[ v19 p814 ]
The decision of the Authority follows:
19 FLRA No. 99 PANAMA CANAL FEDERATION OF TEACHERS, LOCAL 29 Union and DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS, PANAMA REGION Agency Case No. O-NG-817 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), and raises issues concerning the negotiability of twelve Union proposals. Upon careful consideration of the entire record, /1/ including the parties' contentions, /2/ the Authority makes the following determinations. The Union, herein, represents teachers employed by the Agency in the Panama Region. The school system in this region is comprised of 12 elementary schools, 3 secondary schools and a junior college. The proposals in dispute all deal with aspects of curriculum. Without contravention, the Agency describes "curriculum" as follows: The curriculum in the educational field consists of the course of study offered to students, the content of those courses, the instructional objectives and functions, and the materials through which courses will be taught. /3/ Union Proposal 1 Section 1-- Curriculum, curriculum priorities, pilot programs, and selection of textbooks and teaching materials will be accomplished through classroom teacher involvement. Union Proposal 8 Section 8-- All pilot programs and curriculum priorities will be determined by the CDC RCDC in conjunction with the classroom teachers. All programs will be clearly outlined and required materials will be made available as needed. Union Proposal 1 would mandate classroom teacher participation in the establishment of curriculum and curriculum priorities, pilot programs and the selection of textbooks. As regards its intent concerning this proposal, the Union states that classroom teachers "participate in committee activities as required to review, evaluate, develop educational materials and meet NCA (accreditation agency) standards." Similarly, Union Proposal 8, on its face, would require that all pilot programs and curriculum priorities be determined by the local and Regional Curriculum Development Committees with the required participation of classroom teachers and that the Agency provide the selected materials as needed. In agreement with the Agency, the Authority finds that the subject committees are appointed to study and make recommendations on means of performing work within the meaning of section 7106(b)(1) of the Statute. /4/ In National Treasury Employees Union and U.S. Customs Service, Region VIII, San Francisco, California, 2 FLRA 255, 258 (1979), the Authority defined the word "means" as it appears in section 7106(b)(1), stating that it meant "any instrumentality, including an agency, tool, device, measure, plan or policy used by the agency for accomplishing or the furthering of the performing of its work." The matters studied by the committees fall within the ambit of that definition. Curriculum and textbooks are tools used in the furtherance of the Agency's mission which is the education of the children of military personnel. /5/ It is well established that a proposal seeking union participation in the deliberative process leading to the exercise of reserved management rights under section 7106 of the Statute is outside the duty to bargain. In this regard, the Authority observed, in National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998, 999 (1982), that: "when management establishes formal organizational structures to undertake such deliberations as an integral part of its substantive decision-making process, a proposal which would require union participation would have the effect of directly interfering with management's statutory right to make the decision involved." Of course, Union Proposals 1 and 8 present a slightly different issue, that is, the right involved in this case is one which may be negotiated at the election of the Agency. However, in the Authority's view, the reasoning in Veterans Administration Medical Center, East Orange is applicable to the instant dispute. In this regard, it was determined in the cited case that negotiation over union membership in an organization integral to the decision-making process concerning a section 7106 right was tantamount to negotiation over the right itself. Where the matter concerned is encompassed within section 7106(b)(1), i.e., negotiable only at the Agency's option, and the committee involved is established to facilitate decision-making related to that matter, negotiation over composition of the committee is equivalent to bargaining over the matter itself. Hence, it is concluded that as the Agency has elected not to bargain on Union Proposals 1 and 8 they are not within the duty to bargain. Union Proposal 2 Section 2-- All required textbooks will have been published within five (5) years of purchase. Union Proposal 4 Section 4-- Multi-level classroom materials will be selected by classroom teachers for individual teaching plans. Management will provide funds for the purchase of these materials. Union Proposal 5 Section 5-- Host Nation teachers will be provided books and teaching materials. The selection of these materials will be determined by Host Nation teachers in concert with their teaching colleagues in curriculum meetings. Union Proposal 2 would place a restriction, i.e., copyright date within 5 years of purchase, on the choice of textbooks which the Agency must acquire and use. Union Proposals 4 and 5 would restrict management's purchase and use of books and teaching materials to those materials selected by the teachers. Thus, these proposals, by their terms, would require the Agency to acquire and use certain specific books and materials. In this regard, the disputed proposals herein are to the same effect as a proposal in American Federation of Government Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982) (Union Proposal 3) requiring the acquisition and use of certain specific documents and equipment. In that case, the Authority found that the disputed proposal concerned the "technology, methods, and means of performing work" within the meaning of section 7106(b)(1) of the Statute and, hence, was negotiable only at the election of the Agency. Consequently, as the instant proposals would likewise provide for the acquisition and use of certain specified documents and materials, i.e., textbooks and teaching materials, they are, for the reasons and cases cited in Redstone Arsenal, negotiable only at the election of the Agency. Therefore, in light of the Agency's election not to bargain, the instant proposals are nonnegotiable. Union Proposal 3 Section 3-- Principals have the responsibility to establish a Curriculum Development Committee (CDC) within their assigned school. Schools will be authorized four days each semester for the purpose of curriculum development. The members of each school CDC will be elected from volunteers from the faculty. The Union may appoint 50% of the membership of this committee. The Regional Director has the responsibility to establish CDC's within the Region. The Union may select 50% of the membership to serve on each RCDC. Teachers who are required by Management to travel, will be in a per diem and pay status. Recommendations made by local CDC that are rejected by local Management must be responded to in writing with rationale for the rejection. If, after a study of Management's response, the local CDC still supports its recommendation, the recommendation will be put into effect. (The underlined portion is not in dispute.) Union Proposal 9 Section 9-- There may be a semi-annual, local level, teachers' conference with Regional level and DoDDS-Panama coordinators in attendance as requested. The conference may be planned through teacher and student input. Official time will be given for attendance at the conference. Union Proposal 11 Section 11-- Curriculum coordinators (local and regional level) will work with students and teachers in the classroom in order to maintain a realistic awareness of teaching dynamics and to better evaluate proposed and pilot programs. Each of the disputed proposals herein, would, inter alia, require particular non-bargaining unit employees to perform specified duties. Union Proposal 3 expressly mandates that "principals" and "the Regional Director" will establish Curriculum Development Committees "within their assigned schools" and "within the Region." Union Proposal 9 would require the attendance at a local level teachers conference of the "Regional level and DoDDS-Panama coordinators." Union Proposal 11 would require local and Regional level curriculum coordinators to work with students and teachers in the classroom. In this respect, each of the disputed proposals herein is to the same effect as the proposal in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 14 FLRA 278 (1984), aff'd sub nom. Local 32, AFGE v. FLRA, No. 84-1251 (D.C. Cir. May 10, 1985), which required that a particular non-bargaining unit employee perform a specific duty. In that case, the Authority found the proposal to be outside the duty to bargain as it interfered with management's right, pursuant to section 7106(a)(2)(B) of the Statute, to assign work. Since the disputed proposals in this case would also require specific non-bargaining unit employees to perform particular duties, they are, for the reasons and case cited in Office of Personnel Management, likewise, outside the duty to bargain. Accord National Federation of Federal Employees, Local 1 and Environmental Protection Agency and Environmental Protection Agency, Region 9, 17 FLRA No. 68 (1985). Union Proposal 6 Section 6-- Cooperative Work Experience (CWE) Programs will be planned by concerned sponsors, in conjunction with teachers, Host Nation teachers, community leaders, and students. Teachers involved in the CWE Program planning will be on official time or paid as an extra-curricular activity. This proposal, by its express terms, would require that the planning of the Agency's Cooperative Work Experience Programs be accomplished by certain specified individuals. Some of these individuals are bargaining unit employees, i.e., teachers, and some are not employed by the Agency at all, that is, "concerned sponsors" who are local businessmen, community leaders and students. To the extent the proposal would require Agency employees to perform certain duties, the planning of CWE programs, it is inconsistent with management's right to assign work pursuant to section 7106(a)(2)(A) of the Statute. See, e.g., American Federation of State, County and Municipal Employees, AFL-CIO, Local 2910 and Library of Congress, 11 FLRA 632 (Union Proposals 1 and 2). In addition, it is well established that the duty to bargain extends only to matters affecting conditions of employment of bargaining unit employees. Service Employees' International Union, AFL-CIO, Local 556 and Department of the Army, Office of the Adjutant General, Hale Koa Hotel, Honolulu, Hawaii, 9 FLRA 687 (1982). As previously noted, some of the individuals whom this proposal would require to perform CWE planning functions are not even employed by the Agency. Thus, to the extent this proposal specifically requires certain tasks to be performed by non-employees, it is not within the duty to bargain as it does not concern conditions of employment of unit employees within the meaning of section 7103(a)(14) of the Statute. American Federation of Government Employees, Local 2761 and U.S. Army Adjutant General, Publication Center, St. Louis, Missouri, 17 FLRA No. 118 (1985) (Union Proposal 2). Union Proposal 7 Section 7-- Each school faculty will be given a minimum of four (4) hours, twice monthly, in-service time for curriculum planning and enrichment. Each faculty will determine the days and time to be used for this purpose and shall be on official time. The school curriculum chairperson, department heads and/or grade level heads and principals will act as coordinators as required. Union Proposal 12 Section 12-- Preparation for an accreditation agency (such as the North Central Association) shall be accomplished on official time. Five (5) school days may be used for this purpose beyond the days used for inservice. Recertification points will be given. Furthermore, Management authorizes pay for teachers who serve in committee chairperson capacities and fill their responsibilities beyond the official school day. Union Proposal 7 authorizes the granting of a minimum of four hours official time, twice monthly, for employees to engage in curriculum planning. Similarly, Union Proposal 12 authorizes an additional five days of official time for employees to participate in the preparation for various educational accreditation evaluations. In agreement with the Agency, the Authority concludes that these two proposals are inconsistent with management's right, pursuant to section 7106(a)(2)(B) of the Statute, to assign work. That is, both disputed proposals concern duties assigned to Agency employees in their role as teachers. Specifically, with regard to Proposal 7, curriculum has been determined to be a means of performing work within the meaning of section 7106(b)(1) of the Statute. (See Authority determination with regard to Proposals 1 and 8 supra.) It follows, therefore, that requiring employees to engage in curriculum planning constitutes an assignment of a part of the work of the Agency in the furtherance of the Agency's mission to educate the children of military personnel. Similarly, with regard to Proposal 12, the Union itself concedes that employees are assigned the additional duties of preparing and planning for accreditation evaluations. /6/ In this respect, the proposals herein are to the same effect as the disputed proposals in National Federation of Federal Employees, Local 1263 and Defense Language Institute, Foreign Language Center, Presidio of Monterey, California, 7 FLRA 723 (1982) (Union Proposals I through XX), which provided specific time frames for the performance, by teachers, of various tasks within the framework of their positions as teachers. In that case, the Authority found the proposals to be outside the duty to bargain as they would directly interfere with the agency's right, pursuant to section 7106(a)(2)(B) of the Statute, to assign work. Consequently, as the disputed proposals herein would also allocate specific amounts of time within which specific tasks will be accomplished, they are, for the reasons and case cited in Foreign Language Center, likewise, outside the duty to bargain. This conclusion is not altered by the Union's argument, made specifically with respect to Proposal 12 but also applicable to Proposal 7, that section 7131(d) of the Statute /7/ entitles unit employees to official time for such matters as are specified in the proposal. In this connection, section 7131 establishes the authority for the granting of official time under the Statute. That is, subsections (a), (b) and (c) concern the authorization of official time for contract negotiations, impasse proceedings and proceedings before the Authority respectively. While subsection (d) authorizes the granting of official time to employee representatives in "any amount" the parties agree to be "reasonable, necessary, and in the public interest," such authorization is expressly limited to those matters which are not already provided for in the other portions of section 7131. In the Authority's view, subsection (d) clearly can only be read to authorize the negotiation of official time for other labor-management related representational matters such as contract administration, participation in grievance arbitration and the like. /8/ Thus, there is no basis for the authorization of official time for employees to perform assigned duties as is required by Proposals 7 and 12. Union Proposal 10 Section 10-- Each School Advisory Council will include one (1) Union Representative with the standing as a voting ex-officio member. This proposal would require that a Union representative participate, as a voting member, in the meetings of each School Advisory Council. These Councils, based on the uncontroverted statements of the Agency in the record of this case, were established by the Agency pursuant to 20 U.S.C. 928 to review, make recommendations and take action with respect to matters involving budget and curriculum. In this regard, the Authority has consistently held that proposals which require union participation in the deliberative process leading to the exercise of reserved rights under section 7106 of the Statute directly interfere with those rights and are outside the duty to bargain. See, e.g., National Federation of Federal Employees, Local 1431 and Veterans Administration Medical Center, East Orange, New Jersey, 9 FLRA 998 (1982). Thus, as the instant proposal interferes with management's right to determine its budget pursuant to section 7106(a)(1) of the Statute, /9/ it is not within the Agency's duty to bargain. Accordingly, pursuant to section 2424.10 of theAuthority's Rules and Regulations, IT IS ORDERED that the Union's petition for review be, and it hereby is, dismissed. /10/ Issued, Washington, D.C., August 19, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ The Union did not file a Reply Brief in this case. /2/ The Agency's contention that the Union did not properly serve the Agency head with a copy of the petition for review as required by section 2424.4(b) of the Authority's Rules and Regulations cannot be sustained. The record indicates that the Union submitted satisfactory evidence that it timely complied with the Authority's procedural requirements. /3/ Agency Statement of Position at 3. /4/ Section 7106(b)(1) of the Statute provides, in relevant part, as follows: Sec. 7106. Management rights . . . . (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (1) at the election of the agency . . . methods, and means of performing work. /5/ But cf. American Federation of Government Employees, Local 12, AFL-CIO and Department of Labor, 17 FLRA No. 98 (1985) (Union Proposal 3), petition for review filed sub nom. Local 12, American Federation of Government Employees v. FLRA, No. 85-1371 (D.C. Cir. June 19, 1985) (proposal to establish a committee to study the feasibility of quality circles to serve as a forum for evaluating employee concerns, suggestions, etc., involving introduction of new technology did not directly relate to the introduction of such technology and, therefore, was a "procedure" within the meaning of section 7106(b)(2) of the Statute). /6/ Union Petition for Review, unpaginated, at portion concerning Proposal 12. /7/ Section 7131(d) provides in relevant part as follows: Sec. 7131. Official time . . . . (d) Except as provided in the preceding subsections of this section-- (1) any employee representing an exclusive representative, or (2) in connection with any other matter covered by this chapter, any employee in an appropriate unit represented by an exclusive representative, shall be granted official time in any amount the agency and the exclusive representative involved agree to be reasonable, necessary, and in the public interest. /8/ See AFGE, Local 2096 v. FLRA, 738 F.2d 633, 637 (4th Cir. 1984), affirming U.S. Naval Space Surveillance Systems, Dahlgren, Virginia and U.S. Naval Surface Weapons Center, Dahlgren, Virginia, 12 FLRA 731 (1983). /9/ Section 7106(a) of the Statute provides, in relevant part, as follows: 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 . . . budget(.) /10/ In view of the Authority's disposition of the proposals in this case, it is unnecessary to consider the additional Agency arguments concerning the nonnegotiability of these proposals.