DEPARTMENT OF DEFENSE DOMESTIC DEPENDENT ELEMENTARY AND SECONDARY SCHOOLS CAMP LEJEUNE DEPENDENTS SCHOOLS CAMP LEJEUNE, NORTH CAROLINA AND LEJEUNE EDUCATION ASSOCIATION, FEDERAL EDUCATION ASSOCIATION, NEA
United States of America
BEFORE THE FEDERAL SERVICE IMPASSES PANEL
In the Matter of
DEPARTMENT OF DEFENSE
DOMESTIC DEPENDENT ELEMENTARY AND
CAMP LEJEUNE DEPENDENTS SCHOOLS
CAMP LEJEUNE, NORTH CAROLINA
LEJEUNE EDUCATION ASSOCIATION,
FEDERAL EDUCATION ASSOCIATION, NEA
Case No. 96 FSIP 116
DECISION AND ORDER
The Lejeune Education Association, Federal Education Association (FEA), National Education Association (Union) 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, between it and the Department of Defense, Domestic Dependent Elementary and Secondary Schools (DDESS), Camp Lejeune Dependents Schools (CLDS), Camp Lejeune, North Carolina (Employer).
Following an investigation of the request for assistance, which concerns overtime pay for four teachers, the Panel determined that the dispute should be resolved through written submissions from the parties. Thereafter, the Panel would take whatever action it deemed appropriate to resolve the impasse, including the issuance of a Decision and Order. Written submissions were made pursuant to this procedure, and the Panel has now considered the entire record.
The Employer’s mission is to provide a quality education to military dependents from kindergarten through the 12th grade. The Union represents approximately 325 bargaining-unit employees at CLDS who work primarily as teachers. The parties’ local collective-bargaining agreement (CBA) is due to expire in November 1997. Negotiations are currently underway at the national level over a successor CBA to cover all DDESS employees represented by the FEA.
The parties essentially disagree over the type and amount of compensation that four high school science teachers should receive for having worked beyond the normal duty day.
POSITIONS OF THE PARTIES
1. The Union’s Position
The Union proposes the following wording:
CLDS will compensate the four Camp Lejeune High School science teachers for the additional work performed as a result of the issuance of the November 17, 1995, memorandum, Subject: Laboratory Safety and Hazardous Waste Management. The compensation will be paid at a rate of 1 ½ times the individual teacher’s earned hourly rate.
It also proposes that the teachers be compensated for 105, 65.5, 61.5, and 4 hours, respectively. By way of background, in November 1995, the Employer realized that its laboratory experiments guidelines were not in compliance with Federal law so it ordered the science teachers "to halt all laboratory experiments and create new lesson plans for the current science classes." They were also ordered to "inventory, neutralize and properly store or dispose of all chemicals not in compliance." Since these changes occurred in the middle of the school year and the teachers’ free time was already occupied with class assignments and after-school activities, they were unable to complete their work within the normal duty day. For this reason, the teachers should receive compensation for working overtime. Such compensation should be monetary because DDESS teachers have the right to negotiate over matters concerning their pay and benefits(1) regardless of the fact that, normally, teachers are not covered by the Fair Labor Standards Act (FLSA).(2) Moreover, the parties’ CBA "is silent on the issue of overtime and compensatory pay." Its proposal, therefore, is consistent with the Federal government’s standard overtime rate of 1 ½ times each employee’s hourly wage. With regard to the Employer’s proposal, compensatory time would provide minimal benefit to the teachers. Because they often are unable to use all their current leave within the school year, as required under the school’s use-or-lose policy, compensatory time would most likely have to be forfeited.
2. The Employer’s Position
The Employer proposes that "the Impasses Panel . . . stay its decision here until the parties execute the Master Agreement" or, in the alternative, that the four science teachers receive 33, 10, 10, and 4 hours, respectively, of compensatory time. In addition, "the compensatory time could be carried over to the next school year and used by the end of School Year 1996-97." As a procedural matter, a Panel decision at this time may be unnecessary because the parties’ successor CBA negotiations at the national level may resolve the issue at impasse.
With respect to the merits of the matter, the Employer has the right to assign work and, in this case, the school never authorized the teachers to work any overtime hours. Moreover, the teachers want money for duties that are already included in their annual salary under Article 12, Section 6, of the CBA.(3) In any event, it should not have been necessary for the teachers to work beyond the normal duty day because they receive 2 hours of free time each day for precisely the kind of work performed in this case. Its alternative proposal, therefore, is fair because it is consistent with Article 32 of the CBA, which awards compensatory time to teachers for extracurricular activities, and the Federal government’s overall overtime practices with respect to professional employees. It also conforms with the policy in an adjacent public school system where teachers only receive compensatory time for working beyond the duty day.(4) Finally, the "four science teachers retroactively compiled a list of hours which contradicted the number of hours recorded on official time and attendance sheets." Even if the number of hours claimed is accurate, the Union’s proposal would be quite costly.
Having carefully considered the evidence and arguments presented by the parties, we conclude that a modified version of the Employer’s alternative proposal would provide the more reasonable resolution of this dispute. Preliminarily, staying the decision in this case would be unwarranted because it is uncertain when the parties’ successor national level CBA will be implemented, or whether it ultimately would resolve the issues in question. With respect to the merits, we are persuaded that, as professional employees, these teachers should receive compensatory time, rather than monetary compensation, for the work they performed. This approach also is consistent with Federal and State regulations governing such employees. Concerning the parties’ related dispute over the number of hours for which compensation is justified, we note that the teachers did not receive prior authorization to perform this work outside the normal duty day. Moreover, there is little evidence in the record to substantiate the accuracy of the Union’s figures. Accordingly, we shall order the parties to adopt the Employer’s alternative proposal, but modified to permit the compensatory time to be used until the end of the 1997-98 school year. This should provide the teachers with enough opportunities to ensure that none of the hours will have to be forfeited.
Pursuant to the authority vested in it by the Federal Service Labor-Management Relations Statute, 5 U.S.C. § 7119, and because of the failure of the parties to resolve their dispute during the course of proceedings instituted under the Panel’s regulations, 5 C.F.R. § 2471.6(a)(2), the Federal Service Impasses Panel under § 2471.11(a) of its regulations hereby orders the parties to adopt the following wording:
The four science teachers shall receive compensatory time as follows: (1) William Holt, 33 hours; (2) Shirley Bryan, 10 hours; (3) Tom Childs, 10 hours; and (4) Debera Allen, 4 hours. The teachers shall have until the end of the 1997-98 school year to use this compensatory time.
By direction of the Panel.
H. Joseph Schimansky
January 3, 1997