53:0941(76)NG - - NEA, Overseas Education Association, Fort Rucker Education Association and DOD, Domestic Dependent Elementary and Secondary Schools, Fort Rucker Dependents Schools, Fort Rucker, AL - - 1997 FLRAdec NG - - v53 p941
[ v53 p941 ]
The decision of the Authority follows:
53 FLRA No. 76
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL EDUCATION ASSOCIATION
OVERSEAS EDUCATION ASSOCIATION
FORT RUCKER EDUCATION ASSOCIATION
U.S. DEPARTMENT OF DEFENSE
DOMESTIC DEPENDENT ELEMENTARY AND SECONDARY SCHOOLS
FORT RUCKER DEPENDENTS SCHOOLS
FORT RUCKER, ALABAMA
DECISION AND ORDER ON NEGOTIABILITY ISSUES
December 2, 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). The case involves three provisions that were disapproved by the Agency head under section 7114(c) of the Statute.
Provision 1 would require 30 days' notice prior to the discharge of a probationary employee. Provision 2 would require the Agency to consider all responses to this notice made by the probationary employee. Provision 3 would permit teachers who are assigned lunchroom supervision to alternate responsibility for those duties so that each teacher may have a duty-free time during the lunch period.
For the reasons explained below, we conclude that Provisions 1 and 2 are contrary to law. We find that Provision 3 is an appropriate arrangement under section 7106(b)(3) of the Statute because it does not excessively interfere with management's right to assign work under section 7106(a)(2)(B). As such, we conclude that the provision is not contrary to law.
II. The Agency's Disapproval of the Contract Provisions Was Timely Served on the Union
A. Positions of the Parties (1)
The Union claims that the Agency head's disapproval of the contract provisions was not properly served on the Union because the disapproval was not mailed directly to the Union President or some other Union official. According to the Union, resolution of this issue is controlled by Antilles Consolidated Education Association and Department of Defense, Department of the Navy, Antilles Consolidated School System (ACSS), 28 FLRA 118, 120 (1987) (Antilles), in which the Authority held that the agency did not timely disapprove an agreement where the agency mailed its disapproval to the school superintendent within the 30-day period, but the disapproval was hand-delivered to the union after the expiration of the 30-day period.
The Agency claims that the disapproval was properly served on the Union because, under the parties' agreement and an established past practice, the Union receives its mail at the Fort Rucker Elementary School, and the disapproval was mailed to the Union within the 30-day period.
B. Analysis and Conclusions
The date of service of an agency head disapproval of contract provisions is the date on which the disapproval is deposited in the U.S. mail or is delivered in person. 5 C.F.R. § 2429.27(d). The date on which the disapproval is served on the union, not the date on which it is received by the union, governs the question of timeliness. American Federation of Government Employees, Local 2182, AFL-CIO and Propulsion Laboratory, U.S. Army Research and Technology Laboratories, 26 FLRA 600, 601 (1986).
Proper service by mail on a party under section 2429.27 begins with the date on which the document is delivered to the Postal Service with an address that allows for delivery to be perfected. American Federation of Government Employees, Local 2 and U.S. Department of the Army, Military Traffic Management Command, Falls Church, Virginia, 48 FLRA 1394, 1396 (1994) (Military Traffic Management Command). Proof of service is by a return post office receipt or other written receipt executed by the party served. See, e.g., U.S. Department of the Treasury, Bureau of Engraving and Printing and International Plate Printers, Die Stampers and Engravers Union, Washington Plate Printers Union, Local 2, 44 FLRA 926, 934 (1992). The burden of providing the correct address for service of a document is on the party that is to be served with that document. See, e.g., U.S. Department of Veterans Affairs, Medical Center, Bronx, New York and American Federation of Government Employees, Local 1168, 45 FLRA 789, 790 (1992). The question of whether the Agency head's disapproval was properly served thus becomes whether the disapproval was mailed to an address that allowed "for delivery to be perfected." Military Traffic Management Command, 48 FLRA at 1396.
The parties executed the agreement in this case on May 1, 1995. The Agency served the disapproval on the Union in care of the Agency's Fort Rucker Elementary School by certified mail on May 30, 1995. The parties' agreement specifically contemplates that mail will be sent to the Union at the school. In this regard, Article 13, Section 3 of the parties' agreement provides: "Mail received at the school addressed to the Association will be placed in the Association President's mailbox." The Agency provided proof of service in the form of a return receipt signed by the school employee who picked up the disapproval at the post office. The Union does not claim that the disapproval was not properly addressed so as to prevent delivery to the Union at the school. The Union also has made no claim, and provided no evidence, that it has received mail, or been served with documents, at any other address.
Because the Agency head's disapproval in this case was properly addressed to, and served by certified mail on, the Union, the case is distinguishable from Antilles. In that case, the disapproval was mailed to the School Superintendent, not the union. Service was subsequently accomplished by hand delivery to the union president more than 30 days after the execution of the agreement. In this case, service was perfected by depositing the correctly addressed disapproval in the mail within 30 days after the execution of the agreement.
We find that the Agency head's disapproval was properly served on the Union under section 2429.27 of the Authority's Regulations because it was timely deposited in the mail addressed in a manner that allowed delivery to be perfected. Accordingly, we conclude that the Union's petition for review is properly before the Authority.
III. Provisions 1 and 2
Article 12, Section 2. In the event of an Employer decision to discharge or terminate the contract of the probationary employee, thirty (30) days notice must be given.
Article 12, Section 3. The Employer shall give due consideration to all responses or replies made by the probationary employee.
A. Positions of the Parties
The Union notes that the employees in this case were covered by 20 U.S.C. § 241, under which the Agency was authorized to establish the tenure of these employees without regard to the Civil Service Act and other specified provisions of title 5 of the United States Code.(2) Even though 20 U.S.C. § 241 is no longer in effect, the Union claims that it is able to bargain on matters pertaining to tenure for these employees, notwithstanding conflicting provisions of law, because of the savings provision included in 10 U.S.C. § 2164 (savings provision).(3) In particular, the Union maintains that, under the savings provision, it continues to have the right to bargain about probationary status and procedural protections for probationary employees, notwithstanding conflicting provisions of law. The Union relies on the Supreme Court's decision in Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990) (Fort Stewart) for support.
The Union does not address the Agency's claim that the provisions affect management's right to hire under section 7106(a)(2)(A) of the Statute.
Relying on Service Employees' International Union, Local 556, AFL-CIO and Department of the Navy, Marine Corps Exchange, Kaneohe Bay, Hawaii, 26 FLRA 801 (1987) (Kaneohe Bay), the Agency claims that it properly disapproved Provisions 1 and 2 because they directly interfere with management's right to hire under section 7106(a)(2)(A) of the Statute.
The Agency did not address the Union's argument as to the savings provision.(4)
B. Meaning of the Provisions
By its terms, Provision 1 requires the Agency to give 30 days' notice of its intent to discharge a probationary employee. Provision 2 requires the Agency to consider all responses to this notice made by the probationary employee. Because Provisions 1 and 2 are consecutive sections of the same contract article, it is reasonable to conclude that the responses and replies referred to in Provision 2 are responses and replies to the Agency's notice to discharge the probationary employees in Provision 1.
C. Analysis and Conclusions
1. The Savings Provision Does Not Constitute an Exception to the Statute
Prior to 1994, the employees in this case were covered by 20 U.S.C. § 241. As relevant here, 20 U.S.C. § 241 permitted the Secretary of Education (Secretary) to determine the conditions of employee tenure without regard to the Civil Service Act and other specified provisions of law, not including the Statute, that pertained to employee tenure. It is undisputed that the term "tenure," as used in 20 U.S.C. § 241, included the probationary status of employees covered thereby. Thus, under 20 U.S.C. § 241, the Secretary's determination of matters pertaining to the probationary status of the employees in this case was expressly excepted from the laws that otherwise governed that status, but was not excepted from coverage under the Statute.
In 1994, 20 U.S.C. § 241 was repealed and replaced by 10 U.S.C. § 2164, which includes a savings provision.(5) That savings provision preserves employees' right to bargain over wages, hours, and other terms and conditions of employment that previously had been bargainable consistent with 20 U.S.C. § 241. It is undisputed that the probationary status of the employees in this case is a term and condition of employment within the meaning of 10 U.S.C. § 2164. Thus, under the savings provision, the Union continues to have the same right to bargain over the probationary status of those employees as it did under 20 U.S.C. § 241.
In National Education Association, Overseas Education Association, Fort Bragg Association of Educators and U.S. Department of Defense Domestic Dependents Elementary and Secondary Schools, Fort Bragg, North Carolina, 53 FLRA No. 71 (1997) (Fort Bragg), we considered and rejected the Union's interpretation that the exception established by 20 U.S.C. § 241 extended to section 7106 of the Statute. For the reasons stated in Fort Bragg, therefore, we find that the savings provision does not preserve the right of the Union to bargain on matters pertaining to the probationary status of the employees in this case without regard to section 7106 of the Statute. The Union's reliance on Fort Stewart is misplaced because that case did not involve the question of whether 20 U.S.C. § 241 constituted an exception to section 7106 of the Statute.
2. The Provisions Are Contrary to Law Because They Affect Management's Right to Hire
It is undisputed that the employees in this case are noncompetitive service employees. In Kaneohe Bay, the Authority concluded that proposals which provided procedural protections for noncompetitive service employees were outside the duty to bargain. In reaching this conclusion, the Authority held that, for noncompetitive service employees, the probationary period "is part of the process by which management determines whether a newly-hired employee should be retained permanently." Kaneohe Bay, 26 FLRA at 805. The Authority stated:
when an employee is hired for a position which includes a probationary period, the hiring process is not complete until that employee has completed the probationary period and has demonstrated to management's satisfaction the ability to perform in that position. Until that time, the employee is subject to summary termination.
Id. Consequently, "the probationary period, including summary termination, constitutes an essential element of an agency's right to hire under section 7106(a)(2)(A) of the Statute."(6) Id.
Proposals providing procedural protections that must be followed before a noncompetitive service probationary employee can be terminated preclude management from exercising its right to summarily terminate those probationary employees. American Federation of Government Employees, AFL-CIO, Local 1625 and Non-Appropriated Fund Instrumentality, Naval Air Station, Oceana, Virginia, 31 FLRA 1281, 1286-87 (1988) (Naval Air Station). Because such proposals preclude summary termination, they have been found by the Authority to "directly interfere" with management's right to hire employees under section 7106(a)(2)(A) of the Statute. Id. (7)
This case involves provisions of a collective bargaining agreement disapproved by the agency head under section 7114(c), rather than proposals for bargaining. However, this difference has no significance in determining as a threshold matter whether a proposal or provision "affect[s] the authority" of management to exercise its rights under section 7106(a) of the Statute. By requiring the Agency to give prior notice of termination and to consider all employee responses to such notice, Provisions 1 and 2 preclude the Agency from summarily terminating probationary employees. Consequently, consistent with Authority precedent, we find Provisions 1 and 2 affect management's right, under section 7106(a)(2)(A) of the Statute, to hire employees. See id.
The Union does not challenge Kaneohe Bay and the well-established precedent applying that decision. See, e.g., U.S. Department of the Air Force, Nellis Air Force Base, Las Vegas, Nevada and American Federation of Government Employees, Local 1199, 46 FLRA 1323, 1325-27 (1993); American Federation of Government Employees, Council of Marine Corps Locals (C-240) and Department of the Navy, U.S. Marine Corps, 35 FLRA 1023, 1026-27 (1990); Naval Air Station, 31 FLRA at 1285-87 (1988). Moreover, the Union does not claim that the provisions are procedures under section 7106(b)(2) of the Statute or appropriate arrangements under section 7106(b)(3).
Because Provisions 1 and 2 affect management's right to hire and the Union does not claim that the provisions are procedures under section 7106(b)(2) or appropriate arrangements under section 7106(b)(3), we conclude that the provisions are contrary to law.
IV. Provision 3
Article 16, Section 13. Duty Free Lunch. Once children are seated in the cafeteria, teacher partners may alternate lunchroom student supervision duties to allow each partner a duty free time at lunch. Partners will be assigned upon request.(8)
A. Positions of the Parties
As explained by the Union, the provision would require management "to allow one teacher of a two person partnership team to temporarily accept the supervisory responsibilities of the other team partner . . . during lunch time so that the other teacher might have a few minutes without elementary school children to supervise." Response at 12-13. The Union states that, under the provision, "it may not be possible" for a teacher assigned to supervise students "to have a partner." Id. at 14. In addition, according to the Union, the needs of the students or other assigned duties could mean that such a break is not "feasible." Id.
The Union claims that the provision is an appropriate arrangement, within the meaning of section 7106(b)(3) of the Statute, for employees adversely affected by the assignment of lunchroom supervision duties. According to the Union, the provision does not afford employees an absolute right to a duty-free lunch. Rather, it would allow, where feasible, one of two teacher partners assigned lunchroom supervision duties to relieve the other teacher of those duties so as to make possible a duty-free time during the lunch period for that teacher.
The Agency claims that the provision directly interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because it provides a duty-free time during the lunch period for teachers assigned lunchroom supervision duties.
B. Meaning of the Provision
Under Provision 3, when the Agency has assigned "teacher partners" to supervise students during their lunch period, the teacher partners may relieve one another of those duties once students have been seated, so that each partner could have a duty-free time during the lunch period. Based on this wording and the Union's explanation, it is clear that the provision does not require that teachers be given a duty-free time during the lunch period. First of all, the provision explicitly states that one of the teacher partners "may" accept the lunchroom supervisory duties of the other partner to allow that partner to have a duty-free time during the lunch period.
Second, the Union explains that the provision allows one teacher partner to have a duty-free time during the lunch period only where it is "feasible." Response at 14. In this regard, the Union states that it is not feasible for one teacher partner to relieve the other of lunchroom supervision where the needs of the children require the presence of both teachers, or where one or both of the teacher partners have "other assigned duties" in addition to lunchroom supervision. Id. Although feasibility is not explicitly stated in the provision as a criterion, it is consistent with the wording of the provision. See 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). Accordingly, we adopt this interpretation of the provision for purposes of this decision. In addition, consistent with the Union's statement that the provision does not make "duty[-]free time during the lunch period . . . an absolute right of the employee[,]" Response at 14, we construe the provision to mean that both teacher partners would be required to supervise the lunchroom when management determines that it would not be feasible for one teacher to provide the necessary supervision.(9)
C. Analysis and Conclusions
1. The Provision Affects Management's Right to Assign Work
It is undisputed, and we find, consistent with Authority precedent, that the provision affects management's right to assign work. See National Federation of Federal Employees, Local 1214 and U.S. Department of the Army, Headquarters, United States Army Training Center and Fort Jackson, Fort Jackson, South Carolina, 45 FLRA 1222, 1225 (1992).
2. The Provision Constitutes an Appropriate Arrangement
As the provision affects the exercise of management's right to assign work under section 7106(a)(2)(B) of the Statute, it was properly disapproved under section 7114(c) unless it constitutes an appropriate arrangement. The approach for determining whether a provision constitutes an appropriate arrangement 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 provision is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. If the provision is an arrangement, the Authority then determines whether it is "appropriate."
An arrangement within the meaning of section 7106(b)(3) 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). The claimed arrangement must also be sufficiently "tailored" to compensate or benefit employees suffering adverse effects resulting from the exercise of management's rights. See, 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). That is, section 7106(b)(3) brings within the duty to bargain provisions 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).
The Authority has previously found that teachers who are assigned lunchroom supervision are adversely affected by that assignment. See, e.g., Overseas Education Association and Department of Defense, Dependents Schools, 39 FLRA 153, 163 (1991). There is no dispute in this case that the assignment of lunchroom supervision adversely affects teachers and, consistent with precedent, we find that it does. In addition, the provision applies only to teachers who have been assigned lunchroom supervision duties during their lunch period. Because it applies only to teachers who have been adversely affected by the exercise of a management right, it is sufficiently tailored. See, e.g., National Federation of Federal Employees, Local 1214 and U.S. Department of the Army, Headquarters, U.S. Army Training Center and Fort Jackson, Fort Jackson, South Carolina, 51 FLRA 1362, 1365-66 (1996). Consequently, we find that the provision is an "arrangement" within the meaning of section 7106(b)(3).
Under the KANG framework, the next inquiry is whether the arrangement is "appropriate." In making this determination, the Authority examines whether the arrangement excessively interferes with the relevant management right by weighing the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. KANG, 21 FLRA at 31-33. As to the appropriateness of Provision 3 under the second prong of the KANG analysis, we find, on balance, that it does not excessively interfere with management's right to assign work.(10)
On the one hand, the benefits afforded teachers by the provision are significant. Teachers would have the opportunity to use the duty-free time during the lunch period afforded by the provision to prepare for their remaining classes, to take care of personal business, or to eat their lunch free from distraction. On the other hand, the effect on management's right to assign lunchroom supervision duties is minimal. Management would not be required to allow a teacher a duty-free time during the lunch period if management determined that it was not feasible. As the Union explained, for example, it would not be feasible where management had assigned work to one or both of the teacher partners in addition to lunchroom supervision. Thus, management's ability to ensure the supervision necessary to preserve lunchroom discipline would not be severely restricted.
In addition, we find it significant that the parties agreed to this provision as a result of their negotiations. The duty to bargain under section 7114 of the Statute requires good faith but does not require management or union bargaining representatives to agree to a proposal or to make concessions. See, e.g., National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 414 (1990). Section 7114(b)(2) of the Statute also requires that the parties be represented at negotiations by representatives who are "duly authorized" to bargain on "any condition of employment[.]" Thus, it is reasonable to conclude from the fact that the parties agreed to the provision that the duly authorized management officials representing the agency determined in bargaining that the burdens imposed by the provision were acceptable and, conversely, that the provision did not excessively infringe upon management's right to assign lunchroom supervision duties to teachers. Nothing in the record persuades us to second guess their judgment about the provision.(11) See National Association of Government Employees, Locals R14-68 and R14-73 and U.S. Department of Defense, Missouri National Guard, 42 FLRA 639, 649 (1991). See also American Federation of Government Employees, Local 1513 and U.S. Department of the Navy, Naval Air Station, Whidbey Island, Oak Harbor, Washington, 41 FLRA 589, 605 (1991).
In sum, we find that the benefits provided employees under the provision outweigh the burden imposed by the provision on management's right to assign lunchroom supervision duties to teachers. As such, under KANG, Provision 3 does not excessively interfere with management's right to assign work under section 7106(a)(2)(B). Accordingly, we find that the provision constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute and conclude that it is not contrary to law.
The petition for review is dismissed as to Provisions 1 and 2. The Agency shall rescind its disapproval as to Provision 3.(12)
1. 20 U.S.C. § 241(a) provided, in relevant part, as follows:
(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 6l0l 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.
. . . .
2. 10 U.S.C. § 2164 provides, in relevant part, as follows:
(e) Administration and staff.
. . . .
(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.
3. Section 351(c) of Pub. L. No. 103-337, 110 Stat. 450, provides as follows:
(c) Nothing in section 2164 of title 10, United States Code, as added by subsection (a) [of section 351 of Pub. L. 103-337], shall be construed as affecting the rights in existence on the date of the enactment of this Act [Oct. 5, 1994] 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.
(If blank, the decision does not have footnotes.)
1. The parties filed supplemental submissions in response to the Authority's Order to Show Cause that the Agency head's disapproval was timely served on the Union.
2. The provisions of title 5 specified in 20 U.S.C. § 241 did not include any provision of the Statute.
3. The savings provision was enacted as section 351(c) of Pub. L. No. 103-337. The text of the savings provision, as well as the relevant text of 20 U.S.C. § 241 and 10 U.S.C. § 2164, is set forth in the Appendix to this decision.
4. The Union's argument concerning the savings provision was asserted in its Response to the Agency's Statement of Position. The Agency did not request an opportunity to provide a supplemental submission addressing the argument.
5. The authority previously granted to the Secretary of Education under 20 U.S.C. § 241 is now vested in the Secretary of Defense under 10 U.S.C. § 2164.
6. The phrase "summary termination" refers to the discretion of an agency to remove a probationary employee without prior notice or right of appeal. See United States Department of Justice, Immigration and Naturalization Service v. FLRA, 709 F.2d 724, 728 (D.C. Cir. 1983) (INS).
7. With respect to probationary employees in the competitive service, Federal law provides for summary termination. INS, 709 F.2d at 728-30. Procedural protections for such employees have been held to be inconsistent with law and cannot be established through collective bargaining under the Statute. See, e.g., U.S. Department of the Air Force, Nellis Air Force Base, Las Vegas, Nevada and American Federation of Government Employees, Local 1199, 46 FLRA 1323, 1325 (1993); National Treasury Employees Union and Federal Deposit Insurance Corporation, Division of Bank Supervision, Chicago Region, Chicago, Illinois, 39 FLRA 848, 851-53 (1991). See also National Treasury Employees Union v. FLRA, 848 F.2d 1273 (D.C. Cir. 1988).
8. Only the underlined portion of the provision (hereinafter referred to as "the provision") is at issue. The Union has not requested that the Authority sever and separately consider any of the text that is not in dispute, and there is no other basis on which to do so. Where the Agency objects only to a portion of a provision and we find that the disputed portion is not contrary to law, we will order the Agency head to rescind his or her disapproval of the provision in its entirety and the provision will take effect. Where, on the other hand, the disputed provision is found to be contrary to law, we will dismiss the petition for review as to the entire provision, thereby precluding the provision from taking effect. See American Federation of Government Employees, Local 1815 and U.S. Department of the Army, U.S. Army Aviation Center and Fort Rucker, Fort Rucker, Alabama, 53 FLRA 606, 610 n.2 (1997).
9. The meaning that we adopt for this provision would apply in resolving other disputes, such as arb