[ v12 p519 ]
The decision of the Authority follows:
12 FLRA No. 100 FORT BRAGG UNIT OF NORTH CAROLINA ASSOCIATION OF EDUCATORS, NATIONAL EDUCATION ASSOCIATION Union and FORT BRAGG DEPENDENTS SCHOOLS, FORT BRAGG, NORTH CAROLINA Agency Case No. O-NG-457 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The issue presented is the negotiability of 21 Union proposals which concern the rates of pay and fringe benefits to be paid to bargaining unit employees. The text of Union Proposals 1 through 21 is set forth in the Appendix. Questions Before the Authority The questions are whether the Union's proposals are outside the duty to bargain because, as alleged by the Agency, (1) the proposals are inconsistent with 20 U.S.C. 241; or (2) the proposals are inconsistent with the Agency's right to determine its budget under section 7106(a)(1) of the Statute. In addition, a question is presented as to whether Union Proposals 14, 17, and 18 concern matters specifically provided for by Federal statute and, therefore, are expressly excluded from the definition of "conditions of employment" by section 7103(a)(14)(C) of the Statute. Finally, a question is presented as to whether Union Proposal 20 is sufficiently specific to enable the Authority to make a negotiability determination. Opinion Conclusion and Order: The Union's proposals are not inconsistent with 20 U.S.C. 241 or the Agency's right to determine its budget. However, Union Proposals 14, 17, and 18 concern matters specifically provided for by Federal statute and, therefore, are excluded from the definition of "conditions of employment" by section 7103(a)(14)(C) of the Statute. Further, Union Proposal 20 is not sufficiently specific to enable the Authority to make a determination as to negotiability. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposals 1 through 13, and 15, 16, 19, and 21, /1/ and IT IS FURTHER ORDERED that the Union's petition for review of Union Proposals 14, 17, 18, and 20 be, and it hereby is, dismissed. Reasons: The Union's proposals seek to establish the compensation to be paid to members of the bargaining unit. In relevant part, 20 U.S.C. 241 provides: Sec. 241. Education of children where local agencies cannot supply facilities (a) . . . To the maximum extent practicable, the local educational agency, or the head of the Federal department or agency, with which any arrangement is made under this section, shall take such action as may be necessary to ensure that the education provided pursuant to such arrangement is comparable to free public education provided for children in comparable communities in the State . . . . 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 6101 of title 5; (4) sections 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. . . . . (e) To the maximum extent practicable, the Commissioner shall limit the total payments made pursuant to any such arrangement for educating children within the continental United States, Alaska, or Hawaii, to an amount per pupil which will not exceed the per pupil cost of free public education provided for children in comparable communities in the State. By its terms, 20 U.S.C. 241(a) vests the Agency with the discretion to fix the compensation of its employees without regard to the Federal statutes which specifically provide for the compensation of most Federal employees. The Authority has held that to the extent an agency has discretion with respect to a matter affecting the working conditions of its employees, that matter is within the duty to bargain. National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 737 (1980); American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C. (and the case consolidated therewith), 7 FLRA No. 89 (1982), enforced sub nom. Library of Congress v. Federal Labor Relations Authority, 699 F.2d 1280 (D.C. Cir. 1983). Since, with the exception of Proposals 14, 17, and 18 (as discussed infra), the compensation of these employees is not specifically provided for by Federal statute but, instead, is a matter within the discretion of the Agency, such compensation constitutes a condition of employment affecting bargaining unit employees. Cf. American Federation of Government Employees, AFL-CIO, Council of Federal Grain Inspection Locals and United States Department of Agriculture, Federal Grain Inspection Service, Washington, D.C., 3 FLRA 529 (1980), enforced sub nom. American Federation of Government Employees, AFL-CIO, Council of Federal Grain Inspection Locals v. Federal Labor Relations Authority, 653 F.2d 669 (D.C. Cir. 1981) (overtime compensation was specifically provided for by Federal statute and thus expressly excluded from the definition of "conditions of employment" in section 7103(a)(14)(C) of the Statute). With respect to its allegation that the proposals violate Federal law, the Agency refers to 20 U.S.C. 241(e) which states that, to the maximum extent practicable, the Agency's total per pupil cost shall not exceed the per pupil cost for comparable free public education in the appropriate state. However, contrary to the Agency's arguments, that provision does not impose a requirement that the compensation of bargaining unit employees be limited to an amount comparable to that paid in comparable communities in the state because employee compensation is only one aspect of total per pupil cost. Further, even accepting as true the Agency's contention that the salaries of bargaining unit employees constitute 52 percent of the Agency's costs, the Agency has not demonstrated that a comparable overall per pupil cost cannot be attained through appropriate adjustments to other elements in the budget. Accordingly, the Agency's claim that the Union's proposals are inconsistent with 20 U.S.C. 241 cannot be sustained. With respect to the Agency's arguments concerning its budget, section 7106(a)(1) of the Statute /2/ reserves to management the right to determine the budget of the Agency. In American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603 (1980), enforced, as to other matters sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), the Authority stated generally that it would find a proposal inconsistent with an agency's right to determine its budget if the proposal by its terms prescribed a particular program or an amount of funds to be included in the agency's budget or if the agency made a substantial demonstration that the proposal would result in a significant and unavoidable increase in costs which would not be offset by compensating benefits. In the present case, none of the proposals prescribe that the Agency's budget will include a specific provision or amount for compensation of bargaining unit employees. Further, contrary to the Agency's contention, the procedures for budget submissions which the Agency is required to make do not require itemization of salaries and benefits as separate budget items; rather, those items are included with other costs of instruction, such as clerical assistants, textbooks, library books, and teaching supplies. /3/ Moreover, it cannot be said that for the purpose of determining the negotiability of the Union's proposals, that any one of them individually would result in such an increase in cost as to be outside the duty to bargain under the Authority's decision in Wright-Patterson. In fact, certain of the proposals-- 1, 2, 3, 6, 7, 9, and 16-- are conceded by the Agency to constitute currently existing pay practices. Hence, those proposals would result in no increase at all in costs. The costs of other proposals cannot be aggregated because they are not interdependent; indeed, certain of them (Proposals, 5, 8, 10, 11, 19, and 20) have been characterized by the Union as alternative cost of living adjustments. /4/ Further, Proposals 12, 13, 14, and 15 are projected by the Agency to result in an average increase in costs of less than 1/2 of 1 percent. National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 747, 764-66 (1980). Finally, although the Agency contends that Proposal 4 would result in an 8% increase in costs, the Union responds that the proposal is, in fact, a current pay practice and, therefore, would result in no increased costs at all. In that regard, while the bargaining process lends itself to a consideration of the consequences of the proposal, should matters of concern to the Agency, such as cost, prevent the parties from reaching agreement, that consideration could be presented to the Federal Service Impasses Panel in a proceeding to resolve a negotiation impasse pursuant to section 7119 of the Statute. American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 6 FLRA No. 76 (1981), enforced sub nom. Office of Personnel Management v. Federal Labor Relations Authority, No. 81-2106 (D.C. Cir. Apr. 6, 1983). Based upon the foregoing, it has not been shown that any of the proposals would cause such a significant increase in costs as to interfere with the Agency's right to determine its budget under section 7106(a)(1) of the Statute. Accordingly, the Agency's allegation to the contrary cannot be sustained. A further question presented in this case is whether Proposals 14, 17, and 18 concern matters specifically provided for by Federal statute and, therefore, are expressly excluded from the definition of "conditions of employment" by section 7103(a)(14)(C) of the Statute. /5/ Union Proposal 14 would require the Agency to provide, at no cost to the employee, term life insurance equal to twice the annual salary. However, the amount of life insurance for which a Federal employee is eligible is specifically provided for by 5 U.S.C. 8704. /6/ In addition, 5 U.S.C. 8707 /7/ and 8708 /8/ specifically require employee contributions toward the cost of such insurance and fix the amount of the Government's contribution thereto. Proposal 14, therefore, concerns a matter specifically provided for by Federal statute. Proposal 17 would require the Agency to provide employer-paid medical and dental insurance. The amount which an agency may contribute toward an employee's health insurance charges is limited, however, by 5 U.S.C. 8906 to the lesser of 60 percent of the average charge for certain health plans or 75 percent of the actual cost of the health plan selected by the employee. /9/ Proposal 17, therefore, likewise concerns a matter specifically provided for by Federal statute. Union Proposal 18 would require the Agency to provide income protection for long term disabilities. Compensation for an employee's disability is, however, provided for by 5 U.S.C. 8102, /10/ 8105, /11/ and 8106, /12/ which provide income protection for both total and partial disabilities. Thus, Proposal 18 also concerns a matter specifically provided for by Federal statute. Accordingly, Proposals 14, 17, and 18 are expressly excluded by section 7103(a)(14)(C) from the definition of "conditions of employment" and, therefore, are not within the duty to bargain. American Federation of Government Employees, AFL-CIO, Council of Federal Grain Inspection Locals and United States Department of Agriculture, Federal Grain Inspection Service, Washington, D.C., 3 FLRA 529 (1980), enforced sub nom. American Federation of Government Employees, AFL-CIO, Council of Federal Grain Inspection Locals v. Federal Labor Relations Authority, 653 F.2d 669 (D.C. Cir. 1981). Finally, Union Proposal 20, which would entitle bargaining unit members to "all other benefits granted military personnel at Ft. Bragg," does not attempt to specify the particular benefits referred to. Thus, it does not set forth sufficient and specific information so as to enable the Authority to reach a reasoned decision. Accordingly, the petition for review of this proposal does not meet the conditions for review prescribed in section 7117(c) of the Statute and section 2424.1 of the Authority's Rules and Regulations and, therefore, must be dismissed. /13/ See Association of Civilian Technicians, Alabama ACT and State of Alabama National Guard, 2 FLRA 313 (1979). Issued, Washington, D.C., August 10, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY Appendix Union Proposal 1 24: RATE OF PAY: A. 1980-81 Salary Schedule (10 month): (TABLE OMITTED) Union Proposal 2 B. Lump Sum Payments (dated from the initial date of hire at Fort Bragg) 1. Local longevity supplement - 1980-81: a - $ 300 - additional per year after 5 years b - $ 600 - additional per year after 10 years c - $ 900 - additional per year after 15 years d - $ 1,200 - additional per year after 20 years 2. Longevity Pay (LP) (dated from the initial date of hire at Fort Bragg as well as credited prior service in any North Carolina system) Calculated on Placement in Step and Column: a. 1.50% beginning in year 11 of service and each year thereafter to year 15 inclusive b. 2.25% beginning in year 16 of service and each year thereafter to year 20 inclusive c. 3.25% beginning in year 21 of service and each year thereafter to year 25 inclusive d. 4.50% beginning in year 25 of service and each year thereafter Union Proposal 3 C. Movement in salary step is automatically one step per year, dependent upon placement effective October 31, 1980. Movement in column is effective on the date of award of an advanced degree. Union Proposal 4 D. All persons hired since September 1, 1980 are placed on the salary step schedule according to years of experience in the profession, i.e., a person with no experience is placed on salary step 0, a person with four years of prior experience is placed on salary step 4, etc. Union Proposal 5 E. Effective September 1, 1981 all members of the unit will be placed on the schedule based on years of prior experience. Union Proposal 6 F. The base rate of pay is founded on the statewide scale in North Carolina and is adjusted automatically as the state scale is upgraded in each salary step and column by actual dollar amount. Union Proposal 7 G. The comparability supplement is the median of the three highest supplements in the state of North Carolina in the current year and is adjusted yearly. Union Proposal 8 H. The local longevity supplement shall be: 1980-81 1981-82 1982-83 a. 300 500 800 b. 600 1,000 1,600 c. 900 1,500 2,400 d. 1,200 2,000 3,200 Union Proposal 9 I. Longevity pay shall be that percentage specified in the North Carolina law and is adjusted yearly based on the Fort Bragg Salary Schedule. Union Proposal 10 J. The salary schedule shall automatically reflect the actual percentage increases in the Consumer Price Index no later than 30 days of their release by the Federal government. Union Proposal 11 K. Columns and steps shall be automatically changed to reflect cost of living increases granted to white collar employees in the Federal service on the date of effective implementation. Union Proposal 12 L. Members of the unit will be reimbursed for professional training courses. Union Proposal 13 M. Assigned extracurricular activities performed outside normal duties will be compensated at the rate of $20 per hour. Union Proposal 14 N. Term life insurance equal to twice one's annual salary will be provided at no charge to employee. Union Proposal 15 O. Persons whose employment (is) terminated at Fort Bragg will be provided a lump sum payment for unused sick leave. Union Proposal 16 P. FBBE will provide unemployment coverage for those who quality under the state Unemployment Compensation Act. Union Proposal 17 Q. FBBE will provide fully-paid medical and dental coverage. Union Proposal 18 R. FBBE will provide income protection for long-term disabilities. Union Proposal 19 S. Members of the unit will receive the same percent pay raise granted to officers of the U.S. Army on the same date of entitlement. Union Proposal 20 T. Members of the unit are entitled to all other benefits granted military personnel at Ft. Bragg, including but not limited to the projected exclusion from IRS taxation of the first $20,00 (sic) of income. Union Proposal 21 U. Members of the unit with prior Federal teaching service shall be eligible for longevity based on their total Federal service not just service at Fort Bragg. --------------- FOOTNOTES$ --------------- /1/ In deciding that these proposals are within the duty to bargain, the Authority, of course, makes no judgment as to their merits. /2/ Section 7106(a)(1) provides: Sec. 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- (1) to determine the mission, budget, organization, number of employees, and internal security practices of the agency(.) /3/ U.S. Department of Health, Education, and Welfare Bulletin No. 12, "School Assistance in Federally Affected Areas" (revised January 1, 1964) at 13 (Table 3), attached to the Agency's Statement of Position. /4/ Union Reply Brief at 4. /5/ Section 7103(a)(14)(C) provides as follows: Sec. 7103. Definitions; application (a) For the purposes of this chapter-- . . . . (14) "conditions of employment" means 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(.) /6/ 5 U.S.C. 8704 provides, in pertinent part: Sec. 8704. Group insurance; amounts (a) An employee eligible for insurance is entitled to be insured for an amount of group life insurance equal to-- (1) the employee's basic insurance amount, multiplied by (2) the appropriate factor determined on the basis of the employee's age in accordance with the following schedule: If the age of the The appropriate employee is: factor is: 35 or under 2.0 36 1.9 37 1.8 38 1.7 39 1.6 40 1.5 41 1.4 42 1.3 43 1.2 44 1.1 45 or over 1.0. The term "basic insurance amount" is defined at 5 U.S.C. 8701(c). /7/ 5 U.S.C. 8707 provides, in pertinent part: Sec. 8707. Employee deductions; withholding (a) During each period in which an employee is insured under a policy purchased by the Office of Personnel Management under section 8709 of this title, there shall be withheld from the employee's pay a share of the cost of the group life insurance and accidental death and dismemberment insurance. /8/ 5 U.S.C. 8708 provides, in pertinent part: Sec. 8708. Government contributions (a) For each period in which an employee is insured under a policy of insurance purchased by the Office of Personnel Management under section 8709 of this title, a sum equal to one-half the amount which is withheld from the pay of the employee under section 8707 of this title shall be contributed from the appropriation or fund which is used to pay him. /9/ 5 U.S.C. 8906 provides, in pertinent part: Sec. 8906. Contributions . . . . (b)(1) Except as provided by paragraphs (2) and (3) (relating to contributions for part-time employees) of this subsection, the biweekly Government contribution for health benefits for an employee or annuitant enrolled in a health benefits plan under this chapter is adjusted to an amount equal to 60 percent of the average subscription charge determined under subsection (a) of this section. (2) The biweekly Government contribution for an employee or annuitant enrolled in a plan under this chapter shall not exceed 75 percent of the subscription charge. /10/ 5 U.S.C. 8102 provides, in pertinent part: Sec. 8102. Compensation for disability or death of employee (a) The United States shall pay compensation as specified by this subchapter for the disability or death of an employee resulting from personal injury sustained while in the performance of his duty, unless the injury or death is-- (1) caused by willful misconduct of the employee; (2) caused by the employee's intention to bring about the injury or death of himself or of another; or (3) proximately caused by the intoxication of the injured employee. /11/ 5 U.S.C. 8105 provides, in pertinent part: Sec. 8105. Total disability (a) If the disability is total, the United States shall pay the employee during the disability monthly monetary compensation equal to 66 (&) 2/3 percent of his monthly pay, which is known as his basic compensation for total disability. /12/ 5 U.S.C. 8106 provides, in pertinent part: Sec. 8106. Partial disability (a) If the disability is partial, the United States shall pay the employee during the disability monthly monetary compensation equal to 66 (&) 2/3 percent of the difference between his monthly pay and his monthly wage-earning capacity after the beginning of the partial disability, which is known as his basic compensation for partial disability. /13/ Of course, whenever a particular benefit is, by law, granted exclusively to military personnel and the Agency is expressly prohibited from extending such benefit to civilian employees in the bargaining unit, a proposal which would require the Agency to grant such a benefit to bargaining unit employees would be inconsistent with such law and, thus, outside the duty to bargain. See, e.g., 10 U.S.C. 1071-1088, 4621-4629.