22:0815(88)NG - Fort Knox Teachers Association. and Fort Knox Dependent Schools -- 1986 FLRAdec NG
[ v22 p815 ]
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.