DEPARTMENT OF DEFENSE DEPARTMENT OF DEFENSE STATESIDE DEPENDENTS SCHOOLS QUANTICO DEPENDENTS SCHOOL SYSTEM QUANTICO, VIRGINIA QUANTICO EDUCATION ASSOCIATION
In the Matter of )
DEPARTMENT OF DEFENSE )
DEPARTMENT OF DEFENSE STATESIDE )
DEPENDENTS SCHOOLS )
QUANTICO DEPENDENTS SCHOOL SYSTEM )
QUANTICO, VIRGINIA )
)Case Nos. 91 FSIP 246
and )91 FSIP 250
QUANTICO EDUCATION ASSOCIATION )
The Quantico Education Association (Union) and the Department of Defense, Department of Defense Stateside Dependents Schools, Quantico Dependents School System, Quantico, Virginia (Employer), each filed a request for assistance with the Federal Service Impasses Panel (Panel) to consider a negotiation impasse under the Federal Service Labor-Management Relations Statute (Statute), 5 U.S.C. § 7119.1/ The impasse arose following negotiations for a successor collective-bargaining agreement.
After investigation of the requests, the Panel consolidated the cases and directed the dispute, which involves economic issues for teachers, to private factfinding. Under this procedure, the designated factfinder's fees and related expenses were to be shared equally by the parties. Following receipt of the factfinder's report, which was to contain recommendations for settlement that were supported by rationale, the parties were to advise the Panel as to whether or not they accepted the factfinder's recommendations. The parties also were notified that once the Panel received the factfinder's report, and the parties' responses thereto, it would take whatever action it deemed appropriate to resolve the impasse. On March 9 and 10, 1992, a hearing was held before Factfinder Richard I. Bloch in Quantico, Virginia. A stenographic record was made, testimony and argument were
1/ The Union was the filing party in Case No. 91 FSIP 246. The Employer filed the request in Case No. 91 FSIP 250.
presented, and documentary evidence was submitted. In accordance with the Panel's procedural determination, the factfinder issued his report, which contained recommendations for settlement, on April 3. 1992.
The Panel was advised by the Union that it accepted the factfinder's recommendations in their entirety. The Employer advised the Panel that it accepted the factfinder's recommendations on all but five of the outstanding issues. In an accompanying statement of position, the Employer raised new duty-to-bargain questions with respect to each of those issues; it also alleged that one issue should not be considered by either the factfinder or the Panel, as it was withdrawn by the Union at an earlier stage of the proceedings.
The Panel directed the parties to submit additional written statements addressing the unresolved issues on their merits as well as the duty-to-bargain questions. Submissions were made in accordance with this directive. The record is now closed, and the Panel has considered all of the evidence and argument contained therein.
ISSUES AT IMPASSE
The parties are at impasse over five issues: (1) Article 11, Section 3a -- Planning/Preparation Time; (2) Article 12A, Section 5b -- Tuition Assistance; (3) Article 12C, Section 4 -- Salary Schedule; (4) Article 13, Section 2a -- Personal Leave; and (5) Article 13, Section 2e -- Sabbatical Leave. The factfinder's recommendations with respect to these issues are set forth in the attached Factfinder's Report and Recommendations.
1. Planning/Preparation Time
a. The Union's Position
The Union proposes the following wording:
There shall be 4 professional days for planning at the High School
and Middle School and 3 ½ such days at the Elementary Schools (K-5), during which no more than 4 hours total will be used for in-service training.
This proposal is consistent with the current practice of minimizing the amount of professional time devoted to in-service training. It alleges that of the 28 total duty hours available during professional days, only 4 are used for training programs. Planning time is essential to the teaching profession, and if teachers are not provided adequate time to plan during professional days, the work would have to be done either in the evening or on weekends. In
response to the Employer's allegation of nonnegotiability, the Union maintains that its proposal is negotiable and relies on the holding of the Federal Labor Relations Authority (FLRA or Authority) in Overseas Education Association and Department of , 39 FLRA 153 (1991).
b. The Employer's Position
The Employer's proposal is as follows:
There shall be 4 professional days for planning at the High School and Middle School and 3 ½ such days at the Elementary Schools
(K-5), during which teachers will be allowed at least 2 ½ hours
per day for professional planning.
Under the Employer's proposal, teachers would be allowed at least 2.5 hours of planning time during each professional day. In-service training, necessary to educate teachers on topics such as AIDS and new instructional methods, should not be sacrificed in favor of additional planning time. Under Article 11, Section 3e, of the agreement, each teacher is already allowed 182 planning periods per year; this amount of time, combined with the time allowed on professional days, is a sufficient amount to be devoted to planning.
The Union withdrew this issue from its package at an earlier stage of the proceedings; thus, its proposal should not have been considered by the factfinder. Furthermore, the proposal is outside the duty to bargain, as it conflicts with the Employer's right to assign work under section 7106(a)(2)(B) of the Statute. The Employer cites Overseas Education Association and U.S. Department of Defense Dependents Schools. FPO. Seattle, 42 FLRA 197 (1991) and
Fort Knox Teachers Association and Fort Knox Dependents Schools, 22 FLRA 815 (1986), in support of its position. It also contends that none of the proposals examined by the Authority in the case cited by the Union are substantively identical to the Union's proposal in this case. Therefore, there is no case law available for the Panel to apply in accordance with Commander. Carswell Air Force Base
Texas and American Federation of Government Employees. Local 1364, 31 FLRA 620 (1988), to resolve the duty-to-bargain question. The Employer does not, however, urge the Panel to relinquish jurisdiction over the issue; to the contrary, it argues for adoption of its own proposal on the merits.
Turning first to the duty-to-bargain question, we find it unnecessary to consider the parties' arguments regarding the negotiability of the Union's proposal because the existing contract wording provides the most suitable resolution to the impasse. In our view, neither party has demonstrated a need for altering the current provision. Although we are mindful that there may be disagreement over its interpretation, we are convinced that such disputes can be resolved through the parties' negotiated grievance procedure. Accordingly, we shall order both sides to withdraw their respective proposals and to maintain the status quo.
2. Tuition Assistance
a. The Union's Position
The Union proposes the following wording:
The Superintendent shall approve requests for tuition assistance, for a maximum of 9 credit hours each school year, for course work at accredited institutions.
Under this proposal, all employees who apply would receive full tuition reimbursement for up to 9 credit hours per school year. tuition reimbursement provides an incentive for teachers to continue their professional development, thereby enhancing the overall quality of the Employer's education program. Since most teachers who are pursuing graduate degrees take two courses (six credits) during the school year and three additional courses (nine credits) over the summer, reimbursement for nine credits per year is fair.
b. The Employer's Position
The Employer proposes the following:
The Superintendent shall approve requests for tuition assistance up to $70 per credit hour, for a maximum of 3 credit hours each school year, for course work at accredited institutions for the purpose of recertification.
A cap of $70 per credit hour with a limitation of 3 credit hours per year would allow tuition reimbursement funds to be made available to more employees and would be more generous than tuition programs offered by comparable school districts. Specifying the maximum amount of reimbursement would eliminate the uncertainty existing under the present system; in this regard, the Employer emphasizes that the current program may operate as a disincentive for employees to apply. With respect to the Union's proposal, it is stressed that there is no demonstrated need for the proposal and were it to be adopted, the Employer's maximum exposure would be approximately $485,000. Finally, the factfinder's recommendation is nonnegotiable, as it would interfere with the Employer' B right under section 7106(a) of the Statute to determine the agency's budget.
In examining the duty-to-bargain question, we find it unnecessary to consider the parties' arguments regarding the negotiability of the factfinder's recommendation because, in our view, the Employer's proposal provides the most reasonable resolution to the dispute. In this regard, we conclude that the Union has not demonstrated a need for adoption of its proposal. Moreover, given the current downsizing of the Department of Defense (DOD), we believe that the potential cost of the Union's proposal is excessive. The Employer's proposal, on the other hand, provides an economic benefit at a reasonable cost and appears to be in line with tuition assistance programs provided by neighboring school districts. For these reasons we shall order its adoption.
3. Salary Schedule
a. The Union' 8 Position
The Union proposes the following salary schedule:
The base salary for the 1991-92 school year shall be $25,209. This amount constitutes a 7% increase over the 1990-91 salary schedule. This base salary rate shall be effective July 1, 1991. The base salary shall be increased 7% per annum for each succeeding year of this contract, effective July 1, 1992 and July 1, 1993. The base salary shall be indexed as follows:
Bachelors: 1.00, 1.06, 1.12, 1.18, 1.24, 1.30, 1.35, 1.40, 1.45, 1.50, 1.55, 1.60, 1.65, 1.70 = 14th step (13 years service).Bachelors + 15: 1.05, 1.11, 1.17, 1.23, 1.29, 1.35, 1.40, 1.45, 1.50, 1.55, 1.60, 1.65, 1.70, 1.75 = 14th step (13 years service).Masters: 1.15, 1.20, 1.25, 1.30, 1.35, 1.40, 1.45, 1.50, 1.55, 1.60, 1.65, 1.70, 1.75, 1.80, 1.85, 1.90, 2.00 = 18th step (17 years service).Masters + 30: 1.20, 1.25, 1.30, 1.35, 1.40, 1.46, 1.52, 1.58, 1.64, 1.70, 1.76, 1.82, 1.88, 1.94, 2.00, 2.06, 2.12 2.18 18th step (17 years service).Doctorate: 1.25, 1.31, 1.37, 1.43, 1.49, 1.55, 1.61, 1.67, 1.73, 1.79, 1.85, 1.91, 1.97, 2.03, 2.09, 2.15, 2.20, 2.25 18th step (17 years service).
In the alternative, the Union proposes adoption of the Falls Church
(Virginia) School District salary schedule, provided that any teacher who would otherwise have his or her salary reduced under that schedule would retain his or her current salary. As a third option, the Union has also proposed a 2-tier pay and annual leave structure. Under this plan, those teachers employed at the beginning of the 1991-92 school year would remain under the Union's proposed salary schedule, as set forth above, and would continue to earn annual leave in accordance with existing leave policies. Those hired after the start of the school year would be placed on the Prince William County (Virginia) School District salary schedule and would accrue personal leave in accordance with the Employer's proposal.
Since employees received a salary increase totaling 25 percent
over the last 3 years, its proposal, which totals 21 percent over 3 years, is equitable. Higher pay has allowed the school system to attract and retain superior teachers; as evidence of this, the Union emphasizes that Quantico currently has the highest percentage in the state of teachers with postgraduate, professional certificates or degrees. This translates into a better overall education program, a measure of which is higher student test scores. Because they are covered under Federal retirement plans (either Federal Employees' Retirement System (FERS) or Civil Service Retirement System (CSRS)), Quantico teachers receive less in the way of contributions to their retirement (between 7.68 percent and 11.88 percent less) than their counterparts in other school districts; higher pay rates are appropriate to offset this difference.
With respect to comparability, Quantico most closely resembles
the Falls Church School District because: (1) the size of the faculty and student body are similar; (2) the length of the workday is the same; and (3) Falls Church teachers also receive less in the way of retirement contributions than do teachers in other districts. With respect to the Employer's proposal, the Union disputes the argument that the Prince William School District is the more comparable district. The Employer's proposal is discriminatory under the Age Discrimination in Employment Act, as it would have a disparate impact on those teachers who are 40 or older; most employees at the high end of the salary schedule (who are older teachers) would have their salaries frozen under the Employer's Proposed schedule.
Finally, the Employer's allegations of nonnegotiability with
respect to the factfinder's recommendations are misplaced. In this
regard, the Union believes that American Federation of Government
Employees, AFL-CIO and Air Force Logistics Command. Wright-Patterson Air Force Base. Ohio, 2 FLRA 604 (1980), is not applicable. Under the second prong of the Wright-Patterson test, a union proposal is nonnegotiable if it would result in significant and unavoidable increased costs which are not offset by compensating benefits. Initially, the cost of several proposals cannot
be aggregated to demonstrate a significant increase in costs. Also,
none of the factfinder's recommendations, standing alone, would result in either a "significant" or an "unavoidable" increase in the agency's costs. However, even if the costs of its proposals are "significant" and "unavoidable," there has been no affirmative demonstration by the Employer that such costs are not offset by compensating benefits. For these reasons, the Panel is urged to resolve the duty-to-bargain question and to find the factfinder's recommendations to be negotiable.
b. The Employer's Position
The Employer proposes the following:
Pay changes shall go into effect at the beginning of the pay period in which the school year begins. Salary schedules for school years 1991-92 through 95-96 are attached.2/ Only longevity increases, averaging 3%, will be paid for the 1991-92 school year. Each succeeding year will include the longevity increase plus a 2% cost of living adjustment.
This proposal was crafted by averaging the salaries of Prince William and Quantico for school year 1990 and increasing that amount by 5 percent; in essence, it would provide for higher starting salaries but would reduce step increases, thereby reducing salaries at the "high end" of the schedule. Prince William is the most comparable school district since most teachers live in Prince William County and the district is geographically contiguous to Quantico. Because prior raises totaling 25 percent over 3 years were required by the state of Virginia to raise the state's ranking of teacher salaries, it is unreasonable to look to that experience to resolve the instant impasse. Also, since Quantico teachers are already the fifth highest paid in the state, this is not a situation which calls for catch up pay; thus, there is no demonstrated need for the Union's proposal. Finally, under the current pay scale, starting salaries are not competitive, making it difficult to attract entry-level teachers. With respect to comparability, in the majority of school districts in Virginia, teachers did not get a salary increase for the 1991-92 school year. The results of an informal survey indicate that surrounding districts took the following actions with respect to wages for school year 1991-92:
2/ The Employer has indicated that it has accepted the factfinder's
recommendation of a 3-year agreement. Accordingly, we will assume for purposes of this discussion that the Employer's proposal covers only school years 1991-92, 1992-93, and 1993-94.
Arlington step + 2%
Alexandria step + 2%
Falls Church step only
Prince William step only
Stafford step advance but same salary
Fairfax no adjustment
For school year 1992-93, the same districts plan to take the following actions:
Arlington step only or step + 2%
Alexandria at best, step only
Falls Church step + 2%
Prince William 3.2% - no step
Stafford 5% - includes step of 1.7%
Fairfax 3.8% step only
Teaching at Quantico provides nonmonetary rewards and benefits to teachers such as (1) well-behaved students; (2) a secure community (no drugs, violence, etc.); (3) a high level of parental support and input; and (4) well-maintained buildings and physical surroundings; overall, it is a nice place to work. Teachers are apparently satisfied with working conditions since the turnover rate for the last 3 years has been only 7 percent.
Quantico teachers do not receive less in the way of retirement
contributions than other similarly-situated teachers. For employees covered by FERS, the Employer contributes 12.9 percent of an employee's salary to that retirement system. It also contributes up to 5 percent of an employee's salary to the Federal Thrift Savings Plan, and 6.2 percent to Social Security. For employees covered by CSRS, the Employer contributes 7 percent of an employee's salary to that retirement plan. Thus, Employer contributions to employee retirement plans are comparable to those made by other school districts.
The cost of the Union's proposed salary schedule is not justified. The school system's budget is based solely on projected student enrollment and there is no way of supplementing it (e.g., raising taxes, issuing bonds, etc.) as is done in local school districts. Moreover, it is projected that the Quantico budget will increase by a smaller percentage over the next 7 years. Given this premise, funds to cover salary increases would have to come from
monies budgeted for other items. If the cost of operating Quantico Dependents School System becomes excessive, there exists the possibility that it may be turned over to a local school district; a 1991 RAND study examined this as a possibility.
Finally, the factfinder's recommendations on pay scale, salary increase, and annual leave, taken together, interfere with the Employer's right to determine its own budget. In support of that position, the Employer relies on the second prong of the Wright
Patterson test. In its view, the factfinder's recommendations on these issues would result in a significant and unavoidable increase in costs which is not offset by compensating benefits.
In examining the duty-to-bargain issue, we find that resolution of this question is not necessary because, in our view, the factfinder's recommendation is inadequate to resolve the dispute. We note, however, that the U.S. Supreme Court has held in Fort Stewart Schools v. Federal Labor Relations Authority, _ U.S.
110 S. Ct. 2043 (1990), that since wages of civilian teachers are
not set by any statute, Congress did not preempt negotiations over them. Moreover, with respect to the Employer's argument that the
factfinder's recommendations on pay scale, salary increase, and annual leave, taken together, are nonnegotiable under the second prong of the Wright-Patterson test, we note that under existing FLRA case law, proposals are examined individually in determining whether a particular proposal would result in such an increase in cost as to render it nonnegotiable under Wright-Patterson.3/
Turning now to the merits, we conclude that neither party 's
proposal, nor the factfinder's recommendation, would provide a suitable accommodation. Given the circumstances of this case, both he Union's proposal and the factfinder's recommendation provide too
generous an increase. In this regard, we believe that the comparability data set forth in the record do not support adoption of either. Moreover, given continuing DOD downsizing, and the increased emphasis on cost-cutting, salary increases of this magnitude are not justified. Adoption of the Employer's proposed salary schedule, on the other hand, would result in a significant number of teachers receiving no increase at all; this result is also unacceptable. Accordingly, we shall order the adoption of a two-tiered salary schedule which provides a more equitable resolution. Teachers hired prior to the start of the 1991-92 school year will remain on the prior salary schedule; those pay rates shall be increased by 2 percent each year for school years 1991-92, 1992-93, and 1993-94. Teachers hired after the start of the 1991-92 school year shall be placed on the Employer's proposed salary schedule for school years 1991-92, 1992-93, and 1993-94, provided that any teacher who would have his or her salary reduced by being placed on the new schedule shall retain his or her current salary until such time as the teacher's salary under the new schedule exceeds his or her current salary.
3/ 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).
4. Personal Leave
a. The Union's Position
The Union proposes that the status quo be maintained; that is,
annual leave would continue to be accrued according to the system used for other Federal employees. Teachers would also continue to take annual leave during periods of holiday shutdown and would "cash out" any unused annual leave at the end of each school year. Employees could continue to use sick leave during periods of holiday shutdown, as necessary, and would be allowed 3 days of bereavement leave for each instance of bereavement. The Employer's allegations of nonnegotiability should be rejected for the same reasons that were raised with respect to the salary issue.
The current practice encourages teachers not to use annual leave during the school year. This is beneficial to the district, as it minimizes disruption in the classroom and saves on the cost of substitute teachers. Allowing employees to use sick leave during
holiday shutdowns also is beneficial for the same reasons; under the current system, teachers generally schedule elective or nonemergency medical treatment during holiday periods. The current system operates at all other Section 6 schools, and there is no demonstrated need to change.
The Employer's proposal, on the other hand, would result in a 2 1/2 to 5 percent pay cut for the majority of teachers, since most
elect not to use annual leave during the school year. It would also
result in a total of 333 lost days of instruction plus the cost of
substitute teachers on those days. The reason for this is that
teachers would use all 3 days of personal leave so as not to lose them at the end of the year. In sum, not only is the Employer's proposal a takeback of an existing economic benefit, but it would also result in increased costs to the school system.
b. The Employer's Position
The Employer proposes that employees receive 16 days of personal leave per school year. Ten days of this leave would be distributed among Thanksgiving, Winter, and Spring break periods in accordance with the school calendar. Such periods of leave could not be charged to sick leave. Three days of this leave could be used as discretionary personal days off as approved by the administration. The 3 remaining days would be set aside to be used as bereavement leave if needed. Any of the 3 discretionary personal days unused at the end of the school year would be converted to accumulated sick leave at that time; unused bereavement days, however, would be dropped.
The leave system for a typical 12-month Federal employee should never have been applied to teachers; it is a windfall for more senior employees and is overly harsh for new hires, since they
have no discretionary time off. The concept of annual leave is foreign to the teaching profession; no school district in the immediate area operates under such a system. Teachers are already off duty for 10 weeks during the summer; 10 to 12 days over Thanksgiving, Winter, and Spring break periods; and on 10 Federal holidays. These breaks in the work cycle provide time for replenishment that annual leave provides to other Federal employees. Moreover, other Federal employees cannot cash out unused annual leave, but rather, can carry over only 240 hours; any excess over that amount is lost. Finally, the factfinder's recommendation of maintaining the status quo is outside the duty to bargain; in support of this position, the Employer raises the same arguments as it did with respect to the salary issue.
In examining the duty-to-bargain question, we again find it unnecessary to consider the parties' arguments regarding the negotiability of the factfinder's recommendation. This is because we do not find the status quo to provide a suitable resolution to the impasse. We conclude that the current annual leave system is unique among the surrounding districts and that the provision allowing for the cash out of any unused annual leave at the end of the school year is a windfall for more senior teachers. On the other hand, a direct takeback of this economic benefit would be unfair and would likely have a detrimental effect on teachers' morale. Accordingly, we shall order the adoption of a two-tiered system, consistent with our discussion of the salary issue, which we believe to be a superior resolution of this matter. Teachers hired before the start of the 1991-92 school year will continue to accrue annual leave in accordance with the status quo, including the cash out of all unused annual leave at the end of the school year. The procedures set forth in the Employer's proposal shall govern use of annual leave. These employees will be entitled to 3 days of administrative leave for each instance of bereavement. Teachers hired after the start of the 1991-92 school year shall earn annual leave as follows: Employees will be allowed 13 days of personal leave per school year. Ten days of this leave will be distributed among Thanksgiving, Winter, and Spring break periods in accordance with the school calendar. Such periods of leave may not be charged to sick leave. Three days of this leave may be used as discretionary personal days off as approved by the administration;
any unused portion of these 3 days will be cashed out at the end of the school year. These employees will be entitled to 3 days of administrative leave for each instance of bereavement.
5. Sabbatical Leave
a. The Union ' s Position
The Union proposes that after 7 consecutive years of service
with the school system, employees would become eligible for a maximum of 1 year of sabbatical leave. Sabbatical leave would be granted for the purpose of study, travel, or for other purposes approved by the Board of Education. Under this plan, employees on a study sabbatical would be required to take a minimum of 9 hours each semester. Employees on a study sabbatical would receive 65 percent of their regular salary, with employees on a travel sabbatical receiving 50 percent. Any deviation from the original approved program without written approval of the Superintendent would result in forfeiture of sabbatical funds; reimbursement of any funds received would be required under this circumstance. Employees taking a sabbatical would be entitled to return to the position they occupied prior to their leave or to another position of a similar nature.
Sabbatical leave should be an earned right which is established after 7 years of service. The Employer has not demonstrated a need to reduce the pay provisions for study leave, nor has it demonstrated a need to eliminate pay for travel leave. Furthermore, the Employer has not demonstrated a need to eliminate selection decisions from the grievance procedure and payback agreements, as required under the Employer's proposal, are not necessary. With respect to the Employer's allegations of nonnegotiability, the factfinder's recommendation does not conflict with the provisions of the Training Act, 5 U.S.C. S 4108 (1988), and, therefore, is within the duty to bargain.
b. The Employer's Position
Under the Employer's plan, after 7 consecutive years of service, employees would become eligible to apply for a maximum of 1 year of sabbatical leave. Normally, no more than 2 percent of full-time teachers would be on sabbatical leave at any one time. Approval of sabbatical leave would be subject to available funds, and would be granted at the discretion of the Board of Education; the Board's decision would be final and nongrievable. Seniority would be considered when candidates are equally qualified in all other aspects. Sabbatical leave would be granted for the purpose of study or for other purposes as approved by the Board, and a minimum of 9 semester hours would be required each semester. Under this plan, employees on sabbatical leave would receive one-half of their regular salary for study but would receive no payment for travel leave. Any deviation from the original approved program without written approval of the Superintendent would result in forfeiture of sabbatical funds; reimbursement of any funds received would be required under this circumstance. Employees granted sabbatical leave would enter into a payback agreement whereby they would agree to continue working for the Employer for a minimum of 3 years after completing their year of sabbatical; should an employee fail to continue working for 3 years, he or she would be required to pay back, on a prorated basis, the funds he or she received during the period of sabbatical leave. Employee's would also be entitled to return to the position they occupied prior to their leave or to another position of a similar nature within the school system.
This proposal is supported by the comparability data which was proffered at the factfinding hearing. The Employer does not know of any program in the state of Virginia that grants employees the right to sabbatical leave merely on the basis of continuous service; sabbatical leave should not be an entitlement based on years of service, but rather, a benefit offered to employees as an investment in the future. In those districts having sabbatical leave programs, payment rates are comparable to those it has proposed. Moreover, requiring payback agreements is consistent with the requirements of the Training Act, 5 U.S.C. S 4108 (1988). Finally, the factfinder's recommendation, which provides for a modified version of the status quo, is nonnegotiable, as it omits