Federal Education Association, Stateside Region (Union) and United States, Department of Defense, Education Activity, Pensacola, Florida (Agency)

[ v58 p465 ]

58 FLRA No. 113

FEDERAL EDUCATION ASSOCIATION
STATESIDE REGION
(Union)

and

UNITED STATES
DEPARTMENT OF DEFENSE
EDUCATION ACTIVITY
PENSACOLA, FLORIDA
(Agency)

0-NG-2603

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

April 11, 2003

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. The Agency filed a statement of position. The Union filed a response to the Agency's statement of position.

      For the reasons which follow, we find that the proposal is outside the duty to bargain. Accordingly, we dismiss the petition for review.

II.     Background

1.     The Department of Defense Education Activity (DoDEA or Agency) is an organizational component of the Department of Defense. The Department of Defense Domestic Dependent Elementary and Secondary Schools (DDESS) is an organizational component of DoDEA. DDESS provides elementary and secondary education to the dependents of military members and certain federal civilian employees assigned to various locations. DoDEA has overall responsibility for the operation of school districts within DDESS. As relevant here, DoDEA establishes committees for a variety of purposes, including the development of curriculum and educational programs. The committees are comprised of employees assigned to DDESS. The Union is the exclusive representative of professional employees at the DDESS and not at DoDEA.

      The proposal was submitted by the Union during midterm bargaining as an addition to Article 6, Section 8 of the parties' master labor agreement, which is entitled "Representation on Committees." Response at 4. The language of Article 6, Section 8 is set forth in the appendix to this decision.

III.     Proposal  [n1] 

The Association shall be entitled to select one-half of the committee/training members who are to come from the bargaining unit. The bargaining unit members will be in a paid duty status while working on committee/ training activities, when required by the Agency, regardless of the time of day or time of year that the committee/training works. The bargaining unit members will be paid at their earned hourly rate. Travel expenses, including per diem, will be paid in accordance with the JTR. The Association agrees to designate the Association representative(s) from the committee members selected by either the Association [or] Agency.

IV.     Positions of the Parties

A.     Agency

      The Agency asserts that currently the Union has the ability to pick three bargaining unit members to serve on committees "established at the DDESS level and appointed by the DDESS Director." Statement of Position at 4. The Agency claims that the Union seeks to select members of committees established at organizational levels above that of the DDESS, including committees established by the Agency, an organizational element with which the Union has no representational rights. The Agency adds that the Union also seeks to select attendees at all training sessions, including those above the DDESS level.

      The Agency contends that the proposal affects management's rights under § 7106 of the Statute because it allows the Union to participate on committees used by management as an integral part of its deliberative [ v58 p466 ] process under § 7106. The Agency asserts that committees established at the Agency level are "[m]ost typically . . . formed to perform work related to curriculum development and development of educational programs and may, or may not, discuss personnel policies, practices, and/or terms and conditions of employment." Id. at 6.

      The Agency also contends that the proposal affects management's rights to direct employees and assign work because the proposal would not allow management to consider operational needs in assigning the employees selected by the Union. According to the Agency, management would be required to permit the employees selected by the Union to participate on the committee or attend training sessions during duty time without regard to management's staffing needs or the specialized skills of the employees selected by the Union.

      In addition, the Agency maintains that because of the proposal's effect on management's rights, the proposal does not encompass a permissive subject of bargaining under § 7106(b)(1) of the Statute and is neither a negotiable procedure nor an appropriate arrangement under § 7106(b)(2) and (3) of the Statute.

B.     Union

      The Union contends that the proposal concerns the means of performing work under § 7106(b)(1) and, as such, is negotiable at the election of the Agency. In this regard, the Union cites Proposal 18 in Overseas Education Association, Inc., 29 FLRA 734, 763 (1987), aff'd as to other matters, 872 F.2d 1032 (D.C. Cir. 1988) (per curium) (OEA); 911 F.2d 743 (D.C. Cir. 1990) (en banc). [n2]  T he Union states that Proposal 18 allowed the Union "to select at least one member per committee" and involved the union and employees "in the development of curriculum changes." Response at 13. The Union states that the Authority found that the proposal concerned the means of performing work under § 7106(b)(1) of the Statute.

      In addition, the Union states that "[t]he proposal is intended to apply to any level of the Agency where there are committees and training made up of DDESS employees represented by [the Union] and Agency officials." Id. at 4. The Union maintains that the proposal is not intended to expand the definition of "committees" as set forth in Article 6, Section 8, which limits Union representation to a "committee that is composed of Agency representative(s) and bargaining unit member(s) and that discusses personnel policies, practices, and/or terms and conditions of employment." Id.

      The Union asserts that the Agency establishes committees comprised of employees assigned to DDESS and that those employees are assigned duties involving the development of curriculum and educational programs. The Union also asserts that changes to curriculum and educational programs affect the working conditions of unit employees and that the Union has negotiated with the Agency on the impact and implementation of changes to curriculum and educational programs.

V.     Analysis and Conclusions

A.     Meaning of the Proposal

      The proposal would operate when the Agency establishes committees or training sessions to which bargaining unit employees would be assigned. Under the proposal, the Union would select half of the bargaining unit employees to serve on committees or attend training sessions and management would select the other half. In addition, the Union would designate its representatives from among the complement of unit employees who had been selected by either the Union or management.

      The Union states that the proposal is not intended to expand the contractual definition of "committees," which is limited to "committee[s] . . . that discuss[] personnel policies, practices, and/or terms and conditions of employment[,]" Response at 5, and that its proposal is similar to a proposal in OEA, which involved union participation on curriculum committees. In view of this statement, and absent any evidence in the record that the parties' agreement does not include committees dealing with curriculum issues, we interpret the proposal as applying to curriculum committees, as well as committees addressing other personnel policies, practices and/or terms and conditions of employment.

      As to the portion of the proposal addressing training, nothing in the proposal or the record identifies the type of training sessions that were contemplated, other than those established by the Agency. However, it is clear from the wording of the proposal that it would permit the Union to designate bargaining unit employees to participate in training sessions established by the Agency. [ v58 p467 ]

B.     The Proposal Is Outside the Duty to Bargain

      In NAGE, Local R5-184, 51 FLRA 386, 393 (1995), the Authority set out the sequence of analysis it would follow in cases where a union does not dispute that a proposal affects management's rights under § 7106(a) of the Statute, but claims that the proposal is bargainable under § 7106(b)(1) of the Statute. Under that sequence, the Authority first examines the contention that a proposal is bargainable under § 7106(b)(1). If the matter concerns a subject set forth in § 7106(b)(1), then the Authority does not address § 7106(a) further, because subsection (b)(1) is an exception to subsection (a). Id. See also Professional Airways Systems Specialist, 56 FLRA 798, 802-03 (2000). The Union does not dispute that the proposal affects management's rights under § 7106(a) or claim that the proposal constitutes a procedure or an appropriate arrangement within the meaning of § 7106(b)(2) or (b)(3). Consequently, the issue before us is whether, as argued by the Union, the proposal is a "means of performing work" under § 7106(b)(1).

      By its terms, the proposal would permit the Union "to select one-half of the committee/training members who are to come from the bargaining unit." The committees and training sessions are those established by the Agency, an organizational element with which the Union has no representational rights. The committees include those involved with curriculum development, as well as those addressing other personnel policies, practices and/or terms and conditions of employment.

      In support of its assertion that the proposal is a means of performing work under § 7106(b)(1), the Union relies on Proposal 18 in OEA which, according to the Union, allowed the union "to select at least one member per committee" and involved the union and employees "in the development of curriculum changes." Response at 14.

      Briefly stated, Proposal 18 in OEA required the agency to make every reasonable effort to involve unit employees in the development of curriculum changes. Where curriculum changes were accomplished with the involvement of unit employees, the proposal further required the agency to consider union nominees for committee representation and to permit the union to select one member per committee. The Authority found that the proposal would involve unit employees and the union in the development of curriculum changes. See OEA, 29 FLRA at 765. The Authority also found that the proposal was negotiable at the agency's election under § 7106(b)(1) insofar as "the development of the curriculum constitutes the means by which the [a]gency's mission of providing a quality education is performed." Id. However, the Authority determined that the portion of the proposal giving the union "the right to select at least one (1) member per committee[,]" violated the right to assign work under § 7106(a)(2)(B) of the Statute by requiring the assignment of specific duties to particular employees. Id. at 767.

      We agree with the Union that insofar as the proposal would permit the Union to select employees to serve on curriculum development committees, the proposal concerns the means of performing work under § 7106(b)(1) of the Statute. See id. However, we conclude that the proposal is nonetheless outside the duty to bargain as explained below.

      The Union's contention that the proposal concerns the means of performing work under § 7106(b)(1) is limited to committees concerned with curriculum development. The Union makes no similar claim with respect to committees that involve other personnel policies, practices, and/or terms and conditions of employment, despite the fact that those committees are also encompassed by the proposal. Likewise, the Union makes no claim under § 7106(b)(1) with respect to the training sessions that are encompassed by the proposal. Additionally, we note that the Union makes no request for severance of the proposal as permitted under § 2424.2(h) of the Authority's Regulations. [n3] See, e.g., AFGE, Local 1985, 55 FLRA 1145, 1149 (1999).

      As we stated above, the Union does not dispute the Agency's contention that the proposal affects the exercise of management's rights. In particular, the Union does not challenge the Agency's assertion that the proposal would impermissibly