25:1132(96)NG - AFGE Local 1770 and DOD Dependent Schools, Fort Bragg, NC -- 1987 FLRAdec NG



[ v25 p1132 ]
25:1132(96)NG
The decision of the Authority follows:


 25 FLRA No. 96
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, AFL-CIO, LOCAL 1770
 Union
 
 and
 
 U.S. DEPARTMENT OF DEFENSE 
 DEPENDENT SCHOOLS, FORT BRAGG, NORTH CAROLINA
 Agency
 
                                            Case No. 0-NG-892
 
               DECISION AND ORDER ON NEGOTIABILITY ISSUE /1/
 
                         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
 Labor-Management Relations Statute (the Statute) and presents issues as
 to the negotiability of a single Union proposal.  We find that the
 proposal is negotiable.  /2/
 
                               II.  Proposal
 
          Employees will be paid an amount equal to the wages or salary
       paid to other employees at Fort Bragg in equivalent wage grade or
       General Schedule positions.
 
                      III.  Positions of the Parties
 
    The Agency contends that the proposal (1) conflicts with law;  (2)
 conflicts with an agency regulation for which a compelling need exists;
 (3) does not concern a condition of employment within the meaning of the
 Statute, and (4) interferes with the Agency's right to determine its
 budget.
 
    The Union disputes the Agency's contentions.
 
                               IV.  Analysis
 
         A.  The Proposal Does Not Conflict with 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.  20 U.S.C.
 Section 241(e).
 
    The Agency contends that under these provisions the pay and benefits
 of the nonprofessional school personnel involved (custodians,
 maintenance workers, secretaries, and library clerks) must be comparable
 to the pay and benefits of personnel in schools in comparable
 communities -- in this case comparable communities in North Carolina.
 It contends that, because the payment of salaries as proposed would
 exceed the salaries and benefits provided school personnel 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 /3/ which established the
 provisions of 20 U.S.C. Section 241, that one purpose of that particular
 law was to limit school personnel salaries and benefits to levels of
 school personnel in comparable communities.  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.  /4/ 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.  One of the
 illustrative practices cited was:
 
          (1) Salary schedules are set up on the basis of a school year
       consisting of 9 or 10 months.  The Federal Employees Pay Act of
       1945, as amended (5 U.S.C. 944(c)(1)), requires computation on a
       calendar year basis.
 
    We find that 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, 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).  /5/ For the reasons set forth in Fort Bragg we find
 that the proposal does not conflict with the terms of 20 U.S.C. Section
 241.
 
    Second,with respect to the intent of Congress in enacting 20 U.S.C.
 Section 241, the Agency's argument is identical to the one we rejected
 in Fort Knox Teachers Association and Fort Knox Dependent Schools 25
 FLRA No. 95 (1987).  In that decision we found that the Agency had not
 demonstrated that Congress intended to prohibit the payment of overtime
 compensation in some circumstances to teachers.  Similarly, here we find
 for the reasons set forth in Fort Knox, that the Agency has not
 demonstrated that Congress intended to prohibit the payment of
 compensation to the employees covered by the proposal which is equal to
 that paid to other employees at Fort Bragg in equivalent positions.
 
                            B.  Compelling Need
 
    The Agency asserts that the proposal conflicts with a provision of
 its regulations which states that:  /6/
 
          1-7.  Compensation factors.  Education provided . . . will be
       considered comparable to free public education offered by selected
       communities in the State when the following factors are, to the
       maximum extent practicable, equal:
 
                       .  .  .  .  .  .  .
 
 
          h.  Salary schedules
 
    It contends that this provision implements in a nondiscretionary
 manner a mandate of Congress to pattern personnel practices for the
 non-teaching school personnel involved here after those found in state
 school systems as opposed to those found in the Federal service,
 generally.
 
    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 2414.11(c) of the Authority's regulations.
  The regulation in question and the Agency's supporting argument here
 are the same as we addressed in Fort Knox Dependent Schools.  We
 concluded in that decision that the agency did not establish 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.  We therefore found that the agency's
 regulation did not reflect the nondiscretionary implementation of a
 mandate of Congress.  Hence, for the reasons set forth in Fort Knox
 Dependent Schools, we find that the Agency has not demonstrated that a
 compelling need exists for its regulation to bar negotiations on the
 proposal.
 
            C.  The Proposal Concerns a Condition of Employment
 
    We find that the Agency has not supported its argument that the
 proposal does not concern conditions of employment.  In support of its
 argument it asserts that Congress did not intend pay to come within the
 ambit of "conditions of employment." We recently addressed this issue in
 detail in American Federation of Government Employees, AFL-CIO, Local
 1897 and Department of the Air Forc e, Eglin Air Force Base, Florida, 24
 FLRA No. 41 (1986), appeal filed sub nom. Department of the Air Force,
 Eglin Air Force Base, Florida v. FLRA, 87-3073 (11th Cir. Feb. 2, 1987).
  We reaffirmed in that decision 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.
 
    Hence, we find that the proposal relating to compensation concerns a
 condition of employment about which, as noted in section IV 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).
 
        D.  The Proposal does not Interfere with the Agency's Right
 
                to Determine its Budget
 
    In American Federation of Government Employees, AFL-CIO and Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604
 (1980), enforced as to other matters sub nom. Department of Defense v.
 Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), the
 Authority held that in order to demonstrate that a union proposal
 directly interferes with management's right to determine its budget
 under section 7106(a)(1) it is necessary for the agency either to show
 that the proposal prescribes the programs and operations to be included
 in the agency's budget or the amount to be allocated for them, or to
 make a substantial demonstration that the anticipated increase in costs
 is significant and unavoidable and is not offset by compensating
 benefits.  In the present case, the Agency claims that the proposal
 would result in a significant increase in costs -- $36,589 based on the
 then current budget -- which are not offset by compensating benefits.
 
    The proposal concerns a program or operation which already exists,
 i.e., wages for employees, and is currently funded by the Agency's
 budget.  Moreover, the proposal does not prescribe the amount to be
 allocated to this program or operation.  Thus, in this respect, the
 proposal does not directly interfere with the Agency's right to
 determine its budget.  Furthermore, the Agency has not in our view made
 a substantial demonstration that the implementation of the proposal will
 result in a significant, unavoidable increase in costs.  The claimed
 increase of $36,589 with respect to the bargaining unit is less than 1/3
 of 1 percent of the $12,000,000 Fort Bragg school budget for the same
 period.  National Treasury Employees Union, Chapter 6 and Internal
 Revenue Service, New Orleans Districts, 3 FLRA 747, 764-66 (1980).
 Therefore, it is not necessary to consider whether the alleged increase
 in costs is outweighed by compensating benefits.  Consequently, in this
 respect also the proposal at issue does not directly interfere with the
 right of the Agency to determine its budget under section 7106(a)(1).
 
                        VI.  Conclusion and Summary
 
    The proposal is within the duty to bargain.  It concerns a condition
 of employment about which the Agency has discretion under 20 U.S.C.
 Section 241.  It does not conflict with either 20 U.S.C. Section 241 or
 with an Agency regulation for which a compelling need has been
 established, as asserted by the Agency.  Lastly, it does not interfere
 with the Agency's right to determine its budget under section
 7106(a)(1).
 
                                VI.  Order
 
    The Agency must negotiate upon request, or as otherwise agreed to by
 the parties, concerning the Proposal.
 
    Issued, Washington, D.C., February 27, 1987.
 
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Chairman Calhoun dissents for the reasons stated in his separate
 opinion.
 
    (2) In finding the proposal negotiable, we make no judgment as to its
 merits.
 
    (3) Pub. L. No. 89-77, 79 Stat. 243 (1965), reprinted in 1965 U.S.
 Code Cong. & Ad. News 257.
 
    (4) S. Rep. No. 311, 89th Cong., 1st Sess., reprinted in 1965 U.S.
 Code Cong. & Ad. News 1910.  Relevant portions appear as an Appendix to
 this Decision.
 
    (5) 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.
 
    (6) AR 352-3.
 
 
 
 
 
 
                   Separate Opinion of Chairman Calhoun
 
    I agree with the majority that the Agency's arguments in this case
 are essentially the same as those in Fort Knox Teachers Association and
 Fort Knox Dependent Schools, 25 FLRA No. 95 (1987).  Therefore, for the
 reasons stated in my opinion in that case, as well as 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 would find that the Agency is not obligated under
 the Statute to bargain over the Union's proposal.  Accordingly, I do not
 join the majority opinion.
 
    Issued, Washington, D.C., February 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 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 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:
 
                       .  .  .  .  .  .  .
 
 
    (a) Salary schedules are set up on the basis for a school year
 consisting of 9 or 10 months.  The Federal Employees Pay Act of 1945, as
 amended (5 U.S.C. 944(c)(1)), requires computation on a calendar year
 basis.
 
                       .  .  .  .  .  .  .
 
 
    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