45:1185(118)NG - - Overseas Education Association and DOD, Office of Dependents Schools - - 1992 FLRAdec NG - - v45 p1185



[ v45 p1185 ]
45:1185(118)NG
The decision of the Authority follows:


45 FLRA No. 118

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

OVERSEAS EDUCATION ASSOCIATION

(Union)

and

U.S. DEPARTMENT OF DEFENSE

OFFICE OF DEPENDENTS SCHOOLS

(Agency)

0-NG-2015

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 11, 1992

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) and concerns the negotiability of seven proposals.

Proposals 1, 2, 3, 4, and 5 concern matters pertaining to the fixing of basic compensation of unit employees. Proposals 6 and 7 concern retroactive appointment to permanent positions for employees holding temporary appointments who meet the conditions described in the proposals. For the reasons that follow, we find that the proposals are nonnegotiable. Accordingly, we will dismiss the petition for review.

II. Preliminary Matter

The Agency contends that the Union's petition was "improperly submitted" and, therefore, "must be dismissed." Statement of Position (Statement) at 1. The Agency asserts that on January 8, 1992, it received, by facsimile transmission (FAX), a copy of the Union's petition. Citing American Federation of Government Employees, Local 2776 and U.S. Department of Defense, Armed Forces Radio and Television Service, Broadcast Center, Sun Valley, California, 41 FLRA 1292 (1991) (Broadcast Center), the Agency contends that such service does not constitute service in accordance with section 2429.27(b) of the Authority's Rules and Regulations.

The Union asserts that it served a copy of the petition to the Agency by mail on January 3, 1992, and that the certificate of service attached to the petition filed with the Authority "attest[s] to this fact." Response at 1. The Union contends that the Agency also received notice of the filing of the petition from the Authority when the case number was assigned. Noting that the Agency received the petition and filed a timely statement, the Union asserts that the Agency "was not harmed by the manner of service" of the petition and that, consistent with Authority precedent, the Authority should not dismiss the petition for review. Id. at 2.

We note the Agency's reliance on Broadcast Center to support its contention that service by FAX does not constitute proper service under section 2429.27(b). Under our Rules and Regulations, service by FAX is not proper service. However, based on the reasons set forth below, we find that the petition in this case was served by mail and is properly before us.

The record shows that the Union included with its timely filed petition a signed and dated statement of service indicating that the Union had served its petition, by regular mail, on the Agency. The Agency does not claim that it did not receive a copy of the petition by regular mail. The copy of the petition sent to the Agency by FAX would appear, therefore, to be an additional copy of the petition that was sent to the Agency. The Agency, thereafter, filed a timely statement of position. Thus, the record shows that the Agency received a copy of the Union's petition in a timely manner so as to permit it to timely file its statement with the Authority. Moreover, the Agency does not claim, and there is no basis on which to conclude, that the Agency was harmed by the Union's service of the petition by regular mail instead of by certified mail. Because the record shows that the Agency received the petition and filed a timely statement, and because the Agency has not shown that it was prejudiced by the manner in which the Union's petition was served, we find that dismissal of the petition is not warranted. See, for example, U.S. Department of Defense, Defense Contract Audit Agency, Central Region and American Federation of Government Employees, Local 3529, 35 FLRA 316, 320 (1990).

III. Proposals 1-5

Proposal 1

5.A. Unit employees shall be paid on a daily rate of pay equal to the average rate of daily pay for school systems in the United States with 100,000 plus population. Any portion of a half-day (3 hours) shall be equal to one-half day for pay purposes.

Proposal 2

5.B. Unit employees shall receive credit, for DODDS salary advancement, for each day or portion of a day (portion of a half-day equal to one-half) of employment with the federal government. In addition, credit (up to 10 years) shall be granted for each year of service with another system (public or private). Ninety-five (95) days or 190 half-days of service in one school year shall constitute one school year for salary purposes. One hundred-fifty (150) days of accumulated service shall constitute one school year for pay purposes. Employment as a substitute shall count toward salary advancement.

Proposal 3

5.C. Beginning with SY 1990-91 the salary schedule for unit employees shall incorporate new pay lanes for BA + 45, BA + 60, MA + 45, MA + 60.

Proposal 4

5.D. Beginning with SY 1990-91 the salary schedule for unit employees shall incorporate three long[evity] steps for pay purposes.

Proposal 5

5.E. All graduate credits earned working toward a degree shall count toward salary advancement.

A. Positions of the Parties

1. Agency

The Agency asserts that Proposals 1, 2, 3, 4, and 5, "all deal with fixing basic compensation for unit employees[,]" who are overseas teachers. Statement at 4. The Agency contends, generally, that the pay and personnel practices for these employees are established in accordance with 20 U.S.C. §§ 902(a)(2) and 903(c).*/ The Agency asserts that these provisions require "that the basic compensation for [the affected employees] reflect the current practice for similar positions in certain U.S. jurisdictions." Id. at 3. Citing March v. U.S., 506 F.2d 1306 (D.C. Cir. 1974) (March), order on remand, Civil Action No. 3437-70 (D.D.C. June 27, 1975), the Agency asserts that the "pay fixing procedure in [20 U.S.C. §§ 902(a)(2) and 903(c)] is not a matter left to the agency head's discretion, but rather is a statistical and mathematical process provided for by law." Id. at 5. The Agency contends, therefore, that the pay procedures involved in Proposals 1, 2, 3, 4, and 5 are not negotiable conditions of employment under section 7103(a)(14)(C) of the Statute.

The Agency also states that this case is distinguishable from Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990) because the statute involved in that case "allows management discretion to set pay so long as the overall comparability standard is met[,]" while in this case the Agency "does not have residual discretion concerning basic compensation." Id. at 5 and 6.

As to Proposal 1, the Agency contends that 20 U.S.C. § 902 requires the Secretary of Defense "to prescribe and issue regulations which govern various aspects of employment" of the teachers involved in this case. Id. at 6. The Agency asserts that in compliance with this law, the Secretary of Defense issued Department of Defense Directive (DODD) Number 1400.13. The Agency states that this regulation establishes the method for calculating the daily rate of pay for an educator and states that "'the daily rate of compensation for an educator will be the appropriate school year salary divided by 190.'" Id. at 6-7. The Agency asserts that, because Proposal 1 "attempts to dictate [the method for calculating] an employee's rate of basic compensation," which the Agency has established pursuant to law, the proposal is nonnegotiable. Id. at 7. In support of its assertion, the Agency cites March and Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 835 (1987) (Department of Defense Dependents Schools) (Chairman Calhoun concurring in relevant part), enf'd as to other matters by, 911 F.2d 743 (D.C. Cir. 1990) (en banc order).

The Agency contends that Proposal 2 requires that unit employees be given "salary credit" based on previous teaching or Federal work experience. Id. at 10. Citing March and Department of Defense Dependents Schools, the Agency contends that because credit for teaching or work experience is a matter concerning basic compensation, the proposal is inconsistent with 20 U.S.C. §§ 901 and 902(a). The Agency contends, therefore, that Proposal 2 is nonnegotiable.

The Agency asserts that Proposal 3 provides for "specific pay lanes within the teacher's salary schedule." Statement at 10. According to the Agency, "[a]ll elements of basic compensation for teachers" are governed by 20 U.S.C. §§ 902(a)(2). Id. The Agency contends that in March, the court concluded that "salary grade [and] number of steps within a particular salary grade are elements of basic compensation." Id. The Agency asserts that because Proposal 3 "requir[es] the establishment of 4 additional pay lanes (BA+45, BA+60, MA+45, and MA+60)[,]" the proposal is nonnegotiable under March and the Authority's decision in Department of Defense Dependents Schools, 29 FLRA at 835-36. Id.

The Agency states that Proposal 4 provides for one longevity step to be added to the two provided in the current salary schedule. The Agency asserts that the requirement that an additional longevity step be "arbitrarily added to the salary schedule without regard to the current practices conflicts with the 'equal to[]' requirement" of 20 U.S.C. § 901 et seq. Id. at 11. Therefore, the Agency contends that the proposal is nonnegotiable.

The Agency asserts that Proposal 5 requires that credit for salary advancement be given based on the "'equivalency'" of an employee's education rather than on the actual earned degree, which is the Agency's current practice. Id. at 13. The Agency contends, for the reasons stated with respect to Proposal 2, that the practice provided by Proposal 5 "would be contrary to the pay practices" set forth in 20 U.S.C. § 901, et seq., and, therefore, that Proposal 5 is nonnegotiable. Id.

2. Union

The Union contends that Proposal 1 would establish a process for paying teachers in compliance with 20 U.S.C. § 902 and "pertains to a matter within the Agency's discretion." Response at 3. The Union further contends that the Agency misinterprets the court's decision in March. The Union asserts that March does not stand for the proposition that all procedures enacted by the Agency to arrive at the statutory mandate of equal pay under 20 U.S.C. § 902 are nonnegotiable.

The Union asserts that in Department of Defense Dependents Schools, 29 FLRA at 833, the Authority also misinterpreted the court's decision in March. The Union contends that the Authority misread the court's statement that Congress intended 20 U.S.C. § 901 et seq. to leave "'no room for the substitution of independent views or judgments by any Federal civilian or military official'" to mean that the "'pay fixing procedure was a statistical and mathematical process provided by law.'" Id. at 3 (quoting 506 F.2d at 1317), 4 (quoting Department of Defense Dependents Schools at 833). The Union contends that this interpretation "ignores the reality that there are . . . variables in the mathematical equation." Id. at 4. According to the Union, the Agency has discretion over such variables and those areas of discretion are addressed by Proposals 1-5. Citing the decision of the Federal Labor Relations Council (FLRC) under Executive Order No. 11491 in Overseas Education Association, Inc. and Department of Defense, Office of Dependents Schools, 6 FLRC 231 (1978) (Department of Defense, Office of Dependents Schools), the Union contends that Proposal 1 is a "procedure for determining the daily rate of pay that is in compliance with the statutory requirement of equal pay." Id. at 5. The Union asserts that "[p]roposals that seek to require the Agency to follow the law are negotiable." Id.

As to Proposals 2, 3, 4, and 5, the Union incorporates the arguments made with respect to Proposal 1. The Union further explains that Proposal 2 "would establish a process for determining the amount of credit to be given for previous experience as a teacher for step placement in compliance with the statutory requirement." Id. at 6. The Union contends that Proposal 3 "would establish [a] procedure for the distribution of pay among the bargaining unit members with appropriate credentials in compliance with the statutory requirement." Id. at 7. The Union asserts that Proposal 4 "would [incorporate] the current number of long steps into the pay schedule in compliance with 20 U.S.C. [§] 902." Id. In support of this assertion, the Union cites an arbitrator's award holding that, based on survey data, the Agency was required, under 20 U.S.C. § 902, to adopt a third longevity pay step. With respect to Proposal 5, the Union contends that this proposal "would establish the process for determining the amount of credit given for placement on the appropriate pay lanes for unit members in compliance with the statutory requirement." Id. at 8.

B. Analysis and Conclusions

We find, for the reasons discussed below, that Proposals 1, 2, 3, 4, and 5 concern matters pertaining to employees' basic compensation that are specifically provided for by law and, therefore, the proposals do not concern negotiable conditions of employment within the meaning of section 7103(a)(14)(C) of the Statute.

Matters pertaining to the wages of Federal employees covered by the Statute are conditions of employment subject to the duty to bargain under the Statute unless they are excluded from the definition of conditions of employment because they are specifically provided for by Federal statute, within the meaning of section 7103(a)(14)(C) of the Statute. See Fort Stewart, 495 U.S. at 644-50. See also National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 41 FLRA 1057, 1062-63 (1991) (Red River Army Depot), petition for review filed sub nom. U.S. Department of the Army, Red River Army Depot, Texarkana, Texas v. FLRA, No. 91-1472 (D.C. Cir. Sept. 26, 1991).

Where a Federal statute provides discretion to an agency with respect to the determination of matters pertaining to Federal employee wages, the wages of those employees are not a matter specifically provided for by Federal statute within the meaning of section 7103(a)(14)(C) of the Statute. See Fort Stewart, 495 U.S. at 644-50; International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 and U.S. Department of the Treasury, Bureau of Engraving and Printing, 43 FLRA 1202, 1213-17 (1992), request for stay denied, 44 FLRA 761 (1992), petition for review filed, No. 92-1125 (D.C. Cir. Mar. 26, 1992).

Turning to the instant case, we note that the Department of Defense Overseas Teachers Pay and Personnel Practices Act (the Teachers Pay Act), 20 U.S.C. § 901 et seq., governs, among other things, the compensation of teachers. This Act requires that basic compensation be fixed at rates equal to the average of the range of rates of basic compensation for similar positions in urban school jurisdictions in the United States of 100,000 or more population. 20 U.S.C. § 903. It also requires that the Secretary of Defense implement regulations governing, among other things, the fixing of basic compensation of teachers subject to the above-described provisions set forth in 20 U.S.C. § 903. 20 U.S.C. § 902. The Authority previously examined this Act in connection with proposals concerning the compensation of overseas teachers and found that all elements of basic compensation of teachers are matters that are specifically provided for under 20 U.S.C. §§ 902 and 903 and, therefore, management has no discretion over the basic compensation of such employees. Department of Defense Dependents Schools, 29 FLRA at 834-36.

Specifically, in Department of Defense Dependents Schools, the Authority examined the language of 20 U.S.C. §§ 902 and 903. The Authority noted the court's decision in March, where the court in interpreting 20 U.S.C. §§ 902 and 903 stated, among other things, that "[a]ll elements of basic compensation [for teachers in the Agency's overseas school system] are governed by the statutory equality mandate." March, 506 F.2d at 1319. Thus, the court held that the basic compensation of teachers covered by the Act must be equal to the compensation for teachers in certain specified stateside school districts. Noting the court's decision in March, the Authority stated that "Congress intended the statutory scheme for determining [overseas] teachers salaries to leave no room for the substitution of Federal civilian or military officials' views in the process." Department of Defense Dependents Schools, 29 FLRA at 835. The Authority found, therefore, that the "pay fixing procedure in the Teachers Pay Act is intentionally not a matter left to the Agency's discretion, but rather is a statistical and mathematical process provided for by law." Id. at 833. Thus, noting Congress' intent with respect to 20 U.S.C. §§ 902 and 903 and the court's decision in March, the Authority found that the proposals involved, Proposals 22-26, concerned matters over which managment has no discretion, but, rather are provided for by law.

More specifically, the Authority found that Proposals 22-26 addressed either: (1) length and/or type of prior service to be used in calculating pay levels; (2) the amount and type of education which would move employees from one pay level to another; or (3) how pay rates would be determined for employees working less than full time. Relying on the court's decision in March, the Authority found that "[s]alary grade, number of steps within a particular salary grade, and credit for past teaching experience are elements of basic compensation and, consequently, are within the scope of the 'equal to' requirement[]" of the Act. Department of Defense Dependents Schools, 29 FLRA at 835. Thus, the Authority found that the proposals concerned elements of basic compensation and, therefore, were nonnegotiable because basic compensation is a matter that is specifically provided for by Federal law.

The Union contends that the Authority misinterpreted the court's decision in March. However, based on Fort Stewart and March and our examination of Department of Defense Dependents Schools, we find that the Union has not provided any reasons for us to conclude that the Authority's decision in Department of Defense Dependents Schools is incorrect. In March, the court held that all elements of basic compensation for the Agency overseas teachers are governed by the statutory equality mandate of 20 U.S.C. § 901 et seq. The court in particular found that "salary grade, steps and credit for past teaching experience" are essential elements of basic compensation. 506 F.2d at 1317. The court also held that the "daily wage rate is an integral part of 'basic compensation.'" Id. at 1319 (footnote omitted). In Department of Defense Dependents Schools the Authority relied on March and found that the elements described by the court were elements of basic compensation subject to the "equal to" requirement of 20 U.S.C. §§ 902 and 903. Because the proposals concerned basic compensation which is specifically provided for under 20 U.S.C. §§ 902 and 903, the Authority concluded that the proposals were nonnegotiable. Based on Fort Stewart and March, we find nothing in the Authority's decision in Department of Defense Dependents Schools that would lead us to conclude that this decision should not be followed.

In this case: (1) Proposal 1 concerns how the daily rate of compensation will be determined; (2) Proposals 2 and 5 concern credit toward salary advancement for prior Government service and/or educational experience; and (3) Proposals 3 and 4 concern pay lanes and/or longevity steps. We find that these proposals all concern facets of basic compensation, that is, daily rate of compensation, salary grade, and steps and credit for past teaching experience. Because Proposals 1, 2, 3, 4, and 5 concern elements of basic compensation for unit employees under March, we find, consistent with Department of Defense Dependents Schools, that the proposals concern matters over which the Agency has no discretion because such matters are provided for by Federal law. Moreover, we note that in Department of Defense Dependents Schools, the Authority also found that because the proposals fixed pay matters wholly apart from matters connected to the survey itself, the proposals were inconsistent with 20 U.S.C. §§ 902 and 903. To the same extent, we find that Proposals 1 through 5 are inconsistent with law.

In so finding, we also note the Union's reliance on Department of Defense, Office of Dependents Schools, 6 FLRC 231, which concerned the application by the FLRC of 20 U.S.C. § 901 et seq. under Executive Order No. 11491. To the extent that the decision in Department of Defense, Office of Dependents Schools, 6 FLRC 231, is inconsistent with the Authority's decision in Department of Defense Dependents Schools, it is no longer in "full force and effect." 5 U.S.C. § 7135(b). Additionally, we find that the arbitrator's award cited by the Union is not relevant to the disposition of this case. The arbitrator's award did not concern whether the Agency was obligated to bargain over a matter pertaining to its teachers' salary schedule under 20 U.S.C. § 901 et seq. Rather, the award addressed only whether the Agency had complied with the mandate of 20 U.S.C. § 901 et seq. in its implementation of the salary schedule for the 1989-1990 school year.

Accordingly, consistent with Department of Defense Dependents Schools, we find Proposals 1, 2, 3, 4, and 5 are nonnegotiable.

IV. Proposal 6

7.A. In the event a local hire employee meets the criteria of 1400.25m and the JTR Volume II (i.e., death, legal separation, divorce, etc.) an excepted appointment with condition shall be retroactively granted to the beginning of the school year.

Proposal 7

7.B. If a local hire employee is employed on or before November 1 of each year, he/she shall be retroactively given an excepted appointment with condition unless eligible for without condition.

A. Positions of the Parties

1. Agency

The Agency states that locally hired employees initially are hired on a temporary basis. The Agency asserts that their "temporary appointments have a 'not to exceed' date upon which the appointment expires, normally at the end of the school year." Statement at 13. The Agency further asserts that at the end of the temporary appointment, the Agency may: (1) terminate the temporary appointment; (2) reappoint the employee to another "temporary appointment not to exceed"; or (3) convert the employee to an excepted (permanent) appointment with condition providing that a continuing permanent position exists and the employee's performance is satisfactory. Id. at 13-14.

The Agency contends that Proposal 6 would "require management to convert (that is, appoint) locally hired temporary employees to permanent positions, and to make these appointments retroactive to the beginning [of] the school year." Id. at 14. The Agency asserts that the proposal would "dictate to the [A]gency the type of positions and/or employees (temporary v. permanent) necessary to accomplish its mission." Id. The Agency contends that proposals which concern the numbers, types and grades of positions and/or employees assigned to an organization are negotiable under section 7106(b)(1) of the Statute only at the election of the Agency. The Agency asserts that it has elected not to negotiate on Proposal 6 and, therefore, the proposal is nonnegotiable.

The Agency asserts that Proposal 7 is nonnegotiable for the same reasons as Proposal 6. Additionally, the Agency contends that Proposal 7 is contrary to Federal Personnel Manual (FPM) chapter 296, subchapter 1, which provides "that no personnel action can be made effective prior to the date on which the appointing officer approves the action." Id. at 15. According to the Agency, FPM chapter 296, subchapter 2 outlines the exceptions to this requirement. The Agency contends that because Proposal 7 would require it to make "an appointment retroactive" absent the exceptions identified in the FPM, the proposal is inconsistent with the FPM chapter 296, subchapter 1, which is a Government-wide regulation. Id.

2. Union

In its petition, the Union asserted that Proposals 6 and 7 "would establish the process for determining when an appointment management has decided to make would become effective." Petition at 3. Subsequently, in its response, the Union explains that Proposals 6 and 7 "provide for additional times when an appointment to a temporary position may be converted to an Excepted Appointment-Conditional." Response at 8. According to the Union, DODD Number 1400.13 "covers when a fully qualified educator who has been appointed to a temporary position with [the Agency] will be converted to an Excepted Appointment-Conditional." Id. The Union states that "[c]onversion of fully qualified appointed employees under these regulations occurs as a result of specific triggering events and the passage of specified amounts of time." Id. at 8-9. The Union asserts that the proposals "provide for additional triggering events and periods of time for when conversion of a temporary appointment to an Excepted Appointment-Conditional would be permitted." Id. at 9. The Union contends that the appointment procedures for teachers are not "so specifically provided for" in 20 U.S.C. § 902 as to be excluded from the definition of conditions of employment under section 7103(a)(14)(C) of the Statute. Id.

B. Analysis and Conclusions

We find that Proposals 6 and 7 are nonnegotiable.

We note that Proposal 6 refers to "the criteria of 1400.25m and the JTR Volume II . . . ." However, the record does not contain a copy of DODD Number 1400.25m or an appropriate reference to JTR Volume II. The Union provided only a copy of DODD Number 1400.13. Noting that DODD Number 1400.13 covers when a fully qualified educator who has been appointed to a temporary position will be converted to a permanent-conditional position, the Union explains that Proposals 6 and 7 provide for additional situations and time periods that would "trigger[]" the conversion of a temporary appointment to a permanent-conditional appointment. Union's Response at 9. The Agency asserts that the proposals require management to convert locally hired temporary employees to permanent positions, and to make these appointments retroactive to the beginning of the school year. Locally hired employees are educators appointed in an overseas area. Based on the parties' positions and the wording of Proposals 6 and 7, it is our view that the proposals are intended to: (1) establish additional criteria requiring the conversion of locally hired employees on temporary appointments to permanent-conditional positions; and (2) make such appointments retroactive to the beginning of the school year.

Under section 7106(b)(1) of the Statute, an agency has the right to determine the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty. In our view, determinations as to whether an employee holding a temporary appointment should be converted to or granted a permanent position in the Agency are matters directly