28:0936(119)NG - OEA VS DOD, DEPENDENTS SCHOOLS



[ v28 p936 ]
28:0936(119)NG
The decision of the Authority follows:


28 FLRA NO. 119


OVERSEAS EDUCATION ASSOCIATION

                   Union

      and

DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS

                   Agency

Case No. 0-NG-1225

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)(E) of the Federal Service Labor - Management Relations Statute (the Statute). It concerns the negotiability of four proposals pertaining to a new Agency regulation entitled "Department of Defense Dependents Schools Administration of Student Activity Funds" (the SAF regulation).

II. The Proposals are Not Appropriate Arrangements

The Union argues generally that even if the proposals in this case are held to directly interfere with management's rights under section 7106 of the Statute they all are nevertheless negotiable as appropriate arrangements for employees adversely affected by the exercise of those rights within the meaning of section 7106(b)(3). The threshold question is whether each proposal is an "arrangement" for adversely affected employees. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). The Union states that the purpose of the proposals is to mitigate the adverse effects on certain unit employees of being required to perform additional duties prescribed in the SAF regulation.

Assuming, for the purpose of this decision, that the SAF regulation prescribes additional job requirements as the Union claims, in our view it follows that the proposals concern the effects of management's establishing job requirements. The establishment of job requirements does not, by itself, adversely affect employees. See Department of Health and Human Services, Social Security Administration v. FLRA, 791 F.2d 324 (4th Cir. 1986), reversing National Federation of Federal Employees, Council of Consolidated SSA Locals and Department of Health and Human Services, Social Security Administration, 17 FLRA 657 (1985), (employees are not adversely affected because their job requirements are changed--adverse effect comes when action is taken against them based upon application of those job requirements). Accord Alford v. Department of Health, Education and Welfare, 1 MSPB 305 (1980) (employees may not appeal from the Agency's development of performance standards for their positions but only from actions taken against them on the basis of those standards). Therefore, none of these proposals concerns an "arrangement" for adversely affected employees. Consequently, we need not reach the question whether the proposals are "appropriate" arrangements, since they do not qualify for consideration under section 7106(b) (3). See Patent Office Professional Association and Patent and Trademark Office, 25 FLRA No. 29 (1987) (Proposal 3K) appeal filed sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. March 26, 1987).

III. Proposal 1

Participation by unit employees on the SAF Councils shall be voluntary and shall normally be done during said employees' duty day.

A. Positions of the Parties

The Agency contends that the proposal conflicts with the right to assign work under section 7106(a)(2)(B). It argues that the proposal: (1) precludes assigning unit employees to participate on the Student Activity Fund (SAF) Councils against their wishes; (2) prescribes when a particular assignment of work would be performed; and (3) prevents assigning work occurring outside of the normal duty day. In support of its position, the Agency cites, among other decisions, Fort Knox Teachers Association and Fort Knox Dependent Schools, 19 FLRA 878 (1985).  

The Union contends that the Agency's assigning teachers the additional duty of serving on SAF councils is inconsistent with the Defense Department Overseas Teachers Pay and Personnel Practices Act (Overseas Teachers Pay Act or the Act), 20 U.S.C. 901-907. It argues that 20 U.S.C. 901(1) "circumscribes" the duties which can be assigned to teachers. Union Response at 2.

B. Analysis and Conclusion

1. The Assignment of Work Does Not Violate the Overseas Teachers Pay Act.

To support its argument that the Agency's assigning teachers to serve on SAF Councils conflicts with the Overseas Teachers Pay Act, the Union relies on 20 U.S.C. 901(1) which defines the phrase "teaching position" for purposes of coverage by the Act. The section defines the phrase to mean simply those duties and responsibilities which "involve" certain enumerated professional educational activities. We assume, without deciding, for purposes of analysis that serving on SAF Councils exclusively involves duties which are outside the scope of those enumerated in section 901(1). We nevertheless cannot find in the plain language of section 901(l) any indication or even implication that Congress intended to prevent management from assigning other kinds of duties to a teaching position, in addition to those enumerated. Furthermore, the Union has not referred to any portion of the legislative history of the Overseas Teachers Pay Act, or to any judicial interpretation, which would lead us to reach a different conclusion. Consequently, we find that the Union has not supported its claim that the work assigned by the Agency through means of its regulation is in conflict with the Act.

2. The Proposal is Inconsistent with Management's Right to Assign Work

It is well-settled that a proposal may not prohibit assigning duties to bargaining unit employees and that management's right to assign work is not limited to work occurring during normal duty hours. Fort Knox Teachers 19 FLRA 878 (Proposal 4) (Agency's requiring teachers to attend afterhour Parent Teacher Association meetings held to be an assignment of work). This proposal is similar to Proposal 4 in Fort Knox Teachers inasmuch as it would deprive the Agency of its right to require employees to serve on SAF Councils by making participation only voluntary and also insofar as the SAF Councils frequently meet after normal duty   hours. Union Response at 2. Accordingly, for the reasons set forth in Fort Knox Teachers, we find that this proposal violates management's right to assign work.

Although the proposal violates management's right to assign work, it is clear to us that in view of the nature of the Student Activity Fund Councils, the Agency could profit from discussions with the Union concerning the procedures by which assignments will be made. In particular, the Councils are concerned with the administration of nonappropriated funds primarily for the benefit of the students involved. While the Councils concern the "work" of the Agency, that work is not as integrally related to the mission of the Agency as were the meetings involved in Fort Knox Teachers, in our view. In other contexts, proposals relating to the use of volunteers for certain work assignments have been held to be negotiable. American Federation of Government Employees, AFL - CIO, Local 1631 and Veterans Administration Medical Center, Chillichothe, Ohio, 25 FLRA No. 26 (1987) (Provision 2); National Treasury Employees Union, Chapter 153 and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 128 (1986) (Proposal 2). It is our view that if Proposal 1 were reworded to provide that "in the absence of qualified volunteers the Agency could assign the work to an employee," it would be negotiable. Although we find the proposal nonnegotiable as written we urge the parties to engage in discussions to resolve the defect and mutually work toward the objectives of the Agency's administration of the SAF Regulation.

3. Conclusion

The proposal is outside the duty to bargain.

IV. Proposal 2

The FLRA Members have reached differing conclusions concerning Proposal 2. The decision and order on Proposal 2 and Chairman Calhoun's separate opinion immediately follow this decision.

V. Proposal 3

Participation by unit employees in the SAF Councils, Fund Custodian and Bookkeeper positions shall not be used against said employee's annual performance appraisal rating.  

A. Positions of the Parties

The Agency contends that the proposal would prevent management from evaluating an employee's performance of certain duties.

The Union argues that service on SAF councils is not a teaching duty found in the critical and noncritical elements of overseas teachers, and therefore it should not be used as a factor in an employee's performance evaluation. It also argues that performing these duties should not affect teachers' performance appraisals because if such work is done without pay and after the workday it does not constitute the job for which they were hired.

B. Analysis and Conclusion

Proposal 3 is outside the duty to bargain. it conflicts with management's rights to assign work and to direct employees by imposing a substantive limitation on the agency's ability to review and evaluate an employee's performance of assigned duties.

Management's rights under the Statute, to assign work and to direct employees encompass the ability to review and evaluate an employee's performance of assigned duties. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).

As we explained in connection with Proposal 1, all work assigned to a teacher, including work which is not of a type enumerated in 20 U.S.C. 901(1) as well as work which occurs beyond the normal school day, falls within the scope of management's right to assign work. Fort Knox Teachers 19 FLRA 878 (Proposal 4).

Like the proposal in Fort Knox Teachers, Proposal 3 concerns assigned work--participation on a SAF Council or related assignments. Proposal 3 would preclude management from evaluating an employee's performance of that work. Thus, the proposal would directly interfere with the Agency's ability to review and evaluate an employee's performance of work assigned by management pursuant to its reserved right.  

VI. Proposal 4

The FLRA Members have reached the same conclusion concerning Proposal 4 but with different reasoning. The decision and order on Proposal 4 and Chairman Calhoun's separate opinion immediately follow this decision.

VII. Order

The petition for review as to proposals 1 and 3 is dismissed.

Issued, Washington, D.C., September 10,1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY  

DECISION AND ORDER ON PROPOSALS 2 AND 4

I. Proposal 2

Each participating unit employee shall receive extra compensation at a rate equal to 1 1/2 of their regular rate of pay, for each hour or portion thereof spent fulfilling the requirements of the SAF Councils, beyond the duty day.

A. Positions of the Parties

The Agency contends that the negotiation of wages and money-related fringe benefits was not intended to be subject to negotiations unless subject to the savings provision contained in section 704 of the Civil Service Reform Act of 1978. Agency's Statement of Position at 9. The Agency argues that overseas teachers are not prevailing rate employees and as such are not covered by section 704 of the Civil Service Reform Act. Finally, the Agency also argues that it does not have discretion under the Overseas Teachers Pay Act to negotiate wages.

The Union contends that the proposal is negotiable under the Overseas Teachers Pay Act.

B. Analysis and Conclusion

Proposal 2 is within the duty to bargain. In Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA No. 88 (1987), (Chairman Calhoun dissenting), we held that Proposal 1 requiring additional compensation for duties performed by teachers beyond the normal workday was within the duty to bargain. The present proposal, involving the same parties, is to the same effect. Accordingly, for the reasons set forth in Overseas Education Association, 28 FLRA No. 88 we find that (1) the present proposal concerns a matter within the negotiable administrative discretion of the Agency under the Overseas Teachers Pay Act; and (2) the provisions of law applicable to prevailing rate employees cited by the Agency have no relevance to the negotiability of pay matters relating to these employees.

II. Proposal 4

This regulation shall not be implemented until an agreement is reached between the parties on the implementation procedures, proposals and impact proposals submitted by OEA.  

A. Positions of the Parties

The Agency contends that the proposal is outside the duty to bargain in the circumstances of this case because the regulation has only a de minimis impact on the conditions of employment of bargaining unit employees. It contends that the parties have reached the point of impasse in their negotiations and, therefore, the Agency can implement the regulation. Finally, the Agency contends that the proposal directly interferes with management's right to assign work.

The Union contends that the filing of a negotiability appeal is not an indication of an impasse.

B. Procedural Issues

In addition to claiming that the Union's proposal is nonnegotiable because it is inconsistent with the Agency's right to assign work, the Agency contends that it has no duty to bargain concerning this proposal in the circumstances of this case because (1) no change has been made by the regulation sufficient to give rise to a duty to bargain; and (2) it has negotiated to impasse and is entitled to implement the regulation. Since these claims do not raise issues as to whether the proposal is inconsistent with applicable law, rule or regulation, they do not meet the conditions for review of a negotiability issue under section 2424.1 of our Regulations. American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA No. 89 (1987).

Where, as here, the conditions for review of a negotiability issue have otherwise been met, a union is entitled to a decision by the Authority as to whether a proposal is negotiable under the Statute, despite the existence of such additional issues. See, for example, 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). Accordingly, the claimed existence of threshold duty to bargain questions does not preclude us from determining the negotiability of the proposal in this case since it is otherwise properly before us.  

C. The Proposal is a Negotiable Procedure

This proposal reflects the Union's desire to "hold implementation of the regulation in abeyance until impact and implementation negotiations are completed." Union Response at 5. It is well-settled, of course, that the obligation to bargain under the Statute extends only to conditions of employment within the bargaining unit. See sections 7103(a)(12) and 7114(a)(1). Although the language of the proposal is silent on this point, it does not appear from the record that the Union intends the proposal to be interpreted in a manner which would be inconsistent with this principle. Hence, we interpret this proposal as requiring the Agency to bargain to hold implementation of the regulation in abeyance only as to employees in the bargaining unit.

The proposal imposes no substantive criteria on management's exercise of its right to assign work, nor does it purport to prevent the Agency from assigning work. Rather, the Agency retains its full discretion under the proposal to implement the work assignments contained in its regulation, once it completes negotiations over the impact and implementation of the regulation. Therefore, this proposal is negotiable under established Authority precedent as a procedure which delays but does not prevent management from acting at all to exercise its statutory rights. See, for example, American Federation of Government Employees, Local No. 12 and U.S. Department of Labor, 25 FLRA No. 83 (1987) (Proposal 4--right to make determinations with respect to contracting out) (Chairman Calhoun dissenting); National Treasury Employees Union and Department of Energy, 24 FLRA No. 52 (1986) (rights to select and to hire); 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 (1984) (Proposal 3); National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255, 261-62 (1979), and cases cited therein. 

III. Order

The Agency must bargain, upon request or as otherwise agreed to by the parties, concerning Proposals 2 and 4. 1

Issued, Washington, D.C., September 10, 1987.

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY  

SEPARATE OPINION OF CHAIRMAN CALHOUN

I agree with my colleagues that the issues concerning the negotiability of Proposal 2 are essentially the same as those concerning Proposal 1 in Overseas Education Association and Department of Defense Dependents Schools, 28 FLRA No. 88 (1987). Therefore, for the reasons set forth in my separate opinion in that case, I do not join my colleagues here.

As to Proposal 4, I agree with my colleagues that Proposal 4 is negotiable. However, I reach this conclusion for different reasons. In my view, the proposal is essentially a restatement of the Agency's obligation under the Statute to meet its bargaining obligations concerning changes in conditions of employment before implementing those changes. An agency may implement such changes only if (1) the parties have reached agreement, (2) the parties have reached impasse after good-faith bargaining and there has been no timely invocation of the services of the Federal Service Impasses Panel (unless implementation is consistent with the necessary functioning of the agency), or (3) the union has waived its bargaining rights. See, for example, Department of Justice, United States Immigration and Naturalization Service, El Paso District Office, 25 FLRA No. 3 (1987), petition for review filed sub nom. U.S. Immigration and Naturalization Service v. FLRA, No. 87-4149 (D.C. Cir. March 6, 1987).

I find nothing in the proposal or the Union's statement of intent which indicates that the Union is seeking anything more than that to which it is entitled under the Statute. In addition, I agree with my colleagues that the proposal applies to implementation concerning bargaining unit employees only. For these reasons I concur with my colleagues finding Proposal 4 to be negotiable. I do not agree, however, that American Federation of Government Employees, Local No. 12 and U.S. Department of Labor, 25 FLRA No. 83 (1987) (Proposal No. 4) is appropriately or necessarily applied to support the result here. In that case my colleagues determined that the agency may be required unconditionally to suspend contracting out certain functions for a 1-year period. I d