19:0878(103)NG - Fort Knox Teachers Association and Fort Knox Dependent Schools -- 1985 FLRAdec NG



[ v19 p878 ]
19:0878(103)NG
The decision of the Authority follows:


 19 FLRA No. 103
 
 FORT KNOX TEACHERS
 ASSOCIATION
 Union
 
 and
 
 FORT KNOX DEPENDENT SCHOOLS
 Agency
 
                                            Case No. O-NG-893
 
                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 presents issues
 concerning the negotiability of five Union proposals.  /1/ Upon careful
 consideration of the entire record, including the parties' contentions,
 the Authority makes the following determinations.
 
                             Union Proposal 1
 
          Unit members who desire a change in grade and/or subject
       assignment, or who desire to transfer to another building may file
       a written statement of such desire with the Superintendent.  Such
       unit members will be given prior consideration upon submission of
       said written request to the Superintendent prior to April of each
       year.
 
                             Union Proposal 2
 
          Any unit member who has been involuntarily transferred or
       reassigned shall receive prior consideration for any opening which
       may subsequently exist for which the unit member is qualified to
       fill.
 
          (Only the underlined portion of the proposals are in dispute.)
 
    Union Proposal 1 would require the Agency to give prior consideration
 to a bargaining unit employee who has submitted a written request for a
 change in grade and/or subject assignment, or for a transfer to another
 building.  Union Proposal 2 would require that a bargaining unit
 employee who has been involuntarily transferred or reassigned receive
 prior consideration for any subsequent job opening for which that
 employee is qualified.  The sole contention of the Agency is that these
 proposals are nonnegotiable because they are inconsistent with Federal
 Law, i.e., 10 U.S.C. 2304, and its regulations issued pursuant to that
 law (Armed Services Procurement Regulation/Defense Acquisition
 Regulations (ASPR/DAR)).  The Agency in its Statement of Position relies
 upon a previous version of 10 U.S.C. 2304 which, insofar as is relevant
 herein, is substantively identical to the provision of law currently in
 effect.  /2/ In this respect, the Agency essentially contends that
 insofar as the proposals require the Agency to give prior consideration
 for job vacancies filled by personal service contracts under the
 authority of 10 U.S.C. 2304, the requirement under that law for full and
 open competition is defeated.  It also contends that the Union's
 proposals would undermine the Agency's affirmative duty to solicit
 proposals from the maximum number of qualified sources.  The current
 version of 10 U.S.C. 2304 requires full and open competition in
 conducting a procurement for property or services.  The Union, on the
 other hand, contends that 10 U.S.C. 2304 does not cover the hiring of
 teachers for schools located on Federal property, i.e., bargaining unit
 employees.
 
    According to the Union's statement of intent and consistent with the
 language of the proposal, the disputed parts of the proposals only
 require that a bargaining unit employee receive prior consideration in
 the stated circumstances.  In other words, the proposals establish the
 order in which all applicants will be considered for certain job
 openings.  Therefore, even assuming that the Agency employs bargaining
 unit employees under the authority of 10 U.S.C. 2304, this result is not
 inconsistent with its requirement for full and open competition since
 the proposals only establish sequential order of consideration for
 certain job openings, not substantive preferential treatment of these
 employees.  Nor are the proposals inconsistent with the Agency's ability
 to solicit from the maximum number of qualified sources since the Agency
 is able under the proposed language to nonselect bargaining unit
 applicants and subsequently solicit and select from any appropriate
 source.  /3/ Therefore, Union Proposals 1 and 2 are not inconsistent
 with 10 U.S.C. 2304 nor the Agency's regulations issued pursuant to that
 law.  Thus, these proposals are within the duty to bargain.  /4/
 
                             Union Proposal 3
 
          In determination of requests for voluntary assignment and/or
       transfer, the wishes of the individual unit member shall be
       honored to the extent that the transfer does not conflict with
       instruction requirements of the school system.  No requests shall
       be denied arbitrarily, capriciously, or without basis in fact.
       The employer agrees to base the decisions concerning the transfer
       of a unit member on qualifications and seniority and identifiable
       needs of the educational program within the school district.
 
    Union Proposal 3 requires that the wishes of a bargaining unit member
 for a voluntary assignment and/or transfer will be honored to the extent
 they do not conflict with the instruction requirements of the school
 system.  It further establishes the standard by which the Agency may
 deny such requests and the factors upon which the Agency will base its
 decisions.  In its Reply Brief, the Union characterizes the proposal as
 only requesting the Agency to consider the wishes of the employee to be
 transferred and to assign the employee only if he complies with the
 criteria established by the Agency.  Therefore, in the Union's view, the
 proposal is negotiable because it does not require that the Agency
 select a certain employee for a position.  However, the Authority has
 consistently held that it will not base a negotiability determination on
 a union's statement of intent which is inconsistent with the express
 language of the disputed proposal.  See, e.g., American Federation of
 Government Employees, AFL-CIO, Local 2955 and National Guard Bureau,
 Office of the Adjutant General, Des Moines, Iowa, 5 FLRA 617 (1981).  In
 this connection, the proposal here mandates by its plain language that
 vacancies will be filled by the reassignment of bargaining unit
 employees and not by any other appropriate source, so long as a
 qualified volunteer is available.
 
    Section 7106(a)(2)(C) of the Statute reserves to management the right
 to make selections for appointments from among properly ranked and
 certified candidates for promotion or from any other appropriate source.
  /5/ Thus, the Authority has held that a proposal which limited the
 consideration of outside applicants to instances in which there were
 fewer than three minimally qualified in-house applicants was
 inconsistent with section 7106(a)(2)(C) since management would be
 prevented from expanding the area of consideration or from selecting a
 candidate from any other appropriate source.  National Federation of
 Federal Employees, Local 1451 and Navy Exchange, Naval Administrative
 Command, Orlando, Florida, 3 FLRA 392 (1980);  see also American
 Federation of State, County and Municipal Employees, AFL-CIO, Local 2027
 and ACTION, Washington, D.C., 12 FLRA 643 (1983) (Union Proposal 3).
 The proposal in dispute herein would prevent the Agency from soliciting
 and considering outside applicants for a position when there are
 qualified volunteers in the bargaining unit available for reassignment
 to that position.  Furthermore, since the proposal would require the
 Agency to honor an employee request for voluntary assignment and/or
 transfer as long as it would not "conflict with the instructional
 requirements of the school system," it would prevent the Agency from
 deciding not to fill the position at all or to fill the position with an
 outside applicant.
 
    Therefore, for the reasons set forth in Naval Administrative Command,
 Orlando, Union Proposal 3 must be held to be outside the duty to
 bargain.  /6/
 
                             Union Proposal 4
 
          Membership in a PTO/PTA (Parent Teacher Organization/Parent
       Teacher Association) organization shall not be required, nor shall
       employees be required to attend after-hour PTO or PTA meetings
       other than those necessitating their presence, such as the PTO
       "Open House" meeting or where the participation of the unit member
       is necessary for the adequate presentation of the program.
       Attendance at PTO/PTA meetings is not to be construed as a
       teaching duty, but rather a professional choice.  As such,
       attendance at PTO/PTA meetings do (sic) not fall under "extra"
       duties as assigned by the school principal.  Teachers shall not be
       required to sign statements asserting whether or not they were in
       attendance at a given PTO/PTA meeting, nor shall any record be
       kept regarding such attendance.
 
    It is well established that a union proposal seeking to prohibit the
 assignment of specified duties to bargaining unit employees is
 inconsistent with management's right pursuant to section 7106(a)(2)(B)
 of the Statute "to assign work." See, e.g., Association of Civilian
 Technicians and State of Georgia National Guard, 2 FLRA 581 (1980).  A
 proposal which limits the assignment of certain work to specific
 circumstances is likewise violative of section 7106(a)(2)(B).  See New
 York State Nurses Association and Veterans Administration Medical
 Center, Bronx, New York, 11 FLRA 578 (1983);  Laborer's International
 Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics
 Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686 (1984)
 (Union Proposal 5).  The proposal herein would absolutely bar the Agency
 from requiring that an employee attend "after-hour PTO or PTA meetings
 other than those necessitating their presence, such as the PTO 'Open
 House' meeting where the participation of the unit is necessary for the
 adequate presentation of the program." As such, this express limitation
 on an agency's ability to require an employee to accept a certain
 assignment of work violates management's right under the Statute.
 
    The Union asserts that mandatory attendance at an after-hour PTO or
 PTA is not part of normal duty hours and therefore such attendance
 should be voluntary.  However, whether or not the assignment of work
 occurs during the normal duty hours is not germane to whether a proposal
 violates management's right to assign.  In this regard, it is clear
 management has the right to assign, for example, overtime work.  Cf.
 American Federation of Government Employees, AFL-CIO, International
 Council of U.S. Marshals Service Locals and Department of Justice, U.S.
 Marshals Service, 11 FLRA 672 (1983) (Union Proposal 2) (wherein the
 Authority found that Union Proposal 2 directly interfered with
 management's right to assign work under section 7106(a)(2)(B) since it
 precluded the agency from assigning work normally performed by unit
 employees to supervisors, beyond their normal duty hours, where the work
 otherwise would be performed by unit employees on overtime).  Similarly,
 the assignment of duties outside the normal duty hours is within
 management's right to assign work.  Thus, Union Proposal 4 is not within
 the duty to bargain.
 
                             Union Proposal 5
 
          Communication
 
          The Fort Knox Teachers Association will have free access to
       communicate with unit members when such will not interfere with
       the normal instructional program of the school, including the use
       of the intercom system and the opportunity to make announcements
       at faculty meetings.
 
          The Association shall be given the opportunity to make
       announcements at faculty meetings.  The Association shall also be
       permitted, during non-pupil contract (sic) time, to call into
       meeting members of the bargaining unit for the purpose of
       implementing matters subject to the bargaining agreement.
 
    Union Proposal 5 would require, among other things, that the Union be
 allowed free access to communicate with its members, including the use
 of the intercom system and the opportunity to make announcements at
 faculty meetings, unless such access interferes with the normal
 instructional program of the school.  The Agency states, without
 contradiction by the Union, that the Union seeks to make announcements
 of union activities at faculty meetings which are held "for the purpose
 of discussing mission-related activities" of the Agency.  It contends,
 therefore, that the Union's proposal violates section 7131(b) of the
 Statute /7/ because such meetings constitute duty time.
 
    Section 7131(b) of the Statute requires that activities relating to
 the internal business of a labor organization be performed by an
 employee while that employee is in a nonduty status, i.e., not on duty
 time.  The Statute does not expressly define the phrase "internal
 business of a labor organization." In American Federation of Government
 Employees, AFL-CIO, Local 2823 and Veterans Administration Regional
 Office, Cleveland, Ohio, 2 FLRA 4 (1979), the Authority held that
 Congress intended to proscribe the use of duty time for activities
 relating to the Union as an organization and pertaining to the operation
 of that organization, such as union business meetings, communication
 with members, contracting for goods and services, payment of bills, and
 other similar and associated activities.  Thus, insofar as the Union's
 stated intent of Union Proposal 5 includes the opportunity to make
 announcements of union activities and to call meetings, the proposal
 concerns activities relating to internal union business.
 
    Further, the Authority agrees with the Agency's contention that the
 faculty meetings in question are for the purpose of discussing
 mission-related activities and, thus, such meetings constitute duty
 time.  Hence, since the proposal herein would require that faculty
 meetings during duty time include union communication with its
 bargaining unit members, the Authority concludes that under section
 7131(b) of the Statute Union Proposal 5 is not within the duty to
 bargain, based on the reasoning in Veterans Administration Regional
 Office.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain concerning Union Proposal 1
 and 2.  Furthermore, IT IS ORDERED that the Union's petition for review
 as to Union Proposals 3, 4 and 5, be, and it hereby is, dismissed.
 Issued, Washington, D.C., August 22, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ In its response to the petition for review the Agency withdrew
 its allegation of nonnegotiability as to five additional Union
 proposals.  Accordingly, there is no longer an issue as to whether those
 proposals are within the duty to bargain.
 
 
    /2/ 10 U.S.C. 2304 (1984), as modified, reads in relevant part as
 follows:
 
    Sec. 2304.  Contracts:  competition requirements
 
          (a)(1) Except as provided in subsections (b), (c), and (g) and
       except in the case of procurement procedures otherwise expressly
       authorized by statute, the head of an agency in conducting a
       procurement for property or services--
 
          (A) shall obtain full and open competition through the use of
       competitive procedures in accordance with the requirements of this
       chapter and the modifications to regulations promulgated pursuant
       to section 2752 of the Competition in Contracting Act of 1984;
       and
 
          (B) shall use the competitive procedure or combination of
       competitive procedures that is best suited under the circumstances
       of the procurement.
 
                                .  .  .  .
 
          (g)(1) In order to promote efficiency and economy in
       contracting and to avoid unnecessary burdens for agencies and
       contractors, the regulations modified in accordance with section
       2752 of the Competitive in Contracting Act of 1984 shall provide
       for special simplified procedures for small purchases of property
       and services.
 
          (2) For the purposes of this chapter, a small purchase is a
       purchase or contract for an amount which does not exceed $25,000.
 
          (3) A proposed purchase or contract for an amount above $25,000
       may not be divided into several purchases or contracts for lesser
       amounts in order to use the small purchase procedures required by
       paragraph (1).
 
          (4) In using small purchase procedures, the head of an agency
       shall promote competition to the maximum extent practicable.
 
 
    /3/ Cf. American Federation of Government Employees, AFL-CIO, Local
 2782 and Department of Commerce, Bureau of the Census, Washington, D.C.,
 6 FLRA 314 (1981) (proposal providing, in relevant part, for the speedy
 repromotion of bargaining unit employees who have been involuntarily
 downgraded without personal cause and further providing that such
 employees will be repromoted at the first opportunity except for good
 cause would only require the agency, when it decided to fill a vacant
 bargaining unit position, to consider but not necessarily to select the
 repromotion eligible employee.  Thus, the Authority found that the
 proposal did not violate management's rights under section
 7106(a)(2)(C)).
 
 
    /4/ In deciding that Union Proposals 1 and 2 are within the duty to
 bargain, the Authority makes no judgment as to their merits.
 
 
    /5/ Section 7106(a)(2)(C) provides as follows:
 
    Sec. 7106.  Management rights
 
          (a) Subject to subsection (b) of this section, nothing in this
 
 chapter shall affect the authority of any management official of any
 agency--
 
                                .  .  .  .
 
          (2) in accordance with applicable laws--
 
                                .  .  .  .
 
          (C) with respect to filling positions, to make selections for
       appointments from--
 
          (i) among properly ranked and certified candidates for
       promotion;  or
 
          (ii) any other appropriate source(.)
 
 
    /6/ In view of the Authority's decision herein, it is unnecessary to
 consider the Agency's additional arguments that the proposal is outside
 the duty to bargain.
 
 
    /7/ Section 7131(b) provides as follows:
 
    Sec. 7131.  Official time
 
                                .  .  .  .
 
          (b) Any activities performed by any employee relating to the
       internal business of a labor organization (including the
       solicitation of membership, elections of l