22:0815(88)NG - Fort Knox Teachers Association. and Fort Knox Dependent Schools -- 1986 FLRAdec NG



[ v22 p815 ]
22:0815(88)NG
The decision of the Authority follows:


 22 FLRA No. 88
 
 FORT KNOX TEACHERS 
 ASSOCIATION
 Union
 
 and
 
 FORT KNOX DEPENDENT SCHOOLS
 Agency
 
                                            Case No. 0-NG-978
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and concerns the
 negotiability of four Union proposals.
 
                           II.  Union Proposal 1
 
          Unit members will be permitted to use the period during the
       instruction of Art for (but not limited to) planning time, parent
       conferences and any other duties as assigned by the building
       principal.
 
                       A.  Positions of the Parties
 
    The Agency contends that the proposal would change the current
 requirement that teachers remain with their classes during art
 instruction even though they do not participate in the instruction
 itself.  It argues that the proposal therefore interferes with
 management's right to assign work under section 7106(a)(2)(B) of the
 Statute.
 
    The Union contends that the proposal allows teachers to perform other
 assigned duties during the time they now spend in accompanying students
 to art instruction.  It relies on American Federation of Government
 Employees, AFL-CIO, National Joint Council of Food Inspection Locals and
 Department of Agriculture, Food Safety and Quality Service, Washington,
 D.C., 9 FLRA 663 (1982) to support its view that Union Proposal 1 is
 within the duty to bargain.
 
                        B.  Analysis and Conclusion
 
    Union Proposal 1 is distinguishable from the proposal found
 negotiable in Food Safety and Quality Service which only sought to
 identify the employee or employees who would be assigned overtime work
 when such work was deemed necessary by management.  This proposal,
 however, seeks to prescribe duties employees will perform.
 Specifically, it would eliminate the requirement that teachers be
 assigned to remain with their classes during art instruction.  Thus it
 is to the same effect as Union Proposals 23-28 found nonnegotiable in
 American Federation of Government Employees, AFL-CIO, Local 3511 and
 Veterans Administration Hospital, San Antonio, Texas, 12 FLRA 76 (1983).
  The Authority found those proposals "would directly interfere with the
 right to assign work" because they sought to eliminate the performance
 by employees of various assigned duties.  Thus, based on the reasoning
 expressed in Veterans Administration Hospital, San Antonio Union
 Proposal 1 is inconsistent with management's right under section
 7106(a)(2)(B) of the Statute to assign work.
 
                          III.  Union Proposal 2
 
          Librarians and Department heads whose Media Center or
       Department has a Merit Rating shall be given an additional
       planning period per day.
 
                        A.  Position of the Parties
 
    The Agency contends that Union Proposal 2 would interfere with
 management's right to assign work under section 7106(a)(2)(B) of the
 Statute.  In support the Agency cites National Federation of Federal
 Employees, Local 1263 and Defense Language Institute, Foreign Language
 Center, Presidio of Monterey, California, 7 FLRA 723 (1982).
 
    The Union argues that the proposal does not interfere with
 management's right to assign work as it only "requests negotiations over
 additional time to perform these already assigned tasks."
 
                        B.  Analysis and Conclusion
 
    Union Proposal 2 is to the same effect as the group of proposals
 found nonnegotiable in Defense Language Institute.  In that case, the
 Authority held the proposals directly interfered with the management
 right to assign work "by allocating a specific amount of time for the
 accomplishment of a specific duty." Union Proposal 2, by providing for
 an additional period to be devoted to planning, also seeks to allocate a
 specific amount of time to accomplish certain work.  Thus, based on the
 reasons and case cited in Defense Language Institute it is inconsistent
 with the management right to assign work under section 7106(a)(2)(B) of
 the Statute.
 
                           IV.  Union Proposal 3
 
          When the district sets up committees to make recommendations on
       textbook adoptions, grade cards, parent conference forms, and
       other items or programs to be implemented in the district, the
       make-up of the committee shall consist of an equal number of
       representatives from all departments or organizational levels
       concerned.
 
                        A.  Position of the Parties
 
    The Agency describes the committees which are the subject of Union
 Proposal 3 as groups appointed from time to time by the superintendent
 to study and make recommendations concerning the adoption of textbooks,
 grade cards, parent conference forms and other items, programs or
 materials to be used in the school district.  The Agency argues that
 Union representation on such committees concerns the methods and means
 of performing work and is therefore negotiable only at the discretion of
 the Agency under section 7106(b)(1).  The Agency contends this proposal
 also conflicts with management's right to assign work under section
 7106(a)(2)(B) to the extent that it specifies that there be an equal
 number of representatives from all departments or organizational levels.
 
    The Union contends that the proposal sets out a procedure to be used
 in appointing members to these committees and thus it is negotiable
 under section 7106(b)(2).
 
                        B.  Analysis and Conclusion
 
    As set out above, the Agency describes the committees in Union
 Proposal 3 as groups periodically appointed by the superintendent
 responsible for studying and recommending adoption of textbooks, various
 forms, programs and materials used for teaching students in the
 district.  The Union did not dispute that description.  As described,
 the committees have responsibilities similar to those assigned to the
 committees or groups addressed by Union Proposals 1 and 8, held
 nonnegotiable in Panama Canal Federation of Teachers, Local 29 and
 Department of Defense Dependents Schools, Panama Region, 19 FLRA No. 99
 (1985).  The committees in the cited case were appointed to study and
 make recommendations concerning curriculum, pilot programs, selection of
 textbooks and teaching materials.  The Authority found that the work of
 the committees concerned the "means" by which agency work would be
 carried out within the meaning of section 7106(b)(1) of the Statute.
 Because the committees in Union Proposal 3 are appointed by the
 superintendent to study and to recommend on similar matters, their work
 likewise falls within the scope of section 7106(b)(1).
 
    It is by now well established that a proposal seeking union
 participation in the deliberative process leading to the exercise of
 rights reserved to management by section 7106 of the Statute is outside
 the duty to bargain.  See, for example, National Federation of Federal
 Employees, Local 1431 and Veterans Administration Medical Center, East
 Orange, New Jersey, 9 FLRA 998 (1982) and the cases cited there.  In VA
 Medical Center, East Orange, the Authority observed that, "when
 management establishes formal organization 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 decisions involved."
 
    As with Department of Defense Dependents Schools, Panama Region, the
 proposal in this case presents issues slightly different from those
 before the Authority in VA Medical Center, East Orange:  (1) the right
 with which the committees are concerned falls within the scope of
 section 7106(b)(1) of the Statute and may be the subject of bargaining
 at the Agency's election;  (2) the proposal does not expressly seek
 Union representation on the committee but, rather, is concerned with the
 committee's composition.  Those distinctions were examined in Department
 of Defense Dependents Schools, Panama Region.  The Authority held, in
 effect, that management's option not to bargain over a section
 7106(b)(1) right was equally applicable to bargaining over a committee
 concerned with deciding and acting on a section 7106(b)(1) right.  The
 Authority also stated in that decision, "where the matter concerned is
 encompassed within section 7106(b)(1), . . . 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." Consequently, based on the reasons
 and cases cited in VA Medical Center, East Orange and Department of
 Defense Dependents Schools, Panama Region, Union Proposal 3 concerns a
 management right under section 7106(b)(1) and is negotiable only at the
 Agency's election.
 
    Since these committees are an integral part of the process by which
 management determines the "means" of performing its work, the tasks
 associated with carrying out the functions of those committees involve
 the assignment of work.  See American Federation of Government
 Employees, AFL-CIO, Local 2787 and Defense Mapping Agency, 20 FLRA No.
 26 (1985) (Provision 3).  Consequently, by mandating the composition of
 such committees this proposal effectively requires an assignment of
 specific duties to particular employees in violation of management's
 right to assign work under section 7106(a)(2)(B) of the Statute.  See,
 for example, National Treasury Employees Union and Department of the
 Treasury, Internal Revenue Service, 7 FLRA 235, 240 (1981).  Since the
 proposal directly interferes with the exercise of the management rights
 discussed, it is not a negotiable "procedure" under section 7106(b)(2).
 
    This case may be compared with the Authority's decision in National
 Federation of Federal Employees, Local 2059 and U.S. Department of
 Justice, U.S. Attorney's Office, Southern District of New York, New
 York, New York, 22 FLRA No. 13 (1986).  In that case, the committee on
 which the union sought representation was an "uncertified" safety and
 health committee, established as a "constructive forum" for the
 expression of concerns over health and safety matters.  Unlike the
 committees in this case, it was not intended to bypass management in its
 area of interest nor was it authorized to interject itself into
 management's deliberative decision-making process.  It was therefore
 concluded that participation by union representatives on the committee
 did not concern assignment of the agency's work.
 
                           V.  Union Proposal 4
 
          Unit members shall receive 1/2 year's credit for pay purposes.
       For this purpose 1/2 year shall be defined as any period of 100
       days or more of teaching in this or any other school system.
 
                        A.  Position of the Parties
 
    The Agency contends that the Authority cannot make a determination on
 the negotiability of Union Proposal 4 because the proposal is not
 sufficiently specific and delimited in form and content.
 
    The Union maintains that the proposal is sufficiently specific and
 that the Authority should find it negotiable.
 
                        B.  Analysis and Conclusion
 
    While this proposal requires that bargaining unit employees receive
 1/2 year credit "for pay purposes" there is nothing in the proposal or
 the accompanying record to indicate how, or to what extent this 1/2 year
 credit would affect employee pay.  In the absence of information
 concerning the intent and operative effect of this proposal, we have no
 basis for determining whether it is consistent with applicable law and
 regulation.  Thus, this proposal is not sufficiently specific and
 delimited in form and content to permit a determination on its
 negotiability.  See Association of Civilian Te