19:0814(99)NG - Panama Canal Federation of Teachers, Local 29 and DOD Dependents Schools, Panama Region -- 1985 FLRAdec NG



[ v19 p814 ]
19:0814(99)NG
The decision of the Authority follows:


 19 FLRA No. 99
 
 PANAMA CANAL FEDERATION
 OF TEACHERS, LOCAL 29
 Union
 
 and
 
 DEPARTMENT OF DEFENSE
 DEPENDENTS SCHOOLS,
 PANAMA REGION
 Agency
 
                                            Case No. O-NG-817
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and raises issues
 concerning the negotiability of twelve Union proposals.  Upon careful
 consideration of the entire record, /1/ including the parties'
 contentions, /2/ the Authority makes the following determinations.
 
    The Union, herein, represents teachers employed by the Agency in the
 Panama Region.  The school system in this region is comprised of 12
 elementary schools, 3 secondary schools and a junior college.  The
 proposals in dispute all deal with aspects of curriculum.  Without
 contravention, the Agency describes "curriculum" as follows:
 
          The curriculum in the educational field consists of the course
       of study offered to students, the content of those courses, the
       instructional objectives and functions, and the materials through
       which courses will be taught.  /3/
 
                             Union Proposal 1
 
          Section 1-- Curriculum, curriculum priorities, pilot programs,
       and selection of textbooks and teaching materials will be
       accomplished through classroom teacher involvement.
 
                             Union Proposal 8
 
          Section 8-- All pilot programs and curriculum priorities will
       be determined by the CDC RCDC in conjunction with the classroom
       teachers.  All programs will be clearly outlined and required
       materials will be made available as needed.
 
    Union Proposal 1 would mandate classroom teacher participation in the
 establishment of curriculum and curriculum priorities, pilot programs
 and the selection of textbooks.  As regards its intent concerning this
 proposal, the Union states that classroom teachers "participate in
 committee activities as required to review, evaluate, develop
 educational materials and meet NCA (accreditation agency) standards."
 Similarly, Union Proposal 8, on its face, would require that all pilot
 programs and curriculum priorities be determined by the local and
 Regional Curriculum Development Committees with the required
 participation of classroom teachers and that the Agency provide the
 selected materials as needed.
 
    In agreement with the Agency, the Authority finds that the subject
 committees are appointed to study and make recommendations on means of
 performing work within the meaning of section 7106(b)(1) of the Statute.
  /4/ In National Treasury Employees Union and U.S. Customs Service,
 Region VIII, San Francisco, California, 2 FLRA 255, 258 (1979), the
 Authority defined the word "means" as it appears in section 7106(b)(1),
 stating that it meant "any instrumentality, including an agency, tool,
 device, measure, plan or policy used by the agency for accomplishing or
 the furthering of the performing of its work." The matters studied by
 the committees fall within the ambit of that definition.  Curriculum and
 textbooks are tools used in the furtherance of the Agency's mission
 which is the education of the children of military personnel.  /5/
 
    It is well established that a proposal seeking union participation in
 the deliberative process leading to the exercise of reserved management
 rights under section 7106 of the Statute is outside the duty to bargain.
  In this regard, the Authority observed, in National Federation of
 Federal Employees, Local 1431 and Veterans Administration Medical
 Center, East Orange, New Jersey, 9 FLRA 998, 999 (1982), that:  "when
 management establishes formal organizational structures to undertake
 such deliberations as an integral part of its substantive
 decision-making process, a proposal which would require union
 participation would have the effect of directly interfering with
 management's statutory right to make the decision involved." Of course,
 Union Proposals 1 and 8 present a slightly different issue, that is, the
 right involved in this case is one which may be negotiated at the
 election of the Agency.  However, in the Authority's view, the reasoning
 in Veterans Administration Medical Center, East Orange is applicable to
 the instant dispute.  In this regard, it was determined in the cited
 case that negotiation over union membership in an organization integral
 to the decision-making process concerning a section 7106 right was
 tantamount to negotiation over the right itself.  Where the matter
 concerned is encompassed within section 7106(b)(1), i.e., negotiable
 only at the Agency's option, and the committee involved is established
 to facilitate decision-making related to that matter, negotiation over
 composition of the committee is equivalent to bargaining over the matter
 itself.  Hence, it is concluded that as the Agency has elected not to
 bargain on Union Proposals 1 and 8 they are not within the duty to
 bargain.
 
                             Union Proposal 2
 
          Section 2-- All required textbooks will have been published
       within five (5) years of purchase.
 
                             Union Proposal 4
 
          Section 4-- Multi-level classroom materials will be selected by
       classroom teachers for individual teaching plans.  Management will
       provide funds for the purchase of these materials.
 
                             Union Proposal 5
 
          Section 5-- Host Nation teachers will be provided books and
       teaching materials.  The selection of these materials will be
       determined by Host Nation teachers in concert with their teaching
       colleagues in curriculum meetings.
 
    Union Proposal 2 would place a restriction, i.e., copyright date
 within 5 years of purchase, on the choice of textbooks which the Agency
 must acquire and use.  Union Proposals 4 and 5 would restrict
 management's purchase and use of books and teaching materials to those
 materials selected by the teachers.  Thus, these proposals, by their
 terms, would require the Agency to acquire and use certain specific
 books and materials.  In this regard, the disputed proposals herein are
 to the same effect as a proposal in American Federation of Government
 Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army
 Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982) (Union
 Proposal 3) requiring the acquisition and use of certain specific
 documents and equipment.  In that case, the Authority found that the
 disputed proposal concerned the "technology, methods, and means of
 performing work" within the meaning of section 7106(b)(1) of the Statute
 and, hence, was negotiable only at the election of the Agency.
 
    Consequently, as the instant proposals would likewise provide for the
 acquisition and use of certain specified documents and materials, i.e.,
 textbooks and teaching materials, they are, for the reasons and cases
 cited in Redstone Arsenal, negotiable only at the election of the
 Agency.  Therefore, in light of the Agency's election not to bargain,
 the instant proposals are nonnegotiable.
 
                             Union Proposal 3
 
          Section 3-- Principals have the responsibility to establish a
       Curriculum Development Committee (CDC) within their assigned
       school.  Schools will be authorized four days each semester for
       the purpose of curriculum development.  The members of each school
       CDC will be elected from volunteers from the faculty.  The Union
       may appoint 50% of the membership of this committee.  The Regional
       Director has the responsibility to establish CDC's within the
       Region.  The Union may select 50% of the membership to serve on
       each RCDC.  Teachers who are required by Management to travel,
       will be in a per diem and pay status.  Recommendations made by
       local CDC that are rejected by local Management must be responded
       to in writing with rationale for the rejection.  If, after a study
       of Management's response, the local CDC still supports its
       recommendation, the recommendation will be put into effect.  (The
       underlined portion is not in dispute.)
 
                             Union Proposal 9
 
          Section 9-- There may be a semi-annual, local level, teachers'
       conference with Regional level and DoDDS-Panama coordinators in
       attendance as requested.  The conference may be planned through
       teacher and student input.  Official time will be given for
       attendance at the conference.
 
                             Union Proposal 11
 
          Section 11-- Curriculum coordinators (local and regional level)
       will work with students and teachers in the classroom in order to
       maintain a realistic awareness of teaching dynamics and to better
       evaluate proposed and pilot programs.
 
    Each of the disputed proposals herein, would, inter alia, require
 particular non-bargaining unit employees to perform specified duties.
 Union Proposal 3 expressly mandates that "principals" and "the Regional
 Director" will establish Curriculum Development Committees "within their
 assigned schools" and "within the Region." Union Proposal 9 would
 require the attendance at a local level teachers conference of the
 "Regional level and DoDDS-Panama coordinators." Union Proposal 11 would
 require local and Regional level curriculum coordinators to work with
 students and teachers in the classroom.
 
    In this respect, each of the disputed proposals herein is to the same
 effect as the proposal in American Federation of Government Employees,
 AFL-CIO, Local 32 and Office of Personnel Management, 14 FLRA 278
 (1984), aff'd sub nom. Local 32, AFGE v. FLRA, No. 84-1251 (D.C. Cir.
 May 10, 1985), which required that a particular non-bargaining unit
 employee perform a specific duty.  In that case, the Authority found the
 proposal to be outside the duty to bargain as it interfered with
 management's right, pursuant to section 7106(a)(2)(B) of the Statute, to
 assign work.
 
    Since the disputed proposals in this case would also require specific
 non-bargaining unit employees to perform particular duties, they are,
 for the reasons and case cited in Office of Personnel Management,
 likewise, outside the duty to bargain.  Accord National Federation of
 Federal Employees, Local 1 and Environmental Protection Agency and
 Environmental Protection Agency, Region 9, 17 FLRA No. 68 (1985).
 
                             Union Proposal 6
 
          Section 6-- Cooperative Work Experience (CWE) Programs will be
       planned by concerned sponsors, in conjunction with teachers, Host
       Nation teachers, community leaders, and students.  Teachers
       involved in the CWE Program planning will be on official time or
       paid as an extra-curricular activity.
 
    This proposal, by its express terms, would require that the planning
 of the Agency's Cooperative Work Experience Programs be accomplished by
 certain specified individuals.  Some of these individuals are bargaining
 unit employees, i.e., teachers, and some are not employed by the Agency
 at all, that is, "concerned sponsors" who are local businessmen,
 community leaders and students.  To the extent the proposal would
 require Agency employees to perform certain duties, the planning of CWE
 programs, it is inconsistent with management's right to assign work
 pursuant to section 7106(a)(2)(A) of the Statute.  See, e.g., American
 Federation of State, County and Municipal Employees, AFL-CIO, Local 2910
 and Library of Congress, 11 FLRA 632 (Union Proposals 1 and 2).  In
 addition, it is well established that the duty to bargain extends only
 to matters affecting conditions of employment of bargaining unit
 employees.  Service Employees' International Union, AFL-CIO, Local 556
 and Department of the Army, Office of the Adjutant General, Hale Koa
 Hotel, Honolulu, Hawaii, 9 FLRA 687 (1982).  As previously noted, some
 of the individuals whom this proposal would require to perform CWE
 planning functions are not even employed by the Agency.  Thus, to the
 extent this proposal specifically requires certain tasks to be performed
 by non-employees, it is not within the duty to bargain as it does not
 concern conditions of employment of unit employees within the meaning of
 section 7103(a)(14) of the Statute.  American Federation of Government
 Employees, Local 2761 and U.S. Army Adjutant General, Publication
 Center, St. Louis, Missouri, 17 FLRA No. 118 (1985) (Union Proposal 2).
 
                             Union Proposal 7
 
          Section 7-- Each school faculty will be given a minimum of four
       (4) hours, twice monthly, in-service time for curriculum planning
       and enrichment.  Each faculty will determine the days and time to
       be used for this purpose and shall be on official time.  The
       school curriculum chairperson, department heads and/or grade level
       heads and principals will act as coordinators as required.
 
                             Union Proposal 12
 
          Section 12-- Preparation for an accreditation agency (such as
       the North Central Association) shall be accomplished on official
       time.  Five (5) school days may be used for this purpose beyond
       the days used for inservice.  Recertification points will be
       given.  Furthermore, Management authorizes pay for teachers who
       serve in committee chairperson capacities and fill their
       responsibilities beyond the official school day.
 
    Union Proposal 7 authorizes the granting of a minimum of four hours
 official time, twice monthly, for employees to engage in curriculum
 planning.  Similarly, Union Proposal 12 authorizes an additional five
 days of official time for employees to participate in the preparation
 for various educational accreditation evaluations.  In agreement with
 the Agency, the Authority concludes that these two proposals are
 inconsistent with management's right, pursuant to section 7106(a)(2)(B)
 of the Statute, to assign work.  That is, both disputed proposals
 concern duties assigned to Agency employees in their role as teachers.
 Specifically, with regard to Proposal 7, curriculum has been determined
 to be a means of performing work within the meaning of section
 7106(b)(1) of the Statute.  (See Authority determination with regard to
 Proposals 1 and 8 supra.) It follows, therefore, that requiring
 employees to engage in curriculum planning constitutes an assignment of
 a part of the work of the Agency in the furtherance of the Agency's
 mission to educate the children of military personnel.  Similarly, with
 regard to Proposal 12, the Union itself concedes that employees are
 assigned the additional duties of preparing and planning for
 accreditation evaluations.  /6/ In this respect, the proposals herein
 are to the same effect as the disputed proposals in National Federation
 of Federal Employees, Local 1263 and Defense Language Institute, Foreign
 Language Center, Presidio of Monterey, California, 7 FLRA 723 (1982)
 (Union Proposals I through XX), which provided specific time frames for
 the performance, by teachers, of various tasks within the framework of
 their positions as teachers.  In that case, the Authority found the
 proposals to be outside the duty to bargain as they would directly
 interfere with the agency's right, pursuant to section 7106(a)(2)(B) of
 the Statute, to assign work.
 
    Consequently, as the disputed proposals herein would also allocate
 specific amounts of time within which specific tasks will be
 accomplished, they are, for the reasons and case cited in Foreign
 Language Center, likewise, outside the duty to bargain.
 
    This conclusion is not altered by the Union's argument, made
 specifically with respect to Proposal 12 but also applicable to Proposal
 7, that section 7131(d) of the Statute /7/ entitles unit employees to
 official time for such matters as are specified in the proposal.  In
 this connection, section 7131 establishes the authority for the granting
 of official time under the Statute.  That is, subsections (a), (b) and
 (c) concern the authorization of official time for contract
 negotiations, impasse proceedings and proceedings before the Authority
 respectively.  While subsection (d) authorizes the granting of official
 time to employee representatives in "any amount" the parties agree to be
 "reasonable, necessary, and in the public interest," such authorization
 is expressly limited to those matters which are not already provided for
 in the other portions of section 7131.  In the Authority's view,
 subsection (d) clearly can only be read to authorize the negotiation of
 official time for other labor-management related representational
 matters such as contract administration, participation in grievance
 arbitration and the like.  /8/ Thus, there is no basis for the
 authorization of official time for employees to perform assigned duties
 as is required by Proposals 7 and 12.
 
                             Union Proposal 10
 
          Section 10-- Each School Advisory Council will include one (1)
       Union Representative with the standing as a voting ex-officio
       member.
 
    This proposal would require that a Union representative participate,
 as a voting member, in the meetings of each School Advisory Council.
 These Councils, based on the uncontroverted statements of the Agency in
 the record of this case, were established by the Agency pursuant to 20
 U.S.C. 928 to review, make recommendations and take action with respect
 to matters involving budget and curriculum.
 
    In this regard, the Authority has consistently held that proposals
 which require union participation in the deliberative process leading to
 the exercise of reserved rights under section 7106 of the Statute
 directly interfere with those rights and are outside the duty to
 bargain.  See, e.g., National Federation of Federal Employees, Local
 1431 and Veterans Administration Medical Center, East Orange, New
 Jersey, 9 FLRA 998 (1982).  Thus, as the instant proposal interferes
 with management's right to determine its budget pursuant to section
 7106(a)(1) of the Statute, /9/ it is not within the Agency's duty to
 bargain.
 
    Accordingly, pursuant to section 2424.10 of theAuthority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  /10/ Issued, Washington, D.C., August 19, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Union did not file a Reply Brief in this case.
 
 
    /2/ The Agency's contention that the Union did not properly serve the
 Agency head with a copy of the petition for review as required by
 section 2424.4(b) of the Authority's Rules and Regulations cannot be
 sustained.  The record indicates that the Union submitted satisfactory
 evidence that it timely complied with the Authority's procedural
 requirements.
 
 
    /3/ Agency Statement of Position at 3.
 
 
    /4/ Section 7106(b)(1) of the Statute provides, in relevant part, as
 follows:
 
          Sec. 7106.  Management rights
 
                                .  .  .  .
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating--
 
          (1) at the election of the agency . . . methods, and means of
       performing work.
 
 
    /5/ But cf. American Federation of Government Employees, Local 12,
 AFL-CIO and Department of Labor, 17 FLRA No. 98 (1985) (Union Proposal
 3), petition for review filed sub nom. Local 12, American Federation of
 Government Employees v. FLRA, No. 85-1371 (D.C. Cir. June 19, 1985)
 (proposal to establish a committee to study the feasibility of quality
 circles to serve as a forum for evaluating employee concerns,
 suggestions, etc., involving introduction of new technology did not
 directly relate to the introduction of such technology and, therefore,
 was a "procedure" within the meaning of section 7106(b)(2) of the
 Statute).
 
 
    /6/ Union Petition for Review, unpaginated, at portion concerning
 Proposal 12.
 
 
    /7/ Section 7131(d) provides in relevant part as follows:
 
          Sec. 7131.  Official time
 
                                .  .  .  .
 
          (d) Except as provided in the preceding subsections of this
       section--
 
          (1) any employee representing an exclusive representative, or
 
          (2) in connection with any other matter covered by this
       chapter, any employee in an appropriate unit represented by an
       exclusive representative,
 
          shall be granted official time in any amount the agency and the
       exclusive representative involved agree to be reasonable,
       necessary, and in the public interest.
 
 
    /8/ See AFGE, Local 2096 v. FLRA, 738 F.2d 633, 637 (4th Cir. 1984),
 affirming U.S. Naval Space Surveillance Systems, Dahlgren, Virginia and
 U.S. Naval Surface Weapons Center, Dahlgren, Virginia, 12 FLRA 731
 (1983).
 
 
    /9/ Section 7106(a) of the Statute provides, in relevant part, as
 follows:
 
          Sec. 7106.  Management rights
 
          (a) Subject to subsection (b) of this section, nothing in th