29:1447(119)NG - AFGE, LOCAL 1815 VS ARMY, FORT RUCKER



[ v29 p1447 ]
29:1447(119)NG
The decision of the Authority follows:


 29 FLRA NO. 119

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES,
AFL-CIO, LOCAL 1815

             Union

     and

U.S. ARMY AVIATION CENTER
AND FORT RUCKER, ALABAMA

             Agency

Case No. 0-NG-1306

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute).. The appeal concerns five provisions of a collective bargaining agreement which were disapproved by the Agency head during review of the negotiated agreement under section 7114(c) of the Statute. 1 We find Provision I to be nonnegotiable. Provisions 2, 3, 4 and 5 are addressed in a separate Decision and Order (Chairman Calhoun dissenting in part and concurring in part).

II. Provision 1

ARTICLE

TEACHER WORK DAY, WEEK, YEAR

Section 1. Each teacher's work day shall normally include planning and conference time; and when appropriate, this shall be when a teacher's class is covered by a special teacher.

Section 2. The teacher contract shall be for 12 months and shall include the number of days required by Alabama law for student attendance plus any additional days for inservice education, plus all legal holidays and regular school vacation periods within the normal school year. Such paid holidays shall be designated as annual leave. In addition to Christmas and Thanksgiving vacation periods, five days of spring vacation will normally be scheduled.

Section 3. It shall be the Employer's policy to provide a substitute teacher on days when a teacher is absent. The Union will encourage and management will expect that a teacher will, in the absence of clearly extenuating circumstances, provide notice of absence sufficiently in advance to enable the Employer to arrange for a qualified substitute teacher.

A. Positions of the Parties

The Agency contends that by requiring that teachers be assigned planning and conference time every day, section 1 of the provision violates its rights under section 7106(a)(2)(A) and (B) of the Statute to direct employees and to assign work. Concerning section 2, the Agency asserts that bargaining over money-related fringe benefits is not authorized by the Statute and that the proposed 12-month contractual term violates its right under section 7106(a) (2)(A) to assign employees. Section 3 , in the Agency's view, also violates management's right to assign employees and, further, does not address a condition of employment within the bargaining unit under section 7103(a)(14) because it concerns the assignment of work to substitute teachers who are excluded from the unit.

The Union asserts that section 1 reflects the practice in the bargaining unit and, further, promotes the requirement in section 7101(a)(2) of the Statute of an effective and efficient Government by making efficient use of employees' time when another person is teaching a class. The Union also describes the proposal as an "appropriate arrangement" within the meaning of section 7106 (b)(3). The Union acknowledges that section 2 somewhat improves the fringe benefits for bargaining unit employees. However, the Union observes that "the clause stabilizes some the benefit structure built into existing conditions of employment." The Union further asserts that section 2 has nothing to do with the assignment of teachers but is concerned exclusively with the duration of teacher's individual contracts. The Union asserts that section 3 is intended to establish a procedure for employees to advise management sufficiently in advance of impending absences. According to the Union, there is no intent to assign tasks to persons outside the bargaining unit. The Union also argues that, insofar as section 3 reflects the Agency's policy of furnishing substitutes in the absence of the regular teachers, it is negotiable at the Agency's election and not subject to challenge in a section 7114(c) review.

B. Analysis and Conclusion

Section 1

This section requires management to set aside time each workday for employees to engage in planning and conferences. Although the section does not prescribe a specific amount of time to be devoted to those tasks, it indicates that such work will be accomplished when a 'special teacher' is conducting the class.

Section 1 is similar in effect to the group of proposals found to be nonnegotiable in National Federation of Federal Employees, local 1263 and Defense Language Institute, Foreign Language Center, Presidio of Monterey, California, 7 FLRA 723 (1982). The proposals in that case were found to interfere with management's right to assign work because they allocated specified amounts of time to perform particular tasks. Section 1 would require, for the term of the negotiated agreement, that time be reserved each school day for work-related tasks other than classroom teaching. This requirement, it should be noted, would apply even if management believed that employee productivity would be enhanced if employees engaged in work other than that specified in section 1. See also Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA 700 (1987) (Proposal 2), petition for review filed sub nom. Overseas Education Association v. FLRA, No. 87-1468 (D.C. Cir. Sept. 8, 1987).

Section 1 is also similar in effect to Proposal 1, found to be nonnegotiable in Fort Knox Teachers Association and Fort Knox Dependents Schools, 22 FLRA No. 88 (1986). The proposal in that case would have authorized classroom teachers to leave their classes to perform other functions during art instruction. Because the proposal sought to relieve employees of assigned duties, it was held to be inconsistent with management's right under section 7106(a)(2)(B) to assign work.

Section 2

Section 2 seeks, among other things, to establish the number of instructional days, the number of inservice days, and the length of school vacations. The section attempts to make such matters consistent with the requirements of Alabama law. We find this section to be inconsistent with management's right under section 7106(a)(2)(B) of the Statute to assign work.

The right to assign work under section 7106(a)(2)(B) includes the discretion to determine when assignments will occur and when the assigned work will be performed. See, for example, National Association of Government Employees SEIU AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515 (1987) (Proposals 2 and 8). We found the proposals in that case to be nonnegotiable because they barred management from assigning employees other duties during time periods which the proposals would have reserved for personal cleanup. Section 2 would prevent the assignment of instructional duties to employees during those days designated for inservice education. It would also prevent the assignment of any duties during those times required by the proposal to be school vacation periods. Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA No. 49 (1987) (Proposals 1, 5, 8 and 9). The part of section 2 dealing with the number of instructional days occurring during the school year is similar in effect to Proposal 7 in Department of Defense Dependents Schools, which sought to limit the number of instructional days to 175 unless additional compensation were paid. We found that proposal to be nonnegotiable because it prescribed the amount of time to be devoted to a particular task. Here, the proposal seeks to limit the amount of time to be devoted to classroom teaching to that required by Alabama law. Because nothing in the statute governing the establishment of stateside dependents schools compels adherence to state practices, the decision on the length of the school year involves the exercise of the management right to assign work. See 20 U.S.C. 241(a) and (e).

We find the objective of section 2 to be distinguishable from the intent of Proposal 35, held to be negotiable, Chairman Calhoun dissenting, in Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA No. 61 (1987). Proposal 35, among other things, required that the "normal workday" of unit employees "not exceed six (6) hours." As the union pointed out in Department of Defense Dependents Schools, the thrust of the proposal was not to limit the agency's discretion in assigning work, but rather was concerned with compensation for work performed beyond the prescribed 6-hour workday. In contrast, the language of section 2 imposes a limit on the number of instructional days and the record does not indicate that the proposed limitation has any purpose other than that which would interfere with the Agency's right to assign work.

Section 3

We find that section 3 is inconsistent with management's right, under section 7106(a)(2)(B) of the Statute, to assign work. The section requires, as a matter of management "policy", that a substitute be used in the absence of the regular classroom teacher. The section designates the person who will carry out certain responsibi- lities when the employee to whom they are regularly assigned cannot perform them. Viewed in this light, the section has an impact similar to that of the proposal identified as "Proposal Concerning Work Backlog" in National Federation of Federal Employees, Local 108 and U.S. Department of Agriculture, Arkansas State Office of the Farmers Home Administration, 14 FLRA 19, 21-2 (1984). The proposal in that case would have required supervisors to undertake excess work when a backlog was created by the assignment to unit employees of added duties. Citing National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 6 FLRA 508 (1981), the Authority held that proposal to be inconsistent with the right to assign work because it required that specified duties be assigned to a designated employee. Here, section 3 would require that the responsibility for supervising and teaching the class, in the absence of the regular assignment of a substitute would be required even if management wished to compensate for the absence by, for example, temporarily distributing the students among other classes in the school.

While we agree with the Union that the notification procedure in section 3 does concern a working condition in the bargaining unit, that fact does not overcome the violation of management's right to assign work. Similarly, the fact that management, as a matter of practice, assigns substitutes in the absence of regular teachers does not subject the underlying right to continue or discontinue the assignment of work in such a manner to the collective bargaining process.

In summary, we find the three sections of Provisions 1 to be nonnegotiable because they are inconsistent with management's right under section 7106(a) (2)(B) of the Statute to assign work.

III. Order

Provision I is dismissed.

Issued, Washington, D.C., November 6, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

DECISION AND ORDER ON PROVISIONS 2-5

I. Provisions 2 and 4

Provision 2

ARTICLE 15

LEAVE

Section 1. Employees shall be granted sick leave with pay not to exceed the number of days per school year for which selected comparable districts are reimbursed by the state, plus the number of days sick leave accrued, but not used, by the employee in preceding periods of Federal employment, either under a similar type contract or as a Civil Service employee, provided however, that such amount shall not be in excess of the number of days for which selected comparable districts are reimbursed by the state. No accrued sick leave shall be carried over to any succeeding period when there is a break in Federal employment in excess of three continuous calendar years. The amount of sick leave accrued can be taken at any time during the period covered by this contract, but payment for sick leave taken in excess of that earned will be recovered. When required by the Principal, after advance notice, the employee shall furnish a doctor's certificate for one or more absences. Unused sick leave will be used as a basis for claiming additional compensation.

Section 2. Where services of an employee are required for a 12-month period, sick leave will be governed by the provisions outlined in the Federal Personnel Manual, Chapter 630, Subchapter 4, paragraph 4-2.

Section 3. Where services of an employee are required for less than a 12-month period, sick leave usage will be governed by reference to comparable local education agencies. Such agencies currently define sick leave as the absence from regular duty by a teacher because of the following:

a. Personal illness;

b. Bodily injury which incapacitates the teacher;

c. Attendance upon an ill member of the immediate family (husband, wife, father, mother, son, daughter, brother, sister) of the teacher;

d. Death in the immediate family of the teacher (husband, wife, father, mother, son, daughter, brother, sister, father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, sister-in-law, nephew, niece, granddaughter, grandson, grandfather, grandmother, uncle and aunt). Should comparable local education agencies amend the circumstances under which sick leave may be taken, the employer reserves the right to conform to said revisions.

Section 4. Maternity. During the period of services required, sick leave for incapacitation related to pregnancy and confinement must be supported by proper medical authority.

The use of sick leave for illness or incapacitation related to pregnancy and confinement shall be patterned after that used by teachers in comparable districts.

Section 5. Employees shall be in a leave without pay status between the period for which services are not required and the expiration date of their individual employment contracts. Such non-pay period is creditable for Civil Service retirement purposes to the extent provided in paragraph S-3-4A, FPM Supplement 831-1.

Section 6. Where services of an employee are required for less than a 12-month period, he/she may be granted two days of administrative leave with pay at the discretion of the Principal. If granted, administrative leave may be used for any purpose whatever. The employee agrees to give the Principal a minimum of 48 hours notice of his/her request to take administrative leave. Unused administrative leave shall not be carried over to succeeding periods of employment.

Provision 4

ARTICLE 18

JURY DUTY

A teacher summoned for jury duty shall be paid at his/her appropriate rate for the time required from his/her normal work schedule to perform such duty. Such time shall be limited to the time necessary to perform such duties; not to exceed the number of hours of a normal work day. When a teacher is called for jury duty, he/she shall promptly notify his/her supervisor so that arrangements may be made for his/he absence from school. Upon completion of jury duty, the teacher shall deliver to the School Superintendent satisfactory evidence of the time serviced (sic) on such duties and shall return any "fees" received to the Employer.

A. Positions of the Parties

According to the Agency, the provisions concern money-related fringe benefits. Therefore, the Agency contends that the provisions are nonnegotiable because they do not concern "conditions of employment," as that term is defined in section 7103(a)(14) of the Statute. The provisions, the Agency asserts, also interfere with its right to determine its budget under section 7106(a)(1). In the Agency's view, the provisions also violate Federal statutes, Agency regulations having the force and effect of law and an Agency regulation for which there is a compelling need. More specifically the Agency contends that section 1 of Provision 2 would allow employees to take such leave any time they wanted without requesting supervisory permission. That section, therefore, interferes with the right under section 7106(a)(2)(B) to assign work. The Agency notes also that section I also assigns responsibility for requesting medical certification for an instance of such leave usage. The section is consequently nonnegotiable because it assigns a specific duty in violation of section 7106(a)(2)(B) of the Statute.

The Union contests the Agency's position that the provisions are nonnegotiable because of conflicts with law, Agency regulation or because of a bar imposed by the Statute. The exclusive representative also points out that the provisions were drafted "with comparability in mind." The Union also characterizes various parts of the provisions as &appropriate arrangements' within the meaning of section 7106(b)(3) of the Statute for employees adversely affected by the exercise of a management right.

B. Analysis and Conclusion

Leave Provisions

Provision 2, except for section 1, and Provision 4 in this case are similar to those which were before us in Fort Knox Teachers Association and Board of Education of the Fort Knox Dependents Schools, 27 FLRA 203 (1987) and Fort Stewart (Georgia) Association of Educators and Fort Stewart Schools, 28 FLRA 547 (1987). In both of those cases the disputed proposals or provisions concerned various types of leave to which unit employees would be entitled. The same arguments which are advanced in this case were advanced in those cases. In both cases we found that bargaining on the proposals or provisions concerning various types of leave was not barred by any of the reasons urged by the Agency. In summary, we found that the proposals and provisions concerned conditions of employment not otherwise provided for by Federal law; that they did not conflict with other Federal statutes or Government-wide regulations governing procurement, did not interfere with the budget determination process, nor did the agency establish that any of its regulations supported by a compelling need prohibited negotiation on the leave proposals or provisions.

Provision 2, section 1

This section, among other things, designates the principal as the person who is authorized to request medical verification of an employee's request for sick leave. In this respect, section 1 is to the same effect as section F of Proposal 3 in Fort Stewart Schools. The cited section in that case designated the "immediate supervisor" as the management official to approve requests for leave without pay. Consequently, we found that section F violated management's right to assign work under section 7106(a)(2)(B) of the Statute.

However, we note that if section 1 were revised to preserve management's right to designate the individual who would require medical verification, it would be negotiable. See American Federation of Government Employees, AFL-CIO Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command, Redstone Arsenal Commissary, 27 FLRA 69, 81 (1987) petition for review filed sub nom. U.S. Army Missile Command, U.S. Army Test, Measurement, and Diagnostic Equipment Support Group U.S. Arm Information Systems Command-Redstone Arsenal Commissary v. FLRA, No. 87-7445 (llth Cir. July 17, 1987).

Further, contrary to the Union's position in this case, a provision violating a management right under section 7106(a) of the Statute is not a matter which is negotiable at the agency's option merely because the provision involves persons outside the bargaining unit.

Thus, in conclusion, we find Provision 4 to be within the duty to bargain. We also find all of Provision 2, with the exception of section 1 to be negotiable. Were section 1 of Provision 2 to be redrafted to avoid the inconsistency with the section 7106(a)(2)(B) right to assign work, it, too, would be within the duty to bargain.

II. Provision 3

ARTICLE 16

SALARY

Section 1. Rates of pay will be in general accord with pay schedules for similar positions in comparable school systems as determined by applicable Federal law and regulations.

A. Positions of the Parties

The Agency contends that this provision is nonnegotiable because it contravenes Federal statutes, Agency regulations having the force and effect of law, an Agency regulation supported by a compelling need, interferes with the Agency's right to determine its budget and does not address a condition of employment.

The Union contends that the Agency's position is in error and asserts that the provision is a "hortatory" statement and only requires compliance with Federal law and regulations. Union Reply Brief at 12.

B. Analysis and Conclusion

The law governing the employees in this bargaining unit is 20 U.S.C. 241. Section (e) of that statute provides that expenditures &to the maximum extent practicable, shall be limited to amount per pupil which will not exceed the per pupil cost of free public education provided for children in comparable communities in the state. The Union, in effect, construes the quoted statutory mandate as requiring comparability in pay with certain school systems within the state. In our view, such construction is not inconsistent with the constraints of the governing law. In this connection, it is pertinent to note that we previously have held that 20 U.S.C. 241 does not restrict the Agency's discretion as to the particular employment practice relating to pay and fringe benefits which could be adopted. Fort Knox Teachers Association and Fort Knox Dependents Schools, 28 FLRA 179 (1987). Here, the Union has elected to incorporate in the negotiated agreement a provision concerning pay which, as a minimum, is not inconsistent with the governing law. Consequently, we find Provision 3 to be within the duty to bargain. See, National Treasury Employees Union and Internal Revenue Service, 3 FLRA 693 (1980) (Proposals II and III).

III. Provision 5

ARTICLE 24

COMPARABILITY

Section 1. The Employer acknowledges that those comparison factors listed in section 3 of this Article are examples of those used to insure that employees covered by this Agreement are treated comparably to employees in similar positions in selected comparable communities within the state.

Section 2. The designation of local education agencies to be surveyed for the purpose of achieving comparability shall be in accordance with appropriate governing laws and regulations. The Union will, upon request, be allowed to review, discuss, and provide input prior to the designation of local agencies.

Section 3. Once comparable districts have been selected, comparability shall be determined by the following factors subject to change in law, rule or regulation:

a. Qualifications of professional and nonprofessional personnel.

b. Pupil-teacher ratios.

c. Curriculum for grades offered, including kindergarten, and summer school, if applicable.

d. Accreditation by state or other accrediting association.

e. Transportation services (student and support).

f. length of regular and/or summer term(s).

g. Types and number of professional and nonprofessional positions.

h. Salary schedules.

i. Conditions of employment.

j. Instructional equipment and supplies.

Section 4. Prior to the filing of the Letter of Proposal with the Department of Defense, the Union will, upon request, be allowed to review and discuss the economic package, as it pertains to employees covered by this Agreement, in terms of its conformance with the comparability data from the selected communities.

A. Positions of the Parties

The Agency's position is the same as that taken with respect to Provision 3.

The Union asserts that Provision 5 does not involve negotiation over pay and fringe benefits. According to the Union, the provision only prescribes factors to apply in finding matching jobs in school jurisdictions within the state. The Union also states that these factors are applicable unless specifically proscribed by law or regulation. In this regard, the Union describes the factors in the provision are "illustrative" of the criteria in establishing pay that is comparable to that received by teachers in school jurisdictions within the state. Referring specifically to section 4 of the provision, the Union points out that it only calls for consultation--not negotiation--on a matter directly related to the conditions of employment of unit employees.

B. Analysis and Conclusion

In agreement with the Union we find that Provision 5 is not concerned with negotiation over employee salaries. Rather, the provision reflects the Union's intention to assure that the objective of 20 U.S.C. 241(e), requiring that per pupil costs not exceed those expended for free public education in comparable communities in the state, is attained. In this regard, we note that the Agency has not identified any part of the provision which is inconsistent with the statutory objective.

We find the circumstances in this case are similar to those occurring with respect to Proposals II and III in National Treasury Employees Union and Internal Revenue Service, 3 FLRA 693 (1980). In that case, the two proposals sought to incorporate into the negotiated agreement statutory provisions governing prohibited personnel practices and merit system principles. In finding the proposals to be negotiable, the Authority held that the union could properly incorporate provisions of law in the agreement for the purpose of enforcing them by means of the negotiated grievance procedure. Here, Provision 5 seeks to insure that employee pay is comparable to that received by colleagues in surrounding school jurisdictions, an objective which is not inconsistent with the governing law. Hence, based on the reasoning in Internal Revenue Service, the provision is within the duty to bargain. See also Fort Stewart Schools, 28 FLRA 547 (1987) (Proposal 1).

IV. Order

Provision 2, section I is dismissed. The Agency shall rescind its disapproval of: Provision 2, sections 2 and 3; and Provisions 3, 4 and 5. 2

Issued, Washington, D.C., November 6, 1987.

Henry B. Frazier III, Member

Jean Mckee, Member

FEDERAL LABOR RELATIONS AUTHORITY

Separate Opinion of Chairman Calhoun Concurring on Provisions 3 and 5, In Part, And Dissenting on Provisions 2, 4, and 5, In Part

Provisions 2 and 4 concern various types of leave authorized for bargaining unit employees. They are like Proposal 3 in Fort Stewart Association of Educators and Fort Stewart Schools, 28 FLRA 547 (1987), petition for review filed sub nom. Fort Stewart Schools v. FLRA, No. 87-3734 (11th Cir. Sept. 22, 1987). In my opinion in that case I stated that in the absence of a clear expression of Congressional intent to make wages and money-related fringe benefits negotiable, I would find that proposals concerning them are not within the duty to bargain. I found no such statement in that case and I find none here. Accordingly, I would find Provisions 2 and 4 to be nonnegotiable. See also Fort Knox Teachers Association and Board of Education of the Fort Knox Dependents Schools, 27 FLRA 203 (1987) (Provision 4), petition for review filed sub nom. Board of Education of the Fort Knox Dependents Schools v. FLRA, No. 87-3702 (6th Cir. July 24, 1987); and Fort Knox Teachers Association and Fort Knox Dependent Schools, 26 FLRA 934 (1987), petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3593 (6th Cir. June 25, 1987).

Provision 3 requires that teachers' rates of pay be in "general accord with pay schedules for similar positions in comparable schools systems as determined by applicable Federal law and regulations." Federal law provides that expenditures for the schools operated by the Agency shall "to the maximum extent practicable" be limited to an amount per pupil which will not exceed the per pupil cost of free public education provided for children in comparable communities in the State where the schools are located. 20 U.S.C. 241(e). Applicable Agency regulations provide that the education provided will be considered comparable when enumerated "factors are, to the maximum extent practicable, equal." Army Regulation (AR) 352-3, subpart 1-7. One of the factors enumerated is "salary schedules." Accordingly, under its regulations, the Agency must, to the maximum extent practicable, maintain salary schedules which are equal to those in comparable communities in the State.

The Union states that it does not intend Provision 3 to "bind the employer to strictly abide by comparability." Union Response at 12. In addition, the Union notes that the proposal itself refers to applicable law and regulation. In my view, the Union's statements are consistent with the plain wording of the provision. Consistent with those statements, I interpret Proposal 3 as simply requiring the Agency to comply with applicable law in exercising its authority with respect to teacher salaries. As such, I concur in my colleagues determination that the proposal is negotiable. I note, however, that in my view the setting of wages itself is not negotiable. See my opinion in American Federation of Government Employees AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA 377 (1986). See also my opinion in Fort Knox Teachers Association and Fort Knox Dependents Schools, 28 FLRA 179 (1987), petition for review filed sub nom. Fort Knox Dependents Schools v. FLRA, No. 87-3878 (6th Cir. Sept. 18, 1987). Further, since the proposal binds the Agency only to "applicable Federal law and regulations," it recognizes that Agency regulations concerning salary schedules may change during the life of the collective bargaining agreement.

Provision 5 concerns the factors to be used by the Agency in determining comparability with appropriate schools systems in the State where the schools are located. Section 1 provides that the comparability factors are "examples" to be used to "insure" that unit employees are treated comparably to State teachers; section 2 requires the Agency's survey to be in accord with applicable law and regulation and enables the Union to "review, discuss, and provide input" prior to the designation of the local school systems; section 3 lists the factors; and section 4 provides that prior to final Agency action, the Union may "review and discuss the economic package . . . in terms of its conformance with the comparability data from the selected communities."

The Union states that Provision 5 "does not require the direct negotiation of pay or benefits." Union Response at 13. This statement is consistent with the plain wording of the provision which requires only that the Union be allowed to (1) review, discuss, and provide input prior to the designation of local school systems, and (2) review and discuss the economic package prior to its submission to the Department of Defense. Accordingly, consistent with the Authority's decision concerning Proposal 4 in Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA 714 (1987), petition for review filed sub nom. Veterans Administration Medical Center v. FLRA, No. 87-1405 (D.C. Cir. August 17, 1987), I concur in my colleagues' determination that sections 2 and 4 of Provision 5 are negotiable. Compare my opinion concerning subsections A and D of Proposal 1 in Fort Stewart Association of Educators, cited in full above in connection with provisions 2 and 4.

Sections 1 and 3 of Provision 5 concern the factors to be used in the comparability survey. Section 1 provides that the factors are examples of those used to *insure' that unit employees are treated comparably to State teachers. Section 3 lists the factors; they are identical to those contained in AR 352-3, subpart 1-7. Unlike Provision 3, these sections do not refer to "applicable" requirements of law and regulation. Rather, these sections constitute independent contractual requirements concerning the factors to be used in the comparability study and would apply whether or not the factors used by the Agency in its regulations were changed during the life of the collective bargaining agreement. Further, section 1 requires the Agency to "insure" that unit employees are treated comparably to State employees in similar positions. Applicable law and regulation require only that comparability be maintained to the "maximum extent practicable." As such, section 1 imposes a stricter standard than that imposed under law. Therefore, I would find that sections 1 and 3 are nonnegotiable. see my opinion concerning subsection C(6) of Proposal 3 in Fort Stewart Association of Educators, cited in full above in connection with Provisions 2 and 4.

In sum, I would find that Provisions 2 and 4 are nonnegotiable. I concur in my colleagues' determination that Provision 3, and sections 2 and 4 of Provision 5 are negotiable. I would find that sections 1 and 3 of Provision 5 are nonnegotiable.

Issued, Washington, D.C., November 6, 1987.

Jerry L. Calhoun, Chairman

FEDERAL LABOR RELATIONS AUTHORITY

Footnotes:

Footnote 1: In its Reply Brief the Union withdrew a sixth disputed provision, designated by the parties as Article 17, concerning equal employment opportunity. Therefore, that provision will no