25:1119(95)NG - Fort Knox Teachers Association and Fort Knox Dependent Schools -- 1987 FLRAdec NG



[ v25 p1119 ]
25:1119(95)NG
The decision of the Authority follows:


 25 FLRA No. 95
 
 FORT KNOX TEACHERS ASSOCIATION
 Union
 
 and
 
 FORT KNOX DEPENDENT SCHOOLS
 Agency
 
                                            Case No. 0-NG-845
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         I.  Statement of the Case
 
    This case comes before the Authority because of a negotiability
 appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues as
 to the negotiability of a single proposal.
 
                               II.  Proposal
 
          Voluntary bus chaperone duty shall be in effect.  Should no
       volunteers be available, a randomly selected list of
       teacher-chaperones shall be drawn from among all teachers at the
       school requiring chaperone duty.  Duty will rotate in order
       according to the list.  The same list will be used from one year
       to the next so that chaperone duty is equitably distributed among
       all teachers.  Overtime at time and one half shall be the rate of
       compensation to any teacher performing bus chaperone duty which
       goes beyond the normal school day.  Overtime compensation shall be
       provided all employees performing such duty, whether on a
       voluntary or roster basis.
 
                      III.  Positions of the Parties
 
    The Agency contends that the petition should be dismissed because it
 is procedurally defective.  Substantively, the Agency asserts that that
 portion of the proposal which relates to the assignment of bus chaperone
 duty conflicts with its management right to assign employees.  It also
 asserts that the portion of the proposal which relates to compensation
 for such duty (1) conflicts with law;  (2) conflicts with an agency
 regulation for which a compelling need exists;  and (3) does not concern
 a condition of employment within the meaning of the Statute.
 
    The Union states that the bus chaperone duty to which the proposal
 refers does not relate to supervising the loading and unloading of
 school busses on a daily basis which the Union concedes is encompassed
 within the regular duties of teachers.  Rather, the proposal refers to
 bus chaperone duty when a teacher accompanies students travelling by bus
 to extracurricular activities such as sports events, band activities,
 and field trips.  The Union denies that the proposal conflicts with
 management rights, law or regulation and argues that it concerns a
 condition of employment.
 
                       IV.  Analysis and Conclusions
 
                           A.  Procedural Issue
 
    The Agency has filed a motion to dismiss the petition in this case
 based on the alleged failure of the Union to serve the head of the
 agency in a timely manner in accordance with the provision of section
 2424.4(b) of the Authority's Rules and Regulations.  We deny the motion
 for the following reasons.  The Agency's claim centers on the Union's
 failure to serve the Department of Defense.  However, the record
 indicates that the petition was served on, among others, the Deputy
 Director, Labor-Management Relations, Department of Defense, as well as
 the Agency officials who issued the Agency's allegation of
 nonnegotiability and signed the Agency statement of position which was
 submitted to the Authority.  In these circumstances, noting particularly
 that the Agency has not contended that it was in any way prejudiced by
 the manner in which the Union served the petition, we find that service
 of the petition was adequate.  See American Federation of Government
 Employees, AFL-CIO, Local 3004 and Department of the Army and Air Force,
 National Guard Bureau, 15 FLRA 270 (1984).
 
         B.  The First Portion of the Proposal Conflicts with the
 
                Agency's Management Rights
 
    This portion of the proposal states:
 
          Voluntary bus chaperone duty shall be in effect.  Should no
       volunteers be available, a randomly selected list of
       teacher-chaperones shall be drawn from among all teachers at the
       school requiring chaperone duty.  Duty will rotate in order
       according to the list.  The same list will be used from one year
       to the next so that chaperone duty is equitably distributed among
       all teachers.
 
    The Union contends that no specific skills or qualifications are
 necessary for bus chaperone duty and, therefore, this portion of the
 proposal is nothing more than a procedure by which the Agency will
 exercise its right to assign employees.
 
    It is not clear to us from the language of the proposal and the
 record as a whole whether the proposal is concerned with the assignment
 of work, under section 7106(a)(2)(B), or the assignment of employees,
 under section 7106(a)(2)(A).  However, whether the proposal is intended
 to apply to assignment of employees to positions -- assign employees --
 or to assignment of work or duties to employees -- assign work -- it is
 nonnegotiable in either case.  The Authority has held that the right
 under section 7106(a)(2)(A) to assign employees includes the discretion
 to determine the particular qualifications and skills needed to perform
 the work, and to make judgments in determining whether a particular
 employee meets those qualifications.  American Federation of Government
 Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air
 Force Base, Ohio, 2 FLRA 603, 612-14 (1980) enforced sub nom. Department
 of Defense v. Federal Labor Relations Authority, 659 F.2d 1140, 1148-49
 (D.C. Cir. 1981), cert. denied, sub nom. AFGE v. FLRA, 455 U.S. 945
 (1982). The Authority has also found that the same discretion is
 inherent in the right under section 7106(a)(2)(B) to assign work.
 Laborers International Union of North America, AFL-CIO, Local 1276 and
 Veterans Administration, National Cemetery Office, San Francisco,
 California, 9 FLRA 703 (1982).
 
    As explained by the Union this portion of the proposal presumes that
 there are no qualifications necessary to perform bus chaperone duties
 and, consequently, all teachers are equally qualified for those duties.
 Thus the proposal effectively deprives management of the discretion to
 make judgments as to (1) the personnel requirements of the work of the
 position, that is, the qualifications and skills needed to do the work,
 as well as such job-related individual characteristics as judgment, and
 (2) as to which employees meet those requirements.  Rather, this portion
 of the proposal would compel the Agency to assign bus chaperone duties
 to volunteers or to all teachers on a rotational basis.  It therefore
 conflicts with management's rights under section 7106(a)(2) to assign
 employees and to assign work.  See American Federation of Government
 Employees, National Council of Social Security Administration Field
 Operations Locals, AFL-CIO and Social Security Administration, Office of
 Field Operations, Baltimore, Maryland, 17 FLRA 11 (1985) (Proposal 2).
 Compare National Cemetery Office, 9 FLRA 703 (1982), in which the
 contract provisions involved reserved to the agency the discretion to
 determine which employees were qualified to perform specific work.  The
 Authority held that those provisions did not conflict with the Statute
 by requiring that, where two or more equally qualified employees were
 available, assignment would be based on seniority.
 
                  V.  The Second Portion of the Proposal
 
    The Members of the Authority disagree over the negotiability of this
 portion of the proposal.  The Decision and Order of the Authority is on
 page 5 of this decision.  Chairman Calhoun's opinion is on page 11.
 
                                VI.  Order
 
    The Union's petition for review is dismissed insofar as it concerns
 that portion of the proposal which addresses the manner in which bus
 chaperone duties will be assigned.
 
    Issued, Washington, D.C., February 27, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
         DECISION AND ORDER ON THE SECOND PORTION OF THE PROPOSAL
 
                             I.  The Proposal
 
          Overtime at time and one half shall be the rate of compensation
       to any teacher performing bus chaperone duty which goes beyond the
       normal school day.  Overtime compensation shall be provided all
       employees performing such duty, whether on a voluntary or roster
       basis.
 
                       II.  Analysis and Conclusion
 
       A. This Portion of the Proposal Is Within the Duty to Bargain
 
    This portion of the proposal would require compensation on an
 overtime basis when bus chaperone duties go beyond the normal school
 day.  For the reasons which follow, we find this portion of the proposal
 is within the duty to bargain.  /1/
 
        1.  This Aspect of the Proposal Does Not Conflict with Law
 
    The Agency asserts that this part of the proposal conflicts with 20
 U.S.C. Section 241 and 5 U.S.C. Section 5542.  We find that it conflicts
 with neither provision.
 
                         A.  20 U.S.C. Section 241
 
    Section 241 of title 20 relevantly requires that under specified
 circumstances the Secretary of Education shall make arrangements for
 providing a free public education for children residing on Federal
 property and children of members of the Armed Forces on active duty.  It
 further provides that for purposes of providing such education personnel
 may be employed whose compensation and other incidents of the employment
 relationship may be fixed without regard to "the Civil Service act and
 rules" and specified portions of title 5.  20 U.S.C. Section 241(a).
 Additionally, it states that "to the maximum extent practicable" the
 Secretary shall limit total payments made for such education within the
 Continental United States to an amount per pupil which does not exceed
 the amount spent in comparable communities in the State in which the
 school is located.  20 U.S.C. Section 241(e).
 
    The Agency contends that under these provisions the pay and benefits
 of teachers must be comparable to the pay and benefits of teachers in
 schools in comparable communities -- in this case comparable communities
 in Kentucky.  It contends that, because the payment of overtime as
 proposed would exceed the salaries and benefits provided teachers in
 such communities, the proposal conflicts with the limitations imposed by
 20 U.S.C. Section 241.
 
    Additionally, it asserts, based on its interpretation of the
 legislative history underlying one of the laws /2/ which established the
 provisions of 20 U.S.C. Section 241, that one purpose of that particular
 law was to avoid paying teachers overtime.  Specifically, it relies on
 the Senate Report accompanying the legislation which became law in which
 the committee "took note" of and reproduced a letter from the Secretary
 of the Army which concerned the legislation before it.  /3/ The letter
 expressed support for that portion of the legislation which provided for
 the employment, compensation and other conditions of employment of
 teachers to be established without regard to various Civil Service laws
 and rules.  It noted that the proposed legislation reflected existing
 practice and cited some "illustrative" practices.  Two of the
 illustrative practices cited were:
 
          (1) No overtime pay because teachers were expected to devote
       whatever time was necessary to accomplish customary curricular and
       extracurricular activities;  and
 
          (2) addition of fixed amounts to their basic salaries as
       compensation for assigned extracurricular activities.
 
    We find that the second portion of the proposal conflicts with
 neither the express terms of 20 U.S.C. Section 241 nor the intent of
 Congress underlying that provision.  First, with respect to the argument
 that the proposal would conflict with the express provisions of 20
 U.S.C. Section 241(e) by causing the Agency to exceed the limitations on
 the total per pupil costs of providing an education which are set forth
 therein, the Authority rejected the same argument in Fort Bragg Unit of
 North Carolina Association of Educators, National Education Association
 and Fort Bragg Dependents Schools, Fort Bragg, North Carolina, 12 FLRA
 519 (1983), noting that compensation is only one aspect of total cost.
 As in Fort Bragg, the Agency in this case has not demonstrated that the
 proposal would necessarily prevent it from achieving the overall cost
 limitations specified in 20 U.S.C. Section 241(e).  /4/ Insofar as the
 proposal in the present case requires the payment of overtime
 compensation, it is materially to the same effect as Union Proposal 13
 in Fort Bragg.  Therefore, for the reasons set forth in Fort Bragg the
 Authority finds that the proposal does not conflict with the terms of 20
 U.S.C. Section 241.
 
    Second, in our view, the Agency has not demonstrated by analysis of
 legislative history that Congress intended to prohibit the payment of
 overtime compensation such as that proposed herein.  Rather, the Senate
 Report relied on by the Agency articulates the "purpose" of the
 legislation sought as being to except certain teachers from coverage
 under various provisions of law relating to civil service employment
 including, among others, those relating to pay.  The statements quoted
 above of the Secretary of the Army specifically relating to overtime
 were merely "illustrative of some of the practices" relating to teacher
 employment which had been adopted by Department of Defense and which
 deviated from the provisions of statutes affecting Federal employees
 generally.  We find nothing, however, in either the law or the
 legislative history relied upon by the Agency which persuades us that
 the Congress intended to codify any specific practices such as when to
 pay overtime.
 
                         b.  5 U.S.C. Section 5542
 
    20 U.S.C. Section 241(a) specifically excepts the teachers involved
 here from coverage under, among other provisions, 5 U.S.C. Section 5542.
  The Agency's argument that the overtime compensation for these teachers
 is governed by the provisions of 5 U.S.C. Section 5542 therefore is
 inapposite and need not be considered further.
 
                            2.  Compelling Need
 
    The Agency asserts that the proposal conflicts with a provision of
 its regulations which states that:  /5/
 
          1-7.  Compensation factors.  Education provided . . . will be
       considered comparable to free public education offered by selected
       communities in the State when the following portions are, to the
       maximum extent practicable, equal:
 
                       .  .  .  .  .  .  .
 
 
          h.  Salary schedules.
 
    It contends that salary schedules in contracts covering teachers in
 surrounding Kentucky communities list all compensable extracurricular
 activities and that bus chaperone duties are not among them.
 Consequently, it asserts that the proposal conflicts with its regulatory
 provision that the salary schedules be equal to those of the surrounding
 communities.  It contends that this provision implements in a
 nondiscretionary manner a mandate of Congress to pattern personnel
 practices after those found in the non-Federal service teaching
 profession, not after those found in the Federal service, generally.  It
 asserts therefore that there is a "compelling need" for the regulation
 under Section 2424.11(c) of the Authority's regulations.
 
    Assuming without deciding that the proposal conflicts with the
 Agency's regulation, we find that the Agency has not established a
 compelling need under Section 2424.11(c) of the Authority's regulations.
  The Agency's argument on this point is essentially based on the same
 interpretation of the legislative history of Pub. L. No. 89-77 which we
 rejected in section C(1)(a).  That is, the Agency concludes, based on
 Pub. L. No. 89-77 and the language of the committee report cited in note
 4, above, that Congress intended that the compensation practices of
 public schools in comparable communities in the state in which the
 particular dependent school is located must be applied to the teachers
 at the dependent school.  As set forth above, the Agency has not
 established that the language of 20 U.S.C. Section 241 or the intent of
 Congress in enacting the provisions in question mandates adoption of any
 specific employment or compensation practices.  Consequently, we cannot
 find that the Agency's regulation reflects the nondiscretionary
 implementation of a mandate of Congress.  Thus, we hold that the Agency
 has not demonstrated that a compelling need exists for its regulation to
 bar negotiations on this proposal.
 
                       3.  Conditions of Employment
 
    We find that the Agency has not supported its argument that the
 proposal as it relates to premium pay does not concern conditions of
 employment.  In support of its argument it asserts that:
 
          (1) "premium pay" is specifically provided for by law, i.e., in
       title 5;  and
 
          (2) Congress did not intend pay to come within the ambit of
       "conditions of employment."
 
    As to the Agency's first assertion, we noted previously that 20
 U.S.C. Section 241 explicitly excludes teachers from coverage under the
 provisions governing overtime found at 5 U.S.C. Section 5542.
 Consequently, we reject the Agency's argument here that the overtime
 provisions of title 5 specifically provided for the overtime of the
 employees to whom the proposal would apply.
 
    Turning to the second assertion, we recently reaffirmed that nothing
 in the Statute or its legislative history bars negotiation of proposals
 concerning compensation of employees insofar as (1) the matters proposed
 are not specifically provided for by law and are within the discretion
 of the agency and (2) the proposals are not otherwise inconsistent with
 law, Government-wide rule or regulation or an agency regulation for
 which a compelling need exist.  American Federation of Government
 Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin
 Air Force Base, Florida, 24 FLRA No. 41 (1986), petition for review
 filed sub nom. Department of the Air Force, Eglin Air Force Base,
 Florida v. FLRA, No. 87-3073 (11th Cir. Feb. 2, 1987).
 
    Hence, we find that the portion of the proposal concerning overtime
 pay concerns a condition of employment about which as noted in section
 A(1)(a) above, the Agency has discretion pursuant to 20 U.S.C. Section
 241.  Fort Bragg Unit of North Carolina Association of Educators,
 National Education Association and Fort Bragg Dependents Schools, Fort
 Bragg, North Carolina, 12 FLRA 519 (1983).
 
                        4.  Summary and Conclusions
 
    This portion of the proposal, which would require compensation on an
 overtime basis for bus chaperone duties which extend beyond the normal
 school day, duties is within the duty to bargain.  This portion of the
 proposal concerns a condition of employment about which the Agency has
 discretion under 20 U.S.C. Section 241.  Further, it does not conflict
 with either 20 U.S.C. Section 241 or 5 U.S.C. Section 5542 as asserted
 by the Agency.  Lastly, we find that it does not conflict with an Agency
 regulation for which a compelling need has been established by the
 Agency.
 
                                III.  Order
 
    The Agency must negotiate upon request, or as otherwise agreed to by
 the parties, over that portion of the proposal which addresses
 compensation for bus chaperone duty.
 
    Issued, Washington, D.C., February 27, 1987.
 
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) In finding this portion of the proposal negotiable, we make no
 judgment as to its merits.
 
    (2) Pub. L. No. 89-77, 79 Stat. 244 (1965), reprinted in 1965 U.S.
 Code Cong. & Ad. News 257.
 
    (3) S. Rep. No. 311, 89th Cong., 1st Sess., reprinted in 1965 U.S.
 Code Cong. & Ad. News 1910.  Relevant portions appear as the Appendix to
 this Decision.
 
    (4) If, in combination with other practices and proposals relating to
 expenditures, such circumstances would result, the Agency has recourse
 to raising this argument before the Federal Service Impasses Panel in
 support of its position as to the merits of this and other proposals
 should an impasse occur in conjunction with negotiations.
 
    (5) AR 352-3
 
 
 
 
 
 
 
                   Separate opinion of Chairman Calhoun
 
    In my opinion in American Federation of Government Employees,
 AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force
 Base, Florida, 24 FLRA No. 41 (1986), petition for review filed sub nom.
 Department of the Air Force, Eglin Air Force Base, Florida v. FLRA,
 87-3073 (11th Cir. February 2, 1987), I stated that in the absence of a
 clear expression of Congressional intent to make wages and money-related
 fringe benefits negotiable, I would find that these matters are not
 within the duty to bargain under the Statute.  I find no such expression
 in this case.  Therefore, I do not join the majority.
 
    Issued, Washington, D.C., Februa?y 27, 1987.
 
                                       /s/ Jerry L. Calhoun, Chairman
 
 
 
 
 
 
 
 
                                 Appendix
 
    S. Rep. No. 311, 89th Cong., 1st Sess. provides in relevant part:
 
    Section 2 of H.R. 5874, if enacted, would modify conditions of
 employment of teachers in dependents' schools in the United States.  In
 adopting section 2 as an amendment to H.R. 5874 the committee took note
 of the request contained in correspondence under date of March 4, 1965,
 received from the Honorable Stephen Ailes, Secretary of the Army,
 reproduced below:
                                       Department of the Army,
                                       Washington, D.C.
 
    Hon. Hubert H. Humphrey,
    President of the Senate.
 
    Dear Mr. President:  A draft of legislation to amend section 6(a) of
 the Act of September 30, 1950, relating to conditions of employment of
 teachers in dependents' schools, is enclosed.
 
    This proposal is part of the Department of Defense's legislative
 program for the 89th Congress and the Bureau of the Budget advises that,
 from the standpoint of the administration's program, there is no
 objection to the presentation of this proposal for the consideration of
 the Congress.  The Department of the Army has been designated as the
 representative of the Department of Defense for this legislation.
 
    It is recommended that the proposal be enacted by the Congress.
 
                        PURPOSE OF THE LEGISLATION
 
    The purpose of the proposed legislation is to amend section 6(a) of
 the act of September 30, 1950, chapter 1124, as amended (20 U.S.C.
 241(a)), to provide that the employment, compensation, and other
 conditions of employment of teachers engaged under that section 6 may be
 established without regard to the Civil Service Act and rules (5 U.S.C.
 631), the Classification Act of 1949 as amended (5 U.S.C. 1071), the
 Annual and Sick Leave Act of 1951, as amended (5 U.S.C. 2061), the
 Federal Employees Pay Act of 1945, as amended (5 U.S.C. 901), the
 Veterans' Preference Act of 1944, as amended (5 U.S.C. 851), and the
 Performance Rating Act of 1950, as amended (5 U.S.C. 2001).
 
                       .  .  .  .  .  .  .
 
 
    The military services had considered that the present language of
 section 6 was sufficiently broad to permit the extension of the salary
 fixing system and pay and leave practices applicable in public schools'
 jurisdictions to its teachers in the dependents' schools.  Employment
 practices and contract clauses have been established, therefore, to
 reflect the practices which exist in the public schools.  However, they
 vary considerably from the provisions of statutes affecting Federal
 employees generally.  The following are illustrative of some of these
 practices:
 
                       .  .  .  .  .  .  .
 
 
          (c) No provision is made for overtime pay since teachers are
       expected to devote whatever time is necessary to preparation for
       class sessions, grading of papers, and other customary curricular
       and extracurricular activities.
 
          (d) Fixed amounts are added to the teachers' basic salary to
       compensate for extracurricular activities which they are assigned.
 
                       .  .  .  .  .  .  .
 
 
    The Comptroller General has ruled Comp. Gen. B-138773, May 15, 1959)
 that the general language of section 6 exempts school personnel only
 from the Civil Service Act and rules, as amended, and the Classification
 Act of 1949, as amended, and that other laws which affect Federal
 employees continue to apply to personnel in the dependents' schools.  In
 his letter to the Secretary of Defense, dated November 13, 1961 Comp.
 Gen. B-146622), the Comptroller General stated further that the present
 practices could be continued temporarily with the understanding that
 clarifying legislation would be developed and presented for
 consideration during the 2d session of the 87th Congress. A legislative
 proposal was submitted to the Congress on June 7, 1962, and resubmitted
 on January 29, 1963;  however, there was no action taken with respect to
 the proposal.