27:0203(34)NG - Fort Knox Teachers Ass'n and Board of Education of the Fort Knox Dependent Schools -- 1987 FLRAdec NG
[ v27 p203 ]
The decision of the Authority follows:
27 FLRA No. 34 FORT KNOX TEACHERS ASSOCIATION Union and BOARD OF EDUCATION OF THE FORT KNOX DEPENDENTS SCHOOLS Agency Case No. 0-NG-778 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)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of six provisions of a negotiated agreement which were disapproved by the Agency head in the course of review under section 7114(c)(1) of the Statute. /1/ II. The Agency Head's Disapproval was Timely The Union contends that the Agency head's disapproval of provisions in the locally executed agreement was untimely because it was not received within the time limit prescribed by section 7114(c)(2) of the Statute. However, under sectin 2429.27(d) of the Authority's Rules and Regulations, the date of service is the date on which a document is hand delivered or deposited in the U.S. mail. The record in this case establishes that the Agency head's disapproval was served on the Union, that is deposited in the U.S. mail, within the 30-day time limit prescribed by the Statute. Thus, the Union's contention cannot be sustained. III. Agency Procurement Regulations Do Not Bar Negotiations The Agency head disapproved a number of provisions of the locally executed agreement on the grounds that the provisions were inconsistent with various procurement regulations for which the Agency claims a compellling need exists. The Agency argues, in essence, that the "personal services contracts," under which teachers are employed at Fort Knox Dependents Schools, must be awarded in accordance with provisions of the Army Procurement Regulation (ADAR) and the Defense Acquisition Regulation (DAR). The Agency contends further that the DAR was issued under statutory authority and has the force of law. The Agency claims that a compelling need exists for the ADAR because it implements and supplements the DAR in a nondiscretionary manner. Thus, according to the Agency, since the terms of "personal services contracts" must conform to the ADAR and the DAR, any provision of the executed agreement which conflicts with those terms is nonnegotiable. In our view, the Agency is arguing, in effect, that the teachers in this case are independent contractors who provide teaching services exclusively under the terms of their "personal services contracts." This position is without merit. The Agency has not identified a specific conflict between any provision of the executed agreement and provisions of the ADAR or the DAR or even cited to any specific provision in the ADAR or the DAR upon which it relies. Moreover, the Agency has not established that the cited procurement regulations in any manner apply to the teachers in this case. Instead, it is well established that teachers employed under 20 U.S.C. Section 241 are not independent contractors but rather, employees of the Government subject to all statutes pertaining to Government employment unless specifically exempted. For example, see the Decision of the Administrative Law Judge adopted by the Authority in Department of the Army, Fort Bragg Schools, 3 FLRA 364, 370-74 (1980); accord 58 Comp. Gen. 430, 434 (1979). Thus, we reject the Agency's claim that the cited procurement regulations bar negotiations on the provisions in dispute in this case. In our opinion, the "personal services contracts" used by the Agency in this case constitute nothing more than written statements of the particular terms and conditions of the employment under which teachers will be employed. To the extent that those terms are not specifically provided for by law and are within the discretion of the Agency and are not otherwise inconsistent with law, Government-wide rule or regulation or other agency regulations for which a compelling need exists they are within the duty to bargain. See National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), petition for review filed sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, No. 86-1198 (D.C. Cir. Mar. 27, 1986). IV. Provision 1 Article VI, No Strike Provision 4. The Employer shall not lock-out its Employees during the term of this Contract. A. Positions of the Parties The Agency points out that "lock-out" is defined elsewhere in the agreement as a "voluntary cessation of school operation on the part of the Employer which has as its object preventing Employees from working." Based on that definition, the Agency contends that the disputed provision would prevent it from determining voluntarily to cease school operations for any reason or from laying off bargaining unit employees. Therefore, the Agency asserts, the provision violates the management rights to determine its organization and to lay off employees under section 7106(a)(2)(A) of the Statute. The Union contends that there is no evidence supporting the Agency's construction of the provision. It asserts this provision was included in the agreement to balance the no-strike provision with a statement protecting employees' rights. The term "lock-out," the Union argues, was intended by the local parties to convey the meaning commonly attached to it in the field of labor relations. Union Reply Brief at 2. B. Analysis and Conclusion The dispute over Provision 1 concerns the meaning and purpose of the provision. The Agency notes, "(n)ormally, a lock-out is the withholding by management of Employment as a means of bringing employees to accept the Employer's terms during negotiations. The Federal Government is precluded from locking out its employees to compel acceptance of its negotiation proposals." Statement of Position at 4. Thus, it appears that the Agency would not object to the provision if it concerned a "lock-out," as that term is understood in private sector labor relations. The Union expressly states that the term "lock-out" is intended to convey the meaning commonly applied to it in the labor relations field. In our view, the Union's explanation of the provision's purpose and meaning is consistent with the proposal's plain language. The Agency does not dispute the provision's negotiability if the meaning of "lock-out" is limited to that commonly applied in labor relations. We have construed the term to be so limited. Provision 1 does not prevent the Agency from exercising its rights under section 7106(a)(2)(A) to determine its organization and to layoff. In essence, therefore, the proposal simply restates the requirements of existing law. Thus, Provision 1 is within the duty to bargain. V. Provision 2 Article VII, Grievance Procedure, Section 1, Definitions As used in this Procedure: 1. "grievance" means any complaint by an Employee concerning any matter relating to the employment of said Employee; any complaint by the Association concerning any matter relating to the employment of any Employee; or any complaint by any Employee, the Association, or the Employer as defined in this Contract, concerning the effect or interpretation, or claim of breach of this Contract; or any alleged or claimed violation, misinterpretation or misapplication of any law, rule or regulation affecting conditions of employment. Exemptions from this Procedure shall include such subjects as: a. Any claimed violation of subchapter III of chapter 73 of Title 5, U.S. Code (relating to prohibited political activities); b. Retirement, life insurance or health insurance; c. A suspension or removal under section 7532 of Title 5, U.S. Code; d. Any examination, certification, or appointment; e. The classification of any position which does not result in the reduction in pay or grade of an employee; and f. Any matter appropriate for processing under the Contract Disputes Act of 1978, except where it is in conflict with PL 95-454, Title VII, Federal Service Labor-Management Relations. (Subsection F of the provision is in dispute.) A. Positions of the Parties The Agency asserts that Provision 2 conflicts with the Contract Disputes Act of 1978, 41 U.S.C. Sections 601-613. The Agency takes the position that in enacting the Contract Disputes Act, Congress intended that the procedures contained in that Act be the exclusive method for resolving disputes arising out of Government contracts. The Union contends that the provisions of the Contract Disputes Act are inapplicable to the parties' negotiated agreement. It points out that the Contract Disputes Act applies to the procurement of services, among other things. According to the Union, the parties' negotiated agreement procures no services. Rather, the agreement applies to employees whose services have already been, or will be procured by other contractual or statutory means. The Union also argues that the Contract Disputes Act is expressly limited to four instances, none of which are applicable to a collective bargaining agreement and does not clearly state that the procedures are exclusive, "notwithstanding any other provision of law." On the other hand, the Union notes, a negotiated grievance procedure under section 7121(a)(1) of the Statute is the exclusive procedure for resolving grievances falling within its coverage. B. Analysis and Conclusion The Agency's contention as to this provision is apparently based on its view that because "personal services contracts" are utilized to employ teachers in the Fort Knox Dependents Schools any dispute over the terms and conditions of employment set out in those contracts must be resolved exclusively under the Contract Disputes Act. This contention cannot be sustained. As we previously stated in section III of this decision, the teachers in this case are employees of the Government subject to all statutes pertaining to Government employment unless specifically exempted. There is nothing in the express provisions of the Federal Service Labor-Management Relations Statute, and the Agency does not cite to anything in its legislative history, which indicates that Congress sought to exclude individuals employed under 20 U.S.C. Section 241 from its coverage. Further, the Agency has cited no provision in the Contract Disputes Act, which was enacted subsequent to the Statute, which indicates that Congress intended to include the Statute among the provisions of law which were either amended or repealed by the Contract Disputes Act. Thus, we conclude that the bargaining unit teachers in this case may negotiate a grievance procedure under section 7121 of the Statute which, consistent with section 7103(a)(9), may encompass any "matter relating to the employment of the employee" or any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment." Further, section 7121(a) requires that except for those matters set out in section 7121(d) and (e), this grievance procedure must be the exclusive procedure for resolving grievances within its coverage. Consequently, Provision 2 is negotiable. Provision 3 Article VII, Grievance Procedure, Section IV, Powers of the Arbitrator. It shall be the function of the arbitrator, and he/she shall be empowered, except as his/her powers are limited below, after due investigation, to make an award which shall be final and binding upon both parties . . . . (The underscored part of the provision is in dispute.) A. Positions of the Parties The Agency contends that the provision seeks to divest management of its right to appeal arbitration awards under section 7122 of the Statute. The Union asserts that terms of the negotiated agreement are subject to applicable law, including section 7122. Therefore, the provision is not inconsistent with Federal law. B. Analysis and Conclusion Contrary to the Agency's position, we find that Provision 3 does not conflict with section 7122 of the Statute. Based on the record, Provision 3 is that portion of the negotiated grievance procedure setting out the powers of an arbitrator in resolving a grievance which has not been settled at an earlier stage of the grievance procedure. Provision 3 merely recognizes that an arbitrator's award is intended to be the final and binding resolution of the unsettled grievance. This requirement is entirely consistent with section 7121(b)(3)(C) of the Statute which provides that a grievance not settled under a negotiated grievance procedure "shall be subject to binding arbitration." Of course, under section 7122 of the Statute an arbitrator's award actually becomes legally binding on the parties only in either of two circumstances: (1) when neither of the parties files exceptions within 30 days of the award; or (2) when the award is sustained by the Authority after a timely filing of exceptions. Once an award is final and binding Section 7122(b) provides, "(a)n agency shall take the actions required by an arbitrator's final award. This award may include the payment of backpay (as provided in section 5596 of this title)." There is nothing in the record in this case which indicates that Provision 3 was intended to address in any manner whether and under what conditions a final arbitration award may be appealed to the Authority under section 7122. There is also no indication in the record that the Union intended Provision 3 to require the Agency to comply with an arbitrator's award before that award becomes legally binding on the parties under section 7122. Thus, we do not view Provision 3 to be inconsistent with the Statute simply because it does not expressly set out the right of either party to appeal an arbitrator's award to the Authority. Consequently, Provision 3 is within the duty to bargain. VII. Provision 4 The FLRA Members disagree over the negotiability of this provision. The decision and order on Provision 4 and Chairman Calhoun's dissent immediately follow this decision. VIII. Provision 5 Article XIV, Term and General Conditions 1. Term This Contract shall be effective as of the 31st day following signature of the Commanding General, and continue in effect through October 31, 1985 . . . . A. Position of the Parties The Agency contends that the provision violates section 7114(c) of the Statute. The Union asserts that the parties to the execution of the agreement had no intention of violating the requirements established by section 7114(c). The Union states that the 31-day period was included to allow the Agency its 30-day review period. Reply Brief at 5. B. Analysis and Conclusion It is well established that an agency head's disapproval of a locally negotiated agreement under section 7114(c)(3) of the Statute must be served on the Union involved within 30 days from the date the agreement is executed by the parties. See, for example, National Federation of Federal Employees, Local 1862 and Department of Health, Education and Welfare, Public Health Service, Phoenix, Arizona, 3 FLRA 182 (1980). The Agency points out that timely notice of disapproval is accomplished when the notice is desposited with the U.S. Postal Service within the 30-day period. Thus, a notice may be timely even though not received by the local parties within the prescribed 30 days. However, we do not find that the provision would invalidate the disapproval in that situation. We are persuaded that the provision was intended to conform to statutory requirements. Furthermore, we do not find that the express language of the provision contravenes the requirement in section 7114(d)(3) that an executed agreement is subject to any applicable law, rule, or regulation notwithstanding the absence of any agency head disapproval. Accordingly, we conclude that Provision 5 is within the Agency's bargaining obligation. IX. Provision 6 Article XIV, Term and General Conditions 5. Contract Supremacy Policies, rules and regulations of the Employer shall be consistent with agreements in this contract. A. Positions of the Parties In its disapproval of the locally executed agreement the Agency argued that to the extent Provision 5 permitted provisions in the executed agreement to be paramount over inconsistent provisions in teacher "personal services contracts" it violated law or various Agency regulations for which a compelling need existed, namely, the ADAR, the DAR and AR 352-3. In its Statement of Position the Agency contended that to the extent Provision 6 reqired Government-wide rules or regulations in effect at the time the agreement was negotiated either to conform to provisions of the agreement or otherwise not bar negotiations, it violated section 7117 of the Statute. In support, the Agency relied on language in the Union's explanation of the meaning of this provision which the Agency interpreted to have that effect. The Union expressly asserts that the provision is intended to protect bargaining unit employees from changes to activity rules and policy which would conflict with provisions of the agreement. Reply Brief at 5-6. B. Analysis and Conclusion For the reasons set out in section III of this decision we reject the Agency's claim that a compelling need exists for the ADAR and the DAR. We also reject the Agency's claim that a compelling need exists for AR 352-3. In this respect and apart from other considerations, the Agency has made no showing of any conflict between that regulation and Provision 6 or otherwise demonstrated that the AR 352-3 is supported by a compelling need with reference to the illustrative standards set out in section 2424.11 of the Authority's Regulations. Generalized and conclusionary reasoning does not support a finding of compelling need. American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 7). As to the Agency's claim that the provision violates section 7117 of the Statute, there is nothing in the language of Provision 6 which indicates that provisions in the executed agreement would not have to be in compliance with Government-wide regulations in effect when the agreement was executed. Moreover, as noted above, the Union expressly stated that this provision was intended only to protect employees from changes in activity rules and policies which would conflict with provisions in the agreement. Thus, we find tht Provision 6 is to the same effect as to the provisions which the Authority found negotiable in National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 13 FLRA 554 (1983) and National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 9 FLRA 983 (1982) (Article 2 sections 1A and B, Article 32 section 10A, and Article 40 section 3). Those provisions similarly provided that the parties' agreement would take precedence over existing (Internal Revenue Service) or subsequently-issued (Internal Revenue Service and U.S. Customs Service) agency rules or regulations with which it conflicted. Accordingly, for the reasons set forth more fully in Internal Revenue Service and U.S. Customs Service, we conclude that Provision 6 is within the duty to bargain. See also International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987) (Provision 1). X. Order The Agency shall rescind its disapproval of the disputed Provisions. /2/ Issued, Washington, D.C., May 29, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY DECISION AND ORDER ON PROVISION 4 Provision 4 which concerns sick leave, personel leave, emergency leave, unpaid leave, jury duty leave, in-service leave and temporary disability leave is set forth in its entirety in the Appendix to this decision. A. Positions of the Parties In its disapproval of the locally executed agreement the Agency contended that Provision 4 was nonnegotiable because indvidual portions of the provision were inconsistent with provisions of the ADAR, a primary national subdivision regulation for which a compelling need was claimed to exist, or with teacher "personal services contracts" which conformed to the ADAR. In its Statements of Position the Agency also contended that the portions of the provision providing for personal leave, sick leave, emergency leave, unpaid leave, jury duty leave and temporary disability leave over the life of the agreement violated both Comptroller General decisions and the Antideficiency Act, 31 U.S.C. Section 1341(a). Specifically, it asserted that these portions required the obligation of funds over more than one fiscal year in violation of requirement that employees' salaries and expenses be payable only from appropriations for the fiscal year in which services are rendered. In addition, the Agency claimed that the portions of the provision concerning unpaid leave and temporary disability leave also were inconsistent with an Agency regulation for which a compelling need exists under section 2424.11(c) of the Authority's Rules and Regulations. The Union cites 31 U.S.C. Section 712(a) (currently codified at 31 U.S.C. Section 1502(a)), as standing for the proposition that the Agency may lawfully obligate itself during one fiscal year for sick leave obligations to be paid in the following fiscal years. It therefore asserts that leave provisions are not nonnegotiable merely because the term of the parties' agreement extends beyond one year. The Union also contends that the portion of the provision concerning unpaid leave and temporary disability leave offers leave benefits "comparable" to those granted to teachers by Kentucky law. Therefore the provision does not violate the regulation relied upon by the Agency. B. Analysis 1. No Compelling Need for The Agency's Regulations For the reasons set out in section III of this decision we find tht the Agency has not established a compelling need for cited procurement regulations. Thus, they do not bar negotiation of this provision. The Agency also argued that the portions of Provision 4 concerning unpaid leave and temporary disability leave were inconsistent with Army Regulation (AR) 352-3 for which a compelling need exists under section 2424.11(c) of the Authority's Regulations. Specifically, the Agency contends that this regulation requires equality, to the maximum extent possible, between the conditions of employment of teachers in the Fort Knox Dependent Schools and the conditions of employment of teachers in selected communities in Kentucky. The Agency claims that this regulation implements the Congressional mandate of 20 U.S.C. Section 241(a)(2) that the Agency take such action as may be necessary to ensure that the education provided to dependents is comparable to free public education provided for children in comparable communities in the state where the dependent school is located, in this case, Kentucky. According to the Agency, since these portions of Provision 4 are inconsistent with applicable Kentucky law, they are inconsistent with the statutory mandate as reflected in the Agency's regulations. In support of this position the Agency relies upon the applicable legislative history of 20 U.S.C. Section 241. Assuming without deciding that this provision 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. In our view the Agency has not demonstrated by analysis of the legislative history of 20 U.S.C. Section 241 that Congress intended the Agency 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 exempt certain teachers from coverage of various provisions of law relating to civil service employment including, among others, those relating to pay and fringe benefits. The statement 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 its legislative history which persuades us that Congress intended to restrict the Agency's discretion as to the particular employment practices which could be adopted. See also Fort Knox Teachers Association and Fort Knox Dependent Schools, 25 FLRA No. 95 (second portion of the proposal) (1987). Consequently, the issue of whether the provision is inconsistent with employment practices in the locality, as set out in Kentucky law, does not determine the provision's negotiability. 2. The Provision Does Not Violate Law Contrary to the Agency's view, we do not find that this provision violates the Antideficiency Act. Insofar as is applicable to this dispute, that Act bars the Agency from entering into a contract which would obligate it to: (1) expend funds in excess of those appropriated for the fiscal year in which the agreement is negotiated, or (2) expend funds prior to their appropriation. It is the latter prohibition that the Agency contends is violated by Provision 4. See Statement of Position at 14. In interpreting the Antideficiency Act the Comptroller General has held that salaries of Government employees, as well as related items that flow from those salaries such as retirement fund contributions, are obligations of the Government at the time they are earned, that is, when the services are provided. See, for example, 38 Comp. Gen. 316 (1958). In addition, the use of leave obligates appropriations which are current at the time the leave is taken. 50 Comp. Gen. 863, 865 (1971). Thus, contrary to the Agency's claim, the obligation of funds resulting from the taking of leave would not actually occur until the employee took the leave. Further, there would be no obligation of funds with respect to paying an employee when the employee returned from leave until the employee actually provided services. Consequently, the Agency has not established that negotiation of this provision would obligate funds prior to their appropriation so as to violate the Antideficiency Act. C. Conclusion The Agency has not sustained its burden of establishing that a compelling need exists for the regulations raised as a bar to negotiating on Provision 4. Moreover, the provision does not violate the Antideficiency Act. Accordingly, because Provision 4 concerns a condition of employment not provided for by Federal statute, it is within the duty to bargain. D. Order The Agency shall rescind its disapproval of Provision 4. /3/ Issued, Washington, D.C., May 29, 1987. /s/ Henry B. Frazier, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY Separate Opinion of Chairman Calhoun on Provision 4 Provision 4 concerns various types of leave authorized for bargaining unit employees. In my opinion in Fort Knox Teachers Association and Fort Knox Dependent Schools, 26 FLRA No. 108 (1987), I stated that I would find a proposal providing sabbatical leave for teachers to be nonnegotiable because 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. For the same reasons that I did not join the majority decision in Fort Knox Dependent Schools, I do not join the majority decision here. Issued, Washington, D.C., May 29, 1987. /s/ Jerry L. Calhoun, Chairman --------------- FOOTNOTES$ --------------- (1) In its Statement of Position, the Agency withdrew its disapproval of a provision concerning employee dues withholding. Hence, that provision is not considered here. (2) In finding these provisions negotiable, we make no judgment as to their merits. (3) In finding this provision negotiable, we make no judgment as to its merit. APPENDIX Provision 4 Article IX Leaves 1. Sick Leave Full-time Employees employed under contract by the Board shall be provided ten (10) days sick leave with pay annually. If in any one school year, the Employee shall be absent for such sickness fewer than the prescribed number of days, the remaining days shall accumulate without limit. Employees shall submit a certificate from a physician or a personal affidavit on the Board-approved form, verifying such sickness. When sick leave is requested for more than three (3) consecutive workdays, submission of a medical certificate, or an SF 71 completed by a physician (or practitioner) is required. The medical certificate, or SF 71, will show the period of time and the reason the Employee was incapacitated for duty. Submission will be made NLT two (2) weeks after the Employee's return to duty. An Employee may utilize sick leave to attend to a member of his/her immediate family who is ill. "Immediate family" for purposes of this provision shall include only the Employee's spouse, children to include stepchildren, parents and spouse's parents without reference to the location or residence of said immediate family members. It is understood that these provisions do not apply to any Employee who is employed by the district on a twelve (12) month basis. Such employees shall be entitled to sick leave as provided under applicable Federal Statutes and Regulations. 2. Personal Leave Full-time Employees employed under contract by the Board may be granted two (2) days per year for personal leave without loss of pay or benefits upon written approval of the Employee's building principal. Employees must make request to their principal for use of such leave not later than noon of the day preceeding anticipated use, and the principal shall have the authority to deny such leave in such cases as when total requests exceed ten percent (10%) of the teaching staff of the given building for any one (1) day, or for other school-related reasons, said decisions to be solely at the discretion of the building principal, and with respect to school related reasons, stated on the personal leave form. Personal leave shall not be granted on inservice days or conference days, except by the Superintendent of Schools. Personal leave granted under this section shall be supported by personal affidavit of the Employee, stating that the leave taken is personal in nature. No other reason for the leave shall be required, except where personal leave is requested for the day immediately preceding or the day immediately following a holiday or inservice day. In such cases the Employee must have previously verified, in writing, the purpose(s) or need(s) for such leave at such time and received approval as required. Personal leave shall not accumulate from year to year. 3. Emergency Leave Full-time Employees employed under contract by the Board may be granted up to three (3) days emergency leave, for which the Employee may be absent for emergency reasons without loss of compensation. Employees requesting leave under this provision shall provide a brief explanation of need for such leave to the applicable building principal and shall sign an affidavit to the effect that the leave was taken for extraordinary reasons. Such reasons may include, but will not be limited to such cases as death or attendance at the last rites of a relative by blood or marriage; personal legal matters which cannot be transacted outside of school hours and which require appearance in court or consultation with counsel; and emergency situations resulting from natural disasters. In all cases of leave under this provision, the exact reason for its use must be specified by the Employee in writing upon return from such leave. Emergency leave days shall not accumulate from year to year. 4. Unpaid Leave An unpaid leave of absence, of not more than one (1) year, may be granted to any full-time Employee employed under contract, at the sole discretion of the Superintendent of Schools. The Employee may return to full-time employment during the period for which said leave was granted provided: a. Said Employee notifies the Office of the Superintendent in writing at least sixty (60) days prior to the date he/she wishes to return, and b. There is a position open for which he/she is qualified. At the end of such leave, if the Employee fails (1) to notify the Office of the Superintendent at least sixty (60) days prior to the expiration of such leave that he/she intends to return to employment, or (2) to accept an offered position for which he/she is qualified, he/she shall be deemed to have resigned and the obligation of the Fort Knox Dependent Schools to provide a position shall have ceased. Upon return to employment by the Employee, the Board shall solely determine his/her subsequent position and duty assignment(s). The Board is under no obligation to assign the Employee after his/her return from said leave to the same school, position, or other assignment(s) he/she occupied or performed prior to taking said leave of absence. The granting of said leave to an Employee by the Board of Education shall not prevent the Board from serving notice to said Employee under applicable provision of the law, regulations and procedures, that said Employee's contract will not be renewed, nor will granting such leave prevent the Board from invoking, initiating, and utilizing the procedures established by law or rule or regulation for the cancellation of any contract with an Employee. 5. Jury Duty Leave An Employee who is called to serve on a jury in any duly constituted local, state or federal court shall be granted leave with compensation under the following provisions: a. The Employee may retain reimbursement for expenses, including but not limited to, meals and mileage. b. The Employee shall write a check to "U.S. Army-FAO-Fort Knox" for the total amount of jury pay received. 6. In-Service Leave Employees may attend inservice programs and activities external to the Fort Knox Dependent School District in lieu of required in-service programs and activities which are planned and carried out internally in the District, provided, (1) the Board has approved in advance, said programs and activities to be carried out externally, and (2) Employees who wish such credit for the approved external in-service activities or program(s) shall notify their building principals in writing prior to attendance at such activities. 7. Temporary Disability Leave Upon application by an Employee and approval by the Board of Education, a temporary disability leave of absence shall be granted to full-time Employees under contract to the school district on the following basis: A. Application of Provisions: 1. This provision shall apply to leave in all cases where an Employee is unable to perform assigned duties because of disability substantial in nature or duration, including major surgery, pregnancy, childbirth, illness or injury. 2. In cases of a temporary disability caused by pregnancy, said Employee is entitled to a leave of absence any time from the commencement of her pregnancy provided said Employee submits with the timely notice as provided herein, a physician's statement certifying her pregnancy. If said Employee elects to utilize her sick leave under the provisions of paragraph C (2) herein and sick leave is exhausted during her temporary disability caused by pregnancy, said Employee may be absent without pay subject to all provisions contained herein. B. Notification 1. After determination that such leave is imminent, the Employee shall give timely notice to the Office of the Superintendent, in writing, of the anticipated date he/she wishes to commence said leave of absence and anticipated date of return. C. General Provisions Covering Said Leaves: 1. If said Employee desires to continue his/her duty assignment prior to the commencement of said leave, such notice must include a written statement from his/her physician attesting to the Employee's ability to continue performing the full schedule of the duties and responsibilities of his/her position and assignments. The Employee will be permitted to continue on full active duty until such date, provided she/he does perform the full duties and responsibilities of his/her position and assignments and provides from time to time upon request of the Board, additional certification from his/her physician of his/her full ability to continue performing the full schedule of the duties and responsibilities of his/her position and assignments. 2. Said Employee may elect to use his/her accumulated sick leave during his/her period of temporary disability provided a physician's statement or SF 71, completed by a physician, is submitted to the Office of the Superintendent for any said temporary disability leave or more than three (3) consecutive days. While on said sick leave, sick leave days will be paid only for the number of assigned duty days the Employee is absent, subject to the following conditions: (1) a physician certifies said Employee to be physically disabled; (2) the leave must occur during the current contract term; (3) leave is limited to the extent of the number of sick days accumulated by the Employee at the time said leave commenced. Additional statements of certification by a physician of the temporary disability of said Employee are required, except for temporary disability caused by pregnancy, for said disability which exceeds a duration of twenty (20) consecutive days. Said additional certification shall be submitted by said Employee to the Office of the Superintendent no later than the first day of each ensuing month after said twenty (20) consecutive days absence. 3. In all cases where an Employee has been granted temporary disability leave, he/she may not return to work until a statement from his/her physician has been presented to the Office of the Superintendent which certifies that the Employee is physically able to return to work. In addition, in all cases the Board reserves the right to require an examination by a Board-appointed physician(s) to determine the Employee's fitness (1) to continue performing the full schedule of the duties and responsibilities of his/her position and assignments, and/or (2) to return to employment and resume the full performance of the duties and responsibilities to which he/she may be assigned. The cost of any such examination shall be borne by the Board. 4. The granting of said leave by the Board shall not prevent the Board from serving notice to said Employee that his/her contract will not be renewed, nor will the granting of said leave prevent the Board from invoking, initiating, and utilizing the procedures established by law for the cancellation of any contract with an Employee employed by the school district. 5. No leave under this provision shall be granted for a period exceeding one (1) year.