29:0628(56)NG - OEA VS DOD, DODDS



[ v29 p628 ]
29:0628(56)NG
The decision of the Authority follows:


29 FLRA NO. 56

OVERSEAS EDUCATION
ASSOCIATION, INC.

                   Union

       and

DEPARTMENT OF DEFENSE,
DEPENDENTS SCHOOLS

                   Agency

Case No. 0-NG-1115

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 twenty-nine Union proposals 1 presented during "impact and implementation" negotiations. The Union requests us to sever "any parts, subparts, sentences, phrases or words" of proposals which are found to be nonnegotiable and "declare negotiable so much of the proposals which are negotiable." We grant the Union's request to the limited extent that we will rule separately upon those portions of the proposals which, as submitted, we view as being able to stand independently of the rest of the proposal and which have been specifically addressed by the parties. 2

For the reasons discussed below, we find that Proposals 3b and llb are within the duty to bargain; and we dismiss the Union's petition for review as it relates to Proposals 1c, 1d, 3a, 5a, 5b, 5c, 5d, 7b, 7c, 7e, 7f, 7i, 7j, 7k, 8a, 8b, 8c, 10a, 10b, and 10c. Furthermore as to Proposals 4b, 4c, 4d, 4e, 4f, 7d, which are not properly before us, the Union's petition for review is dismissed without prejudice to its right to file a negotiability appeal if the conditions governing review of negotiability issues are met and if the Union chooses to file such an appeal. Finally, the Authority Members have reached differing opinions and/or conclusions concerning Proposals 1e, 11b, 7k, 10a and 10b. The Decision and Order and Chairman Calhoun's separate opinion on these proposals immediately follow this decision.

II. Proposals 1c, 1d, 1e, Atlantic Region Policy Regarding Substitutes

1c. Unit employees will not be assigned the responsibility for covering classes of absent teachers solely because substitutes are not hired.

1d. To compensate for the loss of preparation time, unit employees will not be assigned non-professional duties.

The Authority Members have reached differing conclusions concerning Proposal 1e. The Decision and Order on Proposal 1e and Chairman Calhoun's separate opinion immediately follow this decision.

A. Positions of the Parties

The Agency contends that these proposals relate to positions--substitute teachers--which are not in the bargaining unit; and would require it to assign work to particular employees. 3 It contends that Proposal 1c either interferes with management's right to assign work under 7106(a) of the Statute or to determine the types of employees who will perform the Agency's mission, under Section 7106(b), and is outside the duty to bargain. It further contends that Proposal 1d interferes with its right to assign work. 

The Union contends that proposal 1c is an appropriate arrangement for unit employees who are adversely affected by management's decision "to limit the situations when substitute teachers are hired." Union Response at 3. Likewise, the Union contends that proposal 1d is intended as an appropriate arrangement for unit employees adversely affected by the loss of the preparation period.

B. Analysis and Conclusions

We conclude that Proposals 1c and 1d are outside the duty to bargain.

Proposal 1c expressly precludes the Agency from requiring bargaining unit employees to perform duties which normally would have been performed by absent teachers. Proposal 1d expressly precludes the Agency from requiring bargaining unit employees to perform nonprofessional duties under certain circumstances.

The right to assign work includes the determinations of the particular employee to whom the work will be assigned and when the work which has been assigned will be performed. By precluding the Agency from temporarily assigning the duties of absent teachers to unit employees when substitute teachers are not hired and by prohibiting the Agency from assigning nonprofessional duties to unit employees if they are assigned the duties of absent teachers, these proposals prevent the Agency from determining both the employee to whom and when these duties will be performed. National Treasury Employees Union and Internal Revenue Service, 17 FLRA 379 (1985) (Proposal 1), affirmed as to Proposal 1 sub nom. NTEU v. FLRA, 810 F.2d 1224 (D.C. Cir. 1987). Therefore, based on the reasons set forth and the case cited in Internal Revenue Service, we find that proposals 1c and 1 directly interfere with management's right to assign work. 4

We turn now to the question of whether Proposals 1c and 1d, in spite of the fact that they interfere with management's right under section 7106(a)(2)(B), are nevertheless negotiable as appropriate arrangements for employees adversely affected by the exercise of that right within the meaning of section 7106(b)(3). The threshold question is whether the proposals   are "arrangements" 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 proposal is to mitigate the adverse effects on certain unit employees of being required to perform additional duties under certain circumstances--the duties of teachers who are absent and nonprofessional duties. Assuming for the purpose of this decision that these additional job requirements result from management's decision to limit the situations when substitute teachers are hired, as the Union claims, in our view it follows that these proposals concern the effects of management's establishing job requirements.

The establishment of job requirements, however, 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 the requirements of their jobs 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 these proposals do not concern "arrangements" for adversely affected employees. Consequently, we need not reach the question whether they 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, Department of Commerce, 25 FLRA No. 29 (1987) (Proposal 3 K), petition for review filed sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. March 26, 1987).

III. Proposal 3a and 3b. Changes in the Seat Priority System Governing Space Available Air Travel for Teachers in the Pacific Region

3a. The change be delayed one year during which time we receive the basis for the proposed change.

3b. The change apply only during the first week following the end of the school year.

A. Positions of the Parties

The Agency contends that proposal 3a is moot because the change which these proposals address has already been   implemented because more than one year has already elapsed since the start of the proposed one year delay period. The Agency further contends that Proposal 3b, is nonnegotiable because it:

1) does not involve a condition of employment of bargaining unit employees under section 7103(a)(14) of the Statute but is limited to matters of personal interest to those employees and directly affects nonbargaining unit employees;

2) relates to a matter which is not within the control of the Agency but is controlled by the military; and

3) conflicts with an Agency regulation for which a compelling need exists.

The Union generally disagrees with the Agency's contentions regarding proposal 3b but does not respond to the Agency's assertion that proposal 3a is moot. Specifically, the Union contends that Proposal 3b is intended to restore unit employees to a category 2A priority after the first week of their summer recess period on an equal basis with other DoD civilian employees. According to the Union, the regulation the Agency implemented gave preference to all other DoD civilian employees, who remained in category 2A during the summer recess.

It further contends that the proposal concerns a condition of employment because the Agency's Environmental and Morale Leave (EML) program, of which stand-by air transportation is a part, is a personnel practice created to reduce the "harsh affects of an assignment to a particularly difficult overseas duty post." Union Response at 2. it asserts that the proposal does not directly affect nonbargaining unit employees but merely seeks equivalence for teachers with other DoD employees when they compete for space available transportation.

Finally, the Union contends that the Agency has not demonstrated a compelling need for its regulation establishing a lower space available category for teachers.

B. Analysis and Conclusions

1. Proposal 3a

The Agency's claim that Proposal 3a is moot because the regulation it sought to delay has been implemented for   more than one year is not controverted in the record and no reason for disagreeing with this claim is otherwise apparent. We will, therefore, dismiss as moot the Union's petition as it relates to proposal 3a.

2. Proposal 3b: Conditions of Employment

In Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23 (1986), the Authority set forth two basic factors which it would consider in deciding whether a proposal involves a condition of employment.

(1) Whether the matter proposed to be bargained pertains to bargaining unit employees.

(2) The nature and extent of the matters proposed to be bargained on working conditions of those employees.

Based on the record, Proposal 3b is limited to bargaining unit employees. The only contrary claim by the Agency is that the proposal would impact on nonbargaining unit employees because, since space available travel is a limited resource, giving seat priority to one group necessarily results in denying it to another group or individual. We considered and rejected that argument in Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA No. 71 (1987) (Proposal 1), petition for review filed sub nom. Overseas Education Association v. FLRA, No. 87-1279 (D.C. Cir. June 26, 1987). We reject it here for the same reason, namely, that although much of collective bargaining entails the distribution of finite resources, the argument seems premised on a presumption that Congress intended the duty to bargain to arise only when infinite resources are available.

Consequently, we find that Proposal 3b meets the first factor set forth in Antilles Consolidated School System.

We find that the proposal also meets the second factor for reasons similar to those stated in office Schools, 27 FLRA No. 71 (1987) (Proposal 1) petition for review filed sub nom. Overseas Education Association v. FLRA, No. 87-1279 (D.C. Cir. June 26, 1987). That is, there is a direct connection established by regulatory provisions between the transportation service which is the subject of this proposal and the employment relationship of employees   for whom the Agency makes the service available. In the first place, Department of Defense Directive Number 1400-6 dated February 15, 1980, entitled in "DOD Civilian Employees in Overseas Areas" provides:

4. In making a determination of numbers and types of U.S. employees for overseas areas, the Military Service Commander shall consider the ability of the command to ensure adequate housing; subsistence; and medical, commissary, exchange, laundry, transportation, and other essential facilities and services. Except when required to meet unexpected emergency conditions, an overseas commander shall not request recruitment from the United States unless the command can provide such facilities to meet health and decency standards.

Furthermore, stand-by air transportation is a part of the Agency's Environmental and Morale Leave (EML) program for certain overseas areas. It is discussed in Department of Defense regulation DOD 4515.13-R dated January 1980, entitled "Air Transportation Eligibility," as follows:

10-2. DOD Policy. Annual leave programs are conducted to provide periods of respite from the working environment to enhance performance, motivation, and morale. Where adverse environmental conditions exists. . . DOD civilian employees and/or their dependents may be provided space available air transportation for purposes of taking ordinary leave in a more desirable location.

Thus, the policy is intended to alleviate the adverse effects on employees' performance, motivation and morale of hardships incident to the Agency's having assigned them to a difficult overseas location. These considerations clearly concern a benefit to the Agency. They do not relate to matters essentially personal to the employees involved or primarily for their benefit, as claimed by the Agency. Hence, the Authority decisions relied on by the Agency in this connection are distinguishable and inapposite. Therefore, consistent with our decision in Office of Dependents Schools, 27 FLRA No. 71 (1987) (Proposal 1), we find that the proposal, which addresses the extent to which certain already eligible bargaining unit employees will be provided this transportation service, concerns conditions of employment.  

3. Effect of Military Control on Duty to Bargain

We reject here for the same reasons we expressed in Department of Defense Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 5) the Agency's argument that it has no obligation to bargain over services and facilities because they are controlled by other components of the Department of Defense. As noted in that decision, where a union holds exclusive recognition in a component of an agency, that component is obligated to bargain over conditions of employment despite the fact that control over a particular condition of employment rests with a different organizational component in the same overall agency. The only limits on an agency's obligation to bargain over conditions of employment, in that circumstance, are those placed on its discretion by provisions of law, Government-wide rule or regulation or agency regulations for which a compelling need exists.

4. Compelling Need

The Agency has not established that a compelling need exists for its regulation reducing the relative priority of teachers for space available travel. It contends that the regulation is essential to ensure that its air transportation mission is accomplished in the least costly and most efficient manner. Its supporting arguments, however, are merely conjectural--that it must have uniform air transportation policies to accomplish its objective and that such policies could not be maintained if subject to negotiations. Such conjecture does not support a finding of compelling need. See Federal Employees Metal Trades Council, AFL - CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 25 FLRA No. 31 (1987). Fundamentally, the Agency has failed to demonstrate that its regulatory provision is essential, even assuming that it may be helpful and desirable, to the accomplishment of that aspect of its mission relating to air transportation. See American Federation of Government Employees, AFL - CIO, Local 1928 and Department of the Navy, Naval Air Development Center, Warminster, Pennsylvania. 2 FLRA 451 (1980). Therefore, the Agency has not established that its regulation renders Proposal 3b outside the duty to bargain.

IV. Proposals 4b, 4c, 4d, 4e and 4f Concerning DoD's Proposed Regulation on Immunization.

4b. Teachers not be required to have immunizations unless parents of children are required to have immunizations.  

4c. Teachers who have had the immunizations not be required to have them again.

4d. Teachers who are over thirty years old be presumed to be immune from children's diseases.

4e. Teachers who are pregnant be excused from immunization during pregnancy.

4f. Teachers who are allergic to a particular vaccine or delivery agency be excused.

A. Positions of the Parties

The Agency asserts that it has no duty to bargain concerning these proposals because no regulatory change has been made in the immunization program and because the subject of immunizations was considered during the renegotiation of the parties' contract and the agreement covers the matters involved. The Agency contends that a negotiability appeal is not the proper forum in which to resolve these issues concerning its obligation to bargain on these proposals.

The Union disputes the Agency's contentions.

B. Analysis and Conclusions

There are no issues before us as to whether proposals 4b, 4c, 4d, 4e, and 4f are inconsistent with applicable law, rule or regulation. Therefore, the appeal as to these proposals does not meet the conditions governing review of negotiability issues and must be dismissed.

Where the conditions for review of negotiability issues have 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 additional issues in the case, for example, an alleged conflict between a proposal and a controlling agreement. See American Federation of Government Employees, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983). To the extent that there are additional issues regarding the duty to bargain in the specific circumstances of this case, 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). Accordingly, the claimed existence of threshold duty   to bargain questions does not preclude us from determining the negotiability of proposals that are otherwise properly before us.

A different situation is presented, however, for proposals as to which threshold duty to bargain issues are raised but for which the conditions for review of negotiability issues have not been met. Neither the court's decision in AFGE, Local 2736 nor the Authority's decision in Wurtsmith addressed that situation. Specifically, as to proposals 4b, 4c, 4d, 4e, and 4f, the Agency contends only that there was no change in working conditions triggering a duty to bargain and that the subject matter of these proposals is covered by the parties' Agreement. The Agency does not argue that these proposals are inconsistent with law, rule, or regulation.

Under section 2424.1 of our Regulations, we will consider a petition for review of a negotiability issue only where the parties are in dispute as to whether a proposal is inconsistent with law, rule or regulation. American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA No. 89 (1987). In this case, as noted previously, there are no issues before us as to whether proposals 4b, 4c, 4d, 4e, and 4f are inconsistent with law, rule or regulation. In these circumstances, the conditions governing review of negotiability issues have not been met. Moreover, other issues concerning the proposals about which the parties are in dispute--whether the subject matter of the proposals is covered by the parties' agreement or whether management has initiated a change in the areas covered by the proposals so as to give rise to a duty to bargain--should be resolved in other appropriate proceedings, such as the parties' negotiated grievance procedure or the unfair labor practice procedures under section 7118 of the Statute. Therefore, we will dismiss the Union's petition for review as to these proposals, without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met and if the Union chooses to file such an appeal.

V. Proposals 5a, 5b, 5c, and 5d Concerning Lunchtime Monitoring

5a. Affected unit employees shall be provided a duty-free lunch period if requested by the unit employee. The time allocated shall be decided between the OEA representatives   and ODE/DODDS representatives in each affected school.

5b. ODE/DODDS shall make every reasonable effort to seek volunteers and/or donated funds to meet the need for lunchtime supervision.

5c. ODE/DODDS shall make every reasonable effort to solicit funding from appropriate offices to meet the need for lunchtime supervision.

5d. DODDS shall make every reasonable effort to use the services of presently employed para-professional/teacher aides for lunchtime monitoring when the duties are not in conflict with their primary duties of assisting teachers and the duties fall within the prescribed duty day.

A. Positions of the Parties

The Agency initially contends that it has no duty to bargain because (1) it has not changed the policy to which the proposals refer, and (2) the subject of lunchtime monitoring is already covered by the parties' Agreement. We will not consider these contentions further in this decision because, as we explained in section IV, such claims do not raise negotiability issues and should be resolved in other proceedings. American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA No. 89 (1987).

The Agency, however, does raise negotiability issues as to the consistency of these proposals with law, rule or regulation, as follows. It contends that proposal 5a, is outside the duty to bargain because: (1) by conditioning the assignment of the lunchtime monitoring duty on the agreement of unit employees to accept such an assignment it interferes with management's right to assign work under Section 7106(a); and (2) by limiting management's selection of an employee to perform the duty of monitoring students in the cafeteria and playground during lunchtime to only those employees who have elected not to take a duty-free lunch period it interferes with the Agency's staffing patterns under Section 7106(b)(1).

The Agency contends that Proposals 5b and 5c are outside its duty to bargain because they do not concern terms   or conditions of employment. In particular, the Agency notes that Proposal 5b requires it to seek volunteers from the community while Proposal 5c requires it to solicit funds to hire additional employees.

The Agency asserts that Proposal 5d is outside the duty to bargain because the requirement that it make every reasonable effort to use para-professional/teacher aides instead of unit teachers to monitor students during lunchtime concerns non-bargaining unit employees, namely the teachers' aides. It also argues that this proposal interferes with its right to assign work because it would interfere with its decision as to which employees or the positions would perform the assignment of monitoring students at lunchtime.

The Union generally disputes the Agency's contentions, claiming that these proposals are appropriate arrangements for unit employees who have been adversely affected by the exercise of management's rights. It claims that Proposals 5b, 5c, and 5d, by only requiring management to "make every reasonable effort" to find alternative methods of assigning the lunchtime monitoring duty, merely establish a general, nonquantitative standard by which to evaluate the exercise of management's rights on the Authority found negotiable in National Association of Air Traffic Specialist and Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981) (Proposal VII).

B. Analysis and Conclusions

We conclude that Proposals 5a, 5b, 5c, and 5d are outside of the duty to bargain.

Proposal 5a expressly provides that a unit employee will be given a duty-free lunch period upon request. Consequently, it precludes the Agency from assigning any duties, including the duty of monitoring students during lunchtime, to those unit employees who exercise their option to request a duty-free lunch period. This proposal, therefore, directly interferes with the agency's right under section 7106(a)(2)(B) by completely prohibiting the assignment of work. See 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), petition for review filed sub nom. American Federation of Government Employees, AFL - CIO Local 2094 v. FLRA, No. 86-1521 (D.C. Cir. Sept. 22, 1986).

Proposals 5b, 5c, and 5d all provide for the performance of the task of monitoring students at lunchtime by someone other than bargaining unit employees. Proposal 5b requires   using "volunteers" which the Union indicates refers to parents and other nonbargaining unit persons. Proposals 5b and 5c require the Agency to seek funding, apparently to hire new employees to perform the monitoring. Proposal 5d requires using nonbargaining unit para-professionals or teacher aides to do the monitoring.

In our view, these proposals all are nonnegotiable under Authority precedent because they would establish substantive contractual limitations on the Agency's ability to determine the personnel who would conduct this aspect of the Agency's operations. That is, the proposals would virtually preclude the Agency from determining that teachers in the bargaining unit represented by the Union would carry out lunchroom monitoring duties. See Defense Logistics Agency Council of AFGE Locals, AFL - CIO and Department of Defense, Defense Logistics Agency, 24 FLRA No. 40 (1986) (Provision 4). 5

In this regard, we also reject the Union's contention that the "every reasonable effort" standard embedded in each of these proposals is a general, nonquantitative standard which is negotiable. Where a range of reasonable options or choices exists whereby an agency can exercise its management rights, the standard of "every reasonable effort" is, in reality, a substantive rather than a general nonquantitative standard. That is because an arbitrator under such a standard could substitute his or her judgment for management's and, for example, find that the Agency had not tried every option before it decided on the particular course of action implemented. Thus, the standard here is materially similar to the standard we found to be outside the duty to bargain as constituting a substantive criterion authorizing the substitution of arbitral judgment for that of management's in National Union of Hospital and Health Care Employees, AFL - CIO, district 1199 and Veterans Administration Medical Center Dayton, Ohio, 28 FLRA No. 65 (Proposal 1). We consequently will no longer follow Department of Transportation, Federal Aviation Administration, 6 FLRA 588, 597-98 (1981) relied on by the Union to the extent it is inconsistent with this decision.

We turn now to the question of whether Proposals 5a, 5b, 5c, and 5d, in spite of the fact that they interfere with   management's right under section 7106(a)(2)(13), are nevertheless negotiable as appropriate arrangements for employees adversely affected by the exercise of that right within the meaning of section 7106(b)(3). The threshold question as indicated earlier in section II.B. of this decision is whether the proposal's are "arrangements" for adversely affected employees. The Union claims that the purpose of these proposals is to mitigate the adverse effects on bargaining unit teachers of being required to perform the additional duty of lunchroom monitoring.

As we stated in detail in section II.B., the establishment of job requirements does not by itself adversely affect employees. Therefore, we need not reach the question of whether these proposals are "appropriate" arrangements.

VI. Proposals 7j, 10c, Lengthening Instructional Day and Increasing the Number of Periods in the Instructional Day

7j For each minute added to an impacted unit employee's instructional day, one minute shall be subtracted from the current required 30-minute stay following the instructional day.

10c The additional period (unit employees must teach) shall not be in a subject area beyond the unit employee's scheduled subjects prior to the change.

A. Positions of the Parties

The Agency asserts that it has no duty to bargain over proposal 7j because (1) it is already contained in the parties' agreement, and (2) it directly interferes with management's right to assign work by mandating when assigned work will be performed. Agency contends that proposal 10c is outside the duty to bargain because (1) it violates management's right to assign work by limiting the duties management can assign and (2) violates management's right to determine its staffing pattern under section 7106(b)(1) by limiting the number and types of employees management could employ to accomplish its mission.

Concerning both of these proposals, the Union disputes the Agency's contentions and maintains that the proposals constitute "appropriate arrangements" under section 7106(b)(3). It states that Proposal 7j addresses the impact of management's lengthening the instructional and work day without additional compensation. Petition for Review at 14.  It asserts that Proposal 10c addresses the impact of management's increasing the number of instructional periods thereby creating a heavier workload. Petition for Review at 19.

B. Analysis and Conclusions

In Fort Knox Teachers Association and Fort Knox Dependent Schools, 22 FLRA No. 88 (1986) (Proposal 1) the Authority held nonnegotiable a proposal to eliminate the requirement that teachers remain with their classes during art instruction even though they did not participate in the instruction itself. The Authority reasoned that the proposal would have prescribed what duties teachers would perform by eliminating the requirement that they remain with their classes during art instruction.

In the present case, the current requirement that teachers remain for 30 minutes following completion of the instructional day is an assignment of work within the meaning of section 7106(a)(2)(B). See Fort Knox Teachers Association and Fort Knox Dependents Schools, 19 FLRA 878, 883-84 (1985). Proposal 7j would shorten or eliminate the required 30 minute period in direct proportion to the Agency's lengthening of the instructional day, on a minute for minute basis. Thus, Proposal 7j is to the same effect as Proposal 1, found nonnegotiable in Fort Knox Dependent Schools, 22 FLRA No. 88 (1986) and we find that it too is inconsistent with management's right to assign work for the reason stated in that decision.

Proposal 10c also is nonnegotiable for the same reason. It is prescriptive of the teaching duties the Agency could assign to bargaining unit employees. It would expressly prohibit assigning a teacher to teach any subject area beyond those which he or she already was scheduled to teach when the Agency assigned an additional instructional period. Thus, Proposal 10c, likewise directly interferes with management's right to assign work.

We turn now to the question of whether Proposals 7j and 10c, in spite of the fact that they interfere with management's right under section 7106(a)(2)(B), are nevertheless negotiable as appropriate arrangements for employees adversely affected by the exercise of that right within the meaning of section 7106(b)(3). The threshold question as indicated in section II.B. of this decision is whether the proposal's are "arrangements" for adversely affected employees. The Union claims that the purpose of these proposals is to mitigate the adverse effects on bargaining unit teachers of management's having lengthened the instructional day, the work day, and   increased the number of instructional periods. As we explained in detail in section II.B., the establishment of additional job requirements does not by itself adversely affect employees. Therefore, we need not reach the question of whether these proposals are "appropriate" arrangements. 6

VII. Proposals 7b, c, d, e, f, and i Concerning the Instructional Workday

7b. The Employer shall make every reasonable effort to provide a reasonable amount of preparation time for each impacted unit employee during the employee's instructional day.

7c. The Employer shall make every reasonable effort to provide substitutes for absent elementary specialists to ensure preparation time for classroom.

7d. The Employer shall make every reasonable effort to provide a reasonable amount of release time for each impacted unit employee to take care of personal needs during the instructional day.

7e. The Employer shall make every reasonable effort to provide a duty-free lunch period of a least thirty minutes for all impacted unit employees.

7f. The Employer shall make every reasonable effort to relieve impacted unit employees from non-instructional duties during the instructional day. Such duties include, but are not limited to, the following activities: playground monitoring, lunchroom monitoring, bus duty, hallway monitoring, substitute teaching.

7i. The Employer shall make every reasonable effort to provide aides to all impacted unit employees.  

A. Positions of the Parties

The Agency contends that it has no duty to bargain over these proposals for the following reasons:

(1) There has been no change sufficient to give rise to a bargaining obligation as to Proposal 7b. In any event, the proposal violates management's right to assign work;

(2) Proposal 7c concerns the conditions of employment of nonbargaining unit employees and violates the right to assign work;

(3) there has been no change sufficient to give rise to a bargaining obligation as to Proposal 7d and "time to take care of personal needs was already provided";

(4) Proposal 7e and 7f violates management's rights to assign work and to determine its staffing pattern;

(5) Proposal 7i concerns the conditions of employment of nonbargaining unit employees and violates the right to determine its staffing pattern.

Additionally, the Agency contends that the qualifying language of "every reasonable effort" contained in these proposals does not make otherwise nonnegotiable language negotiable.

The Union disputes the Agency's contentions and argues that the Authority has found a similar proposal for an agency to exert "every reasonable effort" to be within the duty to be within the duty to bargain under the Statute in National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588, 597-99 (1981). With the exception of proposal 7d the Union argues that these proposals are negotiable as appropriate arrangements for adversely affected employees under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

First, we find that there are no issues before us as to whether Proposal 7d is inconsistent with applicable law, rule or regulation. Therefore, as we explained in detail in section IV.B. with respect to similar circumstances, the appeal as to this proposal does not meet the conditions for   review of negotiability issues and must be dismissed. Other issues concerning the proposals about which the parties are in dispute--whether there has been a change sufficient to give rise to a duty to bargain and whether the matter involved in the proposal "was already provided"--should be resolved in other appropriate proceedings, such as the parties' negotiated grievance procedure or the unfair labor practice procedures under section 7118 of the Statute, as we further explained in section IV.B.

Next, we find that Proposals 7b, 7c, 7e, and 7f directly interfere with management's right to assign work and are therefore nonnegotiable. In particular, Proposal 7b would require the Agency to set aside part of the instructional day as "preparation time." This proposal is to the same effect as Proposal 2 which the Authority found nonnegotiable in Fort Knox Teachers Association and Fort Knox Dependent Schools, 22 FLRA No. 88 (1986). In that case the proposal requiring certain employees to be given "an additional planning period per day" was held to directly interfere with the right to assign work by allocating a specific amount of time for the accomplishment of a particular duty. While this proposal calls for a "reasonable" amount instead of specifying a particular amount of time, we do not consider this a basis for concluding that these proposals are negotiable. A requirement that management must give employees a reasonable amount of time to accomplish one type of work establishes a priority for this aspect of the employees' jobs over other assigned duties, even though management may determine a different order of priority is needed. Hence, this proposal directly interferes with the right to assign work. See National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 23 FLRA No. 36 (1986).

In our view, Proposal 7c directly interferes with management's discretion to assign bargaining unit teachers the task of accomplishing the work of absent teachers. The proposal would interfere by requiring management to determine that "substitutes" would perform such work. See Proposal 1c in section II of this decision. Proposal 7c also would directly interfere with management's right to determine the personnel by which this aspect of its operations will be conducted by establishing a substantive contractual limitation on the Agency's ability to determine to use bargaining unit teachers instead of substitutes. See Proposal 5c in section V of this decision.

Proposal 7e, by requiring that bargaining unit employees will be given a duty-free lunch period, precludes the Agency  from assigning any duties to those employees during lunch time. Thus, like Proposal 5a, this proposal directly interferes with the right to assign work. See Proposal 5a in section V of this decision.

Proposal 7f, by requiring the Agency to relieve bargaining unit employees of "non-instructional duties," precludes the Agency from assigning such duties to unit employees. Therefore, like Proposal 1d, this proposal prevents the Agency from determining the employees who will perform these duties and directly interferes with the right to assign work. See Proposal 1d in section II of this decision.

Proposal 7i would require the Agency to provide an aide to assist each bargaining unit employee impacted by the Agency's asserted lengthening of the instructional day and workday. The Agency claims without contradiction that this proposal would be determinative of the numbers, types, and grades of employees assigned to an organizational subdivision and therefore directly interferes with its right to make those determinations under section 7106(b)(1). The language of this proposal explicitly relates to the numbers and types, of employees assigned--that is, 1 aid for each impacted teacher--and consequently is negotiable only at the election of the Agency under 7106(b)(1). See, for example, International Organization of Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA 508, (524 91983) (Proposals 19 and 20). Since the Agency elects not to bargain, the proposal is nonnegotiable.

We reject here as we did earlier in section V the Union's claim that the qualifying language--"every reasonable effort"--in each of these otherwise nonnegotiable proposals converts them into negotiable general nonnquantitative standards to be applied by arbitrators in resolving grievances. As we explained in detail in connection with the similarly qualified language of proposals 5b, 5c, and 5d, we find that this language constitutes a substantive criterion which would enable an arbitrator to substitute his or her judgment for management's as to, for example, whether management has indeed made every reasonable effort.

Finally, we turn to the question of whether Proposals 7b, 7c, 7e, 7f, and 7i, in spite of the fact that they interfere with management's rights under section 7106, are nevertheless negotiable as appropriate arrangements for employees adversely affected by the exercise of that right within the meaning of section 7106(b)(3). The threshold question as indicated earlier in section II.B. of this  decision is whether the proposals' are "arrangements" for adversely affected employees. The union claims that the purpose of these proposals is to mitigate the adverse effects on bargaining unit teachers of being required to perform additional work by virtue of management's lengthening the instructional and workday.

As we stated in detail in section II.B., the establishment of job requirements does not by itself adversely affect employees. Therefore, we need not reach the question of whether these proposals are "appropriate" arrangements. 7

VIII. Proposals 8a, 8b, and 8c Concerning Semester Exams

8a. ODE/DODDS shall make every reasonable effort to provide each affected unit employee with adequate preparation time during each instructional day of exams to prepare, administer, and grade required semester examinations.

8b. Unit employees required by the Employer/Designee to prepare, administer, and grade semester examinations shall be granted, to the fullest extent possible, an adequate period of time following the end of semester examinations to record and/or report examination scores.

8c. In an effort to reduce any adverse impact on unit employees required to administer semester examinations, the Employer/Designee shall make every reasonable effort to provide administrative assistance to those unit employees affected by this requirement.

A. Positions of the Parties

The Agency contends that Proposals 8a and 8b violate management's rights to assign work and, under section 7106(b)(1), to determine the technology of performing work. It contends that Proposal 8c involves matters which are covered by the parties' agreement and violate management's right under section 7106(b)(1) to determine its staffing   pattern. The union claims that these proposals are negotiable, even if they impinge on management's right, because they are appropriate arrangements for employees adversely affected by management's increasing the amount of instructional time teachers must spend in the classroom. Union Response at 11.

B. Analysis and Conclusions

In section VII we found that Proposal 7b, by requiring the Agency to set aside part of the instructional day as "a reasonable amount of preparation time," established a priority for this aspect of the employees' jobs over other assigned duties and, thereby, directly interfered with management's right to assign work. Proposal 8a, by requiring the Agency to set aside "adequate preparation time during each instructional day of exams," although limited to examination days, has the same substantive effect. Consequently, for the reasons stated in connection with Proposal 7b, we find that Proposal 8a is nonnegotiable.

Likewise, Proposal 8b would require the Agency to set aside an "adequate period of time" to accomplish certain duties--"to record and/or report examination scores." Hence, this proposal is to the same effect as Proposals 7b and 8a and is nonnegotiable because it directly interferes with the right to assign work.

As to proposal 8c, the Agency's claim that the matter involved is covered by the parties' agreement to the extent that it may be negotiated raises a threshold duty to bargain issue which should be resolved in other appropriate proceedings but which does not prevent us from deciding the negotiability of the proposal. See section IV of this decision.

The Agency states, without contradiction by the Union, that the phrase "administrative assistance" in Proposal 8c refers to an individual assigned to assist a teacher in the performance of the administration of semester examinations. Agency Statement of Position at 13. Thus, the proposal would require the Agency to provide the services of a second employee as an assistant. The Agency states further without contradiction that this proposal would be determinative of the numbers, type and grades of employees assigned to do this work.

In section VII, we found that Proposal 7i, by requiring the Agency to provide an aide to assist each bargaining unit employee impacted by the lengthening of the instructional day  and workday, directly interfered with the Agency's right under section 7106(b)(1) to determine the numbers, types and grades of employees assigned to an organizational subdivision. Proposal 8c, as tacitly conceded by the Union, explicitly relates to the numbers and types of employees assigned--that is, 1 assistant for each unit employee affected by the requirement to administer semester examinations. Therefore, we find that it has the same substantive effect as Proposal 7i and is outside the duty to bargain for the same reasons as we stated in connection with that proposal.

As in sections V.B and VIII.B., we reject the notion that the qualifying phrase "every reasonable effort" or "to the fullest extent possible" in these otherwise nonnegotiable proposals converts them into negotiable general nonquantitative standards.

Finally, for the reasons which we fully explained in section II.B. we need not reach the question of whether these proposals constitute "appropriate" arrangements for employees adversely affected by the exercise of management's rights. That is, the Union's assertion, that the workload of unit employees is increased by management's new policy of "requiring semester exams in all middle and secondary schools to be conducted during not more than two full instructional days," reflects only the establishment of a job requirement which does not by itself adversely affect employees. 8

IX. Proposal 11b, Loss of "In-service Training" Days

The Authority Members have differing opinions concerning Proposal 11b. The Decision and Order on Proposal 11b and Chairman Calhoun's separate opinion immediately follow this decision.

X. Proposals 7k, 10a, and 10 Lengthening of the Duty Day and Increasing the Number of Periods in the Instructional Day

The Authority Members have differing opinions concerning these proposals. The Decision and Order on the proposals and Chairman Calhoun's separate opinion immediately follow this decision. 

XI. Order

The Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Proposal 3b. 9 The Union's petition for review is dismissed as to Proposals 1c, 1d, 3a, 5a, 5b, 5c, 5d, 7b, 7c, 7e, 7f, 7i, 7j, 8a, 8b, 8c, and 10c. The petition for review as to Proposals 4b, 4c, 4d, 4e, 4f and 7d is dismissed without prejudice to the Union's right to file a negotiability appeal if the conditions governing review of negotiability issues are met and if the Union chooses to file such an appeal.

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 1e, 11b, 7k, 10a AND 10b

I. Proposal 1e

1e. Unit employees shall be financially compensated for the loss of preparation time on an annual basis.

A. Positions of the Parties

The Agency contends that Proposal 1e interferes with its right to assign work. It also asserts that this proposal contravenes 5 U.S.C. 5535 which prohibits Federal employees from receiving dual pay from more than one position.

Proposal 1e, according to the Union, is intended as an alternative to Proposals 1c and 1d. It would compensate unit employees for the loss of preparation time by requiring the Agency to pay them for the off-duty time spent preparing for their classes. Petition for Review at 4-5. Union Response at 4. The Union further asserts that this proposal would not result in dual pay as claimed by the Agency, but would provide compensation for the additional time unit employees spend performing additional duties resulting from management's decision not to hire substitute teachers when unit teachers are absent.

B. Analysis and Conclusions

According to the Union, Proposal 1e is an alternative to Proposals 1c and 1d which is intended to secure additional compensation for unit employees who perform additional work after their normal duty hours. We conclude that the union is essentially seeking additional compensation for unit employees who, as the result of the assignment of additional duties during the preparation time provided as part of their normal tour of duty, must prepare for their classes after their normal duty day has ended. Since, according to the Union, this proposal is meant to secure compensation for the extra time unit employees spend preparing for classes after their normal daily tour of duty has ended, we must reject the

Agency's contention that by this proposal the Union is attempting to have unit employees "paid twice for the same period of service" or improperly paid for a detail under 5 U.S.C. 5535. Agency Statement of Position at 5.

In this regard, Proposal 1e is materially to the same effect as Proposal 1 found negotiable in Overseas Education Association and U.S. Department of Defense Dependents  Schools, 28 FLRA No. 88 (1987). In Overseas Education Association we determined that the Overseas Teachers Pay Act vests broad discretion in the Agency concerning the compensation of teachers. In this case, as in overseas Education Association, the Union through Proposal 1e is merely seeking additional compensation for duties, namely preparation for classes, required to be performed after the normal duty day has ended. For the reasons more fully discussed in Overseas Education Association, we find that Proposal 1e concerns a matter within the Agency's administrative discretion under the Overseas Teachers Pay Act and that the exercise of that discretion is subject to bargaining. Accordingly, we conclude that Proposal 1e is within the duty to bargain.

II. Proposal 11b, Loss of "In-service Training" Days

11b. In lieu of the in-service days taken away by DODDS, Management shall provide three academic credit hours at an appropriate university/college at management's expense. (In-service training refers to training in education or in a teacher's subject matter conducted on duty-time during the school year.)

A. Positions of the Parties

The Agency asserts that the proposal violates its right to assign work because it seeks to "punish" management for having assigned one type of duty, classroom instruction, in lieu of another, in-service training of teachers. Also the Agency asserts that it has no duty to bargain over the proposal because (1) there has been no change in conditions of employment which gave rise to a duty to bargain; (2) the matters involved were addressed in previous negotiations and are covered by the parties' agreement to the extent they are negotiable; and (3) it concerns "fringe benefits" and thereby violates section 7106(a).

The Union states that the proposal is not an assignment of work because it is not intended to require training during duty hours. Rather the Union states it is only intended to require reimbursement of employees for the cost of training "in accordance with the Training Act," which is taken by employees from extension services of U.S. universities "during summer recess or after duty hours." Petition for Review at 21. The Union contends that the proposal would establish an alternate form of continuing professional education as an appropriate arrangement for employees adversely affected by management's eliminating in-service training.   Analysis and Conclusions

The Agency's claims that no change has occurred which gives rise to a duty to bargain and that the matters involved in this proposal are already covered by the parties agreement raise issues which should be resolved in other appropriate proceedings but which do not prevent us from deciding the negotiability of this proposal. See section IV of this decision.

The Agency's claim that the proposal is nonnegotiable because it violates management's right to assign work is not substantiated in the record. The Union explicitly states that it does not intend the proposal to require training during duty hours. It intends the proposal only to require employees to be reimbursed to the extent consistent with applicable law--the Training Act, Title 5 U.S. Code, Chapter 41--for three credit hours of university extension courses taken during non-duty periods. This intended meaning is consistent with the language of the proposal and we adopt it for the purpose of this decision. So applied, this proposal does not violate management's right to assign work because it does not prescribe any work which must be or may not be assigned to these employees, nor does it prescribe any substantive criteria which management must apply in exercising its right to assign work to them.

Next we turn to the Agency's contention that the proposal is nonnegotiable under the Statute simply because it assertedly concerns a "fringe benefit." Assuming, for purposes of decision, that the proposal concerns a fringe benefit as claimed, the contention is without any foundation. The subject of fringe benefits is not in and of itself excluded from the scope of the duty to bargain. Proposals concerning fringe benefits are negotiable insofar as (1) the matters proposed are not specifically provided for by law and are within the discretion of the Agency and (2) the proposals are not otherwise inconsistent with law, Government-wide rule or regulation of an agency regulation for which a compelling need exists. American Federation of Government Employees, AFL - CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1986).

Here we find, first, that the Agency has not asserted that the proposal concerns a matter which is specifically provided for by law or is not within the Agency's administrative discretion. We find, second, that the Agency has not demonstrated that the proposal is inconsistent with applicable law or regulation. 

Finally since the proposal does not interfere with management's rights, it is not necessary to consider the union's argument concerning appropriate arrangements under section 7106(b)(3). National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 2l FLRA No. 4 (1986).

Based on all of the foregoing, we conclude that Proposal 11b is within the duty to bargain.

III. Proposals 7k, 10a, and 10b. Lengthening of the Duty Day and Increasing the Number of Periods in the Instructional Day

7k. For each minute added to an impacted unit employee's workday, the unit employee shall receive compensation at a rate equal to his/her daily rate of pay.

10a. Each effected unit employee shall receive four days of extra compensation for loss of preparation time (10 minutes per day times 183 instructional days).

10b. Each effected unit employee shall receive a twenty percent increase in pay based on a twenty percent increase in workload.

A. Positions of the Parties

The Agency contends that Proposal 7k is nonnegotiable because it concerns a pay matter. It contends that Proposal 10a conflicts with management's right to assign work under section 7106(a)(2)(B). It contends that Proposal 10b is nonnegotiable because (1) it concerns a pay matter which must be determined in accordance with PL86-91 and (2) is inconsistent with management's right to determine its budget under section 7106(a)(1).

The Union claims that Proposal 7k seeks additional compensation for the lengthened duty day as an appropriate arrangement for adversely affected employees. It contends that Proposals 10a and 10b are appropriate arrangements for employees adversely affected by management's decision increasing the number of classes they must teach during the instructional day.  

B. Analysis and Conclusions

Proposal 7k is concerned with the Agency's lengthening of the duty day. In this connection, the record shows that, to maintain its accredidation by the North Central Association of Colleges and Schools (NCA), the Agency school system must meet minimum standards concerning the number of class hours for elementary and secondary schools. Management Schools in the Agency system which were not meeting the minimum standard were ordered by management to increase the length of the school day accordingly. The Agency asserts that almost all schools were already meeting the minimum standard and that, at those schools where adjustment was necessary, the average time added to the length of the school day was 15 minutes. Agency Statement of Position at 8-9.

According to the Union, Proposal 7k seeks compensation for the lengthened duty day on a straight time basis.

In contrast, Proposals 10a and 10b are not concerned with the extension of the work day but with an increase in the number of "periods" within the work day. According to the Agency, it divided the work day into 7 periods instead of 6 periods, which involved shortening the length of each period by approximately 10 minutes. Agency Statement of Position at 14-15. In this context, the Union characterizes Proposals 10a and 10b as compensating employees for the increase in the number of classes they must teach. Union Response at 13.

In our opinion, all of these proposals are outside the duty to bargain, although not for precisely the same reasons. First, Proposal 7k, which seeks more compensation for the employee's assigned work day because the Agency has increased its length, is nonnegotiable because it is inconsistent with law.

The Department of Defense Overseas Teachers Pay and Personnel Practices Act (the 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 "additions 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 7k, based on the record, concerns basic compensation. It seeks an increase in the basic compensation of unit employees based on each minute which the Agency added to the regular workday at schools where the workday was extended to meet accreditation requirements. Basic compensation is not, however, within the Agency's discretion under law. Rather, the Agency head must 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 Proposal 7k to be outside the duty to bargain.

Second, Proposal 10a, which requires 4 days' extra compensation for loss in preparation time, in our opinion directly interferes with management's right to assign work by prescribing the minimum amount of paid time to be devoted to the task of "preparation." That is, the requirement of 4 days' extra compensation is computed by the Union based on the Agency's having decreased each day's "preparation" period by 10 minutes multiplied by the number of instructional days in the year. The clear, practical effect of this 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 substantive effect as Proposals 7b, 7c, 7e and 7f analyzed in section VII.B. For the reason we stated in finding those proposals nonnegotiable, we also find that Proposal 10a is outside the duty to bargain.

Third, Proposal 10b, which calls for a 20 percent increase in pay for a 20 percent increase in workload, like Proposal 7K is inconsistent with law. That is, it concerns basic compensation, a matter over which the Agency does not have discretion to negotiate, as previously described. Accordingly, since we find that this proposal is to the  same substantive effect as Proposal 7k, we find that it is nonnegotiable for the reasons previously stated in our analysis of that proposal.

Finally, turning to the Union's claim that these proposals are negotiable as appropriate arrangements under section 7106(b)(3), we reject the claim for these reasons. We have found that Proposals 7k and 10b are nonnegotiable because they are inconsistent with the Department of Defense Overseas Teachers Pay and Personnel Practices Act, rather than based on management's rights under the Statute. Therefore, section 7106(b)(3) is not applicable. See Kansas Army National Guard, 21 FLRA No. 4 (1986).

As to Proposal 10a, we have found that it directly interferes with management's right to assign work. The Union states that its purpose is to mitigate at the adverse effects on employees of being required to teach more classes during the instructional day. Union Response at 13. As we stated in detail in section II.B., the establishment of job requirements does not by itself adversely affect employees. Therefore, we need not reach the question of whether Proposal 10a constitutes an "appropriate" arrangement. 10

IV. Order

The Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Proposals 1e and 11b. 11 The petition for review is dismissed as to Proposals 7k, 10a and 10b.

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

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

Separate Opinion of Chairman Calhoun Dissenting on Proposal 1e and Concurring on Proposals 7k, 10a, 10b, and 11b

Proposal 1e seeks compensation for unit employees for the loss of preparation time. It is like Proposal 1, which sought "additional compensation" for certain duties in Overseas Education Association and Department of Defense Dependents Schools, 28 FLRA No. 88 (1987), petition for review filed sub nom. 0EA v. FLRA, No. 87-1468 (D.C. Cir. Sept. 8, 1987). See also my opinion concerning Proposal 3, which related to overtime compensation, in overseas Education Association and Department of Defense Dependents Schools, 29 FLRA No. 49 (1987). In my opinions in those cases, 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 in those cases, and I find none here. As a result, I would find that Proposal 1e is not negotiable.

Consistent with the Union's intent, Proposal 11b requires the Agency to reimburse employees, to the extent consistent with the Training Act, for three academic credit hours at an appropriate educational institution. My colleagues conclude that the proposal negotiable. I agree.

Further, in my view Proposal 11b does not address a money-related fringe benefit. In my opinion in American Federation of Government Employees, AFL - CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1986), I stated that I would find that the proposal in dispute in that case, which concerned the percentage of the costs of health insurance premiums to be absorbed by the Agency, was nonnegotiable. I stated that the proposal concerned a monetary fringe benefit, a matter which is provided by statute for most Federal employees, and in the absence of a clear expression of Congressional intent to the contrary, I would find such matters to be outside the duty to bargain.

In contrast, Proposal 11b does not concern a money-related matter which is specifically provided for by Statute--and therefore not a bargainable condition of employment under section 7103(a)(14) of the Statute--for most Federal employees. Rather, it concerns the Agency's  discretion under the Training Act to reimburse employees for certain training expenses. See, for example, 5 U.S.C. 4105(a) (an agency head "may make agreements or other arrangements for the training of employees of the agency by, in, or through non - Government facilities(.) "). Although the Agency's discretion must be exercised in accordance with law, there is no basis on which to conclude that this discretion may not be exercised through negotiations. See Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983). Accordingly, I concur in my colleagues' conclusion that the proposal is negotiable.

Proposals 7k, 10a, and 10b all concern employees' compensation. My colleagues conclude that the proposals are nonnegotiable because they (7k and 10b) concern "basic compensation" and (10a) conflict with the right to assign work. I agree with their determinations that the proposals are nonnegotiable. I note, however, that these proposals, like Proposal 1e, concern wages. Therefore, I would find that these proposals are outside the duty to bargain for the reasons I expressed in connection with Proposal 1e.

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

Jerry L. Calhoun, Chairman

FEDERAL LABOR RELATIONS AUTHORITY 

FOOTNOTES

Footnote 1 The following additional proposals referenced in the petition for review were withdrawn by the Union and will not be considered further herein: Proposals la, 1b, 2a, 2b, 2c, 4a, 6a, 6b, 7a, 7g, 7h, 9a, 9b, 11a, 12a, 12b, and 12c.

Footnote 2 By its Order dated June 30, 1986, the Authority denied the Agency's notion to consolidate Case Nos. 0-NG-840, 0-NG-850, 0-NG-950, 0-NG-1115 and 0-NG-1225.

Footnote 3 The Agency also asserts that the assignment of the duties of absent teachers to unit employees was an established past practice and was provided for in the parties' negotiated agreement. Such threshold duty to bargain issues should be resolved in other appropriate proceedings but their existence does not preclude us from deciding the negotiability of these proposals, as discussed in detail in part IV of this decision.

Footnote 4 In view of our conclusions regarding the negotiability of these proposals, it is not necessary to consider the Agency's other contentions as to why these proposals are outside the duty to bargain.

Footnote 5 In view of our conclusions regarding the negotiability of these proposals, it is not necessary to consider the Agency's other contentions as to why these proposals are outside the duty to bargain.

Footnote 6 In view of our conclusions regarding the negotiability of these proposals, it is not necessary to c