duties so that they can prepare for the open house program. The Authority consistently has held that proposals that would place various restrictions on instructional days by allocating specific amounts of time for accomplishing particular duties interfere with management's right to assign work. See, for example, Department of Defense Dependents Schools, 29 FLRA at 772 (time during instructional day for planning and preparation); Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 485, 493 (1987), enf'd as to other matters by en banc order sub nom. Department of Defense Dependents Schools v. FLRA, No. 87-1734 (D.C. Cir. June 22, 1990) (dismissing employees from work on particular days); Defense Language Institute (various proposals allowing specific amounts of time for the performance of specific duties). We find that Proposal 2 would have the same effect. Therefore, it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
We next address whether the proposal constitutes a negotiable appropriate arrangement for employees adversely affected by management's right to assign work. The Union argues that teachers spend several hours beyond their instructional time preparing for the open house by decorating classrooms and reviewing students' performance records for discussions with parents. We conclude that Proposal 2 is intended to address the demands placed on teachers' off-duty time that result from the Agency's assignment of the task of participating in the open house program. Therefore, the proposal constitutes an arrangement for employees adversely affected by the exercise of management's right to assign work.
However, we also find that the proposal would excessively interfere with management's right to assign work. Proposal 2 places an absolute requirement on the Agency that students be dismissed for one-half day so that teachers can prepare for the open house program. Consequently, the proposal would prevent the Agency from assigning other instructional duties to the teachers during that time period. We view the effect on the Agency's ability to assign work as significant. On the other hand, the proposal would benefit employees by minimizing demands on their non-compensated, off-duty time because it allows them time during the duty day to take whatever actions are necessary to prepare for the open house. Therefore, we view the benefits to employees also as being significant. As the proposal makes no exception for the requirement that teachers be free for one-half day to prepare for the open house program, however, we find, on balance, that the proposal would unduly hamper the Agency's ability to efficiently and effectively conduct its operations. Thus, the burden placed on the Agency's exercise of its right to assign work outweighs the benefits to employees that would be afforded under the proposal. Consequently, we find that the proposal is nonnegotiable because it excessively interferes with the Agency's right to assign work.
In reaching this result, we note our findings in Overseas Education Association and Department of Defense Dependents Schools, 39 FLRA 153 (1991) (Overseas Education Association) regarding proposals that required the agency to make every reasonable effort to provide preparation time during the workday for various activities (see especially Proposals 7b and 8a, 39 FLRA at 165 and 172, respectively). While we found in that case that such proposals directly interfered with the agency's right to assign work, we nonetheless found them to constitute negotiable appropriate arrangements because they simply required the agency to make a "reasonable effort" to provide the preparation time. The requirement was not unconditional and permitted exceptions to enable the agency to assign work. By contrast, Proposal 2 contains no such exceptions and would place an absolute limitation on the Agency's right to assign work. In this manner, Proposal 2 is similar to Proposal 5a in Overseas Education Association, which would have required the agency to provide a duty-free lunch period, on request. We found that that proposal excessively interfered with the agency's right to assign work because it allowed no exceptions to the requirement even in circumstances where a duty-free lunch period would have hampered the agency's ability to accomplish its operations effectively and efficiently. Id. at 164.
In view of our conclusion that Proposal 2 excessively interferes with management's right to assign work, it is unnecessary to address the Agency's additional contentions that the proposal interferes with management's right to determine its mission and the methods and means of performing work.
V. Proposal 3
The guidelines established last year will remain the same.
A. Positions of the Parties
1. Agency
The Agency assumes that, under this proposal, the Union is requesting that the open house be held during the day, "with the principal and assistant principal meeting with the students as was done for the Open House held during school year 1988-89." Statement of Position at 6. The Agency reiterates its position that the one occasion on which the open house was held during the day did not constitute a change in past practice giving rise to a duty to bargain. In any event, the Agency contends that Proposal 3 is nonnegotiable because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. According to the Agency, the Authority determined in Department of Defense Dependents Schools, 29 FLRA 734, that the right to assign work includes the right to adjust a teacher's daily schedule to meet management's needs. The Agency argues that by holding the open house program in the evening, the Agency is exercising its right to adjust teacher's schedules to accommodate the mission of the Agency.
2. Union
The Union states that the proposal "would require that the open house program be held during the duty day . . . ." Union Response at 2. As with its other proposals, the Union concedes that Proposal 3 has an impact on management's right to assign work, but contends that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. The Union asserts that Proposal 3 would mitigate the adverse effects of the assignment of additional hours of work without compensation as a result of management's decision to schedule the open house program during the evening.
B. Analysis and Conclusions
Proposal 3 provides that "[t]he guidelines established last year will remain the same." The Union states, and the Agency agrees, that the intent of the proposal is to schedule the open house program during the duty day, instead of during the evening. As so interpreted, we conclude that the proposal directly and excessively interferes with the Agency's right to assign work for the same reasons discussed in connection with Proposal 1. Consequently, the proposal is nonnegotiable.
VI. Proposal 4
Propose that Open House be held 2 October or one day during the first week of October.
A. Positions of the Parties
1. Agency
The Agency contends that the proposal interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute because it establishes a certain date on which work will be performed. The Agency also contends that Proposal 4 is moot because the open house for the school year 1989-90 was held on October 2, 1989.
2. Union
The Union concedes that Proposal 4 affects management's right to assign work but argues that the proposal is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. In this connection, the Union explains that Proposal 4 seeks to schedule the open house program at a time when the maximum number of parents could attend. The Union states that military training exercises were conducted in September, during the first weeks of the school year, and that if the open house had been scheduled in September, few parents would have been able to attend. The Union asserts that the proposal would allow the maximum number of parents to attend on one night, thereby opening the lines of communication with the parents and relieving employees of the burden of having to schedule individual conferences with parents later in the school year.
B. Analysis and Conclusions
For the reasons stated previously, we reject the Agency's contention that Proposal 4 is moot. As to the merits of the proposal, we find that it directly and excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.
Proposal 4 provides that the open house program will take place either on a specific date falling within the first week of October, or on any day during that week. In West Point Elementary School Teachers Association, NEA and the United States Military Academy Elementary School, West Point, New York, 29 FLRA 1531, 1536-38 (1987) aff'd sub nom. West Point Elementary School Teachers Association v. FLRA, 855 F.2d 936 (2d Cir. 1988), the Authority found that a proposal requiring negotiations over the school calendar directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute because the proposal would have permitted negotiations over when the assignment of instructional duties would occur.(2) In that case, the Authority also relied on a prior decision which involved proposals seeking to contractually designate holidays and recess periods. The Authority found the proposals to be nonnegotiable because they would have prevented the assignment of instructional duties to employees on those days, thereby interfering with the agency's right to determine when work will be assigned. We find that Proposal 4 would permit negotiations over the day on which the open house will be held. As such, the proposal would permit negotiations over when work will be assigned. Consequently, the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B).
Next, we address whether the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. The Union states that scheduling the open house on a date when a greater number of parents is likely to attend will benefit employees by opening lines of communications with students' parents and by relieving employees of the obligation to schedule individual conferences with parents later in the school year. We conclude that Proposal 4 is intended to be an arrangement for employees adversely affected by the exercise of management's right to assign work.
We further find, on balance, that Proposal 4 excessively interferes with the exercise of that management right. In terms of the benefits accruing to employees under the proposal, we note that scheduling the open house when a greater number of parents can attend affords significant benefits to employees. Maximizing parent participation would enhance communication with parents and minimize the need to schedule conferences with parents on other occasions, thereby imposing less of an intrusion on employees' off-duty time and less of a burden on employees during their duty hours.
In terms of its effect on management's right to assign work, however, Proposal 4 would require the Agency to schedule the open house program within a specific week of the year. The proposal would prevent the Agency from scheduling the open house at any other time during the school year and determining when work relating to the open house program will be performed by employees. The requirement to hold the open house program during the specified one-week period is absolute and does not allow any exception if unforeseen events were to occur or emergency situations were to arise that prevented the Agency from complying with the requirement. We view this restriction on the Agency's ability to schedule the open house program as outweighing the benefits the proposal would afford to employees. Consequently, on balance, we find that the proposal excessively interferes with the Agency's right to assign work. Therefore, the proposal does not constitute a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.
VII. Order
The petition for review is dismissed.
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1. The Union has advised us that it filed an unfair labor practice charge alleging a unilateral implementation of a change in the open house schedule at Binictican Elementary School. Pursuant to section 2424.5 of the Authority's Rules and Regulations, the Union has elected to process the negotiability appeal first.
2. The Authority also found that the proposal interfered with the agency's right to determine its mission. However, as the Agency here has made no such argument, and as it is not otherwise apparent that Proposal 4 interferes with such right, we need not address this point further.