26:0934(108)NG - Fort Knox Teachers Association and Fort Knox Dependent Schools -- 1987 FLRAdec NG



[ v26 p934 ]
26:0934(108)NG
The decision of the Authority follows:


 26 FLRA No. 108
 
 FORT KNOX TEACHERS ASSOCIATION
 Union
 
 and
 
 FORT KNOX DEPENDENT SCHOOLS
 Agency
 
                                            Case No. 0-NG-876
 
               DECISION AND ORDER ON NEGOTIABILITY ISSUE /1/
 
                         I.  Statement of the Case
 
    This case is 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).  The appeal concerns
 the negotiability of the following two-part proposal:
 
          1.  After ten years of continuous service at Fort Knox, a one
       year sabbatical leave shall be granted upon request by the
       individual unit member.  Such leave shall be granted by FKBE for
       educational advancement or appropriate travel of the unit member.
       The one year sabbatical leave granted for education advancement
       shall be for one hundred percent of the unit member's base pay.
       The one year sabbatical leave granted for appropriate travel shall
       be for seventy-five percent of the unit member's base pay.
 
          2.  The unit member shall be reinstated to his original
       position at the end of the sabbatical.  The same unit member shall
       not be eligible for another sabbatical until an additional ten
       years of continuous service at Fort Knox is completed.  Unit
       members granted sabbatical leave will enter into an agreement to
       remain in the Fort Knox school system for a minimum of three years
       after completing their year of sabbatical leave.
 
                       II.  Positions of the Parties
 
    The Agency essentially contends that the portion of the proposal
 which relates to granting sabbatical leave to an employee for travel
 purposes is nonnegotiable because it:  (1) does not concern conditions
 of employment within the meaning of the Statute;  (2) conflicts with
 law;  and (3) conflicts with an agency regulation for which a compelling
 need exists.  The Agency also asserts that the portion of the proposal
 which relates to the reinstating of an employee to his/her original
 position at the end of the sabbatical leave violates management's right
 to assign employees under section 7106(a)(2)(A) and conflicts with law.
 
    The Union denies that the proposal conflicts with law or regulation.
 It also argues that the proposal concerns a condition of employment and
 denies that the proposal violates management rights to assign employees
 under section 7106(a)(2)(A).
 
                              III.  Analysis
 
        A.  The First Portion of the Proposal Is Within the Duty To
 
                Bargain
 
                       1.  Statutory Considerations
 
    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), appeal docketed sub nom. Department of the Air Force,
 Eglin Air Force Base, Florida v. FLRA, No. 87-3037 (11th Cir. Feb. 2,
 1987), the Authority held nothing in the Statute, or its legislative
 history, bars negotiation of proposals relating to pay and fringe
 benefits insofar as (1) the matters proposed are not specifically
 provided for by law and are otherwise inconsistent with law,
 Government-wide rule or regulation or an agency regulation for which a
 compelling need exists.  Based on the analytical framework established
 there, we held that the proposal in Eglin Air Force Base, which required
 the agency to pay up to a certain percentage of the premium cost of
 health insurance for non-appropriated fund employees, was within the
 duty to bargain.  We noted in that case also that in the Federal sector,
 wages and fringe benefits of most employees are established and
 controlled by law.  However, there are exceptions where matters
 concerning the nature and amount of the wages and fringe benefits are
 left to the discretion of the employing agencies.  See also American
 Federation of Government Employees, AFL-CIO, Local 997 and Department of
 the Air Force, Maxwell Air Force Base, Alabama, 24 FLRA No. 51 (1986),
 appeal filed sub nom. Department of the Air Force, Maxwell Air Force
 Base, Alabama v. FLRA, No. 87-7102 (11th Cir. Feb. 11, 1987) (proposal
 concerning payment by the employer for various other types of insurance,
 including health insurance, was found to be within the scope of
 bargaining).
 
    In the present case the first portion of the proposal would, in
 relevant part, require the Agency to grant Fort Knox Dependent School
 teachers, employed in the bargaining unit under 20 U.S.C. Section
 241(a), a 1-year sabbatical leave for educational advancement at full
 pay or a 1-year sabbatical leave for appropriate travel at 75 percent
 pay.
 
    The Agency argues that this portion of the proposal violates 20
 U.S.C. Section 241.  Essentially, the Agency argues that based on the
 express language of 20 U.S.C. Section 241 and the legislative history
 underlying one of the laws which established the provisions of 20 U.S.C.
 Section 241, /2/ the Agency's per pupil cost in Dependent Schools is
 limited to the per pupil cost of free public education in comparable
 communities in the appropriate state, here, Kentucky.  According to the
 Agency, since payroll costs account for nearly 80 percent of all
 expenditures, it is not possible to conform to the statutory mandate of
 comparable per pupil costs without limiting teacher salaries and
 benefits to levels which are comparable to those provided in Kentucky.
 The Agency claims that since applicable Kentucky law does not permit a
 leave of absence for travel purposes, this portion of the proposal would
 increase the benefits provided to bargaining unit employees as compared
 to those accorded to teachers in Kentucky.  Thus, the Agency concludes
 this portion of the proposal is inconsistent with the express provisions
 of 20 U.S.C. Section 241 and its applicable legislative history.
 
    With respect to the argument that the proposal would conflict with
 the express provisions of 20 U.S.C. Section 241 by causing the Agency to
 exceed the limitations on the total per pupil costs of providing an
 education which are set forth in that statute, 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 limitation
 specified in 20 U.S.C. Section 241.  /3/
 
    Further, in our view the Agency has not demonstrated by analysis of
 legislative history that Congress intended the Agency to be bound to
 match exactly the conditions of employment of teachers in local school
 districts.  Rather, the Senate Report relied upon 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 and fringe benefits.  The statements of the Secretary of the Army
 quoted in the Senate Report merely illustrated some of the practices
 relating to teacher employment which had been adopted by the Department
 of Defense and which deviated from provisions of statutes affecting
 Federal employees generally.  We find nothing in either the law or the
 legislative history relied upon by the Agency which persuades us that
 Congress intended to restrict the Agency's discretion as to the
 particluar employment practices relating to pay and fringe benefits
 which could be adopted.  See also Fort Knox Teachers Association and
 Fort Know Dependent Schools, 25 FLRA No. 95 (second portion of the
 proposal) (1987), petition for review filed sub nom. Fort Knox Dependent
 Schools v. FLRA, No. 87-3395 (6th Cir. Apr. 27, 1987).
 
                            2.  Compelling Need
 
    The Agency asserts that this portion of the proposal conflicts with a
 provision of its Army Regulation (AR) 352-3 which states that:
 
          1-7.  Compensation Factors.  Education provided . . . will be
       considered comparable to free public education offered by selected
       communities of the State when the following factors are, to the
       maximum extent practicable, equal:
 
                       * * * *
 
 
          h.  Conditions of employment.
 
    It contends that private sector teacher contracts in Kentucky do not
 contain provisions granting sabbatical leave for travel reasons and
 compensation is not provided for that purpose.  Consequently, it asserts
 that the proposal conflicts with its regulatory provision stating that
 conditions of employment, to the maximum extent practicable, in the
 dependent schools are 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.  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 this portion of the proposal conflicts
 with the Agency 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.
 89-7 which we rjected in section A(1) of this decision.  That is, the
 Agency concludes, based on Pub. L. No. 89-77 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 20 U.S.C. Section 241 or its
 legislative history, mandates adoption of any specific employment or
 compensation practices.  Rather, Congress left the Agency with
 discretion within certain specified guidelines to establish compensation
 and other employment practices.  Consequently, we hold that the Agency
 has not demonstrated that a compelling need exists for its regulation to
 bar negotiations on this part of the proposal.
 
        B.  The Second Portion of the Proposal Is Outside the Duty
 
                to Bargain
 
         1.  The Second Portion of the Proposal Conflicts with the
 
                Right to Assign Employees
 
    The second portion of the proposal would require the Agency to assign
 a teacher to his/her original position when that teacher returned from
 sabbatical leave.
 
    It is well established that under section 7106(a)(2)(A) of the
 Statute the right to assign an employee to a position includes the
 discretion to determine which employee will be assigned.  See American
 Federation of Government Employees, AFL-CIO and Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980),
 affirmed sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C.
 Cir. 1982), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).
 This portion of the proposal restricts the Agency's discretion to
 determine which employee to assign to a position.  Specifically, it
 requires the Agency to assign a returning employee to the particular
 position that employee had filled before taking sabbatical leave.  It
 prevents the Agency from assigning that returning employee to any other
 available position or any other employee to that position.  Thus, this
 portion of the proposal is nonnegotiable.  See also American Federation
 of Government Employees, AFL-CIO, Local 3529 and Defense Contract Audit
 Agency, 3 FLRA 301 (1980).
 
         2.  The Second Portion of the Proposal does not Conflict
 
                with Law
 
    The Agency contends that this part of the proposal would entitle
 employees to their original position upon completion of their sabbatical
 leave.  Thus, according to the Agency, as this part of the proposal
 would obligate the Government for expenditure of funds in a succeeding
 fiscal year, it violates the provisions of the Antideficiency Act, 31
 U.S.C. Section 1341(a), which provides in part as follows:
 
          Section 1341.  Limitations on expending and obligating amounts
 
          (a)(1) An officer or employee of the United States Government
       or of the District of Columbia government may not --
 
          (A) make or authorize an expenditure or obligation exceeding an
       amount available in the appropriation or fund for expenditure or
       obligation;  or
 
          (B) involve either government in a contract or obligation for
       the payment of money before an appropriation is made unless
       authorized by law.
 
    In support of its position the Agency relies upon a number of
 Comptroller General decisions interpreting the Antideficiency Act.
 
    Contrary to the Agency's view however, we find that this part of the
 proposal does not violate the Antideficiency Act.  In our view, the
 bargaining unit teachers employed under 20 U.S.C. Section 241 are
 employees of the Government and subject to all statutes pertaining to
 Government employment unless specifically exempted.  Accord, 58 Comp.
 Gen. 430 (1979) and cases cited in that decision.  The Agency in this
 case has established that a requirement to reinstate an employee
 returning from a sabbatical leave is inconsistent with the holdings of
 the Comptroller General that salaries of Government employees, as well
 as related items that flow from those salaries such as retirement fund
 contributions, are obligations only at the time the salaries are earned,
 that is, when the services are rendered, in this case, when the returned
 employee actually provides services.  See, for example, 38 Comp. Gen.
 316 (1958).  Thus, negotiation of this part of the proposal would not
 obligate the Government for expenditure of funds in a succeeding fiscal
 year in violation of the Antideficiency Act.  See also Unpublished
 Decision of the Comp. Gen., B-187881, Oct. 3, 1977.
 
                       IV.  Summary and Conclusions
 
    We conclude that the first portion of the proposal which relates to
 granting certain employees a 1-year sabbatical leave concerns a
 condition of employment about which the Agency has discretion under 20
 U.S.C. Section 241.  Further, the first portion of the proposal does not
 conflict with 20 U.S.C. Section 241 or with an Agency regulation for
 which a compelling need has been established by the Agency.
 
    The second portion of the proposal which requires the Agency to
 reassign a teacher to his/her original position after completion of
 his/her sabbatical leave conflicts with management's right to assign
 employees under section 7106(a)(2)(A).  However, this portion of the
 proposal does not conflict with 31 U.S.C. Section 1341(a) the
 Antideficiency Act.
 
                                 V.  Order
 
    The Agency must negotiate upon request or as otherwise agreed to by
 the parties over that portion of the proposal granting certain employees
 sabbatical leave for travel.  /4/ However, the Union's petition as to
 that portion of the proposal which addresses the reassignment of a
 teacher to their original position after the completion of sabbatical
 leave is dismissed.
 
    Issued, Washington, D.C., April 30, 1987.
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                   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, Flordia v. FLRA, No.
 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 see no such statement
 of Congressional intent in this case.  Therefore, I do not join the
 majority decision.  See also Fort Knox Teachers Association and Fort
 Knox Dependent Schools, 25 FLRA No. 95 (1987), petition for review filed
 sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3395 (6th Cir.
 April 27, 1987);  and American Federation of Government Employees,
 AFL-CIO, Local 1770 and U.S. Department of Defense, Dependent Schools,
 Fort Bragg, North Carolina, 25 FLRA No. 96 (1987), petition for review
 filed sub nom. Department of Defense, Dependent Schools, Fort Bragg,
 North Carolina v. FLRA, No. 87-3061 (4th Cir. April 27, 1987).
 
    I agree with the majority that the second portion of the proposal is
 nonnegotiable because it conflicts with the Agency's right to assign
 work.
 
    Issued, Washington, D.C., April 30, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) Chairman Calhoun dissents for the reasons stated in his separate
 opinion.
 
    (2) Pub. L. No. 89-77, 79 Stat. 244 (1965), reprinted in 1965 U.S.
 Code Cong. & Ad. News 257.
 
    (3) If, in combination with other practices and proposal