29:0485(49)NG - OEA VS DOD, DODDS



[ v29 p485 ]
29:0485(49)NG
The decision of the Authority follows:


29 FLRA NO. 49


OVERSEAS EDUCATION ASSOCIATION

                   Union

      and

DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS

                   Agency

Case No. 0-NG-1227

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) and presents issues concerning the negotiability of 22 proposals.

II. Preliminary Matters

The Agency advances three arguments in support of its motion to dismiss the Union's petition: (1) language in both the parties' expired negotiated agreement and their current one precludes bargaining over the disputed proposals; (2) the Union expressly waived its right to bargain over the impact and implementation of 183 instructional days in the school year and the 7-period school day; and (3) its petition for review. Furthermore, the Agency asserts there were no significant changes in the school calendars between 1983-84 and 1984-85. Consequently, the Agency contends that Proposals 4, 5, 7, 8, 9, and 10 concerning the school calendar should be dismissed because no bargaining was triggered.

As to the alleged waiver of the right to bargain and the asserted absence of an obligation to bargain over the school calendar proposals, it is well-established that a union's properly initiated petition for review of negotiability issues is entitled to a response from us. The question of whether an agency must bargain over any proposals we find to be negotiable is an issue to be resolved in other appropriate proceedings. 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) and American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA No. 89 (1987).

The Agency's assertion that the petition is untimely likewise cannot be sustained. The Agency's contention is based on the date of its written allegation that the proposals were nonnegotiable. The record does not indicate that the allegation was in response to a Union request. In accordance with established precedent, the Union is permitted to ignore this unsolicited allegation and, instead, to choose to request a written allegation from the Agency. International Brotherhood of Electrical Workers, AFL - CIO, Local 121 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 10 FLRA 198 (1982). Here the Union requested a written allegation but the Agency did not respond. Consequently, under section 2424.3 of our Rules and Regulations, the Petition for Review was timely filed.

In the alternative, the Agency moved to consolidate this case with four others involving the same parties. In view of the large number of proposals presented in these five cases, we cannot agree that consolidation would serve the interests of the parties or increase the efficiency and effectiveness of case processing. Accordingly, the motion is denied.

III. Proposal 1

Unit employees shall be authorized an equal amount of training time with pay for each period of training time lost due to the required time to meet the minimum required instructional days. All expenses required of unit employees associated with the make-up of training time shall be borne by DODDS.

A. Positions of the Parties

The Agency asserts that the proposal interferes with its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency also contends that the matter of  reimbursement for training required for recertification was bargained over and covered by a provision of the parties' current negotiated agreement.

The Union points out that this proposal responds to the Agency's decision to increase the number of instructional days from 175 to 183 in the 190-day school year. The Union explains that this change effectively reduces the number of days available for in-service training and, consequently, the amount of in-service training provided to employees. In-service training was, until late 1986, creditable toward the professional recertification required by the Agency each 6 years. Hence, in the Union's view, the proposal is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute for employees adversely affected by the decision to curtail the number of in-service training days.

B. Analysis

We find that Proposal 1, here, insofar as it pertains to restoring the same amount of in-service time and training which was provided prior to the increase in number of instructional days, is similar to Proposals I through III, found to be nonnegotiable in National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981). The three proposals in that case were characterized by the Authority as prescribing when training would be provided to concerned employees, the type of training to be provided and the minimum duration of such training. Citing a previous holding that the right to assign work encompassed the right to assign training duties, the Authority found the proposals to be in conflict with section 7106(a)(2)(B) of the Statute. Responding to the union's contention that the proposals concerned when the agency would furnish to employees already established training courses the Authority stated, at 6 FLRA 591:

The fact that the proposals might concern training programs previously established by the Agency . . . is without controlling significance. The authority to assign work must necessarily include the ability to discontinue or modify such assignments; however, the union proposal would, in effect, require management to continue the described training in the prescribed manner over the life of the negotiated agreement. 

The disputed proposal would similarly prescribe the type of training to be provided to covered employees. That is, the proposal would require that any particular in-service time devoted to training eliminated because of the increase in instructional days be restored. Such time and training, in accordance with the proposal, would occur during duty hours. The proposal, therefore, contains all the elements found to violate management's right to assign work in Federal Aviation Administration.

The proposal, moreover, is not an appropriate arrangement under section 7106(b)(3) of the Statute. The proposal's obvious intent is to nullify management decision to eliminate a certain amount of in-service training. Because we have consistently held that proposals totally abrogating the exercise of reserved management rights excessively interfere with those rights, we find that the part of Proposal 1 seeking restoration of discontinued training is not an "appropriate arrangement" within the meaning of section 7106(b)(3). 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).

With regard to the last sentence of the proposal, we note the Union's statement, at 13 of the Reply Brief, that "the expenses for which employees would be reimbursed pursuant to this proposal would be limited to those permitted by the Training Act." Title 5 U.S. Code chapter 41. Under this Act, an agency is limited to reimbursing an employee for the expense of training which is or will be "directly related to the performance by the employee of official duties for the Government(.)" Thus, there is nothing in this proposal which would require reimbursement in circumstances where such reimbursement was not permitted under the Training Act. Hence, we find that this sentence seeks to enforce contractually those reimbursements to which employees are entitled under law and is negotiable. Compare National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA 508 (1981) (Proposal I), (proposal which required reimbursement for training, regardless of whether the course content is or will be directly related to employee's official duties found to be inconsistent with the Training Act). 

C. Conclusion

The part of Proposal 1 concerning the restoration of lost in-service time devoted to training is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute because it totally abrogates management's reserved right to assign work. The last sentence of the proposal, however, is negotiable because it assures that employees will receive whatever reimbursements they are entitled to under applicable law. See Association of Civilian Technicians, New York State Council and State of New York, Division of Military and Naval Affairs, Albany, New York, 11 FLRA 475 (1983) (Proposal 1, third sentence).

IV. Proposal 2

Unit employees shall be authorized an equal amount of preparation time with pay for each period of preparation time (at the end of each marking period and at the beginning of the school year) lost due to the required time to meet the minimum required instructional days. All expenses required of unit employees associated with the make-up of preparation time shall be borne by DODDS.

A. Positions of the Parties

The Agency contends that Proposal 2 interferes with its right to determine its budget.

According to the Union, when the Agency increased the number of instructional days, and consequently reduced the amount of preparation time by three days, it did not relieve the employees of the work to be done during those three days. The proposal, therefore, seeks to insure that employees are compensated for the work they still must perform. Hence, the Union characterizes the proposal as an appropriate arrangement for employees adversely affected by the exercise of management's right.

B. Analysis and Conclusion

In agreement with the Agency, we find Proposal 2 to be similar in effect to Proposals II through XVII and XIX in National Federation of Federal Employees, Local 1263 and Defense Language Institute, Foreign Language Center, Presidio of Monterey, California, 7 FLRA 723 (1982), and to Proposals 7 and 12 in Panama Canal Federation of Teachers, Local 29 and Department of Defense Dependents Schools, Panama Region, 19 FLRA 814 (1985). Each of the cited proposals in these cases sought to assign a specified amount of time to a particular function related to the primary responsibility of teaching students. Each of the cited proposals was held to be inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. Because Proposal 2 likewise seeks to devote a specified amount of duty time to preparation for classroom responsibilities, it also is inconsistent with the right to assign work.

The Union's argument that the proposal is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute is unpersuasive. As with Proposal 1, this proposal's objective and effect is to nullify management's decision to reduce the amount of time devoted to one duty in favor of an increase in the time spent on another function. The attempted nullification, as explained fully in our analysis of Proposal 1, constitutes a total abrogation of the underlying management right. Consequently, the proposal is not an appropriate arrangement and is outside the duty to bargain.

As to the last sentence of the proposal, the union does not advise us of what the "expenses required of unit employees" related to the "make-up of preparation time" might be, nor can that information be gleaned from the language of the proposal itself. Consequently, it is not possible for us to determine whether the reimbursements sought by the last sentence are, or would be, authorized by law or regulation. It is well established that a petition for review of a negotiability issue not presenting a proposal sufficiently specific and delimited in form and content so as to permit us to render a negotiability determination does not meet the conditions for review set out in section 7117(c) of the Statute and section 2424.1 of our Rules and Regulations. Because the last sentence lacks the detail necessary to reach a reasoned decision, it is not appropriately before us on the grounds set forth in National Association of Government Employees, Local R14-32 and Department of the Army, Headquarters, U.S. Army Training Center Engineering and Fort Leonard Wood, Fort Leonard Wood, Missouri, 20 FLRA 501 (1985), among other cases.

V. Proposal 3

The Members disagree as to the negotiability of Proposal 3. The decision and order and the separate dissenting opinion of Chairman Calhoun follow this decision. 

VI. Proposal 4

DoDDs shall make every reasonable effort to obtain, from the appropriate authorities, space available travel rights for all unit employees required to work extra days to meet the minimum required 183 instructional days. Travel authorization shall be based on the ratio of one (1) space available travel authorization per one day of additional work.

A. Positions of Parties

In addition to arguing that the proposal is unrelated to any change in working conditions within the bargaining unit which we disposed of in Section II, the Agency asserts that it is not obligated to bargain over this proposal on two other grounds. The Agency maintains that the proposal concerns a matter over which it has no discretion. In addition, because the proposal addresses employees' travel when in a non-duty, non-pay status, the Agency contends it does not concern conditions of employment as defined by section 7103(a)(14) of the Statute.

The Union disputes the Agency's position that it has no discretion over the travel authorizations sought by its proposal. It also contends that travel to the United States for job-related or job-required training, or even for leave is a condition of employment for overseas teachers.

B. Analysis and Conclusion

As we noted in Overseas Education Association Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA No. 71 (1987) (Proposal 17), petition for review filed sub nom. Overseas Education Association v. FLRA, No. 87-1279 (D.C. Cir. June 25, 1987), DOD Directive Number 1400.6 includes, as a consideration in recruiting employees from the United States for overseas assignments, the ability to ensure adequate transportation facilities and services. In view of that regulatory requirement, we found there a direct connection between furnishing transportation and the working conditions of the employees. Here, the Union expressly indicates that the proposal is concerned with employee access to Agency transportation for the purposes of obtaining job-related training or for taking leave. See Petition for Review at 8, Union Reply Brief at 21. Thus, we find the proposal concerns conditions of employment. See also Office of Dependents Schools, Proposal 18. 

The Agency arguments that it has no discretion over the matter proposed and the related contention that the proposal affects nonbargaining unit employees are also rejected. In Overseas Education Association, Inc. and Department of Defense Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 5) aff'd sub nom. Overseas Education Association, Inc. v. FLRA, No. 86-1491 (D.C. Cir. Aug. 28, 1987) the Authority held that a component of an agency is obligated to bargain with the exclusive representative of its employees over conditions of employment even though control over a particular condition of employment resides in another component of the same agency. The only exception to that obligation occurs when the discretion is limited by law, Government-wide rule or regulation, or agency regulations supported by a compelling need. Here, the Agency adverts to no such exception to its obligation.

With regard to the proposal's asserted impact on persons outside the bargaining unit, the same argument was raised concerning Proposal 1 in Office of Dependents Schools, 27 FLRA No. 71, which addressed the provision of housing to unit employees, among other matters. In analyzing the proposal's requirement that unit employees be provided adequate housing, we noted that the proposal did not prescribe what housing would be furnished nonbargaining unit employees, and concluded that the proposal's effect on persons outside the unit was insufficient to render it nonnegotiable on that basis. We further observed that much of collective bargaining involves the distribution of finite resources. The agency's argument appeared to be based on the misconception that Congress' intent was to establish a relationship between labor and management in which the duty to bargain arose only where infinite resources were available. In this case, Proposal 4 does not actually prescribe what travel space is to be allocated to persons outside the unit, but rather only calls upon the Agency to exert "every reasonable effort" to provide unit employees with transportation. Accordingly, based on Office of Dependent Schools and our analysis, we find Proposal 4 to be within the Agency's duty to bargain.

VII. Proposals 5, 8 and 9

These proposals respond to the Agency's publication of its school year calendar. The three proposals to be analyzed here present the Union's proposed revisions to that calendar. 

Proposal 5

Would make Good Friday a school holiday.

Proposal 8

Good Friday shall be used as a recess period for P.L. 86-91 personnel when the Spring Recess period follows Easter Sunday.

Proposal 9

Each region will have a Host - National day. P.L. 86-91 employees are dismissed from duty. Dates for Host Nation Day shall be determined locally.

A. Positions of the Parties

The Agency contends that these three proposals interfere with its right to assign work under section 7106(a) (2)(A) of the Statute and to determine its mission under section 7106(a)(1).

The Union argues that the proposals in no way affect the Agency's right to assign work. They would have no impact on the length of either the instructional or school year. The Union further points out that none of these proposals re-quires that employees be paid for the proposed non-work days.

B. Analysis and Conclusion

The right to assign work under section 7106(a)(2)(B) of the Statute includes the discretion to determine when the assignments will occur and when the assigned work will be performed. See, for example, National Association of Government Employees, SEIU, AFL - CIO and National Guard Bureau, Adjutant General, 26 FLRA No. 62 (1987) (Proposals 2 and 8). We held the proposals in that case nonnegotiable because they prohibited management from assigning other duties to employees during time periods which would have been set aside for personal cleanup. The proposals in this case would also prevent the assignment of instructional duties to employees during those days that contractually would be designated as holidays or recess periods. Because of the proposals' effect, we find that the proposals are inconsistent with the Agency's right to assign work. See also Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA No. 26 (1987); American Federation of Government Employees, Local 2094, AFL - CIO, and Veterans Administration Medical Center, New York, New York, 22 FLRA No. 81 (1986) (Proposal 4).

VIII. Proposal 6

P.L. 86-91 personnel shall not be reduced in pay for work days lost due to conditions beyond their control.

A. Positions of the Parties

The Agency contends that Proposal 6 seeks negotiation over pay and fringe benefits. It points out that the proposal would require that a teacher without a leave balance be paid when, on a day school is cancelled for students but not for teachers because of inclement weather, he or she fails to report for duty. In the Agency's view, the proposal also violates its rights under section 7106(a)(2)(A) of the Statute because it would prevent reductions-in-force or layoffs of unit employees.

The Union challenges the Agency's interpretation of the proposal, contending that it is applicable only when teachers are not required to report for work on a regularly scheduled workday because of weather or other factors beyond the employees' control. The Union also asserts that FPM chapter 630, subchapter 11 gives management the discretion to negotiate on Proposal 6.

B. Analysis and Conclusion

In our view, the Agency has misinterpreted the proposal. The Union states that the proposal is intended to cover those situations when management has decided to curtail temporarily its operations because of adverse weather conditions or other situations barring the conduct of regular classroom activities. We find that this explanation is supported by the proposal's language. Hence, the proposal does not apply to a management decision to reduce staffing levels or to furlough employees. Rather, we find this proposal to be similar in effect to Provision 4 which was held to be negotiable in National Federation of Government Employees and U.S. Department of the Interior, U.S. Geological Survey, Eastern Mapping Agency, 21 FLRA No. 127 (1986). The provision in that case required the granting of administrative leave or excused absence when management decided to close temporarily its installation for any of several enumerated reasons, including snow storms, floods or power failures. In finding that provision to be negotiable, the Authority noted that the Federal Personnel Manual (FPM) provides agencies with discretion to grant excused absences without loss of pay or charge to leave in the circumstances covered by the provision. See FPM Chapter 630, subchapter 11-6(a). Consequently, in the absence of a showing that Proposal 6 conflicts with any Agency regulations for which a compelling need exists, based on Eastern Mapping Agency and the reasons and case cited there, we find that the proposal is within the duty to bargain.

IX. Proposal 7

The minimum number of instructional days shall be 175 days. Additional compensation and benefits shall be paid for instructional days beyond 175 days.

A. Positions of the Parties

The Agency characterizes Proposal 7 as an attempt to bargain over wages. The proposal, the Agency notes, in effect prevents the employer from assigning instructional duties for 15 days out of the scheduled 190-day school year in violation of the right, under section 7106(a)(2)(B) of the Statute, to assign work. The Agency also asserts that the proposal interferes with its right under section 7106(b)(1) to determine the methods and means by which the work will be conducted.

The Union contends that the proposal does not interfere with the right to assign work because the Agency is free to increase the number of instructional days, as long as the employees receive additional compensation. The Union also asserts that the proposal is an "appropriate arrangement" under section 7106(b)(3) for employees adversely affected by management's exercise of the right to set the school calendar.

B. Analysis and Conclusion

In agreement with the Agency, we find that Proposal 7 interferes with the section 7106(a)(2)(B) right to assign work. While, as the Union points out, more instructional days could be assigned if employees were compensated accordingly, implicit in the proposal is a requirement that 15 of the 190 days in the school year be set aside for noninstructional activities. More instructional days could be required only if the school year were extended. The proposal, consequently, is similar to that group of proposals which were held to be nonnegotiable in Defense Language Institute, 7 FLRA 723. The proposals in that case were found  to interfere with the right to assign work because they allocated specified amounts of time to perform particular tasks. In like manner, Proposal 7 requires that 15 days of the employee's work year be devoted to work-related tasks other than the actual teaching of students. This limitation would apply regardless of whether 15 days of noninstructional work were available or whether management believed that the time could be spent more profitably in instructional work. See also American Federation of Government Employees, AFL - CIO, Local 695 and Department of the Treasury, U.S. Mint, Denver, Colorado, 3 FLRA 43 (1980) (Proposal 1).

Although we have found the proposal to interfere directly with the Agency's section 7106(a)(2)(B) right to assign work, in accordance with the principles set out in Kansas Army National Guard, 21 FLRA No. 4, we nevertheless may find a proposal to be negotiable as an appropriate arrangement under section 7106(b)(3). As a threshold matter in making an "appropriate arrangement" argument, a union is obligated to show what effects or foreseeable effects on employees flow from the exercise of a management right and how those effects are adverse. Here, the Union appears to be arguing that the mere exercise of the management right to assign work adversely affects unit employees. The exercise by management of its right to assign work by changing the amount of time available to accomplish certain tasks does not, standing along, 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), wherein the court held that employees are not adversely affected because their job requirements are changed. Rather, such employees are adversely affected when action is taken against them based on the application of the new job requirements. Because the employees have not been adversely affected by management's action, the proposal is not the kind of "arrangement" over which bargaining is required by section 7106(b)(3). Accordingly, we find Proposal 9 to be outside the duty to bargain.

X. Proposal 10

The Members disagree as to the negotiability of Proposal 10. The decision and order and the separate dissenting opinion of Chairman Calhoun follow this decision. 

XI. Proposals 11, 12 and 13

Proposal 11

No unit employee shall be required to increase his/her number of preparations without an appropriate increase in preparation time, training at DODDS expense, and compensation.

Proposal 12

Unit employees hired on a half-time basis shall not be required to work more than three instructional periods without extra compensation. Half-time unit employees shall have a preparation period during the instructional day as minimum equal to 1/2 the time allotted for full-time employees.

Proposal 13

Full-time unit employees who are assigned to part-time positions as a classroom teacher and a counselor, nurse, specialist or others shall be authorized a full preparation period during each instructional day of no less than one instructional period.

A. Positions of the Parties

The Agency contends that all three of these proposals are inconsistent with its right to assign work under section 7106(a)(2)(B) of the Statute. Proposal 11, according to the Agency, also unlawfully seeks to bargain over pay and fringe benefits, makes the assignment of one duty dependent on the assignment of another, and lacks specificity concerning the compensation and training to be received by unit employees. Proposal 12, in the Agency's view, also seeks bargaining over wages. The Agency asserts Proposal 13 is also nonnegotiable because it would establish a specific time to perform a particular duty.

The Union points that these proposals respond to management's decision to increase the instructional day from six to seven periods. One consequence of this decision is that each teacher's preparation period has been decreased by lo minutes. According to the Union, these circumstances will be especially difficult for teachers assigned to a new subject or grade. 

The Union explains that the purpose of these proposals is not to limit the type of teaching assignments made to unit employees, but rather to insure that they are paid for the time spent in preparing for the new assignments. With particular reference to Proposal 11, the Union points out that the training referred to is that authorized by the Training Act.

A. Analysis and Conclusion

Contrary to the Union's position, we find that these three proposals do concern the assignment of work. The broad outlines of that right were stated in National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769 (1980), affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982). The Authority observed in that decision that the right to assign work under section 7106(a)(2)(B) of the Statute, among other things, "includes the right to assign general continuing duties, to make specific periodic work assignments to employees, to determine when such assignments will occur and to determine when the work which has been assigned will be performed." The principles set out in Bureau of the Public Debt were applied to a group of 20 proposals in Defense Language Institute, 7 FLRA 723. Those proposals sought to establish certain schedules and time frames in which employees of the agency were to carry out instructional work and training-related responsibilities. In holding that the proposals were nonnegotiable, the Authority stated that "each of the proposals in this case would directly interfere with the right to assign work by allocating a specific amount of time for the accomplishment of a specific duty." That observation was also applied in finding Proposals 7 and 12 nonnegotiable in Panama Canal Federation of Teachers, Local 29 and Department of Defense Dependents Schools, Panama Region, 19 FLRA 814 (1985).

These three proposals similarly seek to prescribe the amount of duty time, that is paid time, to be devoted to "preparation" time. Specifically, Proposal 11 requires that the assignment of additional "preparations" be conditioned upon allocation of "an appropriate increase in preparation time." Similarly, Proposal 12 conditions the assignment of more than three instructional periods to half-time employees upon the assignment of a preparation period equal to one-half the time allocated to full-time employees for that purpose. In Proposal 13 employees serving in dual functions would be entitled to a full preparation period each working day.

Because each proposal specifies the type of work to be performed and the time to be allocated to its performance, the holdings in Defense Language Institute and Department of Defense Dependents Schools, Panama Region are dispositive. Consequently, the proposals interfere with the Agency's right to assign work and are outside the duty to bargain. 1

XII. Proposal 14

Each affected unit employee shall receive 4 days of extra compensation for loss of preparation time.

A. Positions of the Parties

The Agency characterizes the proposal as an attempt to negotiate over wages and fringe benefits, which, in its view, are matters excluded from bargaining under the Statute.

The Union contends that the Agency has not sustained its burden of showing that the proposal is inconsistent with the pay-fixing standard of the Overseas Teachers Pay and Personnel Practices Act. Therefore, the Union argues that the proposal is negotiable.

B. Analysis and Conclusion

In its Petition for Review, the Union explains how it arrived at the figure of 4 days' extra compensation contained in Proposal 14. The computation is based on the decrease in length of preparation periods resulting from the increase in number of instructional periods from six to seven daily multiplied by the number of instructional days. As the Union states, at 15 of its petition, "(t)his proposal intends to ensure compensation for that time." Based on the Union's information, we find that the practical effect of the proposal is to insure that at least 4 working days are allocated to the specific task of preparation time. Consequently, this proposal is to the same effect as Proposals 11 through 13, analyzed above. For the reasons cited in finding those proposals nonnegotiable, we also find Proposal 14 to be outside the duty to bargain. 

XIII. Proposal 15

Each affected unit employee shall receive a percentage increase in pay based on the percentage increase in the work load.

A. Positions of the Parties

The positions of the parties are identical to those outlined for Proposal 14, above.

B. Analysis and Conclusion

The Department of Defense Overseas Teachers Pay and Personnel Practices Act governs, among other things, the compensation of teachers. It requires that basic compensation be fixed at rates equal to the average of the range of rates of basic compensation for similar positions in urban school jurisdictions in the United States of 100,000 or more population. 20 U.S.C. 903. It also requires that the Secretary of Defense implement regulations governing, among other things, the fixing of basic compensation of teachers subject to the above-described provisions set forth in 20 U.S.C. 903; the entitlement of teachers to compensation; and the payment of compensation to teachers and "additional compensation" for teachers. 20 U.S.C. 902. Thus, the statute relating to overseas teachers dictates certain constraints within which basic compensation of teachers must be set and also vests the Department of Defense with discretion as to other matters relating to teachers' compensation. See March v. United States, 506 F.2d 1306 (D.C. Cir. 1974); and Overseas Education Association and Department of Defense Dependents Schools, 3 FLRA 676 (1980).

Proposal 15, in our view, concerns basic compensation. That is, it seeks an increase in unit employees' basic, or yearly, compensation based on the "percentage increase in the work load." As noted, basic compensation is a matter over which the Agency head does not have discretion. Rather, he or she is obligated to follow specific procedures prescribed by the Act in fixing basic compensation. Consequently, in the absence of a showing that this proposal comports with the statutorily prescribed procedures, we must find that the proposal is inconsistent with Federal law and nonnegotiable under section 7117(a)(1) of the Statute. Here the Union has not alleged, nor is it otherwise apparent, that the proposal corrects a flaw in the Agency's pay fixing procedures to bring those procedures into conformity with the Act. Nor does it assert that the practice proposed is one followed by the jurisdictions included in the calculations used to determine the pay of Agency employees. Accordingly, we find the proposal to be outside the duty to bargain.

XIV. Proposal 16

Additional period assignments shall not be in a subject area beyond a unit employee's scheduled subjects prior to a change.

A. Positions of the Parties

The Agency asserts that the proposal is inconsistent with its right to assign work under section 7106(a)(2)(B) of the Statute and with its right to determine the types of employees assigned to any work project or organizational subdivision under section 7106(b)(1).

The Union contends that the proposal is an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by the exercise of a management right.

B. Analysis and Conclusion

Proposal 16 is to the same effect as the proposal found to be nonnegotiable in National Federation of Federal Employees, Local 1214 and Headquarters, United States Army Training Center, Fort Jackson, South Carolina, 11 FLRA 580 (1983). The proposal in that case sought to prevent any changes in the teaching assignments of incumbent instructors. Accordingly, the proposal was found to interfere directly with management's right under section 7106(a)(2)(B) to assign work. In that Proposal 16 seeks to bar any change in teaching responsibilities, it too, for the reasons stated in Fort Jackson, is outside the duty to bargain.

As to the Union's contention that the proposal is an "appropriate arrangement," we find that the proposal is not an arrangement at all. Rather than being directed at ameliorating the effects of management's exercise of a reserved right, the proposal seeks to prevent management from exercising the right. We previously have held that proposals having the objective of barring the exercise of a reserved right interfered excessively with the exercise of the right  and, consequently, were not appropriate arrangements. Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA No. 84 (1987) (Proposal 10).

XV. Proposal 17-21

This proposal and the five that follow represent the Union's response to the Agency's proposed Special Education Procedure Guide. The underlined portions of the proposals are the Union's substitutions and/or additions to the language of the guide as drafted by the Agency. The proposals are set out exactly as submitted to us by the Union.

XVI. Proposal 17

Teachers' Identification

In conducting these activities, the teacher confer with school personnel for information . . . problem. Additionally, the teacher . . . on an anecdotal record. Unit employees shall be authorized additional preparation time or extra compensation (if performed after duty hours) when required to consult with other personnel and/or preparation of reporting materials.

A. Positions of the Parties

According to the Agency, the Union's first proposed change, substituting "school personnel" for "the parents" interferes with its right to assign and conflicts with the authority to determine the personnel by which Agency operations will be conducted under section 7106(a)(2)(B) of the Statute. The agency also asserts that the underlined addition to the guide conflicts with the right to assign work and seeks bargaining over wages and fringe benefits.

The Union asserts that the first revision in the proposal has the objective of limiting the teacher's discussion of suspected student deficiencies to other school personnel, such as guidance counselors, special education teachers and school psychologists, who, in the Union's view, are better qualified to discuss such deficiencies with concerned parents. The addition to the guidance, the Union states, is an appropriate arrangement for employees adversely affected by management's decision to assign this extra work to unit employees. 

B. Analysis and Conclusion

The first part of the proposal is, in effect similar to Proposals I and II which the Authority held to be non-negotiable in International Association of Firefighters, AFL - CIO, Local F116 and Headquarters, 4392d Aerospace Support Group (SAC), Vandenberg Air Force Base, California, 9 FLRA 700 (1982). The proposals in that case sought to prohibit the assigning of certain work to unit employees. That prohibition, the Authority held, directly interfered with management's right to assign work. In like manner, the first part of Proposal 17 interferes with the right to assign work by preventing management from assigning to employees the responsibility for discussing student deficiencies with the parents.

In our view, the assumption underlying the language added to the guidance is that the assignment described cannot be accomplished within the employee's established work schedule. Only if we accept that assumption is the Union's "appropriate arrangement" argument in any way supportable. However, we cannot accept the Union's tacit position that assignment of the function covered by Proposal 17 automatically and inevitably results in work which cannot be accomplished within the time periods the employees are normally required to work. Hence, the Union has not established that management's action in assigning a specific responsibility is a matter which has the kind of effect on employees which would call for an "appropriate arrangement" under section 7106(b)(3).

Moreover, we note that the proposal seeks to allocate additional preparation time or overtime to the performance of a specific function. As we have noted above, such an objective is inconsistent with the right to assign work. Defense Language Institute, 7 FLRA 723.

XVII. Proposal 18

A child or youth suspected . . . agencies. Before a referral can . . ., the referring person must attempt to complete the pre-referral activities, if time permits.

A. Positions of the Parties

The Agency asserts that the underlined modifications to its guidance interfere with the section 7106(a)(2)(b) right to assign work.

The Union contends that the purpose of the proposal is to insure that, if the Agency does not allocate sufficient time during the duty day to perform the covered tasks, employees will not be required to complete them on their own time.

B. Analysis and Conclusion

Proposal 18, in effect, would authorize an employee to determine how much of his or her assigned work could be accomplished. In American Federation of Government Employees, AFL - CIO, Local 2272 and Department of Justice U.S. Marshal Service, District of Columbia, 9 FLRA 1004 (1982) the Authority held, that the prerogative to determine the amount of work to be accomplished was an element of the right to assign work under section 7106(a)(2)(B). Because Proposal 18 nullifies that authority, based on U.S. Marshals Service, it is outside the duty to bargain.

XVIII. Proposal 19

The case manager contacts . . . and attempts to explain.

A. Positions of the Parties

According to the Agency this proposal also interferes with its section 7106(a)(2)(B) right to assign work.

The Union states that there is no management right to hold an employee accountable if someone outside the Agency fails to understand the complicated procedural aspects of the special education program or rights under law.

B. Analysis and Conclusion

As explained by the Union, Proposal 19 concerns the degree of accountability to which an employee will be held in carrying out an assigned task. In Tidewater Virginia Federal Employees Metal Trades Council and Navy Public Works Center, Norfolk, Virginia, 15 FLRA 343 the Authority noted, at 344, that "management, at least in part, exercise its authority to assign work and to direct employees by holding the employees accountable for meeting the standards set by management for the performance of that work." Since determining the degree of accountability is within the scope of the management rights under section 7106(a)(2)(A) and (B) of the Statute, it follows that a proposal seeking to establish the degree to which an employee will be held accountable for the accomplishment of a specific task is nonnegotiable. Because Proposal 19 concerns just such a matter, it is outside the duty to bargain.

XIX. Proposal 20 and 22

Proposal 20

Student Activities:

At the conclusion of the IEP meeting, Only chairpersons will place . . .

Proposal 22

Item 4: The signatures of the co-chairpersons in . . . appropriate lines. All participants may sign.

A. Positions of the Parties

The Agency contends that these proposals interfere with its right to assign work because they change the Agency's requirement that all participants sign the subject forms.

The Union contends that the signing of forms is not an assignment of work, but rather is a device for establishing attendance.

B. Analysis and Conclusion

The Union analogizes its proposed revisions to proposals concerning time and attendance, such as that which was found to be negotiable in American Federation of Government Employees, AFL - CIO, Local 1603 and Department of the Navy, Navy Commissary Store, Patuxent River, Maryland, 16 FLRA 96 (1984). However, based on the record in this case, we find that the signature requirement is intended to have greater import than merely a check on employee time and  attendance. Specifically, at 20 of its Petition for Review, the Union explains its reasons for revising provisions of the Agency guidance as follows:

The intent of this proposal is to relieve the unit employees of any liability for the Individualized Education Program if parents sue under the Educational (sic) for Handicapped Children Act. It is the (Union's) position that it is the Agency, and not individual teachers, who are responsible to the parents and students for identifying and meeting the special education needs of the students.

Thus, it is clear the Union understands that at least one purpose of the signature requirement is to identify for all parties, including the Agency's clients, those persons who were involved in developing a student's education plan.

Viewed in light of the Union's stated objective, the requirement sought to be changed by the Union constitutes a "methods and means" of performing the Agency's work under section 7106(b) (1) of the Statute. American Federation of Government Employees, AFL - CIO, National Immigration and Naturalization Service Council and U.S. Department of Justice, Immigration and Naturalization Service, 8 FLRA 347 (1982) (Proposal 2), reversed as to other matters sub nom. Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724 (D.C. Cir. 1983) and National Treasury Employees Union and Internal Revenue Service, 27 FLRA No. 66 (1987). While the cited cases provide some latitude in negotiating over the implementation of the methods and means decided upon by management, those decisions clearly do not authorize direct interference with an agency's decision in the matter. Here, the Union's proposed revisions do not provide a method for implementing management's decision that all parties, including students and their parents should know who participated in developing a student's education plan. Rather, the proposals' goal is to conceal the names of all participants other than the chairperson. Accordingly, these proposals are not within the duty to bargain under section 7106(b)(1) of the Statute.

XX. Proposal 21

Another approach to developing an IEP would include the following steps:

2. Prior to the IEP meeting, each specialist develops . . . 

A. Positions of the Parties

According to the Agency, the proposed revision would limit the employees who could be assigned to develop goals and objectives for students. Consequently, the proposal interferes with the right to assign work under section 7106(a)(2)(B) by barring the assignment of such work to teachers.

The Union contends that the proposal's objective is not to limit who can be assigned the work. Rather, the goal is merely to define who is responsible for doing so. The Union asserts that the total "professional" (which is the word the Union seeks to change) is too vague to notify employees of what is expected of them.

B. Analysis and Conclusion

The circumstances surrounding this proposal are similar to those occurring with respect to Proposals 1 and 2 in American Federation of Government Employees, AFL - CIO, Local 2910 and Library of Congress, 11 FLRA 632 (1983). In that case the union stated that its purpose in offering the proposals "was to require management to publish, in its regulation governing its Employee Assistance Program and for the information of employees, the offices to which various responsibilities are assigned." Notwithstanding the union's explanation, the Authority noted that the proposals' clear language specifically or implicitly assigned certain responsibilities to specified agency organizational segments and/or employees. The proposals therefore were held to interfere directly with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Similarly, Proposal 21 seeks to substitute one title for another for the asserted purpose of informing employees of what their responsibilities are concerning the accomplishment of certain work. Although the Union, as stated above, contends that the title "professional" is too vague to inform employees, the record clearly reveals that both parties understand the term "specialist" to mean something other than "professional." Specifically, at 20 of its Petition for Review the Union states that the proposal's intent is to "clarify which of the professionals attending the meeting are required to develop goals and objectives so that unit employees know what is expected of them." See also the Agency's position on the proposal at XIX.A. above. Consequently, we conclude, consistent with the holding in Library of Congress, that Proposal 21 interferes with the reserved right to assign work by specifying which employee or group of employees will be responsible for developing goals and objectives. Hence, the proposal is nonnegotiable.

XXI. Order

The petition for review is dismissed insofar as it pertains to all but the last sentence of Proposal 1, Proposals 2, 5, 7 through 9, and 11 through 22. The Agency must, upon request or as otherwise agreed to by the parties, negotiate over the last sentence of Proposal 1, Proposals 4, and 6. 2

Issued, Washington, D.C.,September 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

DECISION AND ORDER ON PROPOSALS 3 AND 10

I. Proposal 3

Unit employees shall be paid at the rate of one and one-half for the portion of the time required for make-up of lost instructional time that exceeds the scheduled 183 instructional days. Double time shall be paid for recess periods, weekends, and holidays used as make-up time. All expenses required of unit employees associated with the make-up of instructional time shall be borne by DODDS.

A. Positions of the Parties

According to the Agency proposal 3 seeks bargaining over wages and fringe benefits in contravention of the legislative intent that negotiations on wages be barred by the Statute.

The Union notes that the &basic compensation, of bargaining unit employees is fixed in accordance with the requirements of the Department of Defense Overseas Teachers Pay and Personnel Practices Act, 20 U.S.C. 901-907, (the Act). According to the Union, because the pay fixing scheme of the Act applies only to basic compensation, setting the overtime rate is within the discretion of the Agency. Consequently, the Union concludes, Proposal 3, concerning the overtime pay rate, is within the duty to bargain.

B. Analysis and Conclusion

The Act governs, among other matters, the compensation of teachers employed overseas by the Agency. It requires that "basic compensation" be fixed at rate equal to the average of the range of rates of basic compensation paid to similar positions in urban school jurisdictions of 100,000 or more population within the United States. 20 U.S.C. 903(c). It also requires the Secretary of Defense to promulgate regulations governing, among other things, the fixing of basic compensation of teachers in accordance with the method described, the entitlement of teachers to compensation, the payment of compensation to teachers and their entitlement to "additional compensation." 20 U.S.C. 902. While the scheme prescribed by the Act imposes certain constraints on the establishment of overseas teachers' basic compensation, it vests the Department of Defense with discretion over matters other than basic compensation. Overseas Education Association and Department of Defense Dependents Schools, 3 FLRA 676 (1980).

Particularly relevant to the dispute here is the holding in March v. United States, 506 F.2d 1306 (D.C. Cir. 1974). In that case the court was called upon to determine the scope of the term "basic compensation," as used in the Act. The issue presented was whether the plaintiffs were entitled to compensatory time under the pay-fixing provisions of the Act. In finding that no such entitlement existed under the Act itself the court stated, at 506 F.2d 1319:

It may be that stateside teachers accumulate compensatory time for such activities as attending PTA meetings, lesson preparation and grading papers. We hold, however, that these aspects of compensation are not part of "basic compensation" under (5 U.S.C. 902(a)(2) and 903(c)), but rather are committed to the Department's discretion under (20 U.S.C. 902(a)(8) and (9)) dealing with "the leave system" and "additional compensation." (Footnotes omitted).

Proposal 3, here, concerns the fixing of overtime pay rates, a matter analogous to compensatory time. Both overtime pay and compensatory time are compensation to which a teacher becomes entitled when directed by management to perform work beyond normal duty hours. Consequently, we conclude, consistent with the holding in March v. United States, that the fixing of overtime pay is not within the scope of the Act's procedures for establishing "basic compensation." Rather, overtime pay rates are within the Agency's discretion to establish. 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) the Authority 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 has discretion, rather than a matter dictated by law. Proposal 3, based on Fort Bragg, is likewise within the Agency's duty to bargain.

II. Proposal 10

Scheduling for the 7-Period Day shall be done at the school level between DODDS and the 0EA. Each school shall be allowed complete flexibility in scheduling to meet individual school needs. This includes but is not limited to the following concepts: Back-to-Back Classes, Study Halls; Rotating Schedules; Double Preparation Time for the faculty; and Different Time Limitations for different classes.

A. Positions of the Parties

The Agency contends that Proposal 10 interferes with its right under section 7106(a)(2)(B) to assign work and with its authority under section 7106(b)(1) to determine the methods and means by which the work will be performed.

The Union avers that the proposal does not seek to abridge the Agency's right to institute a 7-period day. The proposal's intent, according to the Union, is to establish a procedure permitting employees to advise management on the order of events or periods in scheduling the school day.

B. Analysis and Conclusion

Initially, the Union explained that Proposal 10 was intended "to allow management and the (Union) flexibility at the local level to negotiate starting and ending times for these new periods, and the scheduling of when certain periods will be held during the instructional day, and in what order teachers will be assigned class preparation study hall and other periods." Petition for Review at 12. However, subsequently the Union stated that the proposal "only seeks to establish a procedure by which management can consider employee input at the school level on the order of events or periods (classroom instruction, lunch, preparation periods, study halls) in scheduling the school day." Reply Brief at 27. Either of these explanations is consistent with the language of the proposal. In these circumstances, we adopt the Union's later explanation as reflective of the meaning attributable to the proposal, viewing this later statement as a repudiation of the prior explanation contained in the Petition for Review. Thus, we find that the proposal is intended to establish a mechanism for employees to provide input into the scheduling of the 7-period school day.

Consequently, the proposal is similar in effect to Proposal 1, held to be negotiable in National Federation of Federal Employees, Local 1430 and Department of the Navy, Northern Division, U.S. Naval Base, Philadelphia, Pennsylvania, 15 FLRA 45 (1984). In that case, the proposal was found to be within the duty to bargain based on the union's explanation that it was "concerned with the manner in which the Agency will provide participation in establishing performance standards, but does not prevent the Agency from establishing such standards pursuant to its management rights. . . ." Because Proposal 10, here, does not intrude on management's right to schedule the school day in any manner it deems appropriate, we conclude that it constitutes a negotiable procedure under section 7106(b)(2) of the Statute. National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 25 FLRA No. 90 (1987) (Proposal 3), petition for review filed as to other matters sub nom. National Treasury Employees Union v. FLRA, No. 87-1166 (D.C. Cir. Apr. 15, 1987).

III. Order

The Agency must, upon request or as otherwise agreed to by the parties, negotiate over proposals 3 and 10. 3

Issued, Washington, D.C., September 30, 1987.

Henry B. Frazier III, Member

Jean McKee, Member 

Separate Opinion of Chairman Calhoun on Proposals 3 and 10

Proposal 3 seeks overtime compensation for teachers in certain circumstances. It is like Proposal 1, which sought "additional compensation" for certain duties in Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA No. 88 (1987), petition for review filed sub nom. OEA v. FLRA, No. 87-1468 (D.C. Cir. Sept. 8, 1987). In my opinion in that case, I stated that in my view, the discretion of the Secretary of Defense under 20 U.S.C. 902 to determine the compensation of teachers is exclusive and not subject to negotiations absent a clear expression of congressional intent to the contrary. I found no such statement of congressional intent in that case, and I find none here. See also Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA No. 71 (1987), petition for review filed sub nom. OEA v. FLRA, No. 87-1279 (D.C. Cir. June 25, 1987). As a result I would find that Proposal 3 is not negotiable.

Proposal 10 provides, in pertinent part, that "(s)cheduling for the 7-Period Day shall be done at the school level between DODDS and the OEA. Each school shall be allowed complete flexibility in scheduling to meet individual school needs." My colleagues first conclude that the Union's statement that the proposal's purpose is to "establish a mechanism for employee input into the scheduling of the 7-period school day" is not in conflict with the proposal's express language. Accordingly, the majority finds that the proposal does not "in any manner intrude on management's right to schedule the school day in any manner it deems appropriate(.)" I respectfully disagree with both conclusions.

First, the proposal itself requires that the scheduling of the 7-period day be done "at the school level between DODDS and the OEA." Second, my reading of this proposal--that it contemplates negotiations over the scheduling decisions--is acknowledged by the Union. In its petition for review, the Union offers the following statement of intent: 

This proposal (is) intended to allow management and the Association flexibility at the local level to negotiate starting and ending times for these new periods, and the scheduling of when certain periods will be held during the instructional day, and in what order teachers will be assigned class, preparation, study hall and other periods.

Petition for Review at 12.

In my view, the right to determine when assigned work will be performed is clearly encompassed within the Agency's right to assign work. See, for example, NTEU v. FLRA, 691 F.2d 553, 563 (D.C. Cir. 1982), where the court stated that "(w)ithout a doubt, the right to determine what work will be done, and by whom and when it is to be done is at the very core of successful management of the employer's business(.)" Since the Union clearly intends Proposal 10 to require the Agency to bargain about when and how assigned work is to be performed, I conclude that the proposal is nonnegotiable.

Issued, Washington, D.C., September 30, 1987.

Jerry L. Calhoun, Chairman

FEDERAL LABOR RELATIONS AUTHORITY 

FOOTNOTES

Footnote 1 Because of our conclusion on these proposals, we find it unnecessary to