27:0750(80)NG - Fort Knox Teachers Ass'n and Fort Knox Dependents Schools -- 1987 FLRAdec NG
[ v27 p750 ]
The decision of the Authority follows:
27 FLRA No. 80 FORT KNOX TEACHERS ASSOCIATION Union and FORT KNOX DEPENDENTS SCHOOLS Agency Case No. 0-NG-905 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 two proposals. II. Waiver Issue The Agency contends that the two disputed proposals are not properly before the Authority because of a "zipper clause" in the parties' negotiated agreement. The clause precludes modifying, adding to, or deleting from the agreement any subject matter, whether included in the agreement or not, except for matters which must be negotiated by law. The Agency notes that the agreement has a reopener provision, but asserts that the two proposals were not introduced in accordance with that provision's requirements. The Union contends that the disputed proposals constitute matters which by law must be negotiated. The Union also asserts that the disputed proposals were presented to management in conformity with the reopener provision. We have held that when a union appeals an agency's allegation that a proposal is nonnegotiable, the union is entitled to a decision by the Authority on whether the proposal is negotiable under the Statute despite the existence of other factual issues allegedly related to the appeal. The record in this case contains no evidence in support of either party's position concerning the waiver provision. Further, there is no documentation to show whether the proposals were or were not introduced in conformity with the agreement's reopener clause. Hence, in accordance with our practice in negotiability appeals, we do not decide here whether the facts surrounding this case relieved the Agency of any duty to bargain. See, e.g., American Federation of Government Employees Local No. 12 and U.S. Department of Labor, 25 FLRA No. 83 (1987). Rather, these issues should be resolved in other appropriate proceedings. See American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302, 306 n.6 (1984). III. Proposal 1 The FLRA Members have expressed different opinions concerning Proposal 1. The decision and order on Proposal 1 and Chairman Calhoun's separate opinion immediately follow the decision and order on Proposal 2. IV. Proposal 2 Extreme Temperatures A. On any school day when the temperature as reported by the Fort Knox Weather Station exceeds 85 degrees, school for that day will be dismissed at 1:30 p.m. B. Should the superintendent act upon his authority and dismiss schools because heat and humidity has become such that it interferes with the school program (learning process), we propose that such dismissal be handled as other times when schools are dismissed early in that when the children are dismissed, the teachers will remain for building level activities guided by building principals. A. Positions of the Parties The Agency asserts that Proposal 2 is nonnegotiable because it does not concern conditions of employment of employees in the bargaining unit. The Agency's assertion is based on the Union's explanation that the proposal "reflects the Association's concern over the health and safety of the students during times of extreme heat." The Union contends that the proposal addresses a condition of employment. It points out that extreme heat affects the behavior of the students and that student misbehavior has an adverse effect on the entire classroom environment. B. Analysis and Conclusion It appears from the record that the parties' dispute centers on paragraph A of Proposal 2. Consequently our analysis and conclusion will be limited to that paragraph and subsequent references to "Proposal 2" or the "proposal" should be read to apply only to paragraph A. 1. Condition of Employment In Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23 (1986), the Authority stated that, in deciding whether a proposal involves a condition of employment of bargaining unit employees, two basic factors would be considered: (1) Whether the matter proposed to be bargained pertains to bargaining unit employees; and (2) The nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees. Contrary to the Agency's contention we find that Proposal 2 affects working conditions of bargaining unit employees. Specifically, and as previously noted, the Union contends that students tend to become unruly and inattentive in extreme heat which adversely affects the ability of bargaining unit employees to carry out their teaching duties. Thus, while Proposal 2 does not expressly mention bargaining unit employees it is clearly intended to enable bargaining unit employees to perform more efficiently. A similar rationale was advanced by the union for Proposal 1 in American Federation of Government Employees, AFL-CIO, National Council of SSA Field Operations Locals and Social Security Administration, 25 FLRA No. 50 (1987). Proposal 1 in that case provided that volunteers and "stay-in-school" appointees would be assigned work supplementing the assignments of bargaining unit employees. The union pointed out that the individuals who were the subject of the proposal, although not bargaining unit members, performed functions which made the jobs of unit employees "less hectic". On that basis we found that the proposal affected working conditions within the bargaining unit even though we held the proposal to be nonnegotiable on other grounds. Similarly, Proposal 2 here is intended to make the work of unit employees less trying. Accordingly, based on the reasoning in Social Security Administration we find the proposal to be concerned with unit working conditions. 2. Assignment of Work Our conclusion that the proposal affects unit working conditions is not dispositive of the negotiability question however. The primary work of the employees in this bargaining unit is to teach students. Obviously, when the students are not present, bargaining unit employees cannot carry out their primary work assignments. In effect, therefore, Proposal 2 would prevent the Agency from assigning certain kinds of work to unit employees in the circumstances described. In this regard the proposal is to the same effect as Proposal 1 which was before the Authority in International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438 (1980). One section of the proposal in that case would have prevented the assigning of outdoor training activities to unit employees when the outside temperature was above or below specified levels or when certain other adverse weather conditions prevailed. Noting initially that the assignment of training was the assignment of work, the Authority characterized the proposal as establishing "arbitrary absolute limits on the assignment of outdoors training(.)" Consequently, the Authority found that the proposal, "by placing absolute limits on the agency's ability to assign training to unit personnel during duty hours violates the agency's right to assign work under section 7106(a)(2)(B) of the Statute." Because the proposal here likewise imposes limitations on the assignment of work based on weather considerations, in accordance with Philadelphia Naval Shipyard, Proposal 2 is inconsistent with the Agency's right to assign work and is outside the duty to bargain. V. Order The Union's petition for review is dismissed. Issued, Washington, D.C., June 25, 1987. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY DECISION AND ORDER ON PROPOSAL 1 Proposal 1 Salary Schedule The Fort Knox Teachers Association requests negotiations with the Fort Knox Dependen(ts) Schools over salary and fringe benefits for the certified staff. A. Positions of the Parties The Agency asserts that Proposal 1 is not sufficiently specific or delimited in form and content so as to permit a negotiability determination. On the merits, the Agency contends that the proposal is inconsistent with Federal law, agency regulations having the force and effect of law, and an agency regulation for which there exists a compelling need. According to the Agency, the proposal also interferes with its right under section 7106(a)(1) of the Statute to determine its budget and does not concern a "condition of employment" to be negotiated under section 7117 of the Statute. The Union asserts that the holding 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) supports the negotiability of Proposal 1. B. Analysis In Fort Bragg Dependents Schools it was noted that 20 U.S.C. Section 241(a), which covers employees in this bargaining unit, vests an agency with the discretion to fix the compensation of employees concerned without regard to statutes providing for the compensation of most Federal employees. Consequently, it was held that proposals fixing pay rates of unit employees were within the duty to bargain because compensation was a condition of employment not otherwise provided for by Federal statute, and because the proposals concerned matters over which the agency head had discretion. However, in finding the compensation proposals to be negotiable, two specific agency contentions were examined. The agency first contended that the proposals violated 20 U.S.C. Section 241(e) which requires that, to the maximum extent practicable, the agency's per pupil costs not exceed the per pupil costs for public education expended by comparable communities in the same state. Although the agency's argument was rejected, immplicit in the consideration of it was the possibility that the proposals might have been nonnegotiable had the agency adequately supported its case. The agency in Fort Bragg Dependents Schools also contended that the compensation proposals interfered with its right to determine its budget under section 7106(a)(1) of the Statute. That argument was also rejected because the agency did not demonstrate that the proposals dictated a particular program or sum of money to be included in the agency's budget nor did it make a substantial showing that the proposals would result in significant and unavoidable cost increases not offset by compensating benefits. Again, the proposals were found negotiable because the agency failed to sustain its burden of proof. Proposal 1 seeks, in part, to obligate the Agency to bargain over "salary." As has been noted, salaries for employees like those covered by this proposal are negotiable. However, as has also been shown, negotiation over teachers' salaries is not without statutory limitation. The generalized call for bargaining over salaries contained in this proposal makes it impossible to ascertain whether or not subsequent negotiations would be within the limits of negotiability. That is, the proposal's form renders it impossible for either party to advance or to refute an argument in support of its negotiability. Consequently, Proposal 2 does not set forth sufficient and specific information so as to enable us to reach a reasoned decision. Provision 1 also contains a broad-based call for negotiations over "fringe benefits." In Fort Bragg Dependents Schools several proposals concerned matters which fall under the heading of "fringe benefits", including life, medical and dental insurance. Those proposals were held to be nonnegotiable because they concerned matters specifically provided for by Federal statute. Here, it is impossible to determine from the proposal's language whether or not the bargaining sought would encompass "fringe benefit" specifically provided for by statute. See also, the analysis of Proposal 20 in the same case. C. Conclusion Proposal 1 does not set forth sufficient and specific information so as to enable us to reach a reasoned determination on its negotiability under law and regulation. Accordingly, the petition for review of this proposal does not meet the conditions for review prescribed in section 7117(c) of the Statute and section 2424.1 of our Rules and Regulations. See Association of Civilian Technicians, Alabama ACT and State of Alabama National Guard, 2 FLRA 313 (1979).