29:1531(123)NG - NEA VS US MILITARY ACADEMY ELEMENTARY SCHOOL



[ v29 p1531 ]
29:1531(123)NG
The decision of the Authority follows:


29 FLRA No. 123

WEST POINT ELEMENTARY SCHOOL
TEACHERS ASSOCIATION, NEA

              Union

         and

THE UNITED STATES MILITARY
ACADEMY ELEMENTARY SCHOOL
WEST POINT, NEW YORK

              Activity

Case No. O-NG-1400

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of five proposals. 1

For the reasons stated below, we find that Section 5 of Proposal 4 and Proposal 5 are within the Agency's duty to bargain. The petition for review of Proposal 1, Proposal 3, and the underlined portion of Section 1 and all of Section 2 of Proposal 4, is dismissed. The Members disagree over the negotiability of Section 1 of Proposal 2 and the portions of Section 2 of Proposal 2 concerning compensation. The Members agree that the second and third sentences of the first paragraph of Section 2 of Proposal 2 are nonnegotiable.

II. Background

The bargaining unit represented by the West Point Elementary School Teachers Association (WPESTA) consists of all professional school personnel employed by the United States Military Academy, West Point Elementary School, West Point, New York. These bargaining unit employees are not employed under either competitive or excepted service appointments, but rather are employed pursuant to 20 U.S.C. 241. That statutory provision permits dependents schools to employ personnel without regard to specific sections of title 5 of the United States Code pertaining to employment in the competitive service. See Fort Knox Teachers Association and Fort Knox Dependent Schools, 25 FLRA 1119 (1987), petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA, No.87-3395 (6th Cir. April 4, 1987). The Agency has chosen to use personal services contracts to employ these employees.

III. Proposal I

Article 1 - Terms of Employment

Unit Employees shall not be requested or required to enter into personal service con-tracts as a condition of their employment.

A. Positions of the Parties

The Agency asserts that Proposal 1 is nonnegotiable because it interferes with its right under section 7106(a)(1) to determine its organization. Specifically, the Agency argues that Proposal 1, by prohibiting it from hiring employees under personal services contracts, will prevent it from using the organizational structure that it deems most effective. The Agency also contends that Proposal I interferes with its rights under section 7106(a)(2) (B) to contract out and to determine the personnel by which agency operations shall be conducted.

The Union contends that Proposal 1 was formulated in response to the Agency's attempts to establish unilaterally unit employees' conditions of employment. The Union notes that since the petition was filed, the Authority issued its decision in Fort Knox Teachers Association and Board of Education of the Fort Knox Dependents Schools, 27 FLRA 203 (1987), 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), finding that teachers are not "independent contractors" and that the terms and conditions of employment of teachers employed under 20 U.S.C. 241 are negotiable. The Union argues further that Agency's use of personal services contracts is in direct violation of the Federal Acquisition Regulations, specifically 48 C.F.R. 37.104. The Union also claims that the proposal will not prohibit the Agency from establishing the organizational structure that it deems most effective because it does not interfere with management's right to establish the number, types, and grades of employees at the West Point Elementary School. Finally, the union asserts that the proposal does not interfere with the Agency's right to contract out because the teachers are not "independent contractors."

B. Discussion

We conclude that Proposal 1 is outside the duty to bargain for the reasons set forth below.

The teachers in this case are employed under 20 U.S.C. 241, which, as noted above, establishes a separate employment authority for the Agency. Under that authority, the Agency may use whatever employment process it chooses to hire these teachers, without regard to title 5 hiring limitations. The Agency has chosen to use personal services contracts rather than some other formal appointment process to hire teachers.

The fact that the Agency uses personal services contracts to employ teachers does not mean that these teachers are independent contractors rather than employees for purposes of the Statute. Instead, it is well established that teachers employed under 20 U.S.C. 241 are not independent contractors but rather, employees of the Government subject to all statutes pertaining to Government employment unless specifically exempted. See American Federation of Government Employees, AFL-CIO, Local 1770 and Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina, 28 FLRA 493, 501 (1987), petition for review filed sub nom. Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina v. FLRA, No. 87-2661 (4th Cir. Sept. 22, 1987). As we have held previously and reaffirm here, the Agency may not use personal services contracts to attempt to establish unilaterally conditions of employment in derogation of the statutory collective bargaining rights of those employees. Where employees subject to 20 U.S.C. 241 are in a unit of exclusive recognition, the content of personal services contracts can not supersede collective bargaining agreement provisions lawfully negotiated pursuant to the Statute.

The Agency's arguments for finding this proposal nonnegotiable--that it interferes with the Agency's right to determine its organization under section 7106(a)(1) and that it interferes with its right to contract out and determine the personnel by which agency operations shall be conducted under section 7106 (a)(2)(B)--in our view are all based on the assumption that teachers are contract personnel. We have rejected this assumption and therefore these arguments are inapposite. Furthermore, on the record before us the Union has not demonstrated that the use of personal services con-tracts by the Agency is illegal.

However, we find that Proposal 1 is outside the duty to bargain on a different basis. We find that it directly interferes with the Agency's right to hire under section 7106(a)(2)(A) of the Statute. Proposal 1 refers to unit employees who are required to enter into personal services contracts every year. We view the use of personal services contracts by the Agency to be inseparable from the decision to hire. Proposal 1 prohibits the use of personal services contracts to hire employees, thereby requiring management to use some other appointment process. By prohibiting the Agency from using personal services contracts, Proposal 1 constitutes a substantive rather than a procedural limitation on the Agency's right to hire and thus directly interferes with that right.

IV. Proposal 2, Article 11 - Professional Compensation

The Members of the Authority disagree over the negotiability of Section 1 and the portions of Section 2 concerning compensation. The Decision and order and Chairman Calhoun's dissent with respect to those portions of this proposal follow this decision. The Members of the Authority are in agreement as to the negotiability of the second and third sentences of Section 2, which state:

The Employer will make every effort to fill extracurricular positions in accordance with the expressed preferences of the qualified employees in the bargaining unit in the school. 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 school.

A. Positions of the Parties

The Agency contends that this portion of Section 2 is outside the duty to bargain because it interferes with its right to assign work. Specifically, the Agency contends that the second and third sentences of Section 2 prohibit the assignment of work to nonunit employees and do not reserve to management the determination as to which employees meet the requirements for specific assignments. Additionally, the Agency contends that the proposal is nonnegotiable to the extent that it requires a specific individual, namely the principal, to perform specific duties. Finally, the Agency argues that the proposal prohibits the assignment of certain duties during duty hours.

The Union claims that Section 2 does not interfere with the Agency's right to assign employees and work. The Union asserts that the proposal is not intended to prohibit management from assigning extracurricular duties to nonunit employees. The Union also argues that the proposal preserves management's right to determine employee qualifications for extracurricular assignments while seeking volunteers and making such assignments in accordance with the expressed preference of those employees.

Finally, the Union contends that its proposal is not intended to prohibit management from assigning extracurricular duties during the normal instructional day. Rather, it is intended to ensure that unit employees understand that such assignments are in addition to employees' normal work load and require extra pay. However, the Union asserts that if this language is offensive to management, and management does not object to providing extra compensation for such duties whether performed during the normal workday or after hours, it has no objection to withdrawing this sentence from the proposal.

B. Discussion

We find that the second and third sentences of Section 2 of Proposal 2 are outside the duty to bargain. These sentences are to the same effect as Proposal 5a in Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA No. 56 (1987). The proposal in that case conditioned assignment of lunchtime monitoring duites on employee preference. We held that this proposal directly interfered with management's right to assign work and thus was outside the duty to bargain under section 7106(a) (2)(B). Because the second and third sentences of Proposal 2 also condition assignment of extracurricular activities on employee preference, we find, for the reasons set forth in Department of Defense Dependents Schools, that they directly interfere with management's right to assign work and are outside the duty to bargain.

We also find, for the reasons stated in the discussion of Proposal 5b in 29 FLRA No. 56, that the addition of the phrase "every reasonable effort" does not remove the limitation imposed on management's exercise of its right to assign work because this phrase, when subjected to arbitral review, would permit the substitution of an arbitrator's judgment for that of management concerning whether management made "every reasonable effort" to fill extracurricular positions in accordance with the preferences of employees. Therefore, for the reasons stated above, the second and third sentences of Section 2 of Proposal 2 are outside the duty to bargain.

V. Proposal 3

Article 11 - Professional Compensation

Section 4. Calendar

a. The Union recognizes that it is the function of the Employer, after negotiating with the Union, to set the school calendar annually.

c. By April 1 of each year, the Employer shall present to the Union a proposed calendar for the following school year. The Union may exercise its right to request negotiations with the Employer over the proposed calendar. Such request for calendar negotiations must be submitted to the Employer within fifteen (15) days of the Union's receipt of the proposed calendar. If no request is submitted, the calendar presented by the Employer becomes effective.

A. Positions of the Parties

The Agency contends that Proposal 3 violates its right to determine its mission, to assign work, and to determine the method and means of performing work. Additionally, it argues that the proposal directly relates to conditions of employment for nonbargaining unit employees and establishes conditions for others not represented by the Union. In this regard, the Agency notes that a school calendar establishes when the teachers, and other employees as well as students, report to work, when the school year starts and ends, when the school breaks and holidays are scheduled, and when the teachers receive training.

The Union claims that Proposal 3 will not interfere with management's right to assign work because the proposal does not require negotiation over the length of the school day or school year or how many days of instruction would be provided for students. Rather, the intent is to provide for negotiation over the beginning and end of the school year and when holiday breaks would be scheduled. The Union argues that starting and quitting times are negotiable under applicable Authority precedent when they do not affect the numbers, types, or grades of positions or personnel. The Union also claims that the proposal does not affect the mission of the Agency because the same quality and quantity of services will continue to be provided. The Union also argues that the Agency has not demonstrated how its proposal affects the "means' for performing work since it would have no effect on the school's curriculum, instructional materials, class size, or any other factor affecting education directly. With respect to the Agency's argument that the proposal establishes conditions of employment for nonbargaining unit employees and other individuals, the Union contends the Agency has not established that the "vital interests" of other school employees or third parties will be adversely affected.

B. Discussion

For the reasons stated below, we find that Proposal 3 is outside the duty to bargain.

In Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA No. 49 (1987) (Proposals 5, 8, and 9), we concluded that proposals providing for the designation of certain holidays were outside the duty to bargain because they prevented the assignment of instructional duties during those days that contractually would be designated as holidays. Like the proposals in the cited case, Proposal 3 would permit, among other things, the negotiation of holidays and thus would permit the negotiation of when the assignment of instructional duties would or would not occur. Therefore, Proposal 3 is outside the duty to bargain under section 7106 (a)(2)(B) of the Statute because it directly interferes with management's right to assign work.

Further, in American Federation of Government Employees, Local 3231 and Social Security Administration, 22 FLRA 868 (1987) (Proposal 1), we concluded that the portion of that proposal proposing a change in office hours directly interfered with the agency's right to determine its mission under section 7106(a)(1) because part of the agency's mission was to provide services to the public. Therefore, the decision regarding the particular hours when the agency provided those services to the public was mission-related. Similarly, the decision as to when instructional services are to be provided to students is mission-related. Therefore, Proposal 3 is nonnegotiable under section 7106 (a)(1) of the Statute as well. 2

VI. Proposal 4, Article 17 - Disciplinary Act on Sections 1, 2 and 5 are set forth in the Appendix to this decision. 3

A. Positions of the Parties

The Agency contends that the underlined portions of Section 1 and all of Sections 2 and 5 violate its right to discipline employees under section 7106(a)(2)(A) of the Statute and prohibit termination of Section 6 employees in accordance with their personal services contracts. The Agency argues that the proposal restricts the imposition of discipline, with certain exceptions, thereby prohibiting management from initiating discipline for any reason not identified in the proposal. The Agency argues further that the proposal prohibits discipline where closer supervision would suffice, thereby improperly allowing the substitution of an arbitrator's judgment concerning whether discipline or closer supervision should be imposed. The Agency also contends that the proposal prescribes certain disciplinary penalties for specific actions and thereby substantively limits the Agency's discretion.

The Agency specifically argues that Section 5 is non-negotiable to the extent that it is intended to limit management's ability to terminate Section 6 personnel in accordance with the employees' personal services contracts and is thereby in violation of the Federal Acquisition Regulations, 48 C.F.R. 1.000 et seq., and the Contract Disputes Act.

The Union contends that the intent of Proposal 4 is to ensure that employees will not be disciplined except when discipline promotes the efficiency of the service and to establish due process procedures for employees subjected to discipline. The Union argues that Sections 1 and 2 establish general standards by Which management's application of its right to take disciplinary action against employees can be evaluated, and that those sections do not prescribe or proscribe specific discipline. The Union argues that this portion of its proposal thus constitutes appropriate arrangements for employees adversely affected by management's exercise of its rights and is within the duty to bargain under section 7106(b)(3) of the Statute.

The Union contends that Section 5 is a negotiable procedure by which management may exercise its right to take disciplinary action, and that the Agency's use of personal service contracts does not limit the scope of collective bargaining over subjects otherwise negotiable.

B. Discussion

Sections 1 and 2

We conclude that the underlined portions of Section 1 and all of Section 2 directly interfere with the Agency's right to discipline employees under section 7106(a)(2). This portion of Proposal 4 is to the same effect as Provision 22, subsection (a) in International Plate Printers, Die Stampers and Engravers Union of North America AFL-CIO, Local 2 and Department of Treasury, Bureau of Engraving and Printing Washington, D.C., 25 FLRA 113(1986). The provision in that case limited the agency in disciplining an employee to (1) selecting the minimum discipline to achieve the proper disciplinary objective and (2) using formal disciplinary measures only for more serious offenses.

Similarly, the underlined portions of the subject proposal: (1) limit when discipline can be taken to those instances where closer supervision or on the job training will not achieve the corrective action sought; (2) determine the first step and who will take it; (3) require the minimum discipline that can reasonably be expected to attain the purpose for which the action is initiated; and (4) require use of a guide when administering discipline. Like Provision 22 in Bureau of Engraving and Printing, the underlined portions of Section I and all f Section 2 either prescribe or proscribe specific discipline.

As to whether the underlined portions of Section 1 and all of Section 2 constitute appropriate arrangements, we conclude for the reasons stated with respect to Provision 22, subsection (a) in Bureau of Engraving and Printing that the underlined portions of Section 1 and all of Sect on 2 excessively interfere with the Agency's right under section 7106 (a)(2)(A) to take disciplinary action. In this regard, like Provision 22, subsection (a) in Bureau of Engraving, the underlined portions of Section 1 and all of Section 2 limit the agency's discretion to take disciplinary action and its ability to determine the penalty it considers appropriate by subjecting the agency's determination to arbitral review as to whether the penality was proper or whether formal disciplinary measures were justified. As we stated in Bureau of Engraving, at 133-34, although this restriction on the agency's ability to determine the penalty constitutes the benefit to affected employees, we find that the burden to the exercise of the agency's rights strongly outweighs the benefit to employees from the proposed arrangement. Therefore, we conclude that the underlined portions of Section 1 and all of Section 2 are outside the Agency's duty to bargain.

Section 5

We conclude that Section 5 of Proposal 4 is a negotiable procedure under section 7106(b)(2) of the Statute which management officials of the Agency will observe in exercising their authority under section 7106(a)(2)(A) to furlough, reduce in grade or pay, remove by discharge, or suspend employees in the bargaining unit. Section 5 of Proposal 4 is like Provisions 3, 4, and 5 of Local 3, International Federation of professional and Technical Engineers AFL-CIO and Naval Sea Systems Command Detachment, Pera (Crudes), Philadelphia, 25 FLRA 714 (1987), in which we found that similar procedures were negotiable because they did not prevent the agency from initiating discipline after the expiration of the time frame. Like the proposed procedures found negotiable in that case, the procedure proposed in this case would not prevent the Agency from exercising its rights after the expiration of the procedural time frame.

With respect to the Agency's contentions that Section 5 of Proposal 4 limits management's ability to terminate Section 6 personnel in accordance with the employee's personal services contract and therefore conflicts with applicable procurement law and regulations, we find for the reasons set forth in Fort Bragg Dependent Schools, 28 FLRA 493 (Provisions 12 and 13), that Section 5 of Proposal 4 does not conflict with law or regulation governing procurement. See also id., at 495-496.

VII. Proposal 5

Article 18 - Grievance Procedure, is set forth in in the Appendix to this decision.

A. Positions of the Parties

The Agency contends that to the extent that Proposal 5 is intended to include disputes arising under or out of personal services contracts, it is nonnegotiable because it conflicts with the Contract Disputes Act of 1978, 41 U.S.C. 601-13. The Agency takes the position that in enacting the Contract Disputes Act, Congress intended the procedures contained in the Act to be the exclusive method for resolving disputes arising out of Government contracts.

The Union claims that the Authority's decisions in Fort Bragg Dependent Schools, 28 FLRA 493 and Fort Knox Dependents Schools, 27 FLRA 203 are dispositive of this issue. Thus, the Union argues that a broad scope grievance procedure does not conflict with the Contract Disputes Act. In addition, the Union claims, referencing arguments it made with respect to Proposal 1, that the use of personal services contracts is illegal and thus cannot serve to block an otherwise negotiable proposal or deprive the teachers of their rights under the Statute.

B. Discussion

For the reasons stated below, we conclude that Proposal 5 does not conflict with the Contract Disputes Act and is within the duty to bargain. Proposal 5 is to the same effect as Provision 6 in Fort Bragg Dependent Schools and Provision 2 in Fort Knox Dependents Schools in that it is intended to establish a broad scope grievance procedure to serve as the exclusive remedy for the resolution of any complaints concerning matters relating to bargaining unit employees' conditions of employment. In those cases we held that the Contract Disputes Act did not preclude negotiation of a grievance procedure which would encompass any matter relating to the employment of an employee. Therefore, for the reasons stated in Fort Bragg Dependent Schools and Fort Knox Dependents Schools, we find this proposal to be a negotiable procedure.

VIII. Order

The petition for review as to Proposal 1, the second and third sentences of Section 2, Proposal 2, Proposal 3, and Sections 1 and 2 of Proposal 4 is dismissed. The Agency shall upon request or as otherwise agreed to by the parties, bargain concerning Section 5 of Proposal 4 and Proposal 5. 4 Issued, Washington, D.C., November 6, 1987.

Jerry Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

DECISION AND ORDER ON PROPOSAL 2

I. Proposal 2, Article 11 - Professional compensation, Sections 1 and 2, is set forth in the Appendix to this decision.

II. Positions of the Parties

The Agency contends that Proposal 2, as it pertains to compensation, is outside the duty to bargain because Congress did not intend to include the subject of pay or money-related fringe benefits within the ambit of conditions of employment. The Agency also argues that Proposal 2 is inconsistent with management's right to determine its budget under section 7106(a)(1) of the Statute. The Agency further contends that the proposal is inconsistent with applicable procurement law and regulations and with the Antideficiency Act, 31 U.S.C. 1341, because the Government cannot be bound to the expenditure of funds until the funds have been appropriated. Finally, the Agency argues that the proposal conflicts with an Agency regulation for which a compelling need exists.

The Union contends that applicable Authority case precedent is dispositive of all of the contentions raised by the Agency.

III. Discussion

We conclude that Proposal 2, Section 1, and Section 2 as it pertains to compensation, is within the duty to bargain for the reasons stated in Fort Stewart (Georgia) Association of Educators and Fort Stewart Schools, 28 FLRA 547 (1987) (Proposals 1 and 2), petition for review filed sub nom. Fort Stewart Schools v. FLRA, No. 87-3734 (llth Cir. Sept. 22, 1987), and Fort Knox Teachers Association, Fort Knox Dependents Schools, 28 FLRA 179 (1987) petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3878 (6th Cir. Sept. 18, 1987). For the reasons stated in Fort Stewart Schools and Fort Knox Dependents Schools, we reject the arguments made by the Agency here that the proposal is (1) outside the ambit of conditions of employment under the Statute; (2) in violation of the Agency's right under section 7106(a)(1) to determine its budget; (3) inconsistent with procurement law and regulations; (4) in conflict with an Agency regulation for which a compelling need exists; and (5) in violation of the Antideficiency Act, 31 U.S.C. 1341. All of these Agency arguments were made in both Fort Stewart Schools and Fort Knox Dependents Schools and rejected in those cases. The Agency has raised no new or different facts or issues here which would support a different outcome. Therefore, those arguments are also rejected here.

IV. Order

The agency shall upon request or as otherwise agreed to by the parties, bargain concerning Proposal 2, as it pertains to compensation. 5

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

Henry B Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY

DISSENTING OPINION OF CHAIRMAN CALHOUN

Proposal 2

I agree with the majority that the issues relating to Proposal 2, as it pertains to compensation, are essentially the same as those in Fort Stewart (Georgia) Association of Educators and Fort Stewart schools, 28 FLRA 547 (1987) (Proposals 1 and 2), petition for review filed sub nom. Fort Stewart Schools v. FLRA, No. 87-3734 (11th Cir. Sept. 22, 1987), and Fort Knox Teachers Association, Fort Knox Dependents Schools, 28 FLRA 179 (1987), petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3878 (6th Cir. Sept. 18, 1987). In my opinion in those cases, 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 those matters are not within the duty to bargain. Accordingly, I would find PROPOSAL 2, as it pertains to compensation, to be nonnegotiable.

Proposal 2 is distinguishable from Provision 3 and portions of Provision 5 in American Federation of Government Employees, AFL-CIO, Local 1815 and U.S. Army Aviation Center Fort Rucker Alabama, 29 FLRA No. 119 (1987) which also concerned teachers compensation. I concurred with the majority's determination that those provisions were negotiable because those provisions did not require negotiations over the setting of wages; rather, Provision 3 simply required the Agency to comply with applicable law in exercising its authority with respect to teacher salaries, and the portions of Provision 5 required 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. The relevant portions of Proposal 2 in this case would require the Agency to negotiate concerning the setting of wages.

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

Jerry L. Calhoun, Chairman

FEDERAL LABOR RELATIONS AUTHORITY

APPENDIX

Proposal 2 Article 11 - Professional Compensation

Section 1. Salary Schedule

By April 1 of each year, the Employer shall pre-sent to the Union a proposed salary schedule for the following school year. The Union may exercise its right to request negotiations with the Employer over the proposed salary schedule. Such request for salary negotiations must be submitted to the Employer within fifteen (15) days of the Union's receipt of the proposed salary schedule. If no re-quest is submitted, the salary schedule presented by the Employer becomes effective.

Section 2. Extra-Curricular Activities

Members of the bargaining unit are encouraged to notify the Employer at the school 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 in the school. 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 school. 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 where the vacancy cannot be filled with a qualified volunteer.)

Unit employees who accept an extra duty assignment shall sign a written agreement with the Principal indicating duties, rate of pay and length of activity when such duties must be performed outside the workday. A copy of the agreement shall be provided to the unit employee. (Use form in this Article.)

(The underlined sentence in brackets above has been withdrawn by the Union.)

EXTRACURRICULAR ACTIVITIES

School_______________________Activity_______________________ I agree to accept the extracurricular activity of _________________________________________for the School Year _______. I understand the amount to be paid for the activity is ___________, and shall be adjusted upward based on the new salary schedule. The time worked will be in addition to, and not as a part of, a regular full-time or part-time teaching assignment, and cannot be during duty hours when school is in session. Description of tasks to be performed:

____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________ ____________________________________________________________________________

As soon as the activity is completed, I will notify the Principal and he/she shall arrange that I be paid by separate check not later then the next regular pay period for employees.

______________________________       _____________________
Employee's Name (please print)       Employee's Signature

_______________________________      _____________________
Principal's Name (please print)      Principal's Signature

_______________________________      _____________________
Date Employee Signed                 Date Principal Signed

Proposal 4

Article 17 - Disciplinary Action

Section 1. Disciplinary action will be taken for the sole purpose of correcting offending employees and problem situations and maintaining discipline and morale among other employees. In those instances where corrective action can be accomplished through closer supervision or on-the-job training, formal disciplinary action should not be taken. Constructive discipline, in order to be effective, must be timely. The results to be achieved through this means diminish in proportion to the time allowed to elapse between the offense and the corrective action.

a. Informal Disciplinary Actions. Oral admonitions and warnings are the first step in constructive discipline. As a general rule, such actions are taken by supervisors on their own initiative in situations of minor nature involving violation of a rule, regulation, standard of conduct, safety practice, or authoritative instructions. The employee should be advised of the specific infraction or breach of conduct, exactly when it occurred (date of the incident), and should be permitted to explain his/her conduct or act or commission or commission.

b. Formal Disciplinary Actions. Formal disciplinary actions consist of written reprimands, suspensions, and removals.

(Only the underlined portions of Section 1 are in dispute. All of Sections 2 and 5 below are in dispute.)

Section 2. Disciplinary actions taken against employees will be the minimum that can be reasonably expected by the Employer to attain the purpose for which the action is initiated. Insofar as possible, and in order to maintain consistency, the guide to disciplinary actions contained in appropriate regulations will be consulted and used as a general guide for administering discipline.

Section 5. Whenever a unit employee is furloughed for thirty (30) days or less, reduced in grade or pay, removed by discharge, or suspended for more than fourteen (14) days, the following procedures shall apply:

A. Issuance of Advance Notice

(1) The unit employee must be given not less than thirty (30) calendar days written notice of the proposed action.

(2) The advance notice shall:

(a) state the reason(s) for the proposed action in detail;

(b) inform the unit employee where the material relied upon for the proposed action may be reviewed (if applicable);

(c) inform the unit employee of the right to reply orally or in writing, or both, within twenty (20) calendar days from receipt of the proposed notice;

(d) state that a final decision on the proposed action will not be made until after receipt of the unit employee's reply or after the twenty (20) day period, whichever comes first; and

(e) inform the unit employee that he/she will remain in a normal duty status pending a decision on the proposed action.

B. Notice of Final Decision

(1) The unit employee shall receive notice of final decision at the earliest possible date following the notice period.

(2) The notice of final decision shall be signed and dated and shall inform the unit employee:

(a) which of the reasons in the proposed notice have been found sustained and which have not been found sustained;

(b) the effective date of the action; and

(c) of his/her rights under the appropriate grievance and/or appeal procedures.

Proposal 5

Article 18 - Grievance Procedure

Section 1. The negotiated grievance procedure is established to provide unit employees with an opportunity to raise matters of concern or dissatisfaction for informal and, where appropriate, formal consideration and resolution. This Article also provides the two parties to this Agreement with an opportunity to raise matters of concern or dissatisfaction for formal consideration by the other party in accordance with Section 2 below. It is the intent of the parties to resolve grievances informally at the earliest possible time and the lowest possible level. The filing of a grievance shall not be construed as reflecting unfavorably on an employee's good standing, his/her performance, his/her loyalty or desirability to the organization, nor shall it be regarded as an unfavorable reflection upon the Employer or particular Employer officials.

Section 2. A unit employee may present a grievance on his/her own behalf under this procedure provided that the Association is given the opportunity to be present during the grievance proceeding. Any resolution reached with the unit employee shall be consistent with the terms of this Agreement.

Section 3.

Step 1 - Informal

The parties agree that informal resolution of employee's grievances is desirable. To this end, employee(s) and/or their representatives should present any grievance informally to the supervisor prior to reducing a grievance in writing. Such informal presentation should take place within seven (7) calendar days of the act or incident giving rise to the grievance. The supervisor should arrange for a meeting within five (5) calendar days of the informal presentation of the grievance to fully discuss the matter and to attempt informal resolution.

Step 2 - Formal

If the grievant is not satisfied with the decision rendered at the First Step, the employee will submit the grievance in writing within seven (7) workdays after receipt of the First Step decision to the Post School Officer. The Post School Officer will refer the grievance to the Superintendent of Schools. The Superintendent of Schools will meet within five (5) workdays of receipt of the written grievance by the Post School Officer with all personnel mentioned in Step 1 above and all others deemed necessary by the Superintendent of Schools for appropriate resolution and shall give the employee a written answer, in coordination with the Post School Officer, within five (5) workdays after the meeting.

Step 3

If the grievance is not settled to the grievant's satisfaction by the Superintendent of Schools and Post School Officer, the employee may, within five (5) workdays, forward the grievance to the Superintendent, USMA, for further consideration. The Superintendent, USMA, or a designee, will review the grievance and give the employee a written answer within ten (10) workdays after receipt of the grievance. If the employee is not satisfied with the decision of the Superintendent, USMA, or the designee, the grievance may be submitted for arbitration in accordance with Article 19. The Employer shall be notified in writing of the intent to submit the grievance for arbitration within seven (7) workdays of receipt of the Superintendent, USMA, or the designee's decision.

Section 4. The following procedure will be followed in processing grievances arising between the Union and the Employer.

a. If initiated by the Union, the grievance shall be submitted directly to the Superintendent of Schools in writing within fifteen (15) workdays of the date the Union becomes aware of the matter being disputed. Within ten (10) workdays after receipt by the Superintendent of Schools, the Parties shall meet for the purpose of resolving the grievances. The Superintendent of Schools shall notify the Union in writing of the decision concerning the grievance within ten (10) workdays of the meeting. If the Union is not satisfied with the decision of the Superintendent of Schools it may within ten (10) workdays submit a request in writing to the Superintendent of Schools to submit the grievances to arbitration. This request shall be processed in accordance with the procedure outlined in Article 19.

b. If initiated by the Employer, the grievance shall be submitted directly to the President of the Union in writing within fifteen (15) workdays of the date the Employer becomes aware of the matter being disputed. Within ten (10) workdays after receipt by the President of the Union, the parties shall meet for the purpose of resolving the grievance. The President of the Union shall notify the Superintendent of Schools in writing of the decision with ten (10) workdays of the meeting. If the Superintendent of Schools is not satisfied with the decision of the President of the Union, the Superintendent of Schools may within ten (10) workdays submit a request in writing for arbitration. This request shall be processed in accordance with the procedures outlined in Article 19.

Section 5. Failure of the employee or his/her Union representative to observe the requirements and time limits set forth in Section 3 of this Article will entitle the Employer to deny the grievance based on untimeliness. Failure of the Employer to observe those time limits will entitle the employee to move to the next step in the grievance procedure. With reference to Section 4 procedures, the failure of the complaining party to initiate a complaint or to make a proper request for arbitration within the time limits set forth in that section will bar that party from thereafter submitting the matter to arbitration. Failure of the noncomplaining party to take appropriate action within the time limits prescribed in Section 4 will entitle the complaining party to immediately request arbitration.

 

Footnotes:

Footnote 1: The Union has withdrawn the last sentence of the first paragraph of Article 11, Section 2. Union Petition for Review at 5. This sentence will not be considered further.

Footnote 2: In these circumstances in which we have found Proposal 3 nonnegotiable under both section 7106(a)(1) and 7106(a)(2)(B), we find it unnecessary to address the Agency's other grounds for its allegation of nonnegotiability.

Footnote 3: The Agency has withdrawn its allegation of nonnegotiability as to those portions of Section 1 that are not underlined and as to all of Sections 3 and 4. These parts of the proposal will not be considered further.

Footnote 4: In finding these ma