27:0203(34)NG - Fort Knox Teachers Ass'n and Board of Education of the Fort Knox Dependent Schools -- 1987 FLRAdec NG



[ v27 p203 ]
27:0203(34)NG
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 appro