51:0733(63)NG - - NEA, OEA, Laurel Bay Teachers Assoc. and DOD, Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, SC - - 1996 FLRAdec NG - - v51 p733



[ v51 p733 ]
51:0733(63)NG
The decision of the Authority follows:


51 FLRA No. 63

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL EDUCATION ASSOCIATION

OVERSEAS EDUCATION ASSOCIATION

LAUREL BAY TEACHERS ASSOCIATION

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEPARTMENT OF DEFENSE DOMESTIC SCHOOLS

LAUREL BAY DEPENDENTS SCHOOLS

ELEMENTARY AND SECONDARY SCHOOLS

LAUREL BAY, SOUTH CAROLINA

(Agency)

0-NG-2222

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

January 11, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This case is before the Authority on an appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the Agency's duty to bargain over two provisions of a Memorandum of Understanding (MOU) that were disapproved by the Agency head under section 7114(c) of the Statute.(1)

For the reasons that follow, we direct the Agency to rescind its disapproval of the first disputed sentence of Provision 1 and all of Provision 2. We dismiss the petition for review as to both the second and the final disputed sentences of Provision 1.

In particular, we find that the first disputed sentence of Provision 1, providing for a "normal duty day" extending from 7:45 to 3:15, is within the duty to bargain. We dismiss the petition for review concerning the second disputed sentence of Provision 1, enumerating activities for which employees will be expected to work an "extended work day," because the Union has not created a record sufficient for us to determine whether it is within the duty to bargain. We find that the last disputed sentence of Provision 1, permitting certain employees to leave work following the dismissal of students on the Friday of conference week, is outside the duty to bargain because it affects the exercise of management's right to assign work, within the meaning of section 7106(a)(2)(B) of the Statute, and the Union has not demonstrated how the sentence would constitute an appropriate arrangement under section 7106(b)(3) of the Statute. Finally, we find that Provision 2, providing for the integration of the dates and times of scheduled Union meetings into the school calendar, does not affect the exercise of management's right to assign work, within the meaning of section 7106(a)(2)(B), and is within the duty to bargain.

II. Provision 1

Section 1. Professional Employee Work Day

The normal duty day for all professional employees will be 7:45 to 3:15. However, teachers are expected to work an extended work day for the following required activities:

- PTO Meetings (Open House) and all other activities when the activity involves the teacher's class.

- Routinely scheduled Parent Teacher conferences and special conferences as deemed necessary.

- Case Study/Pre-Referral team meetings.

- Grade Level Meetings that are relevant to the teacher's class.

- Faculty/Staff Meetings.

Teachers will be required to volunteer for at least one committee during the school year.

Required conferences will be scheduled by the teacher during the conference week starting at 1:15 Tuesday through Friday. A work day will precede conference week. When a teacher has completed all scheduled conferences, he/she may leave after the children are dismissed on Friday. Any teacher not involved in conferences will work a regular schedule each day of conference week.

[Only the underlined portions of the provision are in dispute.]

A. Positions of the Parties

1. Agency

The Agency head disapproved only three of the six sentences in Provision 1. As to the first, the Agency asserts that the sentence conflicts with its right to determine its mission by limiting when mission-related instructional services can be provided to students. The Agency relies on the Authority's decision in American Federation of Government Employees, Local 3231 and Social Security Administration, 22 FLRA 868, 869-70 (1986) (Social Security Administration).(2) As to the second disputed sentence, the Agency asserts a conflict with its right to assign work by preventing it "from assigning any other activity not listed in the provision." Statement of Position at 2. Finally, as to the last disputed sentence of Provision 1, the Agency asserts a conflict with its right to assign work by limiting the duties that can be assigned during the normal work day.

2. Union

The Union states that Provision 1 does not interfere with any management rights because it resulted from "bargaining over pay[,]" and is merely an attempt "to define, for pay purposes, what would constitute a normal duty day."(3) Petition for Review at 2. The Union maintains that "to bargain fair compensation for services performed, it must first be established what the employee will be doing and for how long[.]" Reply Brief at 3. The Union asserts that the provision does not prohibit management from varying employees' schedules because that right is "implicit by the nature of the laws governing labor-management relations." Id. at 5. In support, the Union contends that Provision 1 is consistent with proposals that the Authority held to be within the duty to bargain in Fort Bragg (Proposals 3 and 6).(4) In addition, the Union argues that the provision should be "compared" to one found within the duty to bargain as an appropriate arrangement in American Federation of Government Employees, Local 3157 and U.S. Department of Agriculture, Federal Grain Inspection Service, 44 FLRA 1570 (1992) (Federal Grain Inspection Service). Reply Brief at 4. The Union asserts that the Agency's interpretation of the second disputed part of Provision 1 "place[s] an artificial limitation on management's own right to assign work and contradicts established labor-management practices." Id.

B. Analysis and Conclusions

1. Sentence Establishing Duration of "Normal Duty Day"

The first disputed sentence of Provision 1 states that the "normal duty day . . . will be 7:45 to 3:15." The Union asserts that the sentence is intended to establish the normal duty day for compensation purposes only and that management retains the authority to change the duty day, provided the Agency negotiates with the Union before implementing the change. However, the sentence is silent with respect to compensation and management's ability to assign work or vary the prescribed duty day.

When a provision is silent as to a particular matter, a Union statement clarifying the matter is considered consistent with the proposal's plain wording so long as the statement otherwise comports with the proposal's wording. See International Federation of Professional and Technical Engineers, Local 3 and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 51 FLRA No. 40 (1995), slip op. at 3 (Member Armendariz concurring in part). The Union's statements that the first sentence of Proposal 1 is intended to address compensation and does not limit management's ability to change duty hours are consistent with its wording.(5) Therefore, we adopt the Union's interpretation and construe this sentence as defining the normal duty day for compensation purposes only and as not preventing management from changing the hours of work.(6) See, e.g., American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 138-39 (1995) (Fort McPherson).

Based on the Union's interpretation, we find that the first sentence of Provision 1 "does not prevent the Agency from determining when and for how long it will provide mission-related, [i.e.], instructional, services each day," and, thus, that it does not "affect the authority" of management to determine its mission, within the meaning of section 7106(a)(1) of the Statute. Fort Bragg, 49 FLRA at 350. Therefore, we conclude that the first disputed sentence of Provision 1 is within the duty to bargain.

2. Sentence Listing "Extended Work Day" Activities

The second disputed sentence of Provision 1 describes the activities for which employees will be "expected to work an extended work day." This sentence is ambiguous. Although the list of activities is not explicitly "illustrative," the phrase "are expected to work" is not clear. In this regard, the dictionary definition of "expect" includes: "to consider probable or certain" and "to consider (a person) obligated or duty bound[.]" Webster's Third New International Dictionary (1986). Thus, the sentence could be read as expressly limiting the work that employees are "obligated" to do during an "extended work day." It also could be read as describing what employees should consider they would "probably" be asked to do. The Union does not specifically address the intent of the disputed sentence and, in particular, fails to explain the meaning of the phrase "expected to work an extended work day." Rather, the Union merely argues that this sentence is within the duty to bargain without establishing the basis for that assertion.

As the meaning of the second disputed sentence of Provision 1 is ambiguous, and the Union has not adequately explained its meaning and purpose, we are unable to determine whether it would, as the Agency asserts, limit the work it can assign to employees. The record is insufficient for us to understand this disputed sentence and evaluate the parties' arguments concerning it. Accordingly, we dismiss the petition for review as to this sentence. See, e.g., National Federation of Federal Employees, Local 2024 and U.S. Department of the Interior, Bureau of Land Management, Medford District Office, 48 FLRA 1411, 1413 (1994) and National Federation of Federal Employees, Forest Service Council, Region 8 and U.S. Department of Agriculture, Forest Service, 49 FLRA 970 (1994).

3. Sentence Concerning Teachers' Departure on Friday of Conference Week

The Union makes no assertions regarding the intent and effect of this final disputed sentence of Provision 1. However, unlike the sentence discussed in subsection B.2 above, the plain wording of this disputed sentence provides a reasonable basis for determining its meaning and intent. That is, the final sentence of Provision 1, without limitation, authorizes certain employees to leave work on certain days following the departure of the students. As the disputed sentence cites no circumstances in which management could require these employees to remain at work, and the Union does not indicate that management retains the right to do so, we interpret this sentence as preventing management from assigning work to the affected employees after the students are dismissed on the Friday of conference week.

It is well established that the right to assign work under section 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. In particular, the Authority previously has found that provisions which prescribe the duration and/or number of meetings that employees can be required to attend after the work day directly interfere with the exercise of management's right to assign work. Fort Bragg Association of Teachers and U.S. Department of the Army, Fort Bragg Schools, Fort Bragg, North Carolina, 44 FLRA 852, 861-62 (1992) (Fort Bragg Schools) (Provision 1 and the first sentence of Provision 2). In so doing, the Authority noted that the provisions were substantively similar to proposals found outside the duty to bargain because they "either would have required management to assign work to teachers during their duty day or would have prevented the assignment of work outside the duty day." Id. at 861 (citations omitted). As we have interpreted the final disputed sentence of Provision 1 to limit the Agency's authority to assign work on the Friday of conference week to certain hours, for the reasons stated in Fort Bragg Schools, it "affects the authority" of management to assign work. 5 U.S.C. § 7106(a)(2)(B).

Although the Union asserts that Provision 1 constitutes an appropriate arrangement, it explains neither how employees are adversely affected by the exercise of a management right, nor the manner in which the final disputed sentence of Provision 1 would mitigate that adverse effect.(7) Both elements are essential in establishing whether a provision constitutes an arrangement under section 7106(b)(3) of the Statute. Consequently, the Union has not met its burden under National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986) and, as a result, we are unable to conclude that it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Therefore, we conclude that the sentence is outside the duty to bargain.

III. Provision 2

The parties agree that the LBTA may hold executive and general meetings of the Association after release of the children at the school facilities. Meeting days and times will be integrated into the school calendar.

A. Positions of the Parties

1. Agency

The Agency notes that, in Laurel Bay Teachers Association, OEA/NEA and U.S. Department of Defense, Department of Defense, Stateside Dependents Schools, Laurel Bay Schools, Laurel Bay, South Carolina, 49 FLRA 679, 680-81 (1994) (Laurel Bay Schools), which involved the same parties, "similar language" to that in the first sentence of Provision 2 was found not to limit management's ability to assign work, and, consequently, to be within the duty to bargain. Statement of Position at 4. However, the Agency contends that the second sentence in Provision 2 renders the entire provision outside the duty to bargain. The Agency argues that by requiring publication of Union meetings in the school calendar, which is published at the beginning of the school year, the second sentence of Provision 2 would commit the Agency to previously approved dates and times of those meetings well in advance of their occurrence. The Agency contends that the provision affects its right to assign work by preventing it from canceling Union meetings because of unanticipated work load requirements arising at the time the meetings are scheduled on the calendar.

2. Union

The Union asserts that the provision:

would simply publicize the meeting schedule in the school calendar. Implied in the advance setting of any schedule is the knowledge that situations may arise necessitating the deviation from the planned schedule. This obviously includes the needs and requirements of management to assign work to employees.

Reply Brief at 7.

B. Analysis and Conclusions

The parties agree that the first sentence of Provision 2, standing alone, is within the duty to bargain under the Authority's holding in Laurel Bay Schools, 49 FLRA at 680-81, that a similarly-worded proposal did not directly interfere with management's right to assign work. Additionally, the Union's assertion that the second sentence of Provision 2 is only intended to notify employees of the date and time of scheduled meetings is consistent with the provision's plain wording, as that sentence is silent on the matter and the statement otherwise comports with the provision's wording. Therefore, we adopt the Union's interpretation. See, e.g., Fort McPherson, 51 FLRA at 138-39.

Consistent with the holding in Laurel Bay Schools, and the Union's statement of intent interpreting the second sentence of Provision 2, we find that the provision does not limit management's authority to postpone meetings because of workload, even after the meetings have been approved for inclusion in the school calendar. For example, as the provision does not prescribe how the meeting dates will be integrated into the school calendar, nothing would prevent the Agency from indicating in some manner, in the calendar or elsewhere, that the listed dates are subject to change. Accordingly, we find that Provision 2 does not "affect the authority" of management to assign work.(8) 5 U.S.C. § 7106(a)(2)(B). We conclude, therefore, that the provision is within the duty to bargain. See Laurel Bay Schools, 49 FLRA at 681.

IV. Order

The Agency is directed to rescind its disapproval of the first sentence of Provision 1 and Provision 2.(9) The petition for review as to the other disputed sentences of Provision 1 is dismissed.




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

1. The Union requests that we sever "any sentences, phrases, or words of an article found nonnegotiable" and deal with them separately from other disputed parts of the MOU found to be within the duty to bargain. Reply Brief at 1. We grant the request to the limited extent that we will resolve the negotiability issue as to portions of the provisions that, in our view, can stand independently of the rest of the provision and have been specifically addressed by the parties. See, e.g., American Federation of Government Employees, Local 2077 and U.S. Department of Defense, Michigan Air National Guard, 127th Tactical Fighter Wing, 43 FLRA 344, 353 n.7 (1991).

2. In Social Security Administration, the Authority concluded that a proposal establishing the office hours of certain agency district and branch offices was outside the duty to bargain because it conflicted with the Agency's right to determine its mission. The Authority stated that "since a part of the mission of the [a]gency in this case is to provide services to the public, a decision regarding the particular hours when a Social Security field office is to be open to the public is mission-related." 22 FLRA at 869.

3. The Union may bargain over compensation matters affecting the professional employees in its bargaining unit, so long as its proposal/provision is otherwise consistent with law. See U.S. Department of Defense, Fort Bragg Dependents Schools, Fort Bragg, North Carolina and Fort Bragg Association of Educators, OEA/NEA, 49 FLRA 333, 339-40 (1994) (Fort Bragg).

4. Proposal 3 in Fort Bragg authorized a 30-minute duty-free lunch period, but expressly allowed management to assign work during that period for additional compensation. As the proposal permitted the Agency to assign work during the period, the Authority rejected the agency's sole argument that the proposal interfered with its right to assign work. Proposal 6 provided that "the work day shall consist of seven hours and thirty minutes without additional compensation." The Authority concluded that the proposal did not interfere with the agency's rights to determine its mission and assign work because it did not "interfere with the Agency's ability to assign work to employees beyond the defined seven hours and thirty minute work day and [did] not prevent the Agency from determining when and for how long it will provide mission-related . . . instructional[] services each day." 49 FLRA at 350.

5. Insofar as any future changes in hours of the duty day result from the Agency's exercise of its right to determine its mission, we find nothing in the wording of the sentence that would require negotiation over the substance of such changes. Rather, we deem the Union's reference to the Agency's obligation to "negotiate . . . prior to implementing the change" to encompass only impact and implementation bargaining. Reply Brief at 4.

6. This interpretation provides a basis for our determination in this case and also would apply in resolving any other dispute over the meaning of the sentence. For example, this interpretation would apply in an arbitration proceeding involving the construction of the first disputed sentence of Provision 1.

7. The Union asserts only that the provision "should be compared to" one held to be an appropriate arrangement in Federal Grain Inspection Service. Reply Brief at 4. However, the Union does not explain how the determination that Proposal 3 in that case constituted an appropriate arrangement applies to the final disputed sentence of Provision 1.

8. As with the first disputed sentence of Provision 1, this