---

53 FLRA No. 71

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL EDUCATION ASSOCIATION

OVERSEAS EDUCATION ASSOCIATION

FORT BRAGG ASSOCIATION OF EDUCATORS

(Union)

and

U.S. DEPARTMENT OF DEFENSE

DEPARTMENT OF DEFENSE DOMESTIC DEPENDENTS

ELEMENTARY AND SECONDARY SCHOOLS

FORT BRAGG, NORTH CAROLINA

(Agency)

0-NG-2251

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

November 18, 1997

_____

Before the Authority: Phyllis N. Segal, Chair; and Donald S. Wasserman, Member.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute).⁽¹⁾ It concerns the negotiability of four proposals.⁽²⁾ The proposals relate to the Agency's Career Development Program and, more specifically, to various aspects of "Career Status I" and "Career Status II," which are described below.

For the reasons that follow, we find the following:

Proposal 1, which identifies a specific course that would satisfy the requirements for Career Status I eligibility, is outside the duty to bargain. See Part V, infra.

The first sentence of Proposal 2, which requires the Agency to offer a specific course during the school year, is outside the duty to bargain. See Part V, infra. The second sentence of Proposal 2, which permits Career Status I applicants to apply for Career Status II pending completion of a required course, is within the duty to bargain. See id.

Proposal 3, which sets forth the performance ratings that employees must receive in order to apply for Career Status II, is outside the duty to bargain. See Part VI, infra.

The first sentence of Proposal 4, under which employees who attain National Board Certification would automatically be awarded Career Status II, is outside the duty to bargain. See Part VII, infra. The second sentence of Proposal 4, which would grant an annual bonus to employees already holding Career Status II, is within the duty to bargain. See id.

II. The Petition for Review Is Timely

The parties were engaged in bargaining over the proposals. During a mediation session, the Agency orally declared the proposals nonnegotiable. Subsequently, on March 7, 1995, the Union requested a written allegation of nonnegotiability. The Agency did not respond to that request. On June 16, 1995, the Union filed its petition for review.

A. Positions of the Parties

1. Agency

The Agency maintains that the petition was not timely filed within the 15 days required in section 2424.3 of the Authority's Regulations.⁽³⁾ According to the Agency, the petition had to be filed either: (1) within 15 days after service of an allegation of nonnegotiability; or (2) "within fifteen (15) days where the Agency fails . . . to serve such an allegation on the exclusive representative." Agency's Supplemental Statement of Position at 1.

2. Union

The Union claims that the 15-day time limit specified in section 2424.3 applies when an agency provides a written allegation of nonnegotiability and not, as here, when an agency does not respond to a request for an allegation. Citing Authority precedent, the Union states that in the latter situation a petition may be filed "if no response is received from management after ten days after the date of receipt of the union's request for a written allegation of nonnegotiability." Response at 5.

B. Analysis and Conclusion

The Authority has held that an agency's failure to respond to a written request for an allegation of nonnegotiability constitutes a constructive declaration of nonnegotiability that gives rise to a right of appeal to the Authority under section 2424.3. American Federation of Government Employees, Local 3407 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C., 41 FLRA 265, 269 (1991). Where, as here, "a union requests an allegation and does not receive one in writing within 10 days after receipt of the request, the union may file a petition for review at any time after the expiration of the 10-day period." Id. at 269. The petition for review, which was filed after the expiration of the 10-day period, was timely filed.

III. Background

The Union's proposals were offered as part of impact and implementation bargaining over the Agency's Career Development Program (Program). As explained in a "Handbook" about the Program, it stems from legislation enacted in North Carolina in 1985 directing the state's Board of Education to develop, test, modify and implement a pilot career development program. The Agency's Program, which was adopted by the Fort Bragg School Board on July 1, 1986, "is designed to enhance the quality of teaching at Fort Bragg Schools through the recruitment, selection, induction and retention of quality teachers. Career Development expands the capabilities of individual teachers which enhances the effectiveness of the teaching staff as a whole." Petition for Review, Enclosure 2 at 7.

Teachers who were employed at Fort Bragg Schools on or before June 30, 1986, had the option of participating in the Program or continuing to operate in the pre-existing "system of employment." Id. Those employed after June 30, 1986, are required to participate in the Program and must obtain Career Status I within 4 years of commencing their employment in order to retain their employment as teachers. Career Status I is awarded once it is determined that the employee is performing "sufficiently above" the minimally acceptable level. Response at 2. Employees who have obtained Career Status I may apply for Career Status II, which is awarded if the employee is performing "well above" the minimally acceptable level. Id. Employee salaries range from the lowest pay schedule, given to new employees, to the highest pay schedule, given to employees at the Career Status II level. Employees at the Career Status I level are at the middle range of the pay schedule.

Prior to 1994, the employees in this case were covered by 20 U.S.C. § 241.⁽⁴⁾ Section 241(a) authorized the Secretary of Education (hereinafter Secretary) to fix "compensation, tenure, leave, hours of work, and other incidents of the employment relationship" without regard to the "Civil Service Act" and without regard to various statutes that would otherwise specify those employment matters. In 1994, Congress repealed section 241, in full, and enacted 10 U.S.C. § 2164 in its place.⁽⁵⁾ A savings provision was included as part of section 2164. This savings provision preserved the rights of employees to bargain collectively on wages, hours, and other terms and conditions of employment, as those rights existed prior to enactment of section 2164.⁽⁶⁾ The authority to fix compensation and other incidents of the employment relationship is now vested in the Secretary of Defense.

In Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990) (Fort Stewart), and as relevant here, the Supreme Court addressed the provisions of 20 U.S.C. § 241 in upholding the Authority's determination that the Agency was required to bargain over proposals relating to a salary increase and certain fringe benefits. The Court's holding in Fort Stewart is discussed in more detail in Part VII.B.3.a., below.

IV. The Statute Applies to Negotiations Over Pay and Conditions of Employment

The Union claims that its proposals are within the duty to bargain because they are directly related to pay and/or incentive pay.⁽⁷⁾ In support, the Union cites Fort Stewart and National Treasury Employees Union v. FLRA, 793 F.2d 371 (D.C. Cir. 1986) (NTEU). The Union further states that the effect of the savings provision to section 2164 is to preserve for school employees "the negotiability of the conditions of employment established under section 241," and also to preserve for these employees "the widest latitude in bargaining over conditions of employment, including compensation." Response at 3, 4.

The Union's argument is premised on an interpretation that the discretion reserved to the Agency under section 241(a) to set various conditions of employment, including compensation, is broad enough to negate the management rights provision of section 7106 of the Statute. We reject this interpretation for the following two reasons.

First, despite several revisions to section 241, there is no indication, in either the express wording of section 241(a) or subsequent legislative enactments, that Congress intended to exempt the Statute from the Secretary's authority to establish conditions of employment. The reference in section 241(a) to the "Civil Service Act," is to the Pendleton Act, 22 Stat. 403 (1883), which established the Federal civil service, and not to the Civil Service Reform Act (CSRA), 92 Stat. 1111 (1978), of which the Statute is a part. See 20 U.S.C.A. § 241, note at p. 298 (1990). Furthermore, the portion of section 241(a) that granted the Secretary the authority to fix compensation and other incidents of employment was enacted prior to the Statute's enactment.⁽⁸⁾ As such, section 241 could not have included the Statute. Although Congress amended section 241 on several occasions, including amendments made subsequent to the Statute's enactment, Congress did not amend section 241(a) to include therein all, or any portion of, the Statute.⁽⁹⁾ Cf. United States v. Welden, 377 U.S. 95, 102 n.12 (1964) (amendments by implication are disfavored).

Second, Congress expressly preserved existing bargaining rights and obligations when it enacted the savings provision to section 2164 in 1994. It is a principle of statutory construction that Congress is presumed to be aware of existing administrative and judicial interpretations of a statute and to adopt those interpretations when it takes legislative action. See e.g., Lorillard v. Pons, 434 U.S. 575, 581 (1978); Public Citizen, Inc. v. FAA, 988 F.2d 186, 194 (D.C. Cir. 1993); Sutherland, Stat. Const. § 47.13 (5th ed. 1992). Therefore, Congress is presumed to have had knowledge of, and adopted, the Authority's interpretation of section 241(a) concerning the bargaining rights and obligations that existed during the time that section was in effect.

The Authority consistently has applied the Statute to proposals claimed to be within the duty to bargain under section 241. For example, in Antilles Consolidated Education Association and Department of Defense, Office of Dependents Schools, Antilles Consolidated School System, Fort Buchanan, Puerto Rico, 45 FLRA 989 (1992), the Authority found that a proposal requiring an agency to take disciplinary action within a prescribed time frame was outside the duty to bargain because of its interference with the right to discipline under section 7106(a)(2)(A). In so doing, the Authority rejected the union's claim that the proposal was appropriate for inclusion in a collective bargaining agreement by operation of section 241, notwithstanding the proposal's interference with a management right. The Authority found no clear indication that, with respect to section 241, "Congress intended the provision to encompass the negotiation of employment benefits notwithstanding conflicting provisions of the Statute". Id. at 992. Similarly, the Authority found that a proposal that school employees employed under 20 U.S.C. § 241 be given a duty-free lunch period was outside the duty to bargain because it was inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute. Fort Bragg Association of Educators, NEA and Department of the Army, Fort Bragg Schools, 30 FLRA 508, 517-18 (1987), reversed as to other matters, 870 F.2d 698 (D.C. Cir. 1989).

The cases on which the Union relies, Fort Stewart and NTEU, do not support a conclusion that the proposals in this case are within the duty to bargain, without regard to their effect on the exercise of management's rights, because they relate to pay. In fact, if anything, these cases support the opposite result. In determining whether the disputed proposals were within the duty to bargain, the effect of the proposals on the exercise of management's rights was considered by the Authority and, subsequently, by the reviewing courts.

In sum, for the reasons set forth above, we conclude that neither 20 U.S.C. § 241 nor the savings provision to 10 U.S.C. § 2164, which preserved the rights of employees to bargain collectively over wages, hours, and other terms and conditions of employment, render inapplicable the management rights provision of the Statute. Consequently, even if we were to assume that the proposals in this case all involve pay, we would nonetheless examine whether, as the Agency claims, the proposals are outside the duty to bargain because they are inconsistent with section 7106 of the Statute.⁽¹⁰⁾

V. Proposals 1 and 2

Proposal 1

Section 3. Any certified thirty (30) hour course in ETT will satisfy the application requirements for Career Status I eligibility.

Proposal 2

Section 4. The Employer will offer a thirty (30) hour ETT course during the school year. Career Status I applicants may apply for Career Status pending completion of ETT.

A. Positions of the Parties

1. Union

The Union explains that the term "ETT" in Proposals 1 and 2 "means the North Carolina Effective Teaching Training[,]" which is a required course for all new teachers at Fort Bragg Schools. Petition for Review at 3. The Union states that since ETT is mandatory for all teachers, "management should offer the training reasonably often so as to allow teachers to meet management's requirements." Id. The Union explains that, prior to 1993, teachers had numerous opportunities to take ETT courses anywhere in North Carolina. Since 1993, however, the only ETT course that can count toward Career Status I eligibility is that made available at Fort Bragg and only at the beginning of the school year. According to the Union, proposals providing increased opportunities to take ETT courses and compete for Career Status I "would simply restore the pre-1993 status quo[,]" and constitute negotiable appropriate arrangements. Response at 8.

The Union further states that Proposal 2 "seeks an ETT course offered during the school year, making it easier for senior teachers, for which [Career Status I] is not required, to apply for the incentive pay and for teachers hired after June 30, 1986, for which [Career Status I] is required, to remain employed by [the Agency]." Id. at 9. The Union also cites National Federation of Federal Employees, Local 1214 and Department of the Army, Health Services Command, Moncrief Army Community Hospital, Fort Jackson, South Carolina, 40 FLRA 1181 (1991) (Moncrief), in which the Authority found that a proposal requiring the agency to furnish an examination for EMT certification at least twice annually was a negotiable appropriate arrangement. The Union claims that the potential loss of employment facing Fort Bragg teachers is similar to the possible job loss facing employees who failed to obtain the requisite certification in Moncrief.

Finally, the Union states that the proposals do not affect management's right to assign work or implicate any other reserved management rights.⁽¹¹⁾ Rather, the proposals "are a way of linking pay to experience, similar in theory to the bargaining of steps on a salary scale." Petition for Review at 3. The Union adds that the proposals concern either an appropriate arrangement for "a management-created requirement to obtain [Career Status I] or requirements above the minimally acceptable performance for the attainment of incentive pay offered by the [A]gency." Response at 4.

2. Agency

The Agency argues that Proposal 1 violates the right to assign work under section 7106(a)(2)(B) of the Statute because it interferes with management's ability to determine the skills, training and qualifications of its employees. The Agency also claims that the Authority has found that similar proposals are inconsistent with section 7106(a)(2)(A) of the Statute because they affect management's ability to determine job qualifications. According to the Agency, Proposal 1 would require it to accept any certified 30-hour ETT course without regard to its content, training process, or the quality of the training provided. The Agency states that the North Carolina ETT is the current standard of measurement and is directly correlated to the needs of Fort Bragg Schools. The Agency disputes the Union's contention that the proposal's reference to ETT signifies the North Carolina State ETT program. According to the Agency, the plain language of the proposal states that "any" ETT program will satisfy the requirements.

The Agency further argues that the first sentence of Proposal 2 violates the right to assign work under section 7106(a)(2)(B) of the Statute. The Agency cites Authority precedent for the proposition that proposals prescribing the type of training, as well as its frequency and duration, are outside the duty to bargain.

Finally, in response to the Union's claim, discussed in Part IV., that the proposals are within the duty to bargain because they relate to pay, the Agency contends that Proposals 1 and 2, in their entirety, are outside the duty to bargain for the following four reasons. First, the Agency maintains that "it is the pay of 'qualified' employees that is negotiable as opposed to the qualifications of employees who are paid." Statement of Position at 3. Second, the Agency claims that agreement was reached on pay through the conclusion of the 1995-96 school year and that any proposals implicating pay during that time period "can be of no consequence given the existing agreement[.]" Id. Third, the Agency argues that if the proposals were designed to address pay in the future, they would be premature as bargaining has not commenced for pay beyond the 1995-96 school year. Fourth, the Agency states that, by practice, the parties have bargained pay issues separately from the collective bargaining agreement and other bargainable issues.

B. Analysis and Conclusions

1. Meaning of the Proposals

In interpreting a disputed proposal, the Authority looks to its plain wording and any union statement of intent. If the union's explanation is consistent with the plain wording, the Authority adopts that explanation for the purpose of construing what the proposal means and, based on its meaning, deciding whether it is, or is not, within the duty to bargain. 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). Where a proposal is silent as to a particular matter, a union's statement clarifying the matter will be adopted if it is otherwise consistent with the wording of the proposal. E.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 737 (1996) (Laurel Bay). When a union's explanation is not supported by a reasonable construction, however, the explanation is deemed inconsistent with the plain wording, and the Authority does not adopt it for the purpose of determining whether the proposal is within the duty to bargain. E.g., International Federation of Professional and Technical Engineers, Local 3 and U.S. Department of the Navy, Philadelphia Naval Shipyard, Philadelphia, Pennsylvania, 51 FLRA 451, 459 (1995).

Proposal 1 states that any certified 30-hour ETT course will satisfy the application requirements for Career Status I eligibility. Proposal 2 requires the Agency to offer an ETT course during the school year. The Agency maintains that, because the proposals do not expressly reference the North Carolina ETT, they could encompass other courses that do not satisfy the Agency's requirements. The Union states that ETT means the North Carolina ETT. As the proposals are silent with respect to the identity of the course, the Union's explanation that the course means the North Carolina ETT is consistent with the wording of the proposals and we adopt it. Laurel Bay, 51 FLRA at 737.

The terms "Career Status I" and "Career Status II," which are contained in Proposals 1 and 2, as well as the other proposals, are not defined either in the wording of the proposals or in the record. However, it is apparent from the record that these terms connote levels of accomplishment in the teaching profession that are obtained upon successful achievement of prescribed levels of performance and satisfaction of eligibility criteria, all of which are set forth in the Agency's Handbook.

2. Proposal 1 and the First Sentence of Proposal 2 are Outside the Duty to Bargain

a. Proposal 1 Affects the Right to Assign Employees Under Section 7106(a)(2)(A)

The right to assign employees under section 7106(a)(2)(A) of the Statute includes the right to determine the qualifications and skills needed to perform the work of a position, including such job-related individual characteristics as judgment and reliability, and to determine whether employees meet those qualifications. E.g., American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 265, 269 (1990). Proposals that prevent an agency from determining the qualifications of a position have been found to affect the exercise of section 7106(a)(2)(A). E.g., Federal Employees Metal Trades Council of Charleston and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 44 FLRA 683, 687 (1992).

Based on the Union's explanation, which we have adopted, Proposal 1 would require the Agency to accept the North Carolina ETT as satisfying an eligibility requirement for Career Status I. Even though the Agency presently uses that course, proposals that contractually bind an agency to a particular policy or practice during the life of an agreement affect management's rights because they could prevent the agency from changing the policy or practice for the duration of the agreement. See, e.g., 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, 1503 (1993) (Department of the Army). As Proposal 1 would require the Agency to utilize the North Carolina ETT as a qualification for Career Status I, the proposal affects management's right to assign employees.

b. The First Sentence of Proposal 2 Affects the Right to Assign Work Under Section 7106(a)(2)(B)

The right to assign work under section 7106(a)(2)(B) of the Statute encompasses decisions as to the type of training to be assigned and the frequency and duration of training. See, e.g., National Treasury Employees Union and U.S. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 45 FLRA 339, 358 (1992).

Based on the Union's explanation, the first sentence of Proposal 2 would require the Agency to furnish a particular type of training, that is, the North Carolina ETT. It would also dictate when such training should be offered, namely, during the school year. We find that this sentence of the proposal affects management's right to assign work because it would determine the type and frequency of training.

c. They Do Not Constitute Appropriate Arrangements Under Section 7106(b)(3)

The approach for determining whether a proposal is within the duty to bargain under section 7106(b)(3) is set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under that approach, the Authority initially determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). See also Fort McPherson, 51 FLRA at 141. The adverse effect need not flow from the management right that a given proposal affects. E.g., National Treasury Employees Union, Chapter 243 and U.S. Department of Commerce, Patent and Trademark Office, 49 FLRA 176, 184 (1994) (Member Armendariz concurring in part and dissenting in part) (PTO).

The claimed arrangement must also be sufficiently "tailored" to compensate or benefit employees suffering adverse effects attributable to the exercise of management's right(s). See, id. As the Authority reaffirmed, relying on U.S. Department of the Interior, Minerals Management Service, New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992), section 7106(b)(3) brings within the duty to bargain proposals that provide "balm" to be administered "only to hurts arising from" the exercise of management rights. American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, 51 FLRA 1308, 1319 (1996). That section of the Statute does not bring within the duty to bargain proposals that are so broad in their sweep that the "balm" would be applied to employees indiscriminately without regard to whether the group as a whole is likely to suffer, or has suffered, adverse effects as a consequence of management action under section 7106. Id. See also PTO, 49 FLRA at 184.

If the proposal is an arrangement that is sufficiently tailored, the Authority then determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right(s). KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. Id.

In this case, the Agency established the Career Development Program and determined that all teachers hired after June 30, 1986 would have to hold Career Status I in order to retain their employment. The Agency also determined that successful completion of the North Carolina ETT would be a requirement for Career Status I eligibility. The establishment of the Career Development Program and the determination of employee coverage and eligibility involve the exercise of the rights to assign employees and assign work under section 7106(a)(2)(A) and (B) respectively. See, e.g., Federal Employees Metal Trades Council of Charleston and U.S. Department of the Navy, Charleston Naval Shipyard, Charleston, South Carolina, 44 FLRA 683, 687 (1992) (determinations with regard to the skills and qualifications of positions implicate the right to assign employees under section 7106(a)(2)(A)); International Federation of Professional and Technical Engineers, Local 89 and U.S. Department of the Interior, Bureau of Reclamation, Grand Coulee Project Office, 48 FLRA 516, 520 (1993) (determinations regarding the qualifications needed to perform work implicate the right to assign work under section 7106(a)(2)(B)). In addition, section 7106(a)(2)(A) expressly includes the right to retain employees. As stated above, employees who do not attain Career Status I within 4 years of their employment are not retained.

Proposal 1 and the first sentence of Proposal 2 are intended to provide greater opportunities for employees to take the North Carolina ETT. Since that training is required in order to attain Career Status I, and Career Status I is a condition of continued employment for employees hired after June 1986, it is clear that these proposals are intended to address the adverse effects on employees of the exercise of management's rights to determine the skills and qualifications necessary to retain employment.

However, we find that the proposals are not sufficiently tailored to constitute arrangements. The only employees who are required to attain Career Status I are those who were hired after June 30, 1986. Proposal 1 and the first sentence of Proposal 2 are not limited to those employees but would encompass all employees, including those for whom participation in the Career Development Program is voluntary. Although the proposals could have been directed to employees who are required to attain Career Status I, the proposals, as written, do not target the employees who are likely to be harmed by the exercise of management's rights.

More particularly as to the first sentence of Proposal 2, we find that the Authority's decision in Moncrief, on which the Union relies, is distinguishable. In that case, the Authority found that a section of a proposal requiring the agency to provide a test for certification of emergency medical technicians at least twice annually was an appropriate arrangement. In that case, all employees were required to be certified. Here, it is only employees hired after a particular date who are required to attain Career Status I as a condition of their continued employment.

As Proposal 1 and the first sentence of Proposal 2 do not constitute arrangements, there is no need to address whether the proposals are appropriate, consistent with the KANG standard.

d. The Second Sentence of Proposal 2 Is Within the Duty to Bargain

The Agency makes no claim that the second sentence of Proposal 2 affects the exercise of a management right. Rather, the Agency raises four other arguments in support of its position that pay matters are outside the duty to bargain. Even if we were to assume that the second sentence of Proposal 2 involves a pay matter, insofar as attainment of Career Status I carries with it a higher salary, we reject the Agency's contentions for the following reasons.

First, the Agency claims, without further explanation, that it is the pay of qualified employees that is negotiable, and not the determination of the qualifications of employees who are paid. This argument fails because the second sentence of the proposal does not mandate that employees who apply for Career Status pending completion of the ETT course be granted Career Status I. Thus, employees must still complete all of the necessary requirements in order to be deemed qualified to hold Career Status I.

The Agency's second and third contentions relate to the timing of bargaining. The Agency argues that, because the parties reached agreement on pay through the end of the 1995-96 school year, proposals implicating pay during that time period "can be of no consequence . . . ." Statement of Position at 3. The Agency further asserts that the proposal is premature insofar as it is designed to address pay beyond the 1995-96 school year. Both contentions lack merit. An Authority determination that union proposals are within the duty to bargain necessarily operates prospectively. Once such a determination is made, parties are obligated to bargain, on request of a union, over the disputed proposals. Even assuming that bargaining had been completed through the 1995-96 school year, and negotiations beyond that school year have not commenced, there is no basis in the record on which to conclude that allowing employees to apply for Career Status I pending completion of the ETT course would be of no consequence if the parties were to bargain over it at this time.

Finally, the Agency's fourth contention rests on a bare assertion that, by practice, the parties have bargained pay issues separately from other bargainable issues. Assuming that the Agency is claiming that the Union has waived its right to bargain, the Agency has presented no evidence to show that the Union has waived its right to bargain over pay at this time.

In view of the Union's request to sever portions of proposals that are within the duty to bargain from those that are not, and because the second sentence of Proposal 2 can stand independently, we find that it is within the duty to bargain.

e. Summary

Based on the foregoing, we find that Proposal 1 and the first sentence of Proposal 2 are outside the duty to bargain. In view of this conclusion, we do not decide the merits of the Agency's additional contentions. We also find that the second sentence of Proposal 2 is within the duty to bargain.

VI. Proposal 3

Section 9. Career Status II applicants must receive an overall average of above standard on all practices on an appropriate evaluation instrument during the year of application.

A. Positions of the Parties

1. Union

The Union contends that Proposal 3 restates the current requirement for obtaining Career Status II and, as such, is an attempt to maintain the status quo. The Union adds that the proposal does not dictate what an employee must do in order to obtain an overall average of "above standard" and is not an attempt to bargain performance evaluation criteria or qualifications.

The Union further asserts that application for Career Status II is optional with employees and is offered as incentive pay for employees who perform well above the minimally acceptable standard. The Union states that what is at issue is the level of performance above minimally acceptable that must be met in order to qualify for incentive pay and that incentive pay "is not in any way tied to an employee's duties or to job retention." Response at 10.

2. Agency

The Agency asserts that Proposal 3 is susceptible of two interpretations, both of which render the proposal outside the duty to bargain as violative of section 7106(a)(2)(A) and (B) of the Statute. Under one interpretation, the proposal would require management to evaluate the performance of Career Status II applicants so that their ratings average "above standard." The other interpretation of the proposal would require management to establish different acceptable levels of performance than it presently maintains. Specifically, the Agency states that the proposal would require management to establish, as a level of acceptable performance, a rating that averages "above standard" for all core and non-core functions during a specific year, rather than the minimum of "above standard" rating for each core function and an average rating of "above standard" for non-core functions.⁽¹²⁾ The Agency argues that, under either interpretation, Proposal 3 would "mandate[] performance evaluation criteria, if not the actual ratings to be given." Statement of Position at 4.

B. Analysis and Conclusions

1. Meaning of the Proposal

By its express terms, Proposal 3 sets forth the average ratings that applicants for Career Status II "must receive." The Union contends, and we agree, that the proposal restates a requirement contained in the Agency's Handbook, which lists, among the eligibility criteria for Career Status II, the requirement to have "[a]n average summative rating of four on the Career Status I summative evaluation instrument during the year of application to CS II (3's may be balanced off by 5's)." Both the proposal and the requirement set forth above establish an average rating of level 4, defined as "above standard," that an employee must receive during the year of application to Career Status II. The Agency apparently misapprehends the operation of this proposal, which clearly specifies that it pertains to applicants for Career Status II and the ratings they must receive during the year of application. The Agency appears to be referring to that portion of the Handbook that identifies the ratings needed to maintain Career Status II. As the Union's explanation is consistent with the wording of the proposal, we adopt it. Laurel Bay, 51 FLRA 737.

2. Proposal 3 is Outside the Duty to Bargain

a. It Affects the Rights to Direct Employees and Assign Work Under Section 7106(a)(2)(A) and (B)

The Agency does not expressly state which of the management rights enumerated in sections 7106(a)(2)(A) and (B) are affected by the proposal. However, based upon its arguments and the precedent that it cites, we find that the Agency's contentions implicate the right to direct employees under section 7106(a)(2)(A) and the right to assign work under section 7106(a)(2)(B). In this connection, it is well established that proposals that establish criteria for performance evaluations affect the rights to direct employees and assign work. E.g., American Federation of Government Employees, Council of Locals 163 and U.S. Department of Defense, Defense Contract Audit Agency, Northeastern Region, Lexington, Massachusetts, 52 FLRA 1063, 1065 (1997) (Defense Contract Audit Agency).

This proposal mandates the ratings that employees must receive on their evaluations in order to be qualified for Career Status II. It is comparable to a provision in Department of the Army, 46 FLRA at 1496-1503, which essentially required that an employee's performance be at the fully successful level for the preceding 60 days in order for that employee to qualify for assignment to overtime work. The Authority found that the provision was inconsistent with the right to assign work. In reaching this result, the Authority rejected the union's claim that the provision was negotiable because it merely restated the agency's determination regarding qualifications for overtime. The Authority explained that "[p]rovisions that are nonnegotiable because of interference with a management right do not become negotiable because they simply restate an existing agency policy or practice." Id. at 1503. See also the discussion of Proposal 1, supra.

In this case, Proposal 3 would require the Agency to retain the level of performance that is required of all applicants for Career Status II. Because the proposal mandates the ratings that employees must receive, it affects both the right to direct employees and assign work.

b. It is Not an Appropriate Arrangement Under Section 7106(b)(3)

As stated earlier, to constitute an arrangement, a union must first identify the adverse effects on employees flowing from the exercise of a management right that a proposal is designed to address. Here, the Union has not identified any adverse effects on employees, either actual or reasonably foreseeable, that flow from the exercise of management's rights to direct employees and assign work, or from any other management right. Indeed, the Union concedes that attainment of Career Status II is voluntary on the part of employees. Unlike Career Status I, which employees must attain in order to retain their employment, Career Status II is not a mandatory requirement established by the Agency. As such, there are no adverse effects flowing from the exercise of a management right that the proposal is designed to address.

Because the Union has not established that the proposal constitutes an arrangement, we do not address whether the proposal is sufficiently tailored and whether it is appropriate consistent with the KANG standard.

c. Summary

In sum, we find that Proposal 3 is outside the duty to bargain.

VII. Proposal 4

Section 11. Bargaining unit members who attain National Board Certification shall automatically be awarded Career Status II. In the event the member already holds Career Status II, he/she shall receive an additional four (4) percent annual bonus.

A. Positions of the Parties

1. Union

The Union explains that the "National Board Certification" referenced in the proposal is a program developed by the National Board for Professional Teaching Standards. Certificates are awarded to candidates who complete a "rigorous assessment process . . . ." Petition for Review at 3. According to the Union, as certification is difficult to obtain, "Board certified teachers should be able to obtain the pay equivalent of their experience." Id. The Union also states that attainment of such certification would be consistent with the Agency's Career Development Program Handbook, which establishes as a goal the recruitment and retention of qualified teachers. The Union states that "recognition of an alternative means of professional accomplishment is consistent with that goal." Response at 12.

Finally, the Union contends that the proposal does not affect the right to assign work insofar as it does not relate to the teacher's duty day, work assignment or position.

2. Agency

The Agency contends that this proposal is outside the duty to bargain on several grounds. First, the Agency claims that the proposal "impermissibly establishes a qualification for employees to be promoted in rank and/or pay thus violating and interfering with management's right to determine the level of skills and qualifications of its employees." Statement of Position at 4. In support, the Agency cites Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734 (1987) (Proposals 53 and 54), enforced as to other matters, 872 F.2d 1032 (D.C. Cir. 1988) (per curiam) and 911 F.2d 743 (D.C. Cir. 1990) (en banc).

Next, the Agency argues that the proposal would require the Agency to promote, in rank or pay, employees who meet, or have met, "the impermissibly established qualification without regard for other appropriate factors, thus interfering with management's 7106(a)(2)(A) right to assign employees, its 7106(a)(2)(B) right to determine the personnel by which agency operations shall be conducted and its 7106(a)(2)(C) right to make selections from any appropriate source, not to mention the potential budgetary impact." Statement of Position at 4.

Finally, the Agency makes four arguments rebutting the Union's pay claim. Those arguments are set forth in Part V.A.2, supra.

B. Analysis and Conclusions

1. Meaning of the Proposal

The first sentence of the proposal requires that an employee who attains National Board Certification (NBC) shall automatically be granted Career Status II. NBC is a program developed by the National Board for Professional Teaching Standards, which is a non-profit, independent organization whose purpose is to improve student learning by developing a system of advanced, voluntary certification for elementary, middle and secondary school teachers.⁽¹³⁾ By its terms, the first sentence of Proposal 4 would prescribe a way of attaining Career Status II apart from any requirements the Agency has established as part of its Career Development Program.

The second sentence of Proposal 4 requires that an employee who already holds Career Status II certification will receive an additional 4 percent annual bonus.

2. The First Sentence of Proposal 4 is Outside the Duty to Bargain

a. It Affects the Right to Assign Employees Under Section 7106(a)(2)(A)

As we stated in connection with Proposal 1, the right to assign employees under section 7106(a)(2)(A) of the Statute includes the right to determine the qualifications and skills needed to perform the work of a position, including such job-related individual characteristics as judgment and reliability, and to determine whether employees meet those qualifications. The Agency has determined that attainment of Career Status II requires employees to have completed prescribed training, attain a particular level of performance, and successfully undergo a peer review process. Included in the latter are such matters as the demonstrated ability to perform "superior preparation for classroom instruction[,]" provide "maximum instructional opportunities for individual learning styles[,]" and "plan and implement strategies to encourage student self-discipline[.]" Petition for Review, Enclosure 2 at 25-27. In addition, employees who attain Career Status II have demonstrated superior subject matter knowledge and, in general, display high levels of competence in teaching skills, leadership, communication and knowledge. By mandating that NBC will satisfy the requirements of Career Status II, the first sentence of Proposal 4 would require the Agency to accept criteria developed by an independent organization as evidence that employees possess the necessary qualifications and skills attendant to Career Status II. We find that the first sentence of the proposal thereby affects management's right to assign employees.

b. It is Not an Appropriate Arrangement Under Section 7106(b)(3)

The Union has not identified any adverse effects on employees, either actual or reasonably foreseeable, that flow from the exercise of any management rights. The Agency does not require employees to hold Career Status II. Rather, attainment of that level is voluntary on the part of employees. Similarly, the Agency does not require employees to hold NBC certification, which is also voluntarily obtained. As there are no adverse effects that the proposal is designed to address, we find, as we did with Proposal 3, that the first sentence of Proposal 4 does not constitute an arrangement.

In view of this conclusion, we do not address whether the first sentence of the proposal is sufficiently tailored and whether it is appropriate consistent with the KANG standard.

c. Summary

In sum, we find that the first sentence of Proposal 4 is outside the duty to bargain. Accordingly, there is no need to decide the remaining Agency contentions.

3. The Second Sentence of Proposal 4 Is Within the Duty to Bargain

a. It Is a Negotiable Pay Matter

As explained in Part III above, the Secretary of Education had the authority to fix compensation for employees who were employed under 20 U.S.C. § 241. In Fort Stewart, the Supreme Court held that pay and fringe benefits for such employees are conditions of employment that are not specifically provided for by law and are discretionary on the part of an agency. 495 U.S. at 644-50. As a discretionary matter, pay for teachers is within the duty to bargain, unless such bargaining is precluded by an appropriate provision of the Statute, for example, the management rights provision of section 7106. 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 Dependents Schools). Also as explained above, the discretion to bargain over pay was preserved by the savings provision to 10 U.S.C. § 2164, which now vests the authority to fix pay in the Secretary of Defense.⁽¹⁴⁾

b. It Does Not Affect Section 7106(a) Rights

The Agency makes essentially four arguments that relate to the exercise of various management rights.

First, the Agency claims that the second sentence affects the right to assign employees under section 7106(a)(2)(A) by determining the qualifications of a position. The second sentence of Proposal 4 does not affect that management right because it applies only after an employee has been deemed qualified by the Agency to hold Career Status II.

Second, the Agency contends that it affects its right to determine personnel under section 7106(a)(2)(B). That management right includes the discretion to determine the particular employees to whom work will be assigned. See, e.g., American Federation of Government Employees, Local 3172 and U.S. Department of Health and Human Services, Social Security Administration, Modesto, California, 49 FLRA 302, 316 (1994). The second sentence of the proposal does not determine the employees to whom work will be assigned and, therefore, it does not affect that management right.

Third, the Agency argues that the second sentence affects the right to select under section 7106(a)(2)(C). Nothing in that sentence concerns the selection of employees for Career Status II. Accordingly, it does not affect the exercise of that management right.

Fourth, the Agency asserts that there is some unspecified "potential budgetary impact." Statement of Position at 4. The Agency's bare assertion does not constitute a cognizable claim that the second sentence affects the right to determine budget under section 7106(a)(1). Even assuming that there were a cognizable claim, however, there is no showing that the second sentence affects that management right under the budget test set forth in American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 608 (1980), aff'd sub nom. 659 F.2d 1140 (D.C. Cir. 1981), cert denied, 455 U.S. 945 (1982).

Having determined that the second sentence of Proposal 4 does not affect the exercise of management's rights, there is no need to address the merits of the Union's section 7106(b)(3) claim.

c. The Agency's Additional Arguments Lack Merit

The Agency makes four additional arguments, previously addressed in connection with the second sentence of Proposal 2, that relate to whether the second sentence of Proposal 4 is within the duty to bargain. We reject those arguments for the following reasons.

The Agency first claims that it is the pay of qualified employees that is negotiable, and not the determination of the qualifications of employees who are paid. The second sentence of the proposal does not affect employee qualifications because the annual bonus mandated by that sentence applies only after employees have been deemed qualified by the Agency to hold Career Status II.

The Agency's second and third contentions relate to the timing of bargaining. We previously stated that Authority determinations that union proposals are within the duty to bargain necessarily operates prospectively. See Part V.B.2.d. There is no basis in the record on which to conclude that a 4 percent annual bonus would be of no consequence if the parties were to bargain over it at this time.

The Agency's fourth contention is that the parties have bargained pay issues separately from other bargainable issues. As we found in connection with the second sentence of Proposal 2, even assuming that the Agency is claiming that the Union has waived its right to bargain, the Agency has presented no evidence to show that the Union has waived its right to bargain over pay at this time.

d. Summary

We find that the second sentence of Proposal 4 does not affect the exercise of management's rights, as alleged, and is not outside the duty to bargain on the remaining grounds asserted by the Agency. Accordingly, we conclude that it is within the duty to bargain.

VIII. Order

We dismiss the petition for review as to Proposal 1, the first sentence of Proposal 2, Proposal 3 and the first sentence of Proposal 4. We order the Agency, upon request, to bargain over the second sentence of Proposal 2 and the second sentence of Proposal 4.⁽¹⁵⁾

APPENDIX

20 U.S.C. § 241 provided, in relevant part:

(a) In the case of children who reside on Federal property--

. . . .

the Secretary shall make such arrangements . . . as may be necessary to provide free public education for such children. . . . 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.

10 U.S.C. § 2164 provides, as relevant,

(a) Authority of Secretary.--If the Secretary of Defense makes a determination that appropriate educational programs are not available through a local educational agency for dependents of members of the armed forces and dependents of civilian employees of the Federal Government residing on a military installation in the United States . . ., the Secretary may enter into arrangements to provide for the elementary or secondary education of the dependents of such members of the armed forces and, to the extent authorized in subsection (c), the dependents of such civilian employees . . . .

. . . .

(e) Administration and staff.--(1) The Secretary of Defense may enter into such arrangements as may be necessary to provide educational programs at the school.

(2) The Secretary may, without regard to the provisions of any other law relating to the number, classification, or compensation of employees--

(A) establish positions for civilian employees in schools established under this section;

(B) appoint individuals to such positions; and

(C) fix the compensation of such individuals for service in such positions.

The savings provision to 10 U.S.C. § 2164 provides as follows:

Nothing in section 2164 of title 10, United States Code, as added by subsection (a), shall be construed as affecting the rights in existence on the date of the enactment of this Act . . . of an employee of any school established under such section (or any other provision of law enacted before the date of the enactment of this Act that established a similar school) to negotiate or bargain collectively with the Secretary with respect to wages, hours, and other terms and conditions of employment.

---

---

---

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

1. The Union also filed an unfair labor practice charge and has elected to proceed first with the negotiability appeal. In addition, the Union has requested the Authority to sever any parts of proposals that are found to be outside the duty to bargain and to order the Agency to bargain over those portions that are found to be within the duty to bargain. We grant the request to the limited extent that we will resolve the negotiability issue as to portions of the proposals that, in our view, can stand independently of the rest of the proposals 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. The petition for review contained six proposals. The Agency withdrew its opposition to two of the proposals, which, therefore, are not before us in this proceeding.

3. Section 2424.3 of the Authority's Regulations provides:

The time limit for filing a petition for review is fifteen (15) days after the date the agency's allegation that the duty to bargain in good faith does not extend to the matter proposed to be bargained is served on the exclusive representative. The exclusive representative shall request such allegation in writing and the agency shall make the allegation in writing and serve a copy on the exclusive representative: Provided, however, That review of a negotiability issue may be requested by an exclusive representative under this subpart without a prior written allegation by the agency if the agency has not served such allegation upon the exclusive representative within ten (10) days after the date of the receipt by any agency bargaining representative at the negotiations of a written request for such allegation.

4. All relevant statutory provisions are set forth in the Appendix to this decision.

5. Section 241 was repealed by Pub. L. No. 103-382, Title III, sec. 331(b), 108 Stat. 3965 (1994). 10 U.S.C. § 2164 is a codification of Pub. L. No. 103-337, 108 Stat. 2663 (1994).

6. With regard to the employees in this case, we note that the Union was certified as the exclusive representative in 1991 and, thereafter, engaged in negotiations over wages and other conditions of employment. See Union Recognition in the Federal Government, December, 1992; Fort Bragg Unit of North Carolina Association of Educators, National Education Association and Fort Bragg Dependents Schools, Fort Bragg, North Carolina, 12 FLRA 519 (1983).

7. The Union does not define the term "incentive pay."

8. The referenced portion of section 241(a) was added to title 20 by Pub. L. No. 89-77, 79 Stat. 243 (1965).

9. For example, in 1988, Congress made various administrative and substantive amendments to section 241. School Improvement Amendments of 1988, Pub. L. No. 100-297, Tit. II, §§ 2011(a)(1), 2016, 102 Stat. 294, 299 (1988).

10. Of course, where a proposal does not affect the exercise of a management right, and the Agency raises other grounds in support of its claim that the proposals are outside the duty to bargain, we will examine those other grounds.

11. These arguments are made, but not repeated in this decision, as to all of the proposals.

12. The Agency does not explain either the meaning or derivation of the terms "core" and "non-core."

13. A pamphlet submitted by the Union describes NBC in the following terms:

National Board Certification is a way for the teaching profession to recognize highly accomplished teaching practice. A National Board certificate will attest that a teacher has been judged by his or her peers as one who is highly accomplished, in a variety of settings, to make sound professional judgments about students' best interests, and to act effectively on those judgments.

Response, Enclosure 3 at 2. The certification program was scheduled to be put into effect for the 1994-95 school year. Neither party disputes its current existence.

14. In addition to the savings provision, 10 U.S.C. § 2164(e)(2)(C) provides that the Secretary of Defense "may, without regard to the provisions of any other law relating to the number, classification, or compensation of employees . . . fix the compensation of such individuals . . . ." We address only the Union's claim that bargaining is authorized under the savings provision. It is unnecessary to address whether bargaining would also be authorized consistent with section 2164(e)(2)(C).

15. In finding these sentences of the proposals to be within the duty to bargain, we make no judgment as to their merits.

---