29 FLRA NO. 61

OVERSEAS EDUCATION
ASSOCIATION, INC.

                   Union

          and

DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS

                   Agency

Case No. 0-NG-950

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 67 proposals. 1

For the reasons which follow, we find Proposals 1, 2, 3, 4, 5, 10, 14, 15, 17, 32, 33, 34, Proposal 36 in part, Proposals 38, 42, 43, Proposal 44 in part, Proposals 45, 46, Proposal 47 in part, Proposals 48, 49, 50, 54, 56, 57, 62, 63, 64, and Proposal 67 in part to be negotiable. We also find Proposals 6, 7, 9, 12, 13, 16, 18, 19, 20, Proposal 36 in part, Proposals 37, 39, 40, 41, Proposal 44 in part, Proposal 47 in part, Proposals 51, 52, 53, 58, 59, 60, 61, 65, 66 and Proposal 67 in part to be nonnegotiable. 

II. Background

In its Statement of Position, the Agency withdrew its negotiability allegations as to Article 9, Section 4 (except for Section 4.h), Article 16, Section 9, Article 20, Section 2, Article 21, Section 1(c), Article 25, Section 6, Article 27, Section 3, Article 32, Sections 2, 3, 4, 5 and 7, Article 38, Section 3, Article 45, Sections 1 and 2, Article 58, Sections 1 and 2, Article 61, Sections 7 and 12, Article 73, Section 2, and Article 79, Section 4. In its Reply Brief, the Union withdraw from consideration Article 26, Section 5, Article 27, Section 4, Article 29, Section 2, Article 35, Sections 21 and 23, Article 37, Section 2, Article 42, Sections 1, 2, and 3, Article 48, Section 1, 3, 4(a), 4(g) and 9, Article 50, Section 2(b), Article 60, Section 1, Article 61, Section 11, Article 62, Sections 1 and 3, Article 63, Section 4, Article 71, Sections 3(a) and 3(b), and Article 79, Section 1. Thus, these matters will not be considered further.

III. Proposal 1

Article 9 - Association/ODE Cooperation, 4 (A-H) -Joint Association - Employer Committees (JAEC)/ Consultations.

H. All meetings shall be held on official time during the instructional day and attendance shall be on official time with travel and per diem when appropriate.

A. Positions of the Parties

The Agency alleges that payment of travel expenses is not a condition of employment under section 7103(a)(14)(C) of the Statute and is not subject to bargaining. The Agency also relies on a decision of the Comptroller General, 46 Comp. Gen. 21 (1966), authorizing payment of travel and per diem expenses to employee representatives when the agency head has certified that the travel would be in the "primary interest of the Government." The general rule, according to the Agency, would be to deny such payments. This certification, it is argued, must be made by the agency head and the decision-making cannot be shared. 

The Union states that the intent of the proposal is that when regional and intermediate level JAEC meetings are held away from the unit employee's worksite, the Association's (Union's) representatives will be entitled to travel and per diem in accordance with Federal Travel Regulations (FTRs).

The Union argues that by agreeing to the proposal, the Agency would be making the determination that payments for travel at meetings scheduled away from the employee representative worksite serve the Agency's interest. The Union further argues that the Agency could exercise its discretion to make travel and per diem payments through collective bargaining and, based on Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89 (1983) (BATF), that unions may negotiate for such payments in the Federal sector.

B. Analysis and Conclusions

In National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 2 (1986), petition for review filed sub nom. Department of the Treasury, U.S. Customs Service v. FLRA, No. 86-1198 (D.C. Cir. Mar. 27, 1986), issued following the decision in BATF, the Authority rejected the argument that a proposal relating to travel and per diem for employee union representatives did not concern conditions of employment of bargaining unit employees. For the reasons expressed in that decision, we find that the proposal here concerns a condition of employment of unit employees.

In Customs, the Authority also found that the payment of travel and per diem expenses was not inconsistent with Federal law and Government-wide rules and regulations. Thus, under the Travel Expense Act, 5 U.S.C. 5701-5709, and the FTRs, 41 C.F.R. Parts 101-07, as interpreted by the Comptroller General, 46 Comp. Gen. 21, the decision cited in support of the Agency's position here, agencies have discretion to make determinations that travel in the context of union activity is sufficiently within the interest of the Government so as to constitute official business. Once such a determination is made, proper travel and per diem expenses may be paid from agency funds. There is no requirement that the determination must be made only by management or the agency head. See also National Treasury Employees Union and U.S. Department of Agriculture, Food and Nutrition Service, Midwest Region, 25 FLRA No. 90 (1987), petition for review filed sub nom. National Treasury Employees Union v. FLRA, No. 87-1166 (D.C. Cir. Apr. 15, 1987). 

Also, the Authority has consistently held that in the absence of a showing to the contrary, proposals providing for the payment of travel and per diem expenses for union representatives would not prevent management from making individual case-by-case determinations as to the propriety under the FTRs of authorizing particular payments. National Labor Relations Board Union and National Labor Relations Board, 22 FLRA No. 55 (1986), petition for review filed sub nom. National Labor Relations Board v. FLRA, No. 86-1504 (D.C. Cir., Sept. 8, 1986). Compare National Association of Agricultural Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, 22 FLRA No. 45 (1986) (Proposal 2) (Authority unable to conclude based on the record in the case that the provision would allow for compliance with law and regulation). Based on the record here and noting the Union's intent that travel and per diem payments be made in accordance with the FTRs, nothing in the proposal would prevent the Agency from complying with the requirements of law and regulations.

Based on the foregoing analysis, and for the reasons more fully explained in Customs, we find Proposal 1 to be within the duty to bargain.

IV. Proposal 2

Article 10 - Negotiations over Proposed Changes in working conditions or Policies.

Section 2. The Association is entitled to at least (3) three representatives to negotiate over any proposed changes or their impact and implementation. Negotiations shall be held at mutually agreed upon convenient locations.

All negotiations over proposed changes in personnel policies, practices and working conditions shall be held when the Association representatives are otherwise in duty time during the instructional day and negotiators designated by the Association shall be entitled to travel and per diem in addition to official time provided by law for negotiations and impasse proceedings. Association representatives shall be entitled to two days of official time to prepare for each day of negotiations or impasse proceedings. 

A. Positions of the Parties

The Agency notes that the proposal does not require that officials designated to represent the Union travel away from their normal job sites in order to obtain travel and per diem payments. According to the Agency, the proposal conflicts with the FTRs and the Joint Travel Regulations, an Agency regulation for which a compelling need exists. The Agency cites specifically only to 5 U.S.C. 5702 which provides that a Federal employee "traveling on official business away from his designated post of duty . . . is entitled to . . . a per diem allowance" in support of its position. The Agency also reiterates its arguments regarding Proposal 1.

In response, the Union claims that its intent is not to entitle Union representatives to per diem unless they actually travel away from their designated posts of duty. The Union argues that the proposal would not result in an entitlement in contravention of the FTRs if the union representatives were negotiating at their posts of duty. Finally, the Union makes the same arguments as to the negotiability of this proposal as it did with Proposal 1.

B. Analysis and Conclusions

For the reasons set forth with respect to Proposal 1, we find that Proposal 2 is within the Agency's duty to bargain. We note, contrary to the Agency's position, the Union's stated intent that the proposal is not designed to contravene the FTRs and will not apply unless the Union representatives are traveling away from their designated posts of duty.

We also find that the Agency's argument that the proposal is inconsistent with an agency regulation for which a compelling need exists cannot be sustained. In order to establish that a proposal is nonnegotiable on the basis of compelling need, an agency must: (1) identify a specific agency-wide regulation; (2) show that there is a conflict between the regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need with reference to the Authority's illustrative standards set forth in section 2424.11 of the Authority's Rules and Regulations (5 CFR 2424.11). Generalized and conclusionary reasoning does not support a finding of compelling need. See, for  example, National Association of Government Employees, Local R14-32 and Department of the Army, Fort Leonard Wood, Missouri, 26 FLRA No. 73 (1987); American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 7). Here, the Agency has failed to establish that a conflict exists between its regulation and the proposal and has not argued that a compelling need exists for its regulation under any of the Authority's illustrative standards. See also 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, Proposal 2 is within the duty to bargain.

V. Proposal 3

Article 10 - Negotiations over Proposed Changes in Working Conditions or Policies.

Section 3. The proposed change(s) shall not be implemented during bargaining, during impasse if a party has invoked impasse resolution procedures, or pending the decision of a negotiability appeal unless a compelling need exists.

A. Positions of the Parties

The Agency claims that the proposal is outside the duty to bargain because it would cause unreasonable delay in implementing matters which are not conditions of employment or which relate to the exercise of management's rights. The Agency argues that this proposal is different from one found negotiable in American Federation of Government Employees, AFL - CIO, Local 2272 and Department of Justice, U.S. Marshals Service, District of Columbia, 9 FLRA 1004, 1015-16 (1982). The Agency also claims that the proposal would have the same effect as a proposal found to be outside the duty to bargain in National Association of Government Employees, Local R14-89 and Headquarters, U.S. Army Air Defense Center and Fort Bliss, Texas, 9 FLRA 1033 (1982) (Proposal 1). Finally, the Agency argues that the proposal is inconsistent with the decision in United States Department of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984). 

The Union argues that the proposal is identical in all respects to proposals found negotiable in U.S. Marshals Service and American Federation of Government Employees. AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 603, 623 (1980), enf'd sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). The Union also claims that the Fifth Circuit's decision does not apply to this proposal. Finally, the Union notes that use of the term "compelling need" in the proposal is intended to mean overriding exigency.

B. Analysis and Conclusion

Contrary to the Agency's position, we find that the proposal is within the duty to bargain.

We will first address that part of the proposal which requires that changes not be implemented during impasse if a party has invoked impasse resolution procedures, unless a compelling need exists. In Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 18 FLRA 466 (1985), the Authority determined that the purposes and policies of the Statute would be effectuated by requiring parties to maintain the status quo to the maximum extent possible after an impasse in negotiations has been reached and the services of the Federal Service Impasses Panel have been invoked in a timely fashion. Such a policy fosters stability in Federal labor-management relations. At the same time, however, the Authority recognized that an agency should be free to make certain changes where those changes are consistent with the necessary functioning of the agency.

The proposal here is consistent with the decision in Department of the Treasury. Therefore, based on the considerations in Department of the Treasury, this part of the proposal is within the duty to bargain. In reaching this conclusion, we find that use of the term compelling need and the Union's explanation as to its meaning are to the same effect as the standard enunciated in Department of the Treasury regarding how certain changes can be made.

We now address the other portions of the proposal which require that changes not be implemented during bargaining or pending the decision of a negotiability appeal unless a compelling need exists. 

In the U.S. Marshals service case, the proposal required management to "keep everything as it is until the collective bargaining and negotiations are completed, finalized and signed, unless there is a dying emergency(.)" 9 FLRA at 1015. The proposal was determined to be a negotiable procedure under section 7106(b)(2), relying, in part, on the earlier decision in the Wright - Patterson case. In Wright - Patterson, the Authority determined that a proposal which required the Agency to hold proposed mid-term changes in conditions of employment in abeyance until completion of possible impasse procedures, except in circumstances involving "overriding exigency" or "unreasonable delay" was a negotiable procedure.

The Agency attempts to distinguish the proposal here from the proposal in U.S. Marshals Service on the basis that the proposal there did not require that proposed changes be held in abeyance during the pendency of a negotiability determination. The Agency claims that the proposal would tie up changes even though the negotiability determination could result in a finding that the proposed matter does not concern a condition of employment or is otherwise nonnegotiable.

This distinction lacks merit. The proposal here is simply a procedure concerning the implementation of changes pending completion of bargaining, which would include resolution of negotiability appeals. While ultimately it may be determined that the Agency has no bargaining obligation with respect to a particular matter, the proposal would not prevent the Agency from implementing changes once a determination is made that the Agency has no bargaining obligation. See also Overseas Education Association and Department of Defense Dependents Schools, 28 FLRA No. 119 (1987) (Proposal 4), in which a majority of the Authority found that a proposal, which required management to hold in abeyance a regulation until impact and implementation negotiations were completed, did not prevent management from acting at all with respect to its statutory rights, but was merely a negotiable procedure which delayed the exercise of such rights. 2

Finally, we find without merit the Agency's arguments based on the Fifth Circuit's decision in United States Department of Justice v. FLRA and the Authority's decision in U.S. Army Air Defense Center that the proposal would improperly prevent the Agency from exercising its rights under section  7106(a) of the Statute. The proposal here is not designed to prevent the Agency from making changes in section 7106(a) matters. As the Union stated, the proposal is applicable only to proposed changes in personnel policies, practices and working conditions that are within the scope of bargaining. Reply Brief at Article 10.

Based on the foregoing analysis, we find that this proposal constitutes a negotiable procedure under section 7106(b)(2) of the Statute and is within the duty to bargain.

VI. Proposal 4

Article 11 - Supplemental Agreements:

Section 4. The Association shall be entitled to at least (3) three representatives to negotiate supplemental agreements. Said representatives shall be authorized official time, with travel and per diem when appropriate, for such purposes during the time the representatives would otherwise be in a duty status. Official time shall be granted for preparation for impasse proceedings in an amount ODA/DODDS and the Association agree to be reasonable, necessary, and in the public interest. Negotiations shall be held at mutually determined times, when employees would otherwise be in duty status, and at mutually agreed upon convenient locations.

A. Positions of the Parties

Both the Agency and the Union rely on their arguments regarding Proposals 1 and 2.

B. Analysis and Conclusions

As with Proposals 1 and 2, we find that bargaining over the authorization of travel and per diem payments is within the duty to bargain. This proposal additionally authorizes official time for the Union's representatives in the negotiation of supplemental agreements. The Agency has made no specific arguments with respect to the provision of official time. We note that section 7131(a) of the Statute authorizes official time for such negotiations. See Department of the Treasury, Internal Revenue Service, Columbia District, Columbia, South Carolina, 22 FLRA No. 28 (1986), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 86-1467 (D.C. Cir. Aug. 22, 1986). Accordingly, Proposal 4 is within the duty to bargain.

VII. Proposal 5

Article 13 - Grievance Procedure

Section 4.B(1)(c). If the Association wishes to make an oral presentation prior to the formal decision, such request shall be included in the written appeal and shall be granted. If it is mutually determined that the grievant should be present for the oral presentation, then necessary official time with travel and per diem, where appropriate, shall be granted to the grievant, including time for preparation and presentation. When a request for an oral presentation has been made, the Employer shall promptly arrange for a meeting at a mutually agreeable time and place, but no later than (5) five duty days following the date of the request. If agreement is not reached as to the meeting location, then it shall be held at the worksite of the employee.

Section 6(C). All participants, including witnesses, in the hearing shall be in a duty status and, in the event the hearing is not held at the site within commuting distance, participants, including witnesses,, shall be provided transportion in accordance with applicable travel regulations. A reasonable amount of preparation time shall be granted to all participants.

A. Positions of the Parties

The Agency objects to both sections of the proposal, to the extent they provide for the payment of travel and per diem expenses, for the reasons previously set forth with regard to Proposals 1-4. In response, the Union cites to its earlier position as to the negotiability of travel and per diem payments.

The Union claims that Section 4.B(1)(c) is designed to provide an opportunity for it to make an oral presentation to certain Agency officials before a decision is made on formal grievances. The intent of Section 6(C), as originally expressed by the Union, is to provide all unit employee  participants and witnesses with Government supplied transportation to and per diem for arbitration hearings that are not held within the employees' commuting areas. The proposal is not intended to apply to participants and witnesses who are not in the bargaining unit.

B. Analysis and Conclusions

As with Proposals 1, 2 and 4, we find Proposal 5 to be within the duty to bargain. 3 See also U.S. Department of Agriculture (Proposal 2), slip op. at 4; National Joint Council of Food Inspection Locals, AFGE, AFL - CIO and Food Safety and Inspection Service, U.S. Department of Agriculture, 23 FLRA No. 3 (1986) (Provision 6), petition for review filed sub nom. Department of Agriculture, Food Safety and Inspection Service v. FLRA, No. 86-1476 (D.C. Cir. Aug. 25, 1986) (wherein the Authority found negotiable proposals that authorized payment of travel and per diem expenses for representatives, witnesses and/or participants at arbitration hearings); Department of Defense Dependents Schools and Overseas Education Association, 21 FLRA No. 125 (1986).

VIII. Proposal 6

Article 16 - Performance Appraisal System 4

Section 5(B). In evaluating a unit employee, the supervisor shall take into consideration any circumstances that may adversely affect an employee's performance, such as class size, special learning disabilities of students or physical facilities. Student test results shall not be used in any way to evaluate unit employees. Performance standards shall not include activities that do not relate to performance of normal instructional duties. All monitoring or observation of the work performance of a unit employee shall be conducted openly and with full knowledge of the employee. The use of eavesdropping, public address, or audio system or similar surveillance devices for monitoring or observing, is a prohibited practice. Any performance appraisal rating of a unit employee shall be prepared only on the basis of direct observation by the supervisor. Any derogatory or negative information which a supervisor intends to use against a unit employee shall be called to the attention of the employee at the time the supervisor becomes aware of such information. The unit employee shall be afforded the opportunity to answer or rebut such complaint.

A. Positions of the Parties

The Agency argues that the proposal conflicts with management's rights to assign and direct employees under section 7106(a)(2)(A) and (B) of the Statute in a variety of ways. The Union, on the other hand, argues that the proposal would merely guarantee that fair and objective procedures be utilized in the exercise of management's rights.

B. Analysis and Conclusions

The first underscored sentence of the proposal would prohibit the Agency from using student test results as a factor in evaluating the performance of unit employees. Therefore, the proposal is similar to ones found by the Authority to be outside the duty to bargain in National Federation of Federal Employees and Haskell Indian Junior College, Bureau of Indian Affairs, Department of the Interior, Lawrence. Kansas, 22 FLRA No. 57 (1986) (Proposals 2 and 3). In that case, the Authority determined that proposals which would have effectively prohibited management from considering enrollment statistics in evaluating an instructor's performance were inconsistent with section 7106(a)(2)(A) and (B). The proposals would have required management to bargain over the identification of critical elements and the content of performance standards. The same result must be reached here since this sentence would require bargaining over the content of performance standards.

According to the Union, the other disputed sentences of the proposal are to the same effect as the proposals found negotiable in American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217 (1981) (Proposals 4-6) and American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Missile Command, Redstone Arsenal, Alabama, 7 FLRA 794 (1982) (Proposal 2). In those cases, the Authority found that proposals which, in part, required that "studies" related to performance appraisals not be secret were negotiable procedures under section 7106(b)(2) of the Statute. See also American Federation of Government Employees, AFL - CIO, General Committee of AFGE for SSA Locals and Social Security Administration, 23 FLRA No. 43 (1988) (Proposal 3), petition for review filed sub nom. FLRA v. Social Security Administration, No. 87-1118 (D.C. Cir. March 9, 1987), in which that holding was reaffirmed.

In our view, these sentences of the proposal are nonnegotiable since they would interfere with management's rights to assign and direct employees under section 7106(a)(2)(A) and (B) of the Statute. The effect of these disputed sentences is not an attempt to guard against the use of secret studies, as claimed by the Union, but instead is an attempt to specifically prohibit the use of various techniques to evaluate employee performance. As part of its evaluation process, management has the right to determine the methods it deems most appropriate to conduct the evaluation. See, for example, American Federation of Government Employees, AFL - CIO, Local 1760 and Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 25 FLRA No. 2 (1987) (Proposal 1C). Because the proposal would place substantive limitations on the Agency's determinations in this regard, the proposal is outside the duty to bargain.

IX. Proposal 7

Article 17 - Not to Exceed Employees (NTE):

Section 2. NTE's shall become entitled to a transportation agreement when said appointment or services equate to the tour of duty of other unit employees assigned to the same work site.

A. Positions of the Parties

The Agency contends that this proposal is nonnegotiable for two reasons. First, the Agency argues that the proposal conflicts with 5 U.S.C. 5722 and 5728 which provide for payment of travel and transportation expenses and vacation leave travel for Federal employees overseas to and from the place of actual residence at the time of appointment. Second, the Agency asserts that the proposal does not have a direct  relationship to the working conditions of NTEs and relates to employees in a nonwork status. NTEs, the Agency points out, are hired in an overseas area and their place of actual residence is the location where they were appointed.

The Union contends that the proposal concerns a working condition because the Agency regularly negotiates transportation agreements with its employees in consideration for their services. Regarding the statutory language, the Union argues that NTEs have a "home of record" in the United States although they have been hired while temporarily overseas. If they do not have an actual place of residence away from the duty post, the Union states that this proposal would not apply.

B. Analysis

Transportation agreements are negotiated between two agencies and certain Federal employees assigned to overseas posts under statute, 5 U.S.C. 5721 through 5734. The FTRs, which are Government-wide regulations, implement these statutory provisions. Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA No. 71, slip op. at 14 (1987), petition for review filed sub nom. Overseas Education Association v. FLRA, No. 87-1279 (D.C. Cir. June 25, 1987). Under initial transportation agreements, the Agency pays the travel and transportation expenses for eligible new appointees and their immediate families and for household goods to and from overseas duty posts. In return, these employees must agree to serve the minimum tour required at their assigned posts.

Transportation agreements include renewal agreement travel (RAT) which allows eligible employees to receive allowances for round trip transportation for themselves and their dependents for vacation leave between tours of duty overseas. The proposal mandates that all NTEs automatically become eligible for transportation agreements, including RAT, upon completion of the tour of duty required at their posts. In Office of Dependents Schools, 27 FLRA No. 71, slip op. at 46 (Proposal 36), we analyzed a similar proposal. Proposal 36 in that case entitled a bargaining unit employee to a transportation agreement when their sponsoring spouse retired, resigned or otherwise left the employment or service of the United States. We found that under the FTRs, a local hire whose presence overseas was a consequence of marriage to, for  example, an employee of the Foreign Service, a member of the uniformed services, or a private individual was not eligible for RAT. Since Proposal 36 entitled local hires, among others, to RAT, we found that it inconsistent with the FTRs and outside the duty to bargain.

In this case, the proposal mandates that all NTE employees, including local hires, qualify for transportation agreements upon completion of the appropriate tour of duty. Thus, the proposal would entitle local hires to RAT in clear contradiction to the FTRs. See FTRs, FPMR 101-7, 2-1.5h(3)(b) (Sept. 8, 1982). Therefore, we hold, based on the reasoning in Department of Defense, Office of Dependents Schools, that this proposal is nonnegotiable. In view of our finding that this proposal conflicts with a Government-wide regulation and is outside the duty to bargain, it is unnecessary to consider the Agency's additional contentions.

X. Proposal 8

The Authority Members have expressed different views on Proposal 8. The decision and order on Proposal 8 and the separate opinion of Chairman Calhoun follow this decision.

XI. Proposal 9

Article 18 - Absence of Unit Employees and Coverage of Duties

Section 2. In an effort to minimize the impact on working conditions of the unit employees who are absent, each school Principal shall make an effort to locate/recruit a sufficient number of substitutes. When a unit employee must be absent frequently or for a prolonged period of time, the Principal shall make an effort to use the same substitute to replace that unit employee. The Principal shall make an effort to assign a qualified substitute, if available, for the grade or subject matter.

A. Positions of the Parties

The Agency argues that the major impact of this proposal is on substitute teachers and not on the absent teacher. According to the Agency, the recruitment and selection of substitute teachers are not directly related to conditions of  employment for bargaining unit employees. The Agency claims that this proposal deals mainly with the conditions of employment of substitute teachers who are not in the bargaining unit. Thus, the Agency claims that there is no duty to bargain since the proposal concerns nonbargaining unit employees.

The Union states that the intent of this proposal is to require each principal to make efforts to recruit a reserve of nonunit employees who could be called when needed to act as substitutes. Also, this proposal is intended to minimize the impact of the additional workload of unit employees when they return from an absence. It also would require principals to make an effort to replace absent unit employees with qualified substitutes.

B. Analysis and Conclusion

In Panama Canal Federation of Teachers, Local 29 and Department of Defense Dependents Schools, Panama Region, 19 FLRA 814 (1980) (Proposal 3), the Authority found that Proposal 3 which required that a particular nonbargaining unit employee perform a specified duty was outside the duty to bargain. Specifically, Proposal 3 required that "Principals" and "Regional Directors" perform certain duties. The Authority found that the proposal interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute and was thus outside the duty to bargain.

Likewise, in this case, Proposal 9 requires school principals to perform certain specified tasks. Accordingly, based on Department of Defense Dependents Schools, Panama Region, we find Proposal 9 to be outside the duty to bargain.

Further, this proposal requires the Agency to recruit a certain number of teachers to serve as substitutes when regular teachers are absent. This requirement clearly interferes with management's right to determine the numbers, types and grades of employees assigned under section 7106(b)(1) of the Statute. It is well-established that proposals concerning the numbers, types and grades of employees assigned under section 7106(b)(1) of the Statute are only negotiable at the election of the Agency. District 1, Pacific Coast District, marine Engineers Beneficial Association and Panama Canal Commission, 26 FLRA No. 48 (1987), petition for review filed on other matters sub nom.  Panama Canal Commission v. FLRA, No. 87-4395 (5th Cir. May 27, 1987). Thus, since the Agency has elected not to bargain, this proposal is outside the duty to bargain.

In addition, because this proposal requires the agency "to make an effort" to use the same substitute teacher every time a regular teacher is absent, it has the effect of compelling management to assign the same substitute in a particular circumstance. Therefore, this proposal also interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. It is well-established that the right to assign an employee to a position includes the discretion to determine which employees will be assigned. Wright - Patterson Air Force Base, Ohio, 2 FLRA 604, at 613 (1980). Accordingly, a proposal which divests management of its discretion to assign employees is inconsistent with section 7106(a)(2)(A) of the Statute and is nonnegotiable. American Federation of Government Employees, AFL - CIO, Local 3529 and Defense Contract Audit Agency, 3 FLRA 301 (1980).

XII. Proposal 10

Article 20 - Excused Absence 5

Section 1. A supervisor shall excuse a unit employee from duty without loss of pay and without charge to leave when such actions cannot be accomplished outside the duty day for:

A. Packing, unpacking, and customs, or administratively required clearance of household goods prior to shipment or upon receipt of shipment and when the unit employee is required to be present.

B. Movement to new quarters when such movement is directed.

D. Conducting official business of a personal nature with military offices to include, but not limited to drivers' licenses, ID cards, passports, housing, finance, and personnel.  

E. Conducting business with official offices and utility companies of the unit employee's host nation, required because of the teacher's status as a foreigner in the host nation.

A. Positions of the Parties

The Agency argues that Proposal 10 would conflict with its right under section 7106(a)(2) of the Statute to determine when work will be performed. The Agency notes, by way of example, that if an employee were to be directed to vacate his or her quarters by a private landlord in the host nation, the Agency would be compelled to excuse the employee for an unlimited time to be chosen by the employee.

In response, the Union claims that the proposal is similar to one found negotiable by the Authority in National Labor Relations Board, Region 5 and National Labor Relations Board Union, Local 5, 2 FLRA 328 (1979). Like that proposal, the Union states that the proposal here permits unit employees to be excused from work for brief, occasional periods without loss of pay or charge to leave when certain actions incident to the employees' employment overseas cannot be accomplished outside of the duty day, and thus, are unavoidable. Union Reply brief at Article 20. The Union also argues that the proposal would not conflict with management's right to determine when to assign work because the proposal would apply only when the absence is unavoidable and because the Agency would still be able to make certain determinations as to when employees would be excused.

B. Analysis and Conclusion

In our view, the proposal does not conflict with the Agency's right under section 7106(a)(2)(A) of the Statute to determine when work will be performed. According to the Union, this proposal is designed to permit excused absences for brief, occasional periods without loss of pay or charge to leave when various activities that are incidental to the employees' overseas employment cannot be accomplished outside the duty day. Where the activities could be accomplished at one of several times or on one of several days, the Agency would be able to determine when, among those times, it would be advantageous to the Agency to excuse the employees, and the Agency could deny requests for leave at particular times.  

Therefore, and as the Agency has not argued any other basis in law, rule or regulation to find the proposal nonnegotiable, we find that Proposal 10 is within the duty to bargain. In other cases where proposals have concerned excused absences or the use of administrative leave, the Authority has addressed the applicability of the section of the Federal Personnel Manual (FPM) which allows agencies to excuse employees from duty without charge to leave. FPM Supplement 990-2, Book 630, subchapter S11-5. See Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 15); Long Beach Naval Shipyard, Long Beach, California and International Federation of Professional and Technical Engineers, Local 174, AFL - CIO and American Federation of Government Employees, Local 2237, AFL - CIO and Federal Employees Metal Trades Council, Long Beach, California, 7 FLRA 362 (1981); National Labor Relations Board, Region 5, 2 FLRA 328. Here, there is no need to address that section of the FPM, because the employees involved are specifically excluded from coverage. See FPM Supplement 990-2, Book 630, subchapter S2-1(d)(ix).

XIII. Proposal 11

The Authority Members have expressed different views on Proposal 11. The decision and order on Proposal 11 and the separate opinion of Chairman Calhoun follow this decision.

XIV. Proposal 12

Article 26 - Community Environment

Section 4. When briefings for unit employees are held during the instructional day, unit employees shall be authorized release time to attend. In the event of an emergency which would require evacuation of the unit employees from the foreign country, the Employer shall attempt to continually inform unit employees of an anticipated evacuation and the procedures to follow.

A. Positions of the Parties

The Agency argues that the first sentence of this proposal requires the release from duty of all unit employees who decide to attend briefings regardless of whether attendance has been directed by management. According to the  Agency, the disputed sentence also leaves management no discretion to determine when employees would attend briefings. Thus, the Agency argues that the first sentence violates management's rights to assign work under section 7106(a) of the Statute.

The Union claims that the first sentence of this proposal is intended to preclude employees from being charged leave to attend briefings. The Union argues that this sentence is negotiable because agencies have the discretion to charge leave or to excuse an employee's absence without loss of pay.

B. Analysis and Conclusions

The right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine what particular duties will be assigned, when work assignments will occur and to whom or to what positions duties will be assigned. National Association of Government Employees, Local R1-109, AFL - CIO and Veterans Administration Medical Center, Newington, Connecticut, 26 FLRA No. 63 (1987) (Proposal 1). Thus, management has the right to determine who will attend these briefings and when they will attend. In contrast, the first sentence of Section 4 permits unit employees to decide when to attend these briefings. Proposal 12 removes management's discretion to determine who will attend and when they will attend briefings. Consequently, we find the disputed first sentence of Section 4 outside the duty to bargain because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

XV. Proposal 13

Article 27 - School Facilities

Section 1. The Employer shall make every reasonable effort to obtain, for the use of unit employees, the equipment, facilities, and supplies which are necessary to the education process.

A. Positions of the Parties

The Agency contends that to the extent that this proposal would require it to obtain materials requested by employees the proposal is not negotiable. The Agency asserts that the proposal would interfere with its right under  section 7106(b)(1) to determine the methods and means and the technology of performing its work. It asserts that the proposal is similar to a proposal found nonnegotiable in National Federation of Federal Employees and Social Security Administration, 13 FLRA 422 (1983), which would have required the issuance of handheld calculators with memory and percentage functions. The Agency contends that the Union's proposal here is inconsistent with management's rights under section 7106(b) of the Statute.

The Union asserts that its proposal is only intended to provide a general, nonquantitative, contractual standard by which the Agency's exercise of its reserved authority can be evaluated, and that its proposal is identical to one held negotiable in National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981). The Union also argues that the case relied upon by the Agency, Social Security Administration, 13 FLRA 422 (1983), is inapposite because the union's proposal in that case absolutely mandated that a particular kind of equipment be provided to employees.

B. Analysis and Conclusion

The Union's proposal is so broad that we find that its implementation would interfere with the Agency's right to determine the technology, methods, and means of performing its work pursuant to section 7106(b)(1) of the Statute. The proposal, therefore, is negotiable at the Agency's election.

In American Federation of State, County and Municipal Employees, AFL - CIO, Local 2477 and Library of Congress, Washington, D.C., 7 FLRA 578 (1982), enforced as to other matters sub nom. Library of Congress v. Federal Labor Relations Authority, 99 F.2d 1280 (D.C. Cir. 1983), the Authority held that a broadly drafted proposal, using generic terms, which would require negotiations over all equipment and facilities, including those which constitute part of the technical method used by the agency for accomplishing or furthering the performance of its work was negotiable only at the election of the agency under section 7106(b)(1) of the Statute.

Further, in Department of Defense Dependents Schools, Panama Region, 19 FLRA 814 (1985), the Authority found that proposals which would have subjected the selection of textbooks and teaching materials to the decision of committees which included classroom teachers, or which would have  restricted management's purchase and use of books and teaching materials to those materials selected by the teachers, concerned the "technology, methods, and means of performing work" within the meaning of section 7106(b)(1) of the Statute and, hence, were negotiable only at the election of the agency. In that connection, the Authority noted that curriculum and textbooks are tools used in the furtherance of the agency's mission, which is the education of the children of military personnel.

Although this proposal only requires management to "make every reasonable effort" to obtain what is "necessary," the addition of such qualifying language does not remove the limitation imposed on management's exercise of its right to determine the technology of performing work. Rather, this proposal would have the effect of subjecting management's decisions as to what technology is "necessary" and what efforts are "reasonable" in order to obtain the technology to review in an arbitration proceeding. It would permit arbitrators to substitute their judgment for that of management as to what technology is "necessary" and what efforts must be made to obtain that technology. See National Union of Hospital and Health Care Employees, AFL - CIO, District 1199 and Veterans Administration Medical Center, Dayton, Ohio, 28 FLRA No. 65 (1987) (Proposal 1) and the cases cited therein.

We conclude that the Union's reliance on Department of Transportation, Federal Aviation Administration to support its contention that its proposal would merely subject management's determination as to what materials are necessary for the educational process to a general, nonquantitative, contractual standard is misplaced. The proposal in this case compels management to obtain the equipment, facilities, and supplies which are necessary to the education process. The standard of "every reasonable effort" to obtain what is "necessary" is, in reality, a substantive rather than a general nonquantitative standard. 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 VAMC, Dayton, Ohio. 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. 

XVI. Proposal 14

Article 27 - School Facilities

Section 5. Security of classroom facilities and equipment is important to both the Employer and the Association. Accordingly, procedures for improving such security, including the selection of classrooms to be used by non-school organizations, such as university classes, base organizations, and Sunday school classes, may be a subject for JAEC at the school level.

A. Positions of the Parties

The Agency contends that the proposal would limit management's right under section 7106(a)(1) of the Statute to determine the internal security practices of the Agency by requiring that the responsibility be shared with the Union. Further, it contends that the use of classrooms by non-school organizations during nonduty hours is not a condition of employment of bargaining unit employees.

The Union contends that the proposal is designed to make certain security practices a subject of discussion at Joint Association Employer Cooperation (JAEC) meetings held at the school level. The proposal does not seek to negotiate over the Agency's security practices but simply to discuss and make recommendations concerning security in unit employees' classrooms when the rooms are used by non-school organizations after school hours. The Union notes that employees store their personal, professional, and work materials in the classroom.

B. Analysis and Conclusion

We find first that this proposal concerns a condition of employment. In Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA No. 23 (1986), the Authority stated that it will consider two basic factors in deciding whether a proposal involves a condition of employment of bargaining unit employees:

1. Whether the matter proposed to be bargained pertains to bargaining unit employees; and

2. The nature and extent of the effect of the matter proposed to be bargained on working conditions of those employees. 

Applying these factors to this case, we find that the proposal pertains to bargaining unit employees and affects their working conditions. The Union notes that employees store personal, professional, and work items in the class-rooms. Clearly, employees have a concern about the security of such items when non-school organizations have access to and use these classrooms.

Having found that the proposal concerns a condition of employment, we must next determine whether the proposal interferes with management's right to determine its internal security practices, as alleged by the Agency. We find that it does not. In Haskell Indian Junior College, 22 FLRA No. 57 (1986), the Authority found that Proposal 8, which required management to take necessary steps to provide for the protection of employees and property located within areas of the campus remaining open for extended periods of time, was negotiable. Under Proposal 8, the Agency had discretion to determine the level of security that would satisfy the contractual standard of "necessary."

In this case, however, the proposal only requires the subject of security to be discussed at JAEC meetings. As determined regarding Proposal 36 in this case, JAECs are vehicles by which the Union can submit its nonbinding views on topics which affect bargaining unit working conditions. Since the Agency is in no manner obligated to adopt any view or recommendation submitted to the JAEC, we find the Agency has not sustained its claim that this proposal violates management's right to determine its internal security practices. Thus, it is negotiable.

XVII. Proposal 15

Article 28 - General Administrative Procedures

Section 4. Unit employees shall not be required to sign in - and/or sign out.

A. Positions of the Parties

The Agency contends that the requirement for teachers to sign in and/or sign out is a means of performing work which is excepted from the bargaining obligation by section 7106(b)(1) of the Statute. It contends that the sign in procedure is the best method for assuring that the children in classrooms are being supervised. In support of its position, the Agency relies on National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255 (1979), where the Authority found that a requirement that Customs' officers wear name tags involved an instrument for performing the agency's mission.

The Agency also contends that the Union's proposal does not represent an appropriate arrangement and, without supporting arguments, that the requirement for a sign in register is a management right to assign work and direct employees under section 7106(a)(2)(A) and (B).

The Union asserts that its proposal has been included in the parties' prior collective bargaining agreements and that there have been no incidents which would warrant its removal. The Union cites Planners, Estimators and Progressmen Association, Local No. 8 and Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 13 FLRA 455 (1983), as supporting its position that a proposal concerning sign in procedures does not interfere with the methods or means of performing work.

B. Analysis and Conclusions

The Agency claims that a sign in/sign out procedure is the best mechanism for insuring that classroom teachers are present in their classrooms and that such a determination constitutes a method and means of performing its work under section 7106(b)(1) of the Statute. In the context of section 7106(b), "means" refers to any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishing or furthering of the performance of its work. U.S. Customs Service, Region VIII, 2 FLRA 255 (1979). "Methods" refers to the way in which an agency performs its work. National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA 270 (1983).

In American Federation of Government Employees, Local 1760 and Department of Health, Education and Welfare, Social Security Administration, Northeastern Program Service Center, Flushing, New York, 8 FLRA 202 (1982), the Authority found that a proposal to require a sign in/sign out register was negotiable because the Agency had not shown how such a procedure would interfere with its right to determine its internal security practices under section 7106(a)(1) or with its right to determine its means of performing work under section 7106(b)(1) of the Statute. In Charleston Naval Shipyard, 13 FLRA 455 (1983), the Authority found that a proposal which allowed employees to record their time manually instead of through the use of a time clock was not inconsistent with the Agency's right to determine methods and means because it did not interfere with the Agency's objective of attaining accurate and reliable time and attendance records.

In this case, the Agency's declared purpose in requiring a sign in/sign out procedure is to insure that classroom teachers are present in their classrooms so that school children are not left unsupervised. The Agency argues, in essence, that a part of its mission is to provide quality education to minor dependents of DOD employees overseas and to prevent injury to the children entrusted to its care. The Agency further argues that alternate means of insuring teacher presence are impractical or inefficient. The Union counters that at least since 1977 the parties have functioned without a sign in/sign out procedure without incident.

Even assuming, as contended by the Agency, that insuring teacher presence constitutes the "methods" or "means" of performing the Agency's work under section 7106(b)(1), the Agency has not established how the proposal would conflict with the Agency's stated objective of choosing such methods or means, that is, the insurance of teacher presence to prevent injury to school children. This proposal does not prevent the Agency from insuring teacher presence but only prevents the Agency from utilizing a sign in/sign out procedure to achieve that purpose. In this respect, the Agency has not shown, and it is not apparent from the record, especially in light of the the Union's argument that such a restriction has been in existence for many years, that the objective of insuring teacher presence can only be achieved by the use of a sign in/sign out procedure.

Therefore, since this proposal is consistent with the Agency's right to determine the "methods" or "means" of performing its work under section 7106(b)(1) of the Statute, it is negotiable. See Charleston Naval Shipyard, 13 FLRA 455.

In addition, we find nothing in this proposal which would prevent the Agency from directing employees or assigning employees the responsibility to account for their presence in the classroom. Rather, this proposal only precludes the  Agency from utilizing a sign in/sign out procedure to achieve that objective. Thus, this proposal does not interfere with management's rights under section 7106(a)(2)(A) and (B) to direct employees and to assign work.

XVIII. Proposal 16

Article 28 - General Administrative Procedures

Section 9. The Employer shall make every reasonable effort to limit the work assignments for unit employees to the confines of a unit employee's duty day.

A. Positions of the Parties

The Agency argues that this proposal violates management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency also claims that this proposal does not constitute a procedure used for assigning work or an appropriate arrangement for employees adversely affected by the assignment of work.

The Union argues that this proposal does not interfere with management's right to assign work because it does not constitute an absolute prohibition for management to assign work. According to the Union, this proposal merely requires that management "make every reasonable effort" to limit work assignments to the normal duty day.

B. Analysis and Conclusions

It is well-settled that management's right to assign work is not limited to work occurring during normal duty hours. See, for example, Fort Knox Teachers Association and Fort Knox Dependent Schools, 19 FLRA 878 (1985) (Proposal 4). Therefore, we find that since this proposal would impose an obligation on the Agency to assign work within normal duty hours, it is outside the duty to bargain.

As we noted in connection with our analysis of Proposal 13, the addition of the phrase "every reasonable effort" does not remove the limitation imposed on management's exercise of its right to assign work. This section has the effect of subjecting management's right to assign work to arbitral review. That is, should a grievance be filed at a later date,  an arbitrator could examine whether management had made "every reasonable effort" to assign work within the duty day and ultimately, upon concluding otherwise, he/she would be permitted to substitute his/her judgment for that of management. See VAMC, Dayton, Ohio, 28 FLRA No. 65 (1987) (Proposal 1). Further, for the reasons stated in our analysis of Proposal 13, we conclude that the Union's reliance on Department of Transportation, Federal Aviation Administration is misplaced. Thus, for the reasons stated above, we find this proposal outside the duty to bargain.

XIX. Proposal 17

Article 30 - Pupils' Grades

A unit employee is free to establish his/her own grading system. However, the employee's record of grades shall contain a key for translating his/her system to the established grading system in use. The integrity of a unit employee's professional responsibility to determine grades for students, including making recommendations for passing or failing, is recognized by the Employer. If the Employer takes action to either change a student's grade without the consent of the affected unit employee, a written statement from the Employer shall be placed in the employee's personnel file at the work site with a copy sent to the employee, stating that the change in grade and/or the passing or failing of the student was done without the consent of the unit employee, and said unit employee shall not be responsible in any way for the changes made or be held liable for any actions arising as a result of said changes.

A. Positions of the Parties

The Agency claims that grades and pass/fail determinations are methods and means of performing work under that section. The Agency states that it has elected not to bargain over the proposal in accordance with section 7106(b)(1) of the Statute. The Agency notes that because students transfer within the school system, the grading system used must be consistent. According to the Agency, allowing employees to establish their own grading systems would make consistency impossible.

The Union argues that its proposal would not prevent the Agency from establishing a uniform, consistent grading system since the proposal would provide for translation of an employee's grading system into the Agency's established system. As to the remainder of the proposal, the Union claims that it is merely a procedure designed to protect employees when management exercises its right to change a student's grade.

B. Analysis and Conclusion

In our view, the proposal is not so integrally and directly related to the methods and means of performing work so as to render the proposal negotiable solely at the election of the Agency. The proposal does not prevent the Agency from using a grading system or from using a consistent system. As explained by the Union, the proposal merely would allow employees to establish their own grading systems for their own use. The Union also indicates that the proposal would obligate the teacher to keep a key to translate his/her grading system into the grading system established by the Agency. We construe the proposal to require the teacher, not the Agency, to translate the particular teacher's grading system to the Agency's. Thus, the proposal conditions the establishment of an employee's grading system on translation into whatever grading system the Agency has established to be used.

Accordingly, since the proposal in no way limits the Agency's ability to determine its methods and means of grading, it is negotiable.

As to the other portion of the proposal concerning changes in students' grades, the Agency has made no arguments to refute the Union's contention that it is a procedure designed to protect employees when management changes a student's grade. The proposal on its face reflects the Union's intent. Therefore, and in the absence of any specific arguments to the contrary, we find this portion of the proposal as to be well within the Agency's duty to bargain. 

XX. Proposal 18

Article 31 - Curriculum Development

Section 1. The Employer will make every reasonable effort to involve unit employees in the development of curriculum changes which have an impact on said unit employees.

Section 2. If curriculum changes are to be accomplished with the involvement of unit employees, then ODE/DODDS shall consider nominees by the Association for representation on the committees at the appropriate levels. The Association shall have the right to select at least one (1) member per committee.

A. Positions of the Parties

The Agency argues that the proposal relates to the methods and means of performing work under section 7106(b)(1) of the Statute concerning which the Agency has elected not to bargain. More particularly, the Agency claims that the curriculum used in its schools is the methods and means by which the Agency's mission of providing a quality education is accomplished. Bargaining over the development of curriculum changes directly and integrally relates to the mission of the Agency.

The Agency also argues that the development of curriculum changes through the use of committees is outside the duty to bargain since it does not concern a condition of employment. Moreover, to the extent that the proposal would allow the Union to select an employee to serve on the committees, the proposal is inconsistent with management's right to assign duties under section 7106(a)(2)(B) of the Statute.

The union originally stated that the intent of the proposal was to provide employee input and recommendations on curriculum development. According to the Union, Section 2 was specifically designed to accomplish this goal by requiring the Agency to consider appointing Union nominees to curriculum committees when the Agency decides to involve unit employees in the decision-making process concerning curriculum changes. The Union argues that the Agency also would be required to apppoint at least one representative selected  by the Union on each curriculum committee on which a unit employee serves. In response to the Agency's statement of position, the Union claims that nothing in the proposal would require the Agency to include employee or union input in determining curriculum. Instead, the Union contends that the proposal would come into effect only after the Agency has decided to involve unit employees in curriculum changes.

The Union further argues that the proposal does not interfere with section 7106(b)(1) of the Statute but that even if it did, the proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute for employees adversely affected by the curriculum changes. Finally, the Union claims that without Union participation, the Agency would be unlawfully bypassing the Union in seeking direct employee involvement in curriculum changes and development.

B. Analysis and Conclusions

We find that the proposal concerns a condition of employment but that it is outside the duty to bargain for the reasons set forth below.

1. Proposal Concerns a Condition of Employment

First, we reject the Agency's argument that the proposal does not concern a condition of employment. In Antilles Consolidated School System, 22 FLRA No. 23 (1986), the Authority stated that it will consider two basic factors in deciding whether a proposal involves a condition of employment of bargaining unit employees:

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

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

Applying the first factor, it is quite clear that the proposal concerns unit employees. It would allow for the participation of unit employees and the Union in the development of curriculum changes which impact on unit employees. Applying the second factor, the proposal has a  direct connection with the working conditions of unit employees. The Agency notes that the curriculum "consists of the courses of study offered, the content of those courses, the instructional objectives and functions, and the materials through which such courses will be taught." Any changes to the curriculum might well have the effect of requiring the employees to teach different or additional courses, to familiarize themselves with new or different subject matters and with new or different instructional materials. Clearly, such changes have an impact on the working conditions of unit employees.

2. Means of Performing Work

While Proposal 18 concerns a condition of employment, we find that it would involve unit employees and the Union in the development of curriculum changes and, therefore, concerns the means of performing work under section 7106(b)(1) of the Statute. As such, the proposal is a matter negotiable solely at the election of the Agency and the Agency has elected not to bargain.

The proposal here is similar to proposals addressed in Department of Defense Dependents Schools, Panama Region, 19 FLRA 814 (1985). In that case, the Authority found that teacher and union participation in the establishment of curriculum and curriculum priorities, pilot programs and the selection of textbooks interfered with the means of performing work. In reaching its conclusion, the Authority noted that curriculum and textbooks constituted the tools used in the furtherance of the agency's mission of providing education for the children of military personnel. In this case also, the development of the curriculum constitutes the means by which the Agency's mission of providing a quality education is performed.

Additionally, it is by now well-established that a proposal seeking union participation in the deliberative process leading to the exercise of reserved management rights under section 7106 of the Statute is outside the duty to bargain. See, for example, National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982) and cases cited therein. In VAMC, East Orange, the Authority noted that, "when management establishes formal organization structures to undertake such deliberations as an integral part of its substantive decision-making process, a proposal  which would require union participation would have the effect of directly interfering with management's statutory right to make the decisions involved." 9 FLRA at 999. Similarly, when an agency elects not to bargain over a section 7106(b)(1) right, the election extends to bargaining over committees that are concerned with deciding and acting on section 7106(b)(1) matters. See Department of Defense Dependents Schools, Panama Region; Fort Knox Teachers Association and Fort Knox Dependent Schools, 22 FLRA No. 88 (1986) (proposal that would have allowed for union participation on committees to make recommendations on textbook adoptions, grade cards, parent conference forms, and other items or programs was found to concern management's right under section 7106(b)(1) of the Statute).

Here, we find that Proposal 18 concerns a section 7106(b)(1) matter and is negotiable solely at the Agency's election. We also find that the proposal does more than the Union asserts; that is, it comes into effect once the Agency determines to involve unit employees. Rather, we conclude the proposal imposes an affirmative obligation on the Agency to "make every reasonable effort to involve unit employees" in curriculum development and then automatically requires the Union's participation in matters that concern section 7106(b)(1) of the Statute.

3. Appropriate Arrangement

The Union argues that even if Proposal 18 concerns a section 7106(b)(1) matter, it would be negotiable as an "appropriate arrangement" under section 7106(b)(3) for employees adversely affected by the exercise of management's right. In National Association of Government Employees. Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), the Authority set out the following factors to be considered in deciding whether a proposal is negotiable under section 7106(b)(3). The threshold question is whether the proposal, in fact, is intended to be an arrangement for employees adversely affected by the exercise of a management right. In order to answer this question, the union must identify the particular management right(s) claimed to produce the alleged adverse effects, the effects or foreseeable effects on employees flowing from the exercise of the management right(s), and how the effects are adverse. Thus, the burden is on the union to articulate how the employees will be affected adversely by management's actions and how the matter proposed for bargaining is intended to address or compensate for the actual or anticipated adverse effects of management's right(s). If we conclude that a proposal is in fact intended as an arrangement, we will then determine  whether the proposed arrangement is appropriate or whether it is inappropriate because it excessively interferes with the exercise of a management right.

In our view, Proposal 18 is not an appropriate arrangement for employees adversely affected by the exercise of management's right to determine the means of performing work. While the Union points to certain adverse effects on employees caused by curriculum changes, such as employees having to be retrained, to take additional course work, or to get recertified, the proposal would allow for employee and Union participation in all curriculum changes which have an impact on unit employees, not just those having one of the cited effects. Moreover, there may be occasions when curriculum changes would have a beneficial effect on employees. For example, additional training and certification may lead to greater career opportunities or expanded pay benefits. Thus, in our view, the adverse effect and, conversely, the benefits to unit employees under the proposal are speculative.

Finally, we note that the Union originally stated that the proposal was designed to provide input and recommendations on curriculum development and not as an appropriate arrangement for employees adversely affected by curriculum changes. We believe that the chilling effect on management's right to deliberate with respect to determining the means by which its work will be performed resulting from the Union's presence on all committees outweighs the benefits to unit employees. Accordingly, we find that Proposal 18 excessively interferes with the exercise of management's section 7106(b)(1) right. Therefore, it does not constitute an appropriate arrangement under section 7106(b)(3).

4. Assignment of Work

The Agency also has argued that to the extent the proposal would allow the Union to select an employee to serve on each committee, the proposal is nonnegotiable under section 7106(a)(2)(B) of the Statute because it would conflict with managment's right to assign duties. We agree. In the Fort Knox Dependent Schools case referenced above, the Authority also found that since the committees were an integral part of the process by which the means of performing work were determined, the tasks associated with carrying out the functions of the committees concerned the assignment of work. There, as in this case, the proposal effectively would have required the assignment of specific duties to particular employees in violation of management's right to assign work under section 7106(a)(2)(B) of the Statute. 

In conclusion, we find that Proposal 18 concerns a condition of employment. It is outside the duty to bargain, however, since it concerns a section 7106(b)(1) matter about which the Agency has elected not to bargain, is not an appropriate arrangement under section 7106(b)(3) concerning the exercise of management's right under section 7106(b)(1), and also because it conflicts, in part, with section 7106(a)(2)(B).

XXI. Proposal 19

Article 33 - Grade Level and Department Chairpersons

Section 3. It is understood that the duties of unit employees who serve as Grade Level and Department Chairpersons relate to matters within their grade level or department; however, their normal duties shall not be those of a management official or supervisor as defined in 5 U.S.C. 7103.

A. Positions of the Parties

The Agency states that the proposal would limit the Agency's right to assign supervisory duties to employees and is therefore outside the duty to bargain under section 7106(a)(2)(B) of the Statute.

The Union argues that the proposal would not preclude the assignment of discrete or occasional supervisory duties to the named individuals who are unit employees.

B. Analysis and Conclusions

Proposal 19 is outside the duty to bargain because it would interfere with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. Like the proposal found nonnegotiable in American Federation of Government Employees, AFL - CIO, Local 3385 and Federal Home Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA 398 (1981) (Proposal 1), which would have prohibited the Agency from assigning rating duties to unit employees, the proposal here would prohibit the assignment of supervisory or managerial responsibilities to unit employees on a regular basis. As such, Proposal 19 is outside the duty to bargain. 

XXII. Proposal 20

Article 34 - Teacher Aides/Paraprofessionals

Section 2. The Employer shall make every reasonable effort to provide aides for unit employees, if requested, for:

A. Each regular class with more than 25 students;

B. Each special education class with more than 8 students;

C. Each kindergarten class with more than 20 students.

A. Positions of the Parties

The Agency argues that this proposal interferes with management's right to determine the numbers and types of employees and positions under section 7106(b) of the Statute. The Agency also argues that because this proposal affects teacher-aides who are not members of the bargaining unit, it is outside the duty to bargain.

The Union argues that teacher-aides and para-professional employees are part of the bargaining unit. The Union also argues that this proposal does not interfere with management's right to assign work because it only requires management to make "every reasonable effort" to provide aides for unit employees, and it does not prevent the Agency from exercising its reserved rights. To support its argument, the Union cites Department of Transportation, Federal Aviation Administration, 6 FLRA 588, where the Authority found a proposal with the phrase "every reasonable effort" to be negotiable.

B. Analysis and Conclusion

We find that Proposal 20 imposes an obligation on the Agency to assign aides for teachers if they so request when any of the circumstances enumerated in the proposal are met. The proposal expressly requires management to provide teacher-aides for unit employees. This requirement imposes an obligation on management to hire and assign aides when requested by the teachers. Thus, Proposal 20 interferes with management's right under section 7106(b)(1) of the Statute to determine the number of employees assigned to any work project. It is well-established that proposals concerning the numbers, types and grades of employees assigned under  section 7106(b)(1) of the Statute are only negotiable at the election of the agency. Panama Canal Commission, 26 FLRA No. 48 (1987). Since the Agency has elected not to bargain, we find this proposal outside the duty to bargain.

As we noted in connection with our analysis of Proposal 13, the use of the phrase "every reasonable effort" does not remove limitations on management's right to act in a certain manner otherwise imposed by a proposal. Thus, we find that the use of such a phrase here also does not remove the limitation on management's right to determine the numbers, types and grades of employees. Furthermore, this phrase would subject to arbitral review whether the Agency had made "every reasonable effort" to provide aides for teachers, and ultimately would permit arbitrators to substitute their judgment for that of management. See VAMC, Dayton, Ohio, 28 FLRA No. 65 (1987). Thus, for the reasons stated above, we find Proposal 20 outside the duty to bargain.

XXIII. Proposals 21-31

The Authority Members have expressed different views on Proposals 21-31. The decision and order on these proposals and the separate opinion of Chairman Calhoun follow this decision.

XXIV. Proposals 32-34

Article 35 - Basic Compensation

Proposal 32

Section 5. When the finance records of a unit employee have been lost, destroyed, or delayed because of transfer, or reassignment, the unit employee shall be paid on the basis of his/her last "Leave and Earnings" statement and/or other official pay documents until the pay records have been reconstructed. In the absence of said records, unit employees shall be paid, as a minimum, at the B.A., Step 2, salary schedule.

Proposal 33

Section 12. Unit employees shall have the option of receiving their pay during the school year or of having it extended over a 12-month period. Such option shall have no effect on any other aspect of unit employee pay. 

Proposal 34

Section 25. Unit employees shall be paid by separate check, unless they choose otherwise, for each form of income, e.g., regular salary, extracurricular activity pay, and retroactive pay or adjustments in pay.

A. Positions of the Parties

The Agency contends that it is without discretion to bargain over these three proposals. The pay of unit employees is disbursed by the finance offices of the various military departments. Therefore, the Agency cannot guarantee compliance with the proposals.

The Union contends that the Agency has the authority to conclude servicing agreements with the military departments in a manner that would incorporate the requirements of these proposals.

B. Analysis and Conclusion

In Federal Employees Metal Trades Council, AFL - CIO and Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 25 FLRA No. 31 (1987), we examined the question of whether the method of paycheck delivery was a matter concerning conditions of employment. In concluding that it was, we stated at page 5 of the slip opinion:

In our view, the manner of paycheck delivery clearly falls within this definition. The receiving of paychecks is the culmination of the employment contract between the employee and employer. It consummates an agreement to exchange compensation for work performed, and therefore, it is inextricably bound to a fundamental condition of employment: pay.

Consequently, based on Mare Island Naval Shipyard, we find these proposals, dealing with last pay records, paycheck delivery and how various types of pay will be disbursed, likewise concern conditions of employment of employees in the bargaining unit and are negotiable.

We reject the Agency's argument that, because the matters addressed are within the control of other elements of the Department of Defense, it has no obligation to bargain over the proposals. In Overseas Education Association, Inc. and Department of Defense Office of Dependents Schools, 22 FLRA No. 34 (1986) (Proposal 5), petition for review filed sub nom. Overseas Education Association, Inc. v. FLRA, No. 86-1491 (D.C. Cir. Sept. 3, 1986), 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 exceptions to that obligation occur 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. Consequently, the proposals are negotiable.

XXV. Proposal 35

The Authority Members have expressed different views on Proposal 35. The decision and order on this proposal and the separate opinion of Chairman Calhoun follow this decision.

XXVI. Proposal 36

Article 38 - Employee Workday

Section 2 - Planning Time

It is understood by the parties that planning time is an essential part of the unit employee's instructional day. The parties agree that whenever possible, all unit employees shall have a minimum of one class period or its equivalent per day or 200 minutes per week during their instructional time for the purposes of planning and preparation. In the event elementary teachers are involved in special programs that require block planning time, upon request of the Association, the parties shall jointly develop the planning schedule in accordance with Article 9, Section 4.

B. Positions of the Parties

The Agency asserts that Proposal 36 interferes with its right to assign work pursuant to section 7106(a)(2)(B) of the Statute. The Agency cites the Authority's decision in National Federation of Federal Employees, Local 1263 and Defense Language Institute, Foreign Language Center, Presidio of Monterey, California, 7 FLRA 723 (1982), in which a similar proposal was found to be nonnegotiable.  

The Union contends that Proposal 36 is different from the proposal found to be nonnegotiable in Defense Language Institute because it does not mandate a preparation period in all circumstances. According to the Union, Proposal 36 merely attempts to establish a general, nonquantitative contractual standard by which the Agency's exercise of its reserved authority can be evaluated. Finally, the Union contends that the last sentence of Proposal 36 only requires the Agency to consult with its employees through the Joint Association - Employer Cooperation (JAEC) committees provided for in Article 9 of the proposed agreement.

B. Analysis and Conclusion

Read together, the first two sentences of Proposal 36 are to the same effect as the group of proposals found nonnegotiable in Defense Language Institute, where the Authority held that the proposals directly interfered with the management right to assign work "by allocating a specific amount of time for the accomplishment of a specific duty." These sentences set forth a specific amount of time to accomplish certain work. Thus, based on the reasons cited in Defense Language Institute, the first two sentences are inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. See also Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA No. 88 (1987) (Proposal 2), petition for review filed sub nom. Overseas Education Association v. FLRA, No. 87-1468 (D.C. Cir. Sept. 8, 1987); Fort Knox Dependent Schools, 22 FLRA No. 88 (1986) (Proposal 2).

Although the first two sentences of this proposal only require management to assign preparation periods "whenever possible," the addition of such qualifying language does not remove the limitation imposed on management's exercise of its right to assign work. Rather, these sentences would have the effect of subjecting management's decisions as to when it was possible to assign preparation periods to review in an arbitration proceeding. That is, they would permit arbitrators to substitute their judgment for that of management as to when it was possible to assign preparation periods. See VAMC, Dayton, Ohio, 28 FLRA No. 65 (1987) (Proposal 1) and the cases cited therein. similarly, as we noted in our analysis of Proposal 13, the Union's reliance on Department of Transportation, Federal Aviation Administration is misplaced. Thus, for the reasons stated above, we find the first two sentences of this proposal outside the duty to bargain.  

The last sentence of Proposal 36 states that the parties would "jointly develop" a planning schedule for the affected employees in accordance with Article 9, Section 4. The Union asserts that this sentence merely subjects the question of block planning time to consultations through the JAEC meetings provided for in Article 9 of the proposed agreement. According to the Union, these JAEC meetings are "a process short of negotiations whereby . . . (the parties) . . . discuss matters of mutual concern." Union Reply Brief at Article 38, Section 2. Thus, the Union asserts that it could make recommendations concerning the planning schedules through the JAECs without interfering with management's reserved rights.

We agree. Proposals which provide for joint labor-management committees (such as the JAECs) whose purpose is to make recommendations concerning the improvement of the workplace have consistently been found to be negotiable. See U.S. Department of Defense Dependents Schools, 28 FLRA No. 88 (1987) (Proposal 3), petition for review filed on other matters sub nom. Overseas Education Association v. FLRA, No. 87-1468 (D.C. Cir. Sept. 8, 1987) and the cases cited therein. Thus, because the last sentence of the Union's proposal merely subjects the question of planning schedules for affected employees to discussions rather than to negotiations through the forum provided by the JAECs, the proposal places no limitation on the Agency's right to assign planning work to its employees. Therefore, we conclude that the last sentence of Proposal 36 is negotiable.

XXVII. Proposal 37

Article 38 - Employee Workday

Section 6. The Employer shall ensure that in those schools where a lunch period exists, employees shall have a duty free lunch period. Upon request of the Association, the parties shall jointly develop the amount of time for the duty-free lunch period in accordance with Article 9, Section 4.

A. Positions of the Parties

The Agency contends that Proposal 37 would require it to ensure that teachers would be allowed to eat their lunch without being required to perform work simultaneously. The Agency contends that this requirement interferes with its  right to assign work and direct employees under to section 7106(a)(2)(A) and (B) of the Statute. The Agency argues that many of its secondary school teachers have a duty-free lunch period, but some teachers must monitor the lunchrooms on a rotating basis. In elementary schools, some of the teachers are required to eat lunch with their students. In support of its position, the Agency cites the Authority's decision in American Federation of Government Employees, Local 3511 and Veterans Administration Hospital, 12 FLRA 76 (1983), where the Authority found that there would be occasions when management would deem it necessary to assign work to employees during their meal periods.

The Agency further argues that the Union's proposal interfere with management's right to determine the numbers, types and grades of its employees under section 7106(b)(1) of the Statute because the proposal would require the hiring of additional staff to fulfill the function of monitoring lunchrooms now accomplished by the teachers.

The Union contends that the language of its proposal does not explicitly relate to the numbers, types and grades of employees or positions assigned to a tour of duty because nothing in the proposal precludes the staggering of meal periods to assure student lunchroom coverage. The Union concludes that the Agency has failed to demonstrate that the proposal would be determinative of numbers, types or grades, citing the same Veterans Administration Hospital decision relied on by the Agency.

The Union further contends that the last sentence of its proposal does not obligate the Agency to negotiate the length of its proposed duty-free lunch period. This matter would be left subject to consultation through the Joint Association - Employer Cooperation (JAEC) meetings provided for in Article 9 of the proposed agreement. The Union concludes that the discussion of matters such as the length of a duty-free lunch period in a forum such as the JAEC, which merely has the power to make recommendations, does not interfere with management's reserved rights.

B. Analysis and Conclusion

Proposal 37 requires that bargaining unit employees would be given a duty-free lunch period and that the   length of the lunch period would be developed jointly by the Agency and the JAEC. To the extent that a duty-free lunch period is required, the proposal is to the same effect as proposals found nonnegotiable in Overseas Education Association, Inc. and Department of Defense, Dependents Schools, 29 FLRA No. 56 (1987 (Proposals 5a and 7e). In that case, the proposals were found to preclude the agency from assigning duties, including the duty of monitoring students during lunchtime, to unit employees who were on their duty-free lunch period. As such, the proposals were inconsistent with management's right to assign work under section 7106(a)(2)(B). The same result must be reached here.

Since there is no obligation to bargain over granting employees a duty-free lunch period, there is no obligation to bargain over the remainder of the proposal which would allow for joint development of the amount of time for the lunch period. Also, in view of our conclusion, we need not address the Agency's additional contention that the proposal also concerns a section 7106(b)(1) matter.

For the reasons stated above, we find Proposal 37 is outside the Agency's duty to bargain.

XXIII. Proposal 38

Article 38 - Employee Workday

Section 7.

Upon request of the Association, the parties shall develop the starting and closing times for the school day and the use of "flex" time where appropriate in accordance with Article 9, Section 4.

A. Positions of the Parties

The Agency contends that, to the extent that Proposal 38 seeks to establish a school day for students, it is nonnegotiable because it goes to the methods and means of conducting the Agency's operations. The Agency contends that the "flex" time aspects of the proposal would improperly limit management's rights under section 7106(b)(1) of the Statute.  

The Union contends that "school day" refers to the teacher workday rather than the instructional day. Thus, the proposal is not intended to interfere with management's right to determine the methods and means of conducting the Agency's operations by establishing the school day for students.

The Union further contends that its "flex time" proposal does not require the Agency to negotiate starting or closing time, or flex time. The Union contends that "flex time" is a negotiable matter pursuant to the Federal Employees Flexible and Compressed Work Schedules Act of 1982, Pub. L. No. 97-221, 96 Stat. 227 (codified at 5 U.S.C. 3401, 6101 and note, 6106, 6120-6133), which was made permanent in 1986, Pub. L. No. 99-196, 99 Stat. 1350. The Union argues that this proposal seeks to make starting and closing times, and the use of flex time, a subject of discussions for the JAECs provided for in Article 9 of the parties' proposed agreement. The JAEC process only requires a discussion of matters of mutual concern and the submission of recommendations to management, a process the Union characterizes as being short of negotiations. The Union concludes that the establishment of a committee with the limited power to make such recommendations does not interfere with the Agency's reserved rights, citing American Federation of Government Employees. Local 2761 and U.S. Department of the Army, U.S. Army Adjutant General Publication Center, St. Louis, Missouri, 14 FLRA 438 (1984); American Federation of Government Employees, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217, 229-230 (1981).

B. Analysis and Conclusion

In this case, the Union is not seeking to negotiate on the starting and closing times of the schoolday or on alternate work schedules. Rather, the Union merely proposes that the JAECs consider that issue. As previously determined with respect to Proposal 36, JAECs are a vehicle by which the Union can submit its nonbinding view on topics which affect bargaining unit employees. Since the Agency is in no manner obligated to adopt any view or recommendation submitted to the JAECs by the Union, including recommendations as to alternate work schedules, we find that the Agency has not sustained its claim that this proposal violates any management right. Thus, this proposal is within the duty to bargain.  

XXIX. Proposal 39

Article 38 - Employee Workday

Section 8.

A. The Employer shall make every effort to avoid assigning a unit employee more than three consecutive lessons or periods (45-60 minutes per lesson or period) or teaching assignments, except where the affected unit employee agrees otherwise.

B. In the secondary schools, the Employer will make every effort to limit the number of lesson preparations to three, except where the affected unit employee agrees otherwise.

A. Positions of the Parties

The Agency asserts that part A of Proposal 39 is substantially the same as a proposal which the Authority found directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute in Defense Language Institute, 7 FLRA 723 (1982).

The Agency asserts that part B of this proposal also interferes with management's right to assign duties under section 7106(a)(2)(B) of the Statute. The Agency argues that this proposal would limit management's right to assign to teachers classes in more than three different subject areas. According to the Agency, for these purposes, Algebra I and Algebra II would be considered different subject areas. The Agency contends that many of its schools are small and that management is often required to assign teachers with qualifications in one subject area to teach classes in other subject areas.

The Union contends that this proposal is not an infringement on management's right to assign work because each part only requires the Agency to "make every effort" to avoid such assignments. Thus, the Union argues that the proposal only establishes a general, nonquantitative contractual standard by which the Agency's exercise of its reserved authority can be evaluated, citing Department of Transportation, Federal Aviation Administration, 6 FLRA 588 (1981). 

The Union further contends that both parts of the proposal are "appropriate arrangements for employees adversely affected by the exercise of any authority under this section by such management officials," within the meaning of 5 U.S.C. 7106(b)(3), because they seek relief for unit employees adversely affected by the Agency assignment of a "professionally unreasonable and highly demanding class schedule or teaching load."

B. Analysis and Conclusion

We find that both parts of Proposal 39 involve the assignment of work. 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 held that the right to assign work under section 7106(a)(2)(B) of the Statute 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 forth in Bureau of the Public Debt, 3 FLRA at 775 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. 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." 7 FLRA at 725.

While this proposal does not seek to prescribe the amount of duty time to be devoted to preparation or planning time, as in Proposal 36 in this case, both parts of this proposal would place limitations on management's right to prescribe either a teacher's daily work schedule and/or the number of different "subjects" to be assigned to any particular teacher. As noted above, the Authority has held that the right to assign work "includes the right to assign general continuing duties," which would encompass the right to assign the number of subjects deemed necessary to fulfill its mission. Bureau of Public Debt, 3 FLRA at 775. The right to assign work also includes the right to determine "when the work which has been assigned will be performed;" this encompasses the right to adjust a teacher's daily schedule to accomodate management's needs. Id. Therefore, we conclude that both parts of this proposal a also interfere with the Agency's right to assign work and are outside the duty to bargain.

The Union also asserts that both parts of this proposal are distinguishable from the proposals found nonnegotiable in Defense Language Institute. The Union also argues that Proposal 39 only requires the Agency to "make every effort" to seek the scheduling objectives encompassed by the proposal. As we noted there, however, such language would have the effect of subjecting management's decisions concerning the scheduling of teachers to review in an arbitration proceeding. That is, such language would permit arbitrators to substitute their judgment for that of management as to whether it were possible to avoid scheduling teachers to teaching assignments for more than three consecutive lessons or periods, or as to whether it were possible to avoid scheduling teachers so that they have no more than three lesson preparations. See VAMC, Dayton, Ohio, 28 FLRA No. 65 (1987) (Proposal 1) and the cases cited therein.

Similarly, as we noted in connection with our analysis of Proposal 13, the Union's reliance on Department of Transportation is misplaced. In that case, the proposal at issue did not affect, in any manner, managment's rights. In contrast, the proposal in this case compels management to schedule its teaching employees in a prescribed manner, thus infringing on its management right under section 7106(a)(2)(B) of the Statute to assign work to its employees.

As to the Union's assertion that this proposal constitutes an appropriate arrangement, for reasons fully set forth in our decision on Proposal 18, we find it is not. We find that even assuming that this proposal constitutes an "arrangement" for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3), it is not an "appropriate arrangement." Although the Union's proposal would benefit employees by limiting the number of lesson preparations which they could be assigned, it would eliminate management's flexibility to schedule teachers to fulfill its educational mission. Since the Union's proposal would eliminate management's flexibility, we find that it would excessively interfere with the Agency's right to assign work and, thus, does not constitute an "appropriate arrangement" under section 7106(b)(3). See VAMC, Ft. Lyons, 25 FLRA No. 66 (1987) (Proposal 2).  

XXX. Proposal 40

Article 38 - Employee Workday

Section 9. Unit employees shall not be expected to perform duties that are not job-related. The Employer will make every effort to avoid the assignment of nonprofessional duties to unit employees. Such nonprofessional duties include, but are not limited to, the following:

A. Duty on buses carrying children between home and school.

B. School-wide detention.

C. Duties as to certification of residence, enrollment and registration cards.

D. Duties on buses carrying children to and from school activities other than:

1. activities initiated by the employee;

2. activities beginning during the school day and

3. class projects.

E. Clerical work that is not an integral part of the unit employee's work assignment.

A. Positions of the Parties

The Union withdrew the first sentence of this proposal in its response to the Agency's statement of position.

The Agency contends that Proposal 40 is nonnegotiable because it conflicts with management's right to assign duties to employees pursuant to section 7106(a)(2)(B). The Agency relies on New York State Nurses Association and Veterans Administration, 11 FLRA 578 (1983), in which the Authority found a proposal seeking to prohibit the assignment of nonprofessional duties to nurses to be nonnegotiable.

In its response, the Union contends that its proposal is distinguishable from the one found to be nonnegotiable in New York State Nurses Association because the proposal here  would only require the Agency to make every effort to avoid making certain "nonprofessional" assignments to teachers.

B. Analysis and Conclusion

In Haskell Indian Junior College, 22 FLRA No. 57 (1986), the Authority held that a proposal which would require the agency to ensure that duties beyond an instructor's normal teaching assignment be related to the instructor's position was outside the duty to bargain because it interfered with the agency's right to assign work under section 7106(a) of the Statute. The Authority further held that the addition of language which only sought to ensure that such assignments would be made "as fairly as possible" did not alter the conclusion that the proposal was nonnegotiable because it would still expressly prohibit the agency from assigning duties to an instructor which were not related to the instructor's position. Slip op. at 7.

In Fort Knox Teachers Association and Fort Knox Dependent Schools, 25 FLRA No. 95 (1987), petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3395/3524 (D.C. Cir. Apr. 27, 1987), we held that a proposal which would have provided that bus chaperone duty be voluntary was not negotiable. We found that while the proposal presumed that there were no specific qualifications necessary to perform such duty and that all teachers, therefore, would be equally qualified to perform them, the proposal effectively deprived management of the discretion to make judgments as to "(1) the personnel requirements of the work of the position, that is, the qualifications and skills needed to do the work, as well as such job-related individual characteristics as judgment, and (2) as to which employees meet those requirements." Slip op. at 3.

In VAMC, Dayton, Ohio, 28 FLRA No. 65 (1987), we held that a proposal which would have required that management "make every effort" to minimize the assignment of "nonprofessional" duties to registered nurses was nonnegotiable because it imposed a substantive condition on management's right to assign work and established a criterion by which management must justify its action in assigning nonprofessional duties to staff nurses.

Based on the cases cited above, it is clear that Proposal 40, even with the first sentence withdrawn, is outside the duty to bargain because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.  

XXXI. Proposal 41

Article 39 - Extracurricular Activity and Compensation

Section 2. Members of the bargaining unit are encouraged to notify the Employer at the local level of any interest they might have with regard to filling extracurricular positions which might become available. The Employer will make every effort to fill extracurricular positions in accordance with the expressed preferences of the qualified employees in the bargaining unit at the local level. In the event the Employer does not fill all available positions in accordance with the preferences of the employees, then the Employer agrees to actively seek qualified volunteers from the bargaining unit at the local level. Further, the Employer agrees that the filling of extracurricular positions shall be done in a fair and equitable manner and shall not be arbitrary and capricious. No employee in the bargaining unit shall be required to accept an extracurricular activity, except in the case of temporary emergencies, when said activity is a voluntary activity for students and is required to be performed beyond the normally recognized duty day for other members of the bargaining unit. When assignments are made due to temporary emergencies said unit employees shall be compensated as provided in Article 35, Section 10.

A. Positions of the Parties

The Agency asserts that Proposal 41 would improperly limit its right under section 7106(a)(2)(A) and (B) of the Statute to assign overtime work to its employees. In the Agency's view, extracurricular activities are similar to planned overtime. Most extracurricular activities would be subject to the limitations set forth in the Union's proposal, as they involve voluntary activity by the students taking place after the instructional day. In support of its  contentions, the Agency cites the Authority's decision in International Association of Firefighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438 (1980), which indicated that the right to assign work is not limited to the normal duty day.

The Union contends that the purpose of this proposal is to establish a procedure to be utilized when the supervision of extracurricular activities is assigned to unit employees. The Union further asserts that the purpose of the next to the last sentence is to maintain a policy established by its prior negotiated agreement.

B. Analysis and Conclusions

It is well-established that a proposal may not prohibit assigning duties to bargaining unit employees and that management's right to assign work is not limited to work occurring during normal duty hours. Fort Knox Dependent Schools, 19 FLRA 878 (1985) (Proposal 4) (agency's requiring teachers to attend afterhour Parent Teacher Association meetings held to be an assignment of work); Overseas Education Association and Department of Defense Dependents Schools, 28 FLRA No. 119 (1987) (Proposal 1) (agency's right to assign teachers to Student Activity Fund Councils which frequently meet after normal duty hours held to be an assignment of work). This proposal is similar to Proposal 4 in Fort Knox and Proposal 1 in Department of Defense Dependents Schools, inasmuch as it would deprive the Agency of its right to assign particular employees whom it deemed qualified to supervise extracurricular activities, which frequently occur after normal duty hours, by making such participation subject to a voluntary system. Accordingly, for the reasons set forth in Fort Knox Dependents Schools and Department of Defense Dependents Schools, we find that this proposal violates management's right to assign work.

Having found that the voluntary system encompassed by Proposal 41 is nonnegotiable, we need not reach the question of whether overtime pay for extracurricular assignments due to temporary emergencies is a negotiable matter, as such circumstances are intrinsically related to the entire proposal we have found to be nonnegotiable. We note, however, that we have found the question of overtime pay for extracurricular assignments as provided for in Proposal 29, Article 35, Section 10 to be negotiable. 

XXXII. Proposal 42

Article 41 - Passport/Visas/Identification Card

Section 2. The Employer shall take what action it can to ensure that identification cards issued to unit employees have no geographical restrictions overseas printed or stamped on them.

A. Positions of the Parties

The Agency argues that Proposal 42 does not relate to a condition of employment because it involves unit employees' access to bases and certain facilities when employees are off duty, engaged in nonwork activities, and at overseas locations other than their posts of duty. Furthermore, the Agency asserts that if an employee is placed on temporary duty at another overseas location, the employee is issued official orders. Finally, the Agency argues that even if the proposal does relate to a condition of employment, it has no authorization to issue identification cards and no control over the geographic restrictions which are placed on the cards by various military departments.

The Union contends that the geographic restrictions on identification cards do relate to conditions of employment because unit employees travel to bases in other countries for meetings, training, and courses and Union representatives travel to perform representational duties. The Union argues that management controls geographic restrictions placed on identification cards because the Agency supplies information for the cards and endorses employees' applications.

B. Analysis and Conclusion

1. Proposal Concerns a Condition of Employment

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

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

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

There is no dispute that this proposal pertains to bargaining unit employees. Unit employees are issued identification cards with or without geographic restrictions stamped on the cards. Therefore, we find it meets the first factor set out in Antilles.

Turning to the second factor, it is undisputed that employees are issued identification cards enabling them to gain access to bases and base facilities in the countries where they are employed. The issue here is whether the geographic restrictions stamped on unit employees' identification cards constitute a condition of employment.

We find, in agreement with the Union, that unit employees travel to professional meetings, training workshops, and courses at military bases in countries outside their assigned country for educational purposes in connection with their employment. Furthermore, insofar as unit employees travel as Union representatives to bases in various countries in order to administer the collective bargaining agreement, such travel is a condition of employment. See Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 22 FLRA No. 34, slip op. at 16-18 (Proposal 10) (1987), affirmed on other grounds sub nom. Overseas Education Association v. FLRA, No. 86-1491 (D.C. Cir. Aug. 28, 1987) (proposal requiring agency to provide bargaining unit employees with travel orders for transportation for the purpose of conducting representational duties held negotiable). Thus, travel to bases outside their assigned country undertaken by unit employees for professional and representational purposes is a condition of employment.

Unit employees may not have travel orders for professional travel and trips for representational duties. In these circumstances, if they have geographic restrictions on their identification cards, unit employees would be unable to use facilities--such as billeting, post exchanges, and the officers' club and mess--they might need for professional purposes or representational duties. Inasmuch as unit employees need access to these military facilities for employment-related purposes, it follows that the geographic restriction stamps on identification cards which control access to these facilities are directly related to conditions of employment. Overseas Education Association Inc. and Department of Defense, Office of Dependents Schools, 27 FLRA No. 71, slip op. at 21-22 (1987) (Proposal 14), petition for review filed sub nom. Overseas Education Association v. FLRA, No. 87-1279 (D.C. Cir. June 25, 1987) (proposal requiring  agency to provide transportation and transient Government facilities for employee attendance at union-sponsored workshops held directly related to employment relationship). Thus, the second factor of the Antilles analysis has been met, and we find that Proposal 42 concerns a condition of employment.

2. Proposal is Within the Duty to Bargain

The Agency contends that military departments control the geographical restrictions placed on the identification cards and that it has no discretion regarding these restrictions. Thus, the Agency argues that it cannot negotiate concerning geographic restrictions on identification cards. We reject this argument for the same reasons expressed in Department of Defense, Office of Dependents Schools, 22 FLRA No. 34, slip op. at 11 (Proposal 5). 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 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. Therefore, based on Department of Defense, Office of Dependents Schools, 22 FLRA No. 34, we conclude that control of the geographical restrictions on identification cards, which are the subject of the proposal, by components of DOD other than the Agency does not present a basis for finding Proposal 42 nonnegotiable.

In summary, we conclude that geographical restrictions on unit employees' identification cards are a condition of employment. Further, since components of DOD other than the Agency have control of the issuance of the cards and the geographical restrictions placed on them, we find that Proposal 42 is within the Agency's duty to bargain. 

XXXIII. Proposals 43-44

Article 41 - Passport/Visas/Identification card

Proposal 43

Section 3. The Employer shall reimburse any fees charged unit employees for any required passport and/or visas.

Proposal 44

Section 4. The Employer shall inform unit employees of their eligibility to have both an official and tourist passport and shall assist unit employees in acquiring both passports, upon request.

A. Positions of the Parties

The Agency interprets Section 3 of Proposal 43 as requiring it to reimburse unit employees for fees incurred for passports and visas for tourist travel as well as travel required for employment. Therefore, to the extent that the proposal refers to passports and visas for tourist travel, the Agency argues that it does not relate to a condition of employment. The Union contends that the Agency has misread Proposal 43 which it states is limited to reimbursement of expenses to employees for the cost of passports and visas which are required to travel to their overseas posts.

The Union claims that Section 4 of Proposal 44 is self-explanatory. Neither party takes a position with regard to its negotiability.

B. Analysis and Conclusion

Proposal 43

1. Section 3

The Agency states, without controversion, that an official passport, a no-fee passport, as well as a visa is obtained by the employer free of charge to the unit employee when travel is directed for employment purposes. According to the language of the proposal ("required passport and/or visas") and the Union's statement of intent, the Agency would incur no obligation under Section 3 to reimburse unit employees for expenses they incur for passports and visas for  tourist travel. Based on this information, it appears that the Union intends only to contractually guarantee the existing practice. Since Section 3 pertains to travel directed by management for employment purposes, we find that it is negotiable.

Proposal 44

2. Section 4

Section 4 would require that the Agency inform employees they are eligible for both official and tourist passports and visas and assist unit employees in acquiring them. As discussed above, employees receive passports and visas required for employment at no cost. The Agency does not assert that informing employees about official passports and assisting employees, upon request, to obtain them is outside the duty to bargain. Therefore, to the extent that Section 4 pertains to official passports and visas it is negotiable.

On the other hand, tourist passports and visas, by their very nature, do not appear to concern the employment relationship, and the Union offers no evidence to the contrary. Antilles Consolidated School System, 22 FLRA No. 23, slip op. at 4 (1986) (union provided no evidence that matter proposed was in any manner related to employment relationship). Therefore, we find that to the extent Section 4 concerns tourist passports and visas, it does not relate to a matter concerning employees' working conditions.

In summary, because Section 3 pertains only to passports and visas required for travel for employment purposes, is negotiable. Section 4 is negotiable with regard to its requirement that the Agency inform and assist employees with official passports and visas. However, to the extent it concerns tourist passports and visas, it is outside the duty to bargain.

XXXIV. Proposal 45

Article 43

Section 4. Grade Equivalency In the event a unit employee is downgraded or reduced in rank through no fault of the employee, the unit employee shall continue to receive his/her previous highest equivalent grade unless prohibited by government-wide regulations.  

A. Positions of the Parties

The record in this case indicates that in order to determine a teacher's entitlement to housing allowance, travel and other employment related benefits, the military departments, which generally control such matters, convert a teacher's grade into equivalent military and GS grades. The Agency argues that it has no control over the grade equivalency and since the Agency has no discretion in the matter, it is not negotiable.

The Union contends that the proposal would only require management to retain the unit employee's previous highest grade on his/her identification card application (a military branch performs the ministerial function of issuing the "i.d." card), or to place the employee's previous highest grade in DODDS executed travel order. The Union contends as the military departments utilize the grade designation to convert it to a equivalent military grade for housing, travel and other employment-related purposes, it would allow the employee to enjoy the benefits of his/her highest grade.

B. Analysis and Conclusion

We reject the Agency's argument that because control over the matters addressed by this proposal rest with other components of DOD it has no obligation to bargain. Rather, it is well-established that where a component of an agency is obligated to bargain with the exclusive representative of its employees over condition of employment even through control over a particular condition of employment resides in another component of the same agency. See for example, Overseas Education Association Inc. and Department of Defense Office of Dependent Schools, 22 FLRA No. 34 (1986) (Proposal 5), affirmed sub nom. Overseas Education Association Inc., v. FLRA, No. 86-1491 (D.C. Cir. Aug. 28, 1987).

The Agency claims that Department of State Standard Regulations (DSSRs) provides a grade equivalency chart for housing allowance rates. However, the Agency makes no specific claim that Proposal 45 is violative of any law, rule, or regulation, including the DSSRs.

We view this proposal as a save grade provision for DODDS teachers similar to the save grade provisions applicable to GS and prevailing rate employees under 5 U.S.C. 5362. W