34:1008(163)NG - - West Point Elementary School Teachers Association, NEA and Military Academy, West Point Elementary School - - 1990 FLRAdec NG - - v34 p1008



[ v34 p1008 ]
34:1008(163)NG
The decision of the Authority follows:


34 FLRA No. 163

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

WEST POINT ELEMENTARY SCHOOL

TEACHERS ASSOCIATION, NEA

(Union)

and

UNITED STATES MILITARY ACADEMY

WEST POINT ELEMENTARY SCHOOL

(Agency)

0-NG-1555

DECISION AND ORDER ON NEGOTIABILITY ISSUES

February 28, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns the negotiability of four provisions of a contract which were agreed to locally but disapproved by the Agency head during review of the agreement pursuant to section 7114(c) of the Statute. The Union filed a response to the Agency's statement of position. In accordance with an order of the Authority, each party filed a supplemental submission concerning the issue of whether the provisions constitute appropriate arrangements under section 7106(b)(3) of the Statute.

For the reasons explained below, we find that, except for part of Provision 2, each of the provisions is nonnegotiable. Provision 1, which restricts the assignment of nonteaching duties, conflicts with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and is not an appropriate arrangement under section 7106(b)(3). The portion of Provision 2 which concerns the frequency of employee evaluation is negotiable. The remainder of Provision 2 conflicts with the Agency's right to direct employees and assign work under section 7106(a)(2)(A) and (B). Provision 3, which establishes the competitive area for reductions-in-force, is inconsistent with 5 C.F.R. § 351.402(b), a Government-wide regulation. Provision 4, which establishes the effective date of the parties' agreement, conflicts with section 7114(c) of the Statute.

II. Provision 1

Article 9, Teaching Emphasis

The Employer and the Union recognize that an employee's primary responsibility is to teach; and the employee's energies should to the extent possible, be utilized to this end. The Employer agrees to keep non-teaching duties to a minimum, consistent with sound educational practices. [Only the underlined portion is in dispute.]

A. Positions of the Parties

The Agency contends that Provision l is nonnegotiable because it interferes with the right to assign work under section 7106(a)(2)(B). The Agency argues that the provision limits "to a minimum," the nonteaching duties which it may assign and, therefore, interferes with management's determination of the type of work to be assigned to employees. Further, the Agency argues that the phrase "to a minimum" allows an arbitrator to substitute his or her judgment for that of management's in deciding whether nonteaching assignments were kept "to a minimum." The Agency contends that Provision 1 is not an appropriate arrangement for adversely affected employees under section 7106(b)(3) because the provision concerns (1) a speculative matter and (2) the establishment of job requirements, which does not, by itself, adversely affect employees.

The Union asserts that Provision 1 is intended to establish a procedure under section 7106(b)(2) by which the Agency will assign nonteaching duties to bargaining unit employees. Alternatively, the Union asserts that the provision is an appropriate arrangement under section 7106(b)(3) for employees who are adversely affected by management's exercise of its right to assign work. The Union asserts that the assignment of nonteaching duties adversely affects bargaining unit employees by diminishing the ability to meet their teaching responsibilities; it claims that "for example, a lack of planning or preparation time, as a direct consequence of the assignment of non-professional duties, could result in an unsatisfactory performance evaluation and eventual dismissal." Union Response at 3-4.

B. Analysis and Conclusions

Management's right to assign work includes the right to determine what duties and responsibilities are assigned to a position or employee. For example, National Federation of Federal Employees and Haskell Indian Junior College, Bureau of Indian Affairs, Department of the Interior, Lawrence, Kansas, 22 FLRA 539, 544-45 (1986) (proposal requiring that "additional duties" be "related to [the instructor's] position" is outside the duty to bargain because it prohibits the agency from requiring the employee to perform unrelated duties). A proposal requiring an agency to make "every effort to avoid the assignment of nonprofessional duties to unit employees" violates management's right to assign work. Even though such a proposal does not preclude the assignment of nonprofessional duties, it imposes a substantive condition on management's right to assign them. Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 781-82 (1987), aff'd mem. as to other matters sub nom. Overseas Education Association, Inc. v. FLRA, 855 F.2d 887 (D.C. Cir. 1988).

Provision 1 establishes a substantive criterion under which management must justify assigning nonteaching duties to teachers. By requiring the Agency to keep nonteaching duties "to a minimum, consistent with sound educational practices," the provision imposes a substantive condition on management's right to assign them. The provision directly interferes with management's right to assign work by limiting management's ability to assign nonteaching duties to "a minimum, consistent with sound education practices." See also National Federation of Federal Employees, Local 615 v. FLRA, 801 F.2d 477, 477-80 (D.C. Cir. 1986), affirming National Federation of Federal Employees, Local 615 and National Park Service, Sequoia and Kings Canyon National Parks, U.S. Department of Interior, 17 FLRA 318 (1985) (an otherwise nonnegotiable procedure was not rendered negotiable by use of the qualifier "normally").

While the underlying concerns addressed by this provision may be laudable, because Provision 1 directly interferes with management's right to assign work, it does not constitute a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710 (1986), aff'd sub nom. American Federation of Government Employees, AFL-CIO, Local 2094 v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987).

We turn now to the Union's alternative argument that Provision 1 constitutes an appropriate arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) of the Statute. The Union claims that Provision 1 constitutes an "arrangement" for employees adversely affected by management's exercise of its right to assign nonteaching duties to the employees. The Union asserts that the assignment of nonteaching duties adversely affects bargaining unit employees by diminishing their ability to meet their teaching responsibilities; it claims that "for example, a lack of planning or preparation time, as a direct consequence of the assignment of non-professional duties, could result in an unsatisfactory performance evaluation and eventual dismissal." Union Response at 3-4.

During the pendency of this case the U.S. Circuit Court of Appeals for the District of Columbia rejected determinations by the Authority that various proposals concerned with matters affecting the job requirements of teachers did not qualify as appropriate arrangements under section 7106(b)(3) of the Statute. Overseas Education Association, Inc. v. FLRA, 876 F.2d 960 (D.C. Cir. 1989) (OEA). The Authority had held that management's establishment of job requirements, by itself, did not adversely affect employees within the meaning of section 7106(b)(3); employees were adversely affected only when management took action against the employees based on application of those job requirements. Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA 700 (1987); and Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 628 (1987) rev'd sub nom. OEA, 876 F.2d 960. The court reversed the Authority's decisions, concluding that the Authority's construction of section 7106(b)(3) and related provisions of the Statute improperly restricted the scope of management's duty to bargain. Id. at 965-966. The court held that under section 7106(b)(3) an "adverse effect" may flow from the exercise of any management right, and should not be restricted to situations where new job requirements are being applied to employees through "unfavorable job actions such as removals, demotions and reductions in pay." Id. at 965. The court stated that the Authority erred because it "never measured the impact of management's changes upon the employees." Id. at 973. The court, therefore, remanded the cases to the Authority to consider the facts bearing on whether the job requirements in question adversely affected bargaining unit employees and, if so, whether the arrangements proposed were appropriate. Id. at 973-974.

We find the considerations addressed by the D.C. Circuit in OEA to be applicable to the issue of whether Provision 1 constitutes an appropriate arrangement under section 7106(b)(3). In this and in future cases, we will examine the relevant facts to measure the impact of management's imposition of, or changes in, job requirements of unit employees to determine whether the employees are adversely affected by the exercise of management's right to assign work. Authority decisions which are inconsistent with this approach no longer will be followed.

Under section 7106(b)(3), "[t]he question whether employees are adversely affected by an exercise of a reserved management right necessitates close analysis of the relevant facts. Not every change in work requirements, or every added burden of job performance, will present an occasion for Section 7106(b)(3) collective bargaining." OEA, 876 F.2d at 973. As a threshold matter, to determine whether a proposal is an arrangement for employees adversely affected by management's exercise of its rights, we look to "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986). Proposals addressing "purely speculative or hypothetical concerns, or which are otherwise unrelated to management's exercise of its reserved rights," are excluded in this threshold analysis from being considered as appropriate arrangements. American Federation of State, County and Municipal Employees, Local 3097 and Department of Justice, 24 FLRA 453, 458 (1986) (Chairman Calhoun dissenting). For the reasons which follow, we conclude that Provision 1 does not constitute an "appropriate arrangement" so as to be negotiable under section 7106(b)(3) because it excessively interferes with management's right to assign work. See Kansas Army National Guard, 21 FLRA 24.

As discussed above, management's right to assign work includes the right to assign nonteaching duties. The Union asserts that Provision 1 addresses an adverse effect which flows from management's exercise of its right to assign, in accordance with applicable laws, so many nonteaching duties that a teacher is thereby prevented from meeting the performance standards established for teaching duties. In those circumstances, according to the Union, employees are adversely affected by being subject to unsatisfactory evaluations and, eventually, to dismissal. The Agency claims that the Union's argument that employees are adversely affected depends on a "rather detailed, complicated set of events" and is, in fact, a "purely speculative concern." [Emphasis in original.] Agency supplemental brief at 3.

The Agency points out that the adverse effects which, according to the Union, flow from management's exercise of its right to assign work are only indirect consequences of the exercise of that right. We find that the adverse effects depend on the occurrence of a chain of events and are not necessarily inevitable. Furthermore, nothing in the record indicates an existing or proposed Agency practice of assigning nonteaching duties to teachers to the extent that the teachers are adversely affected. Nevertheless, we find that the Union has more than merely a hypothetical or speculative concern. In circumstances where management may, entirely properly, assign nonteaching duties to an extent which detracts from an employee's ability to perform teaching duties, the adverse impact on employees which Provision 1 seeks to ease is reasonably foreseeable. Consequently, we conclude that Provision 1 constitutes an "arrangement" within the meaning of section 7106(b)(3). The question remains whether Provision 1 constitutes an "appropriate" arrangement or whether it is inappropriate because it excessively interferes with management's right. We answer this question by "weighing the competing practical needs of employees and managers." Kansas Army National Guard, 21 FLRA at 31-33.

The objective of Provision 1 is to ameliorate the adverse effect on employees flowing from management's assigning them nonteaching duties which detract from their ability to satisfactorily accomplish their teaching duties, the "primary responsibility" on which they are evaluated under their performance standards. See Union Response at 3-4. Insofar as Provision 1, by limiting management's ability to assign nonteaching duties, would ensure that employees did not lack the necessary planning or preparation time to be able to perform teaching work in a manner which avoided unsatisfactory evaluations and dismissals, the provision provides a benefit for employees. However, because the potentially adverse effect may arise in limited circumstances and are far from inevitable, and in view of the absence of any evidence of an existing or proposed Agency practice in this regard, the benefit to employees is of relatively limited significance.

Provision 1 limits management's ability to assign nonteaching duties to "a minimum, consistent with sound educational practices." The provision's limitation on management's right to assign work allows no exceptions which would enable management to respond to, for example, staffing or funding shortages. As a result, Provision 1 would hamper or prevent the Agency from fulfilling its mission requirements in circumstances where it needed to assign nonteaching duties in excess of a "minimum, consistent with sound educational practices." Therefore, we find that Provision 1 significantly diminishes management's ability to exercise its discretion and judgment in assigning work. See Association of Civilian Technicians, Montana Air Chapter and Department of the Air Force, Montana Air National Guard, Headquarters 120th Fighter Interceptor Group (ADTAC), 20 FLRA 717 (1985) (Proposal 1) (proposal which precluded management, regardless of circumstances, from obtaining additional personnel with skills unavailable in the unit held to excessively interfere with management rights).

In balancing the needs of employees and managers in light of "the totality of facts and circumstances," we find that Provision 1 provides limited benefits for adversely affected employees and significantly limits management's ability to exercise discretion and judgment to assign work. Considering the needs of employees and managers in all of the relevant circumstances as discussed above, we find that Provision 1 excessively interferes with management's right to assign work. Therefore, it is outside the duty to bargain.

III. Provision 2

Article 10, Employee Evaluation, Section 5

Procedures: The following adopted principle will be in effect for the life of this agreement:

a. All monitoring or observation of the work performance of a contract employee will be conducted openly and with full knowledge of the employee.

b. For the contract employees with less than three years of service in the school system, there shall be a minimum of two written evaluations per year (at least one per term). The evaluations will be based on a minimum of three observations per year. These observations shall be a minimum of 25 minutes long, or a given lesson period.

c. For the contract employees who have had more than three years of service in the school system, there shall be a minimum of one evaluation per year. These evaluations will be based on a minimum of two observations each. The observations shall be a minimum of 25 minutes long, or a given lesson period.

A. Positions of the Parties

The Agency contends that, by requiring the Agency to sample employees' work in a particular way to audit ongoing work performance, the provision interferes with management's rights to direct employees and assign work under section 7106(a)(2)(A) and (B) of the Statute.

The Union contends that the provision constitutes a procedure pursuant to section 7106(b)(2) and does not interfere with the Agency's reserved rights. The Union argues that the provision does not preclude the Agency from using the means and methods it deems most appropriate to monitor or observe the employee so long as the Agency makes the employee aware of the method being used to monitor or observe his or her performance at the time it is being used. The Union maintains that advance notice is not required: "[S]imultaneous notice would suffice." Union Response at 7.

The Union argues that the first sentences of subsections b and c concerning the number of evaluations per year are within the duty to bargain because proposals pertaining to matters concerning the frequency of performance appraisals are negotiable. The Union asserts that the second and third sentences of subsections b and c--requiring employee evaluations to be based on a minimum number of classroom observations of a minimum length--are intended to assure a fair and accurate measure of the employee's performance.

B. Analysis and Conclusions

1. Subsection a

We find that subsection a of Provision 2 is outside the duty to bargain. A proposal which specifies the techniques to be used to evaluate employee performance directly interferes with the agency's right to direct employees and assign work. Department of Defense Dependent Schools, 29 FLRA 734 (Proposal 6). Based on its plain wording, Provision 2, subsection a, requires management to conduct all monitoring or observation of work performance openly and with full knowledge of the employee. Provision 2, thereby, prohibits the use of techniques which are not "open" and disclosed to the employee. See id. at 746. We reject the Union's argument that subsection a of Provision 2 requires only "simultaneous notice" and, therefore, is within the duty to bargain.

Subsection a, like Proposal 6 in Department of Defense Dependents Schools, prevents the Agency from using various techniques to evaluate employee performance. Consequently, subsection a of Provision 2 directly interferes with the Agency's right to direct employees and assign work. See also Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 30 FLRA 508 (1987) (Proposal 32), rev'd as to other matters sub nom. Fort Bragg Association of Educators, NEA v. FLRA, 870 F.2d 698 (D.C. Cir. 1989) and petition for review filed as to other matters sub nom. Department of the Army, Fort Bragg Schools v. FLRA, No. 88-1132 (D.C. Cir. Feb. 18, 1988).

Because subsection a of Provision 2 directly interferes with management's right to direct employees and assign work, it does not constitute a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710 (1986), aff'd sub nom. American Federation of Government Employees, AFL-CIO, Local 2094 v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987). The Union does not allege that subsection a of Provision 2 constitutes an appropriate arrangement.

2. Subsections b and c

a. The First Sentences

5 U.S.C. § 4302(2)(1) requires that each agency develop one or more performance appraisal systems which provide for periodic appraisals of job performance of employees. 5 C.F.R. § 430.205(a) provides, in pertinent part, that "Employees shall generally be given a rating of record on an annual basis. Agencies may provide for longer appraisal periods when duties and responsibilities of a position or the tour of duty of a position so warrant." Therefore, under applicable law and regulations, an agency has discretion in establishing the frequency of periodic performance appraisals. See, for example, American Federation of Government Employees, AFL-CIO, Local 1968 and Department of Transportation, Saint Lawrence Seaway Development Corporation, Massena, New York, 5 FLRA 70, 75 (1981) (Proposal 2), aff'd as to other matters sub nom. AFGE, Local 1968 v. FLRA, 691 F.2d 565 (D.C. Cir. 1982), cert. denied, 461 U.S. 926 (1983).

Because an agency has discretion to establish the frequency of performance appraisals, a proposal establishing a frequency of appraisals which is consistent with the general requirement that the appraisals be given at least annually is within the duty to bargain. Id. at 76. The first sentences of subsections b and c of Provision 2 establish a number or frequency of performance evaluations of employees which is consistent with the general requirement that the performance rating be given at least annually. Accordingly, these sentences of Provision 2 are within the duty to bargain. See, also, American Federation of Government Employees, AFL-CIO, National Council of VA Locals and Veterans Administration, 29 FLRA 515, 537 (1987) remanded as to other matters sub nom. Veterans Administration v. FLRA, No. 87-1727 (D.C. Cir. Sept. 27, 1988), decision on remand, American Federation of Government Employees, AFL-CIO, National Council of VA Locals and Veterans Administration, 33 FLRA 472 (1988).

b. The Second and Third Sentences

Proposals which require an agency to sample employees' work in a particular manner for purposes of performance evaluation directly interfere with management's rights to direct employees and assign work. See National Federation of Federal Employees, Local 1454 and Veterans Administration, 26 FLRA 848 (1987) (Proposals 2-6). See also Social Security Administration, Northeastern Program Service Center, 18 FLRA 437, 439-40 (1985) (proposal to limit the use of particular methods of evaluation in favor of other methods held to be nonnegotiable because it limited management's ability to collect data for evaluating performance).

The second and third sentences of subsections b and c require the Agency to base evaluations on a minimum number of observations and specify the minimum duration of the observations. These requirements prevent management from evaluating employees in any other manner, even if the Agency determines that a different method of evaluation or observation is necessary to accurately appraise an employee's performance. Consequently, the second and third sentences of subsections b and c of Provision 2 directly interfere with management's rights to direct employees and assign work.

Because the second and third sentences of subsections b and c of Provision 2 directly interfere with management's rights to direct employees and assign work, these sentences are not negotiable procedures within the meaning of section 7106(b)(2) of the Statute. See American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710 (1986), aff'd sub nom. American Federation of Government Employees, AFL-CIO, Local 2094 v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987). The Union does not allege that the second and third sentences of subsections b and c constitute appropriate arrangements.

In sum, we find that: (1) subsection a of Provision 2 is nonnegotiable; (2) the first sentences of subsections b and c are negotiable; and (3) the second and third sentences of subsections b and c are nonnegotiable.

IV. Provision 3

Article 17, Reduction In Force, Section 1

a. For the Civil Service professional educator positions, reduction-in-force (RIF) actions will be accomplished in accordance with AR 690-300, Chapter 351, and FPM 351. The competitive area for these positions is restricted to the WPES [West Point Elementary School]. [Only the underlined portion is in dispute.]

A. Positions of the Parties

The Agency asserts that Provision 3 is inconsistent with the requirements of 5 C.F.R. § 351.402(b), an applicable Government-wide regulation that requires a competitive area to be defined "solely in terms of an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined." The Agency argues that Provision 3 defines the competitive area in terms of, and limits it to, bargaining unit members.

The Union relies on the portion of 5 C.F.R. § 351.402(b) which provides that: "In the field, the minimum competitive area is an activity under separate administration within the local commuting area." The Union maintains that because the WPES is headed by a School Superintendent, it is "an activity under separate administration" from other activities within West Point and is permitted a separate competitive area under 5 C.F.R. § 351.402(b). The Union argues that Provision 3 includes nonbargaining unit employees "provided they qualify for the professional educator position." Union Response at 9. See also id. at 10-11. Therefore, the Union asserts, Provision 3 has only an indirect impact on conditions of employment of nonbargaining unit employees and is within the duty to bargain.

B. Analysis and Conclusions

OPM regulations governing RIFs of the bargaining unit employees in this case are set out in 5 C.F.R. Part 351. Because these regulations apply generally to civilian employees of the Federal Government, they are Government-wide regulations within the meaning of section 7117(a)(1) of the Statute. See, for example, National Treasury Employees Union, NTEU Chapter 202 and Department of the Treasury, Bureau of Government Financial Operations, 22 FLRA 553, 555 (1986).

In a RIF resulting from the abolition of positions in a particular competitive area, the employee incumbents of abolished positions compete with each other for the remaining positions on the basis of their relative retention standing. Retention standing is based on the following factors: (1) tenure group--whether the employee has career status, is a probationer, or is employed under a temporary or indefinite appointment; (2) whether the employee is entitled to veterans preference; and (3) seniority, with special credit given for certain performance ratings. 5 C.F.R. §§ 351.501-351.504. These factors determine which employees will be retained and which will be separated from Federal employment.

A competitive area is that portion of an agency within which employees compete for retention. 5 C.F.R. § 351.402. Under 5 C.F.R. § 351.402(b), a competitive area must be "defined solely in terms of an agency's organizational unit(s) and geographical location, and it must include all employees within the competitive area so defined." [Emphasis added.] Provisions which limit a competitive area solely to bargaining unit positions are inconsistent with this Government-wide regulation. See, for example, National Treasury Employees Union and Department of Health and Human Services, Region X, 25 FLRA 1041, 1043-44 (1987).

Provision 3, as interpreted by the Union, restricts the competitive area to only "those who qualify for the professional educator position." Union Response at 9. We adopt the Union's interpretation because it is consistent with the plain wording of the provision. Therefore, even assuming for the purposes of this decision that the WPES is an "activity under separate administration" within the meaning of section 351.402(b), Provision 3 does not "include all employees within the competitive area so defined." Consequently, we find that Provision 3 is inconsistent with 5 C.F.R. § 351.402(b). Because 5 C.F.R. § 351.402(b) applies to the employees involved, Provision 3 is nonnegotiable. Compare Service Employees International Union, Local 556, AFL-CIO and Department of the Army, United States Army Support Command, Hawaii, Fort Schafter Hawaii, 29 FLRA 1553, 1560 (1987) petition for review filed as to other matters sub nom. Department of the Army, United States Army Support Command, Hawaii, Fort Schafter, Hawaii v. FLRA, No. 88-7004 (9th Cir. Dec. 31, 1987) (RIF situations for employees not covered by 5 C.F.R. Part 351 are governed only by internal regulations of the employing agency and the parties' agreement).

Because Provision 3 is contrary to 5 C.F.R. § 351.402(b), the Union's argument that the provision is negotiable because it has only an indirect effect on conditions of employment of nonbargaining unit employees is not relevant.

V. Provision 4

Article 19, Duration of Agreement, Section 4

All provisions of this agreement shall become effective on the date the agreement is approved by the Superintendent, USMA, and President of the Union. The parties further understand that this agreement is subject to a post audit review regarding applicable published laws, regulations, and policy. [Only the underlined portion is in dispute.]

A. Positions of the Parties

The Agency asserts that this provision violates section 7114(c) of the Statute by providing that the "Superintendent, USMA" rather than the "head of the agency" has authority to approve the agreement.

The Union asserts that the intent of this provision is to confirm only that the Superintendent of USMA and the Union have reached an agreement on the negotiated contract provisions and that the provisions are effective as to the local parties. The Union maintains that the provision is not intended to diminish the authority of the head of the agency to approve the agreement.

B. Analysis and Conclusions

Section 7114(c) of the Statute provides that an agency head has "30 days from the date the agreement is executed" to approve or disapprove a collectiv