49:333(30)NG - - DOD, Fort Bragg Dependents Schools, Fort Bragg, NC and Fort Bragg Association of Educators, OEA/NEA - - 1994 FLRAdec NG - - v49 p333



[ v49 p333 ]
49:333(30)NG
The decision of the Authority follows:


49 FLRA No. 30

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

U.S. DEPARTMENT OF DEFENSE

FORT BRAGG DEPENDENTS SCHOOLS

FORT BRAGG, NORTH CAROLINA

(Agency)

and

FORT BRAGG ASSOCIATION OF EDUCATORS

OEA/NEA

(Union)

0-NG-2148

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 4, 1994

_____

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 nine proposals.(1)

For the reasons stated below, we make the following findings. Proposal 1, which concerns employees reporting at their work locations, does not directly interfere with management's rights to determine the mission of the Agency or assign work and is negotiable. Proposal 2, which would permit the dependents of bargaining unit employees to attend the Fort Bragg Dependents Schools, is nonnegotiable because it is inconsistent with Federal law. Proposal 3, which relates to a duty-free lunch period for bargaining unit employees, does not directly interfere with management's right to assign work and is negotiable. The portion of Proposal 4 that concerns bargaining unit meetings does not directly interfere with management's right to assign work and is negotiable. The portion of Proposal 4 that seeks 24-hour access to the Union office for Union representatives directly interferes with management's right to determine its internal security practices and the record does not provide a basis for determining whether it constitutes an appropriate arrangement. Consequently, the petition for review is dismissed as to that portion of Proposal 4.

Proposal 5, which concerns official time, is not inconsistent with section 7131 of the Statute and is negotiable. Proposal 6, which addresses the length of the work day, does not directly interfere with management's rights to determine the mission of the Agency and to assign work and is negotiable. Proposal 7, which concerns the rehiring of employees who have been terminated in a reduction-in-force, is negotiable as an appropriate arrangement. Proposals 8 and 9, which relate to compensation of bargaining unit employees, are negotiable.

II. Proposal 1

ARTICLE THREE

EMPLOYEE RIGHTS AND OBLIGATIONS

Section 8. Employees are required to be at their assigned work location at the scheduled time. Changes or variations shall be reported by the employee to management as soon as practical.

A. Positions of the Parties

The Agency asserts that this proposal is nonnegotiable because it interferes with management's rights under section 7106(a)(1) and (2) of the Statute to determine the mission of the Agency and to assign work. The Agency contends that the proposal interferes with its right to determine the duty day by permitting employees "to change or vary their reporting times without Agency approval." Statement of position at 1. Citing the Authority's decision in Fort Knox Teachers Association and Fort Knox Dependents Schools, 27 FLRA 750, 751-53 (1987) (Fort Knox Schools), the Agency argues that proposals that limit the length of the school day interfere with management's right to assign work. The Agency further argues that under Authority precedent, the determination of the hours of the duty day is encompassed within management's right to determine its mission. In support of this latter argument, the Agency cites Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 30 FLRA 508, 516-17 (1987), (Fort Bragg Schools) reversed as to other matters, 870 F.2d 698 (D.C. Cir. 1989); West Point Elementary School Teachers Association, NEA and The United States Military Academy Elementary School, West Point, New York, 29 FLRA 1531, 1536-38 (1987) (Elementary School, West Point), aff'd in relevant part, 855 F.2d 936 (2d Cir. 1988); American Federation of Government Employees, Local 3231 and Social Security Administration, 22 FLRA 868, 869-70 (1986) (SSA).

The Union denies that this proposal interferes with management's right to assign work. According to the Union, this proposal "reaffirms the burden of the employee to be at the assigned work location on time and to notify management if for some reason there is a problem in reporting at the scheduled time." Response at 1-2. As an example of such a problem, the Union cites a flat tire while driving to work. The Union contends that this proposal is analogous to proposals that concern the means of recording an employee's presence at the work site and is negotiable.

B. Analysis and Conclusions

As described by the Union, this proposal does not permit an employee to alter the time that he or she is required to report to his or her work location. Rather, according to the Union, the proposal reiterates the employees' obligation to be at work at the established time and requires them to report any inability to comply with that schedule to management as soon as possible. The Union's statement of intent is consistent with the language of the proposal and is adopted for purposes of this decision. Thus, we find that this proposal does not determine the length or hours of the duty day, as claimed by the Agency, and that this proposal is distinguishable in this regard from those addressed in the cases on which the Agency relies.

In view of our conclusion that this proposal does not determine the length or hours of the duty day, we reject the Agency's contention that this proposal directly interferes with its management rights to determine its mission and to assign work. Moreover, we note that this proposal does not require the Agency to excuse any tardiness or absence on the part of an employee. See National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 44 FLRA 738, 751-53 (1992) (Section (a) of Provision 3 did not mandate that the agency excuse tardiness or preclude disciplinary action based on employee absence and was negotiable).

Based on the foregoing, we conclude that Proposal 1 is negotiable.

III. Proposal 2

Section 10. Dependents of bargaining unit members may attend the Ft. Bragg Schools. Management shall establish and maintain a day care facility for before and after school use of said dependents.

A. Positions of the Parties

The Agency contends that this proposal is not negotiable because it is contrary to law--specifically, 20 U.S.C. § 241, which governs attendance at Fort Bragg Dependents Schools.(2) The Agency argues that under 20 U.S.C. § 241(a), children must reside on Federal property and local educational agencies must be unable to provide a free public education for them in order for the children to be eligible to attend the schools established under section 241(a). The Agency asserts that this proposal would require that dependents of bargaining unit members be permitted to attend the Fort Bragg Dependents Schools regardless of whether statutory requirements for attendance have been met.

The Union argues that the statutory provision relied upon by the Agency, 20 U.S.C. § 241(a), is not relevant to the dispute over this proposal because "[c]hildren residing on base are undeniably eligible for attendance at base schools." Response at 2. Rather, the Union contends that the statutory provision that is applicable to the issue raised by this proposal is 20 U.S.C. § 241(b), which, according to the Union, concerns children who live in areas adjacent to Federal property and allows "the Secretary to use his discretionary judgement in determining whether children meeting the cited criteria are to be educated in federal facilities." Id. at 3. The Union argues that this statutory provision does not "prohibit the concept of having dependent children of employees attend the schools." Id. Additionally, the Union contends that attendance at the Fort Bragg Schools by the dependents of bargaining unit members is a condition of employment and that this proposal is negotiable.

B. Analysis and Conclusions

This proposal, as explained by the Union, would permit the dependents of all bargaining unit members to attend the Fort Bragg Schools, including those who do not reside on Federal property. The Union contends that 20 U.S.C. § 241(b) provides authority for permitting bargaining unit employees' dependents who do not reside on Federal property to attend the Fort Bragg Schools. Under that provision, children who live in areas adjacent to Federal property and whose parents are employed on such Federal property may be permitted to attend schools such as those at Fort Bragg

but only if the Secretary [of Education] determines after consultation with the appropriate State educational agency (1) that the provision of such education is appropriate to carry out the purposes of this subchapter, (2) that no local educational agency is able to provide suitable free public education for such children, and (3) in any case where in the judgment of the Secretary the need for the provision of such education will not be temporary in duration, that the local educational agency of the school district in which such children reside, or the State educational agency, or both, will make reasonable tuition payments to the Secretary for the education of such children.

Proposal 2 permits bargaining unit members' dependents who do not reside on Federal property to attend the Fort Bragg Schools. Nothing in the wording of this proposal or the Union's explanation of it indicates that this proposal is intended to apply only if the Secretary of Education has made the determinations that are required by section 241(b). In view of the fact that under 20 U.S.C. § 241(b), attendance at Fort Bragg Schools by dependents who reside in areas adjacent to Fort Bragg is permitted "only if" the Secretary of Education has made the specified determinations, we find that Proposal 2 is inconsistent with law and is, therefore, nonnegotiable. Compare National Federation of Federal Employees, Forest Service Council and U.S. Department of Agriculture, Forest Service, Washington, D.C., 45 FLRA 1204, 1210-11 (1992) (proposal seeking standby pay for employees is inconsistent with Government-wide regulation because certain requirements necessary to entitle employees to standby pay, which are set forth in 5 C.F.R. § 551.431(a)(2), are not satisfied); National Association of Agricultural Employees and U.S. Department of Agriculture, Animal and Plant Health Inspection Service, 22 FLRA 451, 455 (1986) (proposal seeking travel and per diem, which requires payment without regard to whether statutory and regulatory requirements for such payment have been met, is inconsistent with Federal law and Government-wide regulation).

IV. Proposal 3

Section 11. Bargaining unit members shall have at least a 30-minute, duty-free lunch period each day that students are in attendance or pay the unit member for such time. Unit members may leave the grounds at this time.

A. Positions of the Parties

The Agency claims that, under Authority precedent, a duty-free lunch period is non-negotiable. In support of this claim, the Agency relies on Overseas Education Association and Department of Defense Dependents Schools, 39 FLRA 153 (1991) (OEA and DODDS); and Fort Bragg Schools, 30 FLRA 508. According to the Agency, the Authority concluded that a proposal in the former decision requiring that employees be provided a duty-free lunch excessively interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute and that a similar proposal in the latter decision conflicted with the same management right. The Agency notes that the conclusion in Fort Bragg Schools was reached notwithstanding the union's stated intent that the proposal should be read as requiring that employees be paid if work were required during a duty-free lunch period. The Agency contends that Proposal 3, like the proposals in OEA and DODDS and Fort Bragg Schools, "would preclude the agency from assigning work during the duty-free period." Statement of position at 3. The Agency further states that "[i]n the event the Agency assigns work during the duty-free period, the proposal requires that the employee be paid . . . ." Id.

The Union describes this proposal as recognizing "the current practice of a thirty (30) minute duty-free lunch." Petition at 3. According to the Union, this proposal also recognizes the Agency's right to assign duties during that lunch period but requires compensation for the employees' loss of time. Citing Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990) (Fort Stewart), the Union contends that the employees to whom this proposal applies may bargain over wages. In response to the Agency's arguments, the Union reiterates that this proposal acknowledges the Agency's right to assign duties during the lunch period but "provides an appropriate arrangement for employees directed by management to work additional time." Response at 4.

B. Analysis and Conclusions

Initially, we note that the parties make no specific arguments concerning the negotiability of the second sentence of this proposal. Consequently, we will treat the proposal as a unit rather than addressing each sentence individually. As pointed out by the Agency, the Authority has in the past found that proposals that require that employees be given a duty-free lunch period directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, Fort Bragg Schools, 30 FLRA at 517-18; Overseas Education Association, Inc. and Department of Defense, Dependents Schools, 29 FLRA 628, 639, 645-46 (1987), reversed as to other matters, 876 F.2d 960 (D.C. Cir. 1989), decision on remand, 39 FLRA 153 (1991). However, the basis for finding that the proposals at issue in those cases directly interfered with management's right to assign work was that they precluded the assignment of work during the teacher's duty-free lunch period. As written and explained by the Union, Proposal 3 does not preclude the assignment of work, but, rather, requires that if work is demanded of bargaining unit employees during the "duty-free lunch period," they will be paid for the time. Thus, Proposal 3 is distinguishable from proposals at issue in the cases relied on by the Agency and does not interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.(3)

Proposal 3 seeks compensation for employees if they are required to work during their lunch period. Matters pertaining to the wages, or compensation, 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. 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 id.; American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 191-93 (1991). The employees to whom this proposal applies are subject to 20 U.S.C. § 241(a), which provides that their compensation may be fixed "without regard to the Civil Service Act and rules." Their wages, or compensation, are not specifically provided for by Federal statute and are not excluded from the definition of conditions of employment. See Fort Stewart, 495 U.S. at 649-50. Thus, unless a proposal seeking to negotiate over compensation for these employees is otherwise inconsistent with applicable law, rule, or regulation, it is subject to the duty to bargain. See Fort Stewart.

Other than its contention that this proposal interferes with its management right to assign work under section 7106(a)(2)(B) of the Statute, the Agency makes no claim that this proposal is inconsistent with law, rule, or regulation. Inasmuch as we have rejected the contention that this proposal interferes with management's right to assign work, and as no other basis is apparent to us for finding that this proposal is inconsistent with law, rule, or regulation, we conclude that it is negotiable. See id. In view of our conclusion that this proposal does not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute, it is unnecessary to address the Agency's claim that it excessively interferes with that management right and the Union's counterclaim that it constitutes an appropriate arrangement within the meaning of section 7106(b)(3).

V. Proposal 4

ARTICLE FOUR

ASSOCIATION RIGHTS AND OBLIGATIONS

Section 4. Upon written request, the Employer agrees to provide space to the Association for unit meetings of bargaining unit employees during non-instructional hours, if available and when it will not interfere with any school activity or function. Such use of school facilities will be with the prior approval of the Superintendent or his designee and in accordance with School Board Policy. The Association will be provided without charge an appropriate office including the use of a desk, chairs, telephone, a filing cabinet, facsimile machine, computer, electronic mail, and other communication technology as it may develop to which Management has access. The Association shall have 24 hour access to such office.

Upon receipt, mail addressed to the Association and received at the Fort Bragg Schools' central distribution point will be placed in the Association President's mailbox located in his/her school.

A. Positions of the Parties

The Agency contends that the part of this proposal that concerns meetings of bargaining unit members is nonnegotiable because it would preclude the assignment of duties when the meetings are being held. The Agency asserts that like Proposal 3, this part of the proposal excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The Agency argues that to the extent that Proposal 4 provides 24-hour access to the school, it interferes with management's right to determine its internal security practices under section 7106(a)(1) of the Statute, and is nonnegotiable for that reason. In this regard, the Agency contends that this portion of the proposal would prevent the Agency from restricting access to facilities in the interest of security concerns and personnel safety.

The Union contends that insofar as the portion of this proposal that concerns meetings during non-instructional hours is concerned, the language of the proposal specifies that such meetings will occur only "if the space is available and only when it will not interfere with any school activity or function, i.e. assignment of duties." Response at 5. The Union further states that the proposal stipulates that meetings can occur only with the prior approval of the Superintendent and if in accordance with School Board Policy. The Union argues that this proposal cannot be construed as inhibiting management's right to assign work because the meetings cannot take place unless management has approved them.

As to the portion of this proposal that concerns 24-hour access to the Union office, the Union asserts that "the Agency's objections are not pertinent in that a location for the office is not specified in the proposal." Id. The Union states that under the proposal the Union office may be located anywhere on base where 24-hour access would not be considered an interference with management's right to determine its internal security practices. Citing American Federation of Government Employees, Local 2452 and U.S. Department of Health and Human Services, Social Security Administration, District Office, Huntington Park, California, 45 FLRA 1213 (1992) (Member Armendariz concurring in part and dissenting in relevant part) (Social Security Administration, Huntington Park), in which the Authority found that a proposal concerning access to a work site by a union representative was negotiable as an appropriate arrangement notwithstanding the fact that it directly interfered with management's right to determine its internal security practices, the Union argues:

This reasoning applies to the proposal at issue here. It is at management's discretion as to where the union office will be located, and the employees will benefit from the increased access to representation assistance.

Response at 6.

B. Analysis and Conclusions

Although the first two sentences of Proposal 4 do not expressly refer to the release of employees to attend bargaining unit meetings, both parties construe them as addressing that issue. That construction provides the basis for the Agency's objection that the first portion of this proposal would mandate the release of employees from their duties to attend meetings. However, the Union denies that the proposal would have such effect, asserting that under the proposal the Agency retains the ability to prevent a meeting from occurring if it would conflict with the assignment of work to employees. The Union's statement of intent is consistent with the language of the proposal and is adopted for purposes of this decision. In view of this interpretation of the proposal, we reject the Agency's assertion that this proposal interferes with its management right to assign work under section 7106(a)(2)(B) of the Statute.

We now turn to the portion of the proposal that requires that the Union have 24-hour access to the Union office. Under section 7106(a)(1) of the Statute, the right to determine internal security practices includes the agency's right to determine the policies and practices that are necessary to safeguard its operations, personnel, and physical property against internal or external risks. See, for example, National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 708 (1990) (Environmental Protection Agency). An Agency's determination of when and how employees may gain access to agency facilities is within the agency's right to determine its internal security practices under section 7106(a)(1) of the Statute, where that determination is supported by a showing of a reasonable connection to internal security considerations. See, for example, Social Security Administration, Huntington Park, 45 FLRA at 1216. Similarly, a determination of when and how non-employees gain access to agency facilities is encompassed within that management right where supported by such a showing. See, for example, Environmental Protection Agency, 35 FLRA at 707-12.

The record in this case does not establish whether the proposal is limited to requiring access by employees or whether it extends to access by non-employee representatives of the Union. In either case, management's right to determine its internal security practices is implicated where a showing is made that a reasonable connection exists between access to agency facilities and internal security considerations. Here, the Agency contends that it has a need to retain the ability to restrict access to its facilities by Union representatives based on concerns for security and personnel safety. Although the Agency provides no further elaboration on this claim, the relationship between the need of a military base to retain the ability to restrict access to its premises and internal security considerations is obvious. Under these circumstances, we find that the Agency's claim establishes a reasonable connection between retaining the ability to restrict access to the military base at Fort Bragg and internal security considerations. By requiring that Union representatives have 24-hour access to a union office that is located on a military base, that portion of Proposal 4 directly interferes with management's right to determine its internal security practices.

Having found that this portion of Proposal 4 directly interferes with management's right to determine its internal security practices, we turn to the Union's claim that it is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1987) (KANG), the Authority established an analytical framework for determining whether a proposal constitutes an appropriate arrangement. First, we determine whether the proposal constitutes an arrangement for employees adversely affected by the exercise of a management right. To do this, we ascertain whether the proposal in question seeks to address, compensate for, or prevent adverse effects on employees produced by the exercise of management's rights. See National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA No. 24 (1994) (Patent and Trademark Office) (Member Armendariz, concurring in part and dissenting in relevant part). The fact that a proposal would provide benefits to employees, by itself, does not mean that the proposal constitutes an arrangement. See American Federation of Government Employees, Council of Prison Locals, Local 3974 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, McKean, Pennsylvania, 48 FLRA 225, 230-31 (1993); National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 45 FLRA 1256, 1258-59 (1992) (IRS, Office of Chief Counsel). Second, if we conclude that the proposal is an arrangement, we then determine whether the proposal is appropriate, or inappropriate because it excessively interferes with the exercise of a management right. We make this determination by weighing "the competing practical needs of employees and managers" to ascertain whether the benefit to employees flowing from the proposal outweighs the proposal's burden on the exercise of the management right or rights involved. See KANG, 21 FLRA at 31-32.

To support its claim that this portion of Proposal 4 constitutes an appropriate arrangement, the Union contends that it would afford employees "increased access to representation assistance." Response at 6. The Union relies on the Authority's decision in Social Security Administration, Huntington Park. There are, however, significant differences in the records of that case and this case. In Social Security Administration, Huntington Park, the proposal at issue required that a union representative be given the combination to the lock on the employees' entrance to the agency's Downey Office. The record in that particular case indicated that the union representative designated to represent the employees at the Downey Office was assigned to another work site and that the agency had adopted a new security policy of limiting disclosure of the entry combination to employees assigned to the Downey Office. According to the union in that case, the agency's new policy adversely affected the representative's access to unit employees, interrupted employees' and supervisors' work by requiring that the representative be admitted by someone in the office, impaired the effectiveness of unannounced union safety inspections, and created an unequal status between union and management. 45 FLRA at 1217. Based on those circumstances, the Authority found that the proposal constituted an arrangement within the meaning of section 7106(b)(3) of the Statute. In contrast, there is nothing in the record of this case to support a conclusion, nor is it otherwise apparent, that this portion of Proposal 4 would have the effect of ameliorating, or is intended to ameliorate, the adverse effects on employees flowing from the exercise of a management right.

It is well established that the parties bear the burden of creating a record on which the Authority can make a negotiability determination. A party failing to meet this burden acts at its peril. See, for example, American Federation of Government Employees, National Council of SSA Field Operations, Locals (C-220) and U.S. Department of Health and Human Services, Social Security Administration, District Office, Warren, Ohio, 47 FLRA 1304, 1310 (1993). Because the record is insufficient, we cannot conclude that the portion of Proposal 4 that requires that the Union have 24-hour access to the Union office constitutes an arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) of the Statute. See IRS, Office of Chief Counsel, 45 FLRA at 1258-59.

Accordingly, we conclude that the portion of Proposal 4 that requires that the Union have 24-hour access to the Union office is nonnegotiable.(4) In summary, Proposal 4 is negotiable except for that portion that concerns 24-hour access to the Union office.

VI. Proposal 5

Section 20. All Employer/Association business conducted during employee vacation, leave, or weekend time shall be on official time for pay purposes as provided for in 5 USC 7131(d)(2) for all unit employees involved.

A. Positions of the Parties

The Agency contends that this proposal is nonnegotiable because it is contrary to law. In this regard, the Agency asserts that under section 7131(a) and (c) of the Statute, an employee may obtain official time only if he or she otherwise would be in a duty status. The Agency argues that this proposal is inconsistent with those provisions because it mandates that employees be authorized official time for representational purposes without regard to duty status.

The Union states that, while management officials work a twelve-month year, the bargaining unit employees to whom this proposal applies work during the ten-month school year and are on leave for Christmas, spring, and summer holidays. The Union maintains that as a consequence of this circumstance, management actions that involve the Union may occur when the Union officials are on leave. According to the Union, under this proposal, Union representatives would be placed in a duty status and given official time when the Agency wishes to conduct labor relations business during periods when those Union representatives otherwise would be on leave status.

B. Analysis and Conclusions

This proposal seeks official time for bargaining unit employees who are conducting Union business with the Agency when they otherwise would be in a nonduty status.(5) While the Agency contends that this proposal is inconsistent with section 7131(a) and (c) of the Statute, the proposal itself explicitly refers to section 7131(d) as the legal authority for obtaining the official time.

The Authority previously has held that section 7131(d) of the Statute does not require that an employee be in a duty status in order to receive official time pursuant to that subsection. See, for example, U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service and National Weather Service Employees Organization, 36 FLRA 352, 358 (1990). In this regard, subsection (d) differs from subsections (a) and (c) of section 7131.

The Authority has held that official time for union representatives over and above that to which they are entitled under subsection (a) is negotiable under subsection (d) of section 7131. See, for example, National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration Medical Center, Brockton/West Roxbury, MA., 23 FLRA 542, 543 (1986); American Federation of Government Employees, AFL-CIO and U.S. Environmental Protection Agency, 15 FLRA 461, 463 (1984) ("[T]here is no indication that Congress intended to preclude negotiation of official time beyond that authorized as an entitlement in section 7131(a). To the contrary, section 7131(d) of the Statute expressly provides that, except for that already granted in the preceding subsections of section 7131, official time shall be granted by the agency for, inter alia, 'any employee representing an exclusive representative' in 'any amount' the parties agree to be 'reasonable, necessary, and in the public interest.'").

We find that a similar conclusion is warranted with respect to subsection (c). Subsection (c) provides that the Authority shall determine whether an employee participating for, or on behalf of, a labor organization in any phase of proceedings before the Authority shall be authorized official time for such purpose. We find that subsection (c) of section 7131 is not the exclusive means of providing official time for employees for that purpose and that under subsection (d) the parties may negotiate for official time for union representatives over and above that which is authorized under subsection (c). Compare U.S. Department of Justice, Immigration and Naturalization Service, Washington, D.C. v. FLRA, 4 F.3d 268, 273 (4th Cir. 1993) (Section 7131(c) is not the exclusive means of providing official time insofar as preparation of unfair labor practice charges is concerned.).

Although this proposal states that time spent engaged in Union/Agency business during the specified periods will be on official time for pay purposes, it does not specify the type of compensation that will be provided for that time. The circumstances present in this case are distinguishable from those present in American Federation of Government Employees, Local 900 and U.S. Department of the Army, U.S. Army Reserve Personnel Center, St. Louis, Missouri, 46 FLRA 1494, 1507-10 (1993). In that case we held that provisions seeking overtime pay or compensatory time for time spent engaged in representational activities when the union representative otherwise is not in a duty status are not negotiable because they are inconsistent with laws and regulations governing overtime compensation, specifically, 5 U.S.C. §§ 5542-5544, the Fair Labor Standards Act, and implementing regulations contained in 5 C.F.R. Part 551. In contrast to the circumstances underlying that case, the employees to which this proposal applies are not subject to the provisions of 5 U.S.C. §§ 5542-5544. 20 U.S.C. § 241(a). Also, it appears that most, if not all, of the employees in the bargaining unit are exempt from the overtime provisions of the Fair Labor Standards Act.(6) See 29 U.S.C. § 213(a)(1).

We find that under section 7131(d) of the Statute, parties may negotiate for official time over and above that to which they otherwise would be entitled under section 7131(a) and (c) to the extent that compensation attendant to such grants is consistent with Federal laws and applicable regulations that govern compensation for Federal employees. Based on the foregoing, we find that Proposal 5 is not inconsistent with section 7131 of the Statute and that it is negotiable.

VII. Proposal 6

ARTICLE EIGHT

HOURS OF WORK

Section 1. The work day shall consist of seven hours and thirty minutes without additional compensation.

A. Positions of the Parties

The Agency contends that this proposal is nonnegotiable because it interferes with its management rights to assign work and determine its mission under section 7106(a) of the Statute. Citing Fort Knox Schools, 27 FLRA 750, the Agency asserts that a proposal that limits the length of the school day is nonnegotiable because it interferes with the management right to assign work under section 7106(a)(2)(B) of the Statute. Additionally, relying on Fort Bragg Schools, 30 FLRA 508, the Agency contends that a proposal that establishes the duty day is inconsistent with management's right to determine the mission of the agency under section 7106(a)(1) of the Statute. In further support of its contention that this proposal is inconsistent with management's right to determine the mission of the agency, the Agency cites the Authority's decisions in Elementary School, West Point, 29 FLRA 1531, and SSA, 22 FLRA 868.

In its petition, the Union states that the current collective bargaining agreement defines the work day as consisting of seven hours and thirty minutes and that salaries are bargained based on a work day of that length. According to the Union, the words "without additional compensation" that are contained in this proposal recognize that while the work day has been set, management may, at its option, assign a longer work day. The Union contends that in the event that the work day is extended, management would be obligated to provide additional compensation. In response to the Agency's statement of position, the Union states that, like Proposal 3, this proposal concerns the "bargaining of pay and the appropriate arrangements for additional duties performed at management's direction." Response at 8.

B. Analysis and Conclusions

We find that this proposal is distinguishable from those in the decisions on which the Agency relies. Proposal 2 in Fort Knox Schools required that, under circumstances described in the proposal, students would be dismissed early. The Authority concluded that that proposal effectively would prevent the Agency from assigning certain kinds of work to unit employees in the described circumstances and, therefore, that it interfered with the management's right to assign work under section 7106(a)(2)(B) of the Statute. In SSA, the Authority concluded that a portion of Proposal 1 that prescribed office hours interfered with management's right to determine the mission of the agency under section 7106(a)(1) of the Statute and, consequently, was nonnegotiable. In reaching this conclusion, the Authority found that because a part of the mission of the agency was to provide services to the public, a decision regarding the particular hours when a Social Security field office would be open to the public is mission-related. In Elementary School, West Point, the Authority found that Proposal 3, in which the union sought to negotiate over the school calendar, directly interfered with the agency's right to determine its mission because the decision as to when instructional services are provided to students is mission-related. In Fort Bragg Schools, the Authority held that Proposal 8, which prescribed what the starting and ending time of the "normal day" for employees would be "except in emergencies and instances of staffing exigencies," directly interfered with the agency's right under section 7106(a)(1) of the Statute to determine its mission because the decision as to the starting and ending time of each instructional day is mission-related.

As written and explained by the Union, the work day that is defined in Proposal 6 is set forth for the purpose of establishing compensation. Under this proposal, the Agency remains free to extend the work day beyond seven hours and thirty minutes, but must provide additional compensation if it does so. Thus, in contrast to the proposals in the decisions cited above, Proposal 6 does not interfere with the Agency's ability to assign work to employees beyond the defined seven hours and thirty minute work day and does not prevent the Agency from determining when and for how long it will provide mission-related, that is, instructional, services each day. Consequently, we reject the Agency's argument that this proposal directly interferes with management's rights to determine the mission of the agency under section 7106(a)(1) and to assign work under section 7106(a)(2)(B) of the Statute. In view of our conclusion that this proposal does not directly interfere with management's rights, it is unnecessary to address the Union's claim that this proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

As we noted in our discussion of Proposal 3 above, the compensation of the employees to whom this proposal applies is governed by the provisions of 20 U.S.C. § 241 and, consequently, is subject to the duty to bargain. Based on the foregoing, we conclude that Proposal 6 is negotiable.

VIII. Proposal 7

ARTICLE TWELVE

REDUCTION IN FORCE

Section 6. Employees whose employment has been terminated as a result of a RIF [reduction-in-force] will be notified of vacancies in other Section 6 schools for priority consideration and will be rehired to a position at the Fort Bragg Schools for a period of two years to any vacancy for which they are qualified in the unit.

A. Positions of the Parties

The Agency contends that this proposal is nonnegotiable because it excessively interferes with management's rights under section 7106(a) of the Statute to hire and assign employees and make selections in filling positions. The Agency argues that this proposal is like Proposal 2 in American Federation of Government Employees, AFL-CIO, Local 3186 and Department of Health and Human Services, Office of Social Security Field Operations, Philadelphia Region, 23 FLRA 230 (1986) (Social Security Field Operations, Philadelphia Region), which the Authority found excessively interfered with management's rights because it mandated the filling of vacancies. The Agency asserts that this proposal similarly would "abrogate the Agency's discretion to fill or not fill vacant positions" and, therefore, does not constitute an appropriate arrangement under section 7106(b)(3) of the Statute. Statement of position at 6.

The Union contends that this proposal constitutes an appropriate arrangement for adversely affected employees and requires that they be rehired into "any vacancy to which they are eligible, qualified, and which management wishes to fill." Response at 8. The Union asserts that this proposal is similar to the proposal in National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, Topeka, Kansas, 21 FLRA 380 (1986) (Kansas Army National Guard, Topeka, Kansas). According to the Union, the Authority found in that case that the burden on management to rehire employees was slight in comparison to the trauma of losing one's job in a reduction-in-force and that the proposal was negotiable. The Union contends that requiring the Agency to rehire an employee "into a vacancy of a job they would normally otherwise be holding[]" cannot be considered a burden on management. Response at 9.

B. Analysis and Conclusions

The Union states that under this proposal the Agency retains the discretion to decide whether to fill a vacancy. This statement of intent is consistent with the proposal as written and is adopted for purposes of this decision. Thus, we interpret the proposal as applying only when the Agency has elected to fill a vacancy in the bargaining unit. Once that decision is made, the proposal would require the Agency to rehire any employee who has been terminated in a RIF within the prior two years and who is qualified for the position.

The Agency asserts, and the Union does not dispute, that this proposal interferes with management's rights to hire and assign employees under section 7106(a)(2)(A) of the Statute and to make selections in filling positions under section 7106(a)(2)(C). However, they dispute whether the proposal is nevertheless negotiable as an appropriate arrangement. To determine whether it is, we apply the analytical framework that was set forth in KANG, 21 FLRA 24, which is summarized in our discussion of Proposal 4 above.(7) Initially, we consider whether this proposal constitutes an arrangement for employees who have been adversely affected by the exercise of management's rights. This proposal relates solely to employees who have been terminated in a RIF and provides them with a means of being rehired into bargaining unit positions. Thus, the proposal clearly is intended to compensate for adverse effects on employees that flow from management's right to layoff employees under section 7106(a)(2)(A) of the Statute. Consequently, we find that it constitutes an arrangement within the meaning of section 7106(b)(3) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 29 FLRA 380, 389-421 (1987) (Member Frazier concurring in part and dissenting in part), aff'd, 864 F.2d 165 (D.C. Cir. 1988); National Association of Government Employees, Local R14-87 and The Adjutant General of Kansas, 21 FLRA 313, 314-15 (1986). Compare, for example, KANG, 21 FLRA at 33-34 (proposal requiring repromotion of employees demoted in a RIF constituted an appropriate arrangement).

Termination from employment in a RIF has a severe and negative impact on any employee who undergoes that action. See, for example, KANG, 21 FLRA at 33. Employees subjected to such actions suffer involuntary removal from their employment and a corresponding loss of all the compensation and benefits that their employment provides them. In the face of such severe consequences, this proposal offers a significant benefit to employees who are subjected to termination in a RIF in that it provides them with a means of regaining their employment and the compensation and benefits that accompany that employment.

This proposal also would have a significant effect on the management rights cited by the Agency. Under this proposal, when the Agency fills a vacancy in the bargaining unit it must offer the position to any employee who has been terminated in a RIF within the prior two years and who is qualified for the position. It should be emphasized that this proposal does not require the Agency either to fill a vacancy that it does not choose to fill or to fill vacancies with unqualified employees. The fact that this proposal leaves the Agency with the discretion to decide whether to fill a vacancy and provides that the rehired employee must be qualified for any position offered tempers the burden that it places on management's ability to conduct its operations in an effective and efficient manner.

On balance, we conclude that the benefits that this proposal affords employees who are adversely affected by the exercise of management's rights outweigh the burdens placed on the Agency. Consequently, we find that Proposal 7 does not excessively interfere with management's rights and that it constitutes an appropriate arrangement that is negotiable under section 7106(b)(3) of the Statute. Compare 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, 520-21 (1987) (section 6 of Provision 7, which required that where management elected to fill a vacancy it would do so with a qualified individual from a list of employees whose employment had been affected by a RIF, constituted an appropriate arrangement) and Kansas Army National Guard, Topeka, Kansas, 21 FLRA 380 (proposal that required that employees be selected noncompetitively for position from which they were reassigned in a RIF when the position became vacant and agency decided to fill it constituted an appropriate arrangement) with Social Security Field Operations, Philadelphia Region, 23 FLRA at 233-35 (Proposal 2, which required that temporary employees who had been terminated without personal fault be recalled and did not preserve the agency's ability to decide whether to fill positions, was not an appropriate arrangement because it excessively interfered with management's rights) and National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, 21 FLRA 905, 906-8 (1986) (Proposal 2, which required the employees who had been transferred as a result of a RIF to a different duty station be offered vacant positions at their original duty station without regard to whether the employee was qualified for the position or whether the agency wished to fill the vacancy, excessively interfered with management's rights).

IX. Proposals 8 and 9

[Proposal 8]

ARTICLE TWENTY-FOUR

PAY AND BENEFITS

Section 2. The base rate and application of professional compensation for all bargaining unit members except instructional assistants will be the rate of pay annually established by the Department of Defense Wage Fixing Authority. Career Status bonuses presently in place shall not be affected by this agreement.

[Proposal 9]

Section 4. Employees who are assigned work beyond the duty day will be paid on an hourly basis. Supervisors will issue extracurricular agreement contracts to all impacted employees. The extracurricular pay and policies of the Department of Defense Dependents Schools for the OEA Unit will apply to the unit members.

A. Positions of the Parties

The Agency asserts that these proposals are nonnegotiable because they are inconsistent with Federal law, specifically 20 U.S.C. § 241. According to the Agency, these proposals would require that the pay rates and practices that are established by the Department of Defense Wage Fixing Authority for Department of Defense Dependents Schools (DoDDS) teachers overseas be applied to bargaining unit employees. The Agency contends that because of the manner in which compensation for the overseas teachers is set, applying those pay rates to the bargaining unit is incompatible with the clear intent of section 241, which governs compensation for teachers in the bargaining unit. In this regard, the Agency states that 20 U.S.C. §§ 902-3, which govern compensation for the overseas teachers, require that basic compensation be fixed at rates equal to the average of the range of rates of basic compensation for similar positions of a comparable level of duties and responsibilities in urban school jurisdictions in the United States of 100,000 or more population. The Agency contrasts this requirement to that in 20 U.S.C. § 241, which requires that the education provided by a dependents school in the continental United States, Alaska, and Hawaii be comparable to that provided in comparable communities in the state in which a particular school is located. Additionally, the Agency points out that section 241(e) requires that, to the maximum extent practicable, the total payments for providing an education to dependents be limited to an amount per pupil that will not exceed per pupil costs provided for children in comparable communities in the state in which the dependents school is located.

The Agency argues that because costs attendant to the employment of teachers, such as wages and fringe benefits, constitute a significant component of the total per pupil expenditure, requiring it to adopt the salary schedule that applies to overseas teachers will "most likely result in the Agency exceeding the maximum per pupil cost." Statement of position at 9. The Agency contends that in order to comply with the statutory requirements for comparability, wages, and fringe benefits for employees in the bargaining unit to which these proposals apply must be based on a comparison of compensation in various communities in North Carolina. The Agency asserts that these proposals are inconsistent with 20 U.S.C. § 241 because they would require it "to adopt the salary schedules for DoDDS without regard to comparability." Id.

The Union contends that these proposals are negotiable. In its petition, the Union describes Proposal 8 as providing that the rate of pay set by the Department of Defense Wage Fixing Authority for DoDDS teachers overseas be adopted as the base rate for bargaining unit teachers at the Fort Bragg Schools. The Union describes Proposal 9 as adopting the process used by DoDDS for determining pay for extracurricular assignments outside the school day for overseas teachers.

In response to the Agency's statement of position, the Union contends that, consistent with the Supreme Court's decision in Fort Stewart, the teachers to whom these proposals apply may bargain over pay. The Union asserts that in Fort Stewart the Court held that section 241 requires comparability between a dependents school and the state in which it is located only insofar as total per pupil expenditures are concerned and not with respect to each component of the per pupil expenditures. The Union maintains that the Agency's arguments are the same as those rejected by the Court in Fort Stewart and are an attempt to relitigate that case.

B. Analysis and Conclusions

These proposals seek to negotiate over compensation that will be provided bargaining unit employees. As we discussed in conjunction with Proposal 3, unless a proposal seeking to negotiate over compensation for these employees is otherwise inconsistent with applicable law, rule, or regulation, it is subject to the duty to bargain. See Fort Stewart.

Initially, we note that 20 U.S.C. § 241(e) does not require that compensation for the employees to whom these proposals apply be set by comparison with that provided employees at local public schools. As stated by the Supreme Court in Fort Stewart:

All that can reasonably be deduced from the exclusion of the General Schedules is that Congress expected teachers' wages and benefits to be one of the elements that the federal agency could adjust in order to render per pupil expenditure comparable to that in local public schools. But to be able to adjust is not to be required to make equal. The statute requires equivalence ("[t]o the maximum extent practicable") in total per pupil expenditure, not in each separate element of educational cost.

495 U.S. at 656.

Insofar as these proposals are concerned, the Agency asserts that adopting pay rates and practices that are applied to DoDDS teachers overseas would "most likely result in the Agency exceeding the maximum per pupil cost." Statement of position at 9. Significantly, the Agency states only that this result is "most likely" and does not provide any data, or evidence, to substantiate this claim. Thus, we have no basis for concluding that adoption of the proposed pay rates and practices necessarily would result in the Agency exceeding the total per pupil costs that are referred to in 20 U.S.C. § 241(e). Additionally, as stated above, section 241(e) does not establish an absolute limitation on total per pupil expenditures in the dependents schools. Rather, it requires that "to the maximum extent practicable," such expenditures will not exceed the per pupil cost of free public education provided for children in comparable communities in the state in which the dependents schools are located. In our view, this statutory provision relating to equivalence in per pupil costs allows the parties considerable latitude for bargaining and we conclude that it would best effectuate the Statute to permit them to explore possibilities for agreement within the statutory parameters. Compare Association of Civilian Technicians, Arizona Army Chapter 61 and U.S. Department of Defense, National Guard Bureau, Arizona National Guard, 48 FLRA 412, 418-19 (1993) (to the extent that a proposal to provide uniforms to employees can be implemented consistent with 5 U.S.C. § 5901, it is consistent with law within the meaning of section 7117(a)(1) of the Statute and is negotiable).

Here, the Agency has not demonstrated that these proposals necessarily would prevent it from achieving the overall cost limitations addressed in 20 U.S.C. § 241(e). Based on the foregoing, we conclude that Proposals 8 and 9 are negotiable.

X. Order

The Agency must, upon request, or as otherwise agreed to by the parties, negotiate on Proposals 1, 3, 4, except insofar as it requires 24-hour access to the Union office, 5, 6, 7, 8, and 9.(8) The petition for review is dismissed insofar as it concerns Proposal 2 and that portion of Proposal 4 that seeks 24-hour access to the Union office.

APPENDIX

20 U.S.C. § 241 provides in relevant part:

§ 241. Education of children where local agencies cannot supply facilities

(a) Necessary arrangements by Secretary; standard of education

In the case of children who reside on Federal property--

(1)if no tax revenues of the State or any political subdivision thereof may be expended for the free public education of such children; or

(2) if it is the judgment of the Secretary, after he has consulted with the appropriate State educational agency, that no local educational agency is able to provide suitable free public education for such children,

the Secretary shall make such arrangements (other than arrangements with respect to the acquisition of land, the erection of facilities, interest, or debt service) as may be necessary to provide free public education for such children. Such arrangements to provide free public education may also be made for children of members of the Armed Forces on active duty, if the schools in which free public education is usually provided for such children are made unavailable to them as a result of official action by State or local governmental authority and it is the judgment of the Secretary, after he has consulted with the appropriate State educational agency, that no local educational agency is able to provide suitable free public education for such children. To the maximum extent practicable, the local educational agency, or the head of the Federal department or agency, with which any arrangement is made under this section shall take such action as may be necessary to ensure that the education provided pursuant to such arrangement is comparable to free public education provided for children in comparable communities in the State, or, in the case of education provided under this section outside the continental United States, Alaska, and Hawaii, comparable to free public education provided for children in the District of Columbia. For the purpose of providing such comparable education, personnel may be employed and the compensation, tenure, leave, hours of work, and other incidents of the employment relationship may be fixed without regard to the Civil Service Act and rules and the following: (1)chapter 51 and subchapter III of chapter 53 of Title 5; (2) subchapter I of chapter 63 of Title 5; (3) sections 5504, 5541 to 5549, and 6101 of Title 5; (4) sections 1302(b), (c), 2108, 3305(b), 3306(a)(2), 3308 to 3318, 3319(b), 3320, 3351, 3363, 3364, 3501 to 3504, 7511, 7512, and 7701 of Title 5; and (5) chapter 43 of Title 5. Personnel provided for under this subsection outside of the continental United States, Alaska, and Hawaii, shall receive such compensation, tenure, leave, hours of work, and other incidents of employment on the same basis as provided for similar positions in the public schools of the District of Columbia. In any case where education was being provided on January 1, 1955, or thereafter under an arrangement made under this subsection for children residing on an Army, Navy (including the Marine Corps), or Air Force installation, it shall be presumed, for the purposes of this subsection, that no local educational agency is able to provide suitable free public education for the children residing on such installation, until the Secretary and the Secretary of the military department concerned jointly determine, after consultation with the appropriate State educational agency, that a local educational agency is able to do so.

(b) Education of children in adjacent areas

In any case in which the Secretary makes such arrangements for the provision of free public education in facilities situated on Federal property, he may also make arrangements for providing free public education in such facilities for children residing in any area adjacent to such property with a parent who, during some portion of the fiscal year in which such education is provided, was employed on such property, but only if the Secretary determines after consultation with the appropriate State educational agency (1) that the provision of such education is appropriate to carry out the purposes of this subchapter, (2) that no local educational agency is able to provide suitable free public education for such children, and (3) in any case where in the judgment of the Secretary the need for the provision of such education will not be temporary in duration, that the local educational agency of the school district in which such children reside, or the State educational agency, or both, will make reasonable tuition payments to the Secretary for the education of such children. . . .

. . . .

(e) Limit on payments

To the maximum extent practicable, the Secretary shall limit the total payments made pursuant to any such arrangement for educating children within the continental United States, Alaska, or Hawaii, to an amount per pupil which will not exceed the per pupil cost of free public education provided for children in comparable communities in the State. The Secretary shall limit the total payments made pursuant to any such arrangement for educating children outside the continental United States, Alaska, or Hawaii, to an amount per pupil which will not exceed the amount he determines to be necessary to provide education comparable to the free public education provided for children in the District of Columbia.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. In its statement of position, the Agency withdrew its allegations of nonnegotiability concerning 17 other proposals that had been included in the petition. In its response, the Union requested to withdraw two of the remaining proposals. While this case was pending, Executive Order 12871 issued. 58 Fed. Reg. 52201 (1993). In view of section 2 of that Executive Order, the Agency withdrew its allegations of nonnegotiability concerning two additional proposals, one of which the Union had requested to withdraw in its response. As those 20 proposals are no longer in dispute, we will not consider them further.

2. The portions of 20 U.S.C. § 241 that are relevant to this decision are set forth in the Appendix.

3. As the Agency points out with respect to Proposal 9 in Fort Bragg Schools, the union stated in that case that the proposal "should be read as requiring that employees be paid if work is required during a scheduled duty-free lunch period." 30 FLRA at 518. However, nothing in the language of the proposal itself suggested such an interpretation and the Authority found that the proposal "prohibits the assignment of duties during the duty-free period" and on that basis concluded that the proposal was nonnegotiable. Id.

4. Member Armendariz notes that, consistent with National Labor Relations Board v. FLRA, 2 F.3d 1190 (D.C. Cir. 1993) (NLRB v. FLRA), United States Department of Justice, Immigration and Naturalization Service v. FLRA, 975 F.2d 218 (5th Cir. 1992), United States Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158 (D.C. Cir. 1992), and his separate opinion in Patent and Trademark Office, in his view in order for a proposal to constitute an arrangement within the meaning of section 7106(b)(3) of the Statute it must be tailored so as to benefit or compensate only those employees who would suffer an identifiable adverse effect as a result of an exercise of a management right. Applying that standard to the proposal at issue here, Member Armendariz concurs with his colleagues, for the reasons stated by them, that the record is insufficient to determine whether Proposal 4 constitutes an arrangement within the meaning of section