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56 FLRA No. 109

ANTILLES CONSOLIDATED
EDUCATION ASSOCIATION
(Union)

and

U.S. DEPARTMENT OF DEFENSE
EDUCATION ACTIVITY
ANTILLES CONSOLIDATED SCHOOL SYSTEM
FORT BUCHANAN, PUERTO RICO
(Agency)

0-NG-2518

_____

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

September 21, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, 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), and concerns the negotiability of one proposal. [n1] For the reasons which follow, we find that the proposal is within the duty to bargain.

II.     Proposal  [n2] 

Article 30
Association Proposal: Benefits
13 October 1999

Section a: No change in first line of present article. In second line after word "members" strike remainder and add: Including not-to-exceed (NTE) employees who are employed for more than one hundred twenty (120) days and excluding short-term NTE's and intermittent employees:

Subsection (1) after word "provides" in the first line change $7.00 to $9.00 retain present language for rest of subsection.

Subsection (2) after word "provides" in the first line change $8.00 to $10.00 retain present language until after word "and" in second line and substitute $20.00 for $16.00. Remainder of subsection remains the same.

(Subsection 3,4,5 are identical to present article.)

III.     Positions of the Parties

A.     Agency

      The Agency states that Article 30.a would require the Agency to contribute to dental and optical insurance plans administered by the Union for the benefit of bargaining unit employees. Conference Record at 2. The Agency asserts that this subject matter is excluded from the Statute's definition of "conditions of employment" because it is specifically provided for by law. [n3] Id. As support for this the Agency cites to 5 U.S.C. § 7103(a)(14)(C).

B.     Union

      The Union asserts that the pay and fringe benefits of its bargaining unit are not specifically provided for by law. Id. The Union cites to Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990) as support for this claim. The Union also argues that 10 U.S.C. § 2164 gives the Secretary of Defense discretion to fashion a compensation system that will attract qualified applicants. Id. The Union further asserts that similar provisions have been approved by the Agency Head in the past, including in the parties' most recent collective bargaining agreement. Id. [ v56 p665 ]

IV.     Analysis and Conclusions

A.     Meaning of the Proposal

      In interpreting a proposal, the Authority looks to its plain wording and any union statement of intent. If the union's explanation of the proposal is consistent with the proposal's plain wording, the Authority adopts that explanation for purposes of construing what the proposal means and, based on that meaning, decides whether the proposal is within the duty to bargain. See, e.g., National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 32 FLRA 544, 547 (1988) and American Federation of Government Employees, Local 1917 and U.S. Department of Justice Immigration and Naturalization Service, New York, New York 55 FLRA 228, 233-34 (1999).

      There is no dispute over the meaning of the proposal. Both the Agency and the Union agree that the intent of the proposal revising Article 30.a is to require the Agency to increase its contribution to dental and optical insurance plans administered by the Union for bargaining unit employees. Conference Record at 2. This interpretation comports with the plain wording of the proposal and we adopt it as the meaning for the purpose of determining whether or not the proposal is within the duty to bargain.

B.     The Proposal is Within the Duty to Bargain

      Section 7102(2) of the Statute gives employees the right to "engage in collective bargaining with respect to conditions of employment through representatives chosen by employees under this chapter." The term "conditions of employment" is defined in part in section 7103(a)(14) as follows:

personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions, except that such term does not include policies, practices, and matters--

. . . .

(C) to the extent such matters are specifically provided for by Federal statute[.]

      Based on the record, there is no dispute that the optical plan and the dental plan proposed by the Union are "conditions of employment." The only contention by the Agency is that "this subject matter is excluded from the Statute's definition of `conditions of employment' because it is specifically provided for by law." Conference Record at 2. The law which the Agency appears to be referring to is 5 U.S.C. § 8906.

      However, as noted by the Union, the Department of Defense domestic dependent elementary and secondary schools are also governed by 10 U.S.C. § 2164. [n4] Under 10 U.S.C. § 2164(e)(2), the Secretary of Defense has the authority to establish positions and create a compensation system in order to attract qualified applicants to the Defense Department schools. The Secretary is given a great deal of discretion in fashioning a compensation system for these employees. 10 U.S.C. § 2164(e)(3)(B) in pertinent part states:

For employees in such schools, the Secretary, without regard to the provisions of title 5, may provide for the tenure, leave, hours of work, and other incidents of employment to be similar to that provided for comparable positions in the public schools of the District of Columbia. [emphasis added]

This shows not only that the Secretary of Defense is given a tremendous amount of discretion, but that he is allowed to exercise that discretion "without regard to Title 5." As noted earlier, the statute that the Agency appears to rely on, in asserting that the Union's proposal is outside the duty to bargain, is 5 U.S.C. § 8906. As 10 U.S.C. § 2164(e)(3)(B) states, the Agency is not bound by the rules found in Title 5 when determining what type of tenure, leave, hours of work, and other incidents of employment to offer to employees.

      However, even though the Secretary of Defense is not bound by the provisions of Title 5, the Secretary is still required to collectively bargain with respect to hours, wages and other terms and conditions of employment. When Congress enacted Pub. L. No. 103-337, it included a "Savings Provision" into the legislation at section 351(c), which provides that:

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.

By enacting the "Savings Provision," Congress appears to have expressly preserved the existing bargaining [ v56 p666 ] rights and obligations that were in place, to include negotiation over the matters at issue here, when 10 U.S.C. § 2164 replaced 20 U.S.C. § 241. See National Education Association, Overseas Education Association, Fort Bragg Association of Educators and U.S. Department of Defense, Department of Defense Domestic Dependents, Elementary and Secondary Schools, Fort Bragg, North Carolina, 53 FLRA 898, 902-905, 919 (1997). Thus, the Federal Service Labor-Management Relations Statute (5 U.S.C. § 7101 et seq.) still applies to the Agency and the Union so as to requ