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The decision of the Authority follows:
19 FLRA No. 103 FORT KNOX TEACHERS ASSOCIATION Union and FORT KNOX DEPENDENT SCHOOLS Agency Case No. O-NG-893 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 presents issues concerning the negotiability of five Union proposals. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 Unit members who desire a change in grade and/or subject assignment, or who desire to transfer to another building may file a written statement of such desire with the Superintendent. Such unit members will be given prior consideration upon submission of said written request to the Superintendent prior to April of each year. Union Proposal 2 Any unit member who has been involuntarily transferred or reassigned shall receive prior consideration for any opening which may subsequently exist for which the unit member is qualified to fill. (Only the underlined portion of the proposals are in dispute.) Union Proposal 1 would require the Agency to give prior consideration to a bargaining unit employee who has submitted a written request for a change in grade and/or subject assignment, or for a transfer to another building. Union Proposal 2 would require that a bargaining unit employee who has been involuntarily transferred or reassigned receive prior consideration for any subsequent job opening for which that employee is qualified. The sole contention of the Agency is that these proposals are nonnegotiable because they are inconsistent with Federal Law, i.e., 10 U.S.C. 2304, and its regulations issued pursuant to that law (Armed Services Procurement Regulation/Defense Acquisition Regulations (ASPR/DAR)). The Agency in its Statement of Position relies upon a previous version of 10 U.S.C. 2304 which, insofar as is relevant herein, is substantively identical to the provision of law currently in effect. /2/ In this respect, the Agency essentially contends that insofar as the proposals require the Agency to give prior consideration for job vacancies filled by personal service contracts under the authority of 10 U.S.C. 2304, the requirement under that law for full and open competition is defeated. It also contends that the Union's proposals would undermine the Agency's affirmative duty to solicit proposals from the maximum number of qualified sources. The current version of 10 U.S.C. 2304 requires full and open competition in conducting a procurement for property or services. The Union, on the other hand, contends that 10 U.S.C. 2304 does not cover the hiring of teachers for schools located on Federal property, i.e., bargaining unit employees. According to the Union's statement of intent and consistent with the language of the proposal, the disputed parts of the proposals only require that a bargaining unit employee receive prior consideration in the stated circumstances. In other words, the proposals establish the order in which all applicants will be considered for certain job openings. Therefore, even assuming that the Agency employs bargaining unit employees under the authority of 10 U.S.C. 2304, this result is not inconsistent with its requirement for full and open competition since the proposals only establish sequential order of consideration for certain job openings, not substantive preferential treatment of these employees. Nor are the proposals inconsistent with the Agency's ability to solicit from the maximum number of qualified sources since the Agency is able under the proposed language to nonselect bargaining unit applicants and subsequently solicit and select from any appropriate source. /3/ Therefore, Union Proposals 1 and 2 are not inconsistent with 10 U.S.C. 2304 nor the Agency's regulations issued pursuant to that law. Thus, these proposals are within the duty to bargain. /4/ Union Proposal 3 In determination of requests for voluntary assignment and/or transfer, the wishes of the individual unit member shall be honored to the extent that the transfer does not conflict with instruction requirements of the school system. No requests shall be denied arbitrarily, capriciously, or without basis in fact. The employer agrees to base the decisions concerning the transfer of a unit member on qualifications and seniority and identifiable needs of the educational program within the school district. Union Proposal 3 requires that the wishes of a bargaining unit member for a voluntary assignment and/or transfer will be honored to the extent they do not conflict with the instruction requirements of the school system. It further establishes the standard by which the Agency may deny such requests and the factors upon which the Agency will base its decisions. In its Reply Brief, the Union characterizes the proposal as only requesting the Agency to consider the wishes of the employee to be transferred and to assign the employee only if he complies with the criteria established by the Agency. Therefore, in the Union's view, the proposal is negotiable because it does not require that the Agency select a certain employee for a position. However, the Authority has consistently held that it will not base a negotiability determination on a union's statement of intent which is inconsistent with the express language of the disputed proposal. See, e.g., American Federation of Government Employees, AFL-CIO, Local 2955 and National Guard Bureau, Office of the Adjutant General, Des Moines, Iowa, 5 FLRA 617 (1981). In this connection, the proposal here mandates by its plain language that vacancies will be filled by the reassignment of bargaining unit employees and not by any other appropriate source, so long as a qualified volunteer is available. Section 7106(a)(2)(C) of the Statute reserves to management the right to make selections for appointments from among properly ranked and certified candidates for promotion or from any other appropriate source. /5/ Thus, the Authority has held that a proposal which limited the consideration of outside applicants to instances in which there were fewer than three minimally qualified in-house applicants was inconsistent with section 7106(a)(2)(C) since management would be prevented from expanding the area of consideration or from selecting a candidate from any other appropriate source. National Federation of Federal Employees, Local 1451 and Navy Exchange, Naval Administrative Command, Orlando, Florida, 3 FLRA 392 (1980); see also American Federation of State, County and Municipal Employees, AFL-CIO, Local 2027 and ACTION, Washington, D.C., 12 FLRA 643 (1983) (Union Proposal 3). The proposal in dispute herein would prevent the Agency from soliciting and considering outside applicants for a position when there are qualified volunteers in the bargaining unit available for reassignment to that position. Furthermore, since the proposal would require the Agency to honor an employee request for voluntary assignment and/or transfer as long as it would not "conflict with the instructional requirements of the school system," it would prevent the Agency from deciding not to fill the position at all or to fill the position with an outside applicant. Therefore, for the reasons set forth in Naval Administrative Command, Orlando, Union Proposal 3 must be held to be outside the duty to bargain. /6/ Union Proposal 4 Membership in a PTO/PTA (Parent Teacher Organization/Parent Teacher Association) organization shall not be required, nor shall employees be required to attend after-hour PTO or PTA meetings other than those necessitating their presence, such as the PTO "Open House" meeting or where the participation of the unit member is necessary for the adequate presentation of the program. Attendance at PTO/PTA meetings is not to be construed as a teaching duty, but rather a professional choice. As such, attendance at PTO/PTA meetings do (sic) not fall under "extra" duties as assigned by the school principal. Teachers shall not be required to sign statements asserting whether or not they were in attendance at a given PTO/PTA meeting, nor shall any record be kept regarding such attendance. It is well established that a union proposal seeking to prohibit the assignment of specified duties to bargaining unit employees is inconsistent with management's right pursuant to section 7106(a)(2)(B) of the Statute "to assign work." See, e.g., Association of Civilian Technicians and State of Georgia National Guard, 2 FLRA 581 (1980). A proposal which limits the assignment of certain work to specific circumstances is likewise violative of section 7106(a)(2)(B). See New York State Nurses Association and Veterans Administration Medical Center, Bronx, New York, 11 FLRA 578 (1983); Laborer's International Union of North America, AFL-CIO-CLC, Local 1267 and Defense Logistics Agency, Defense Depot Tracy, Tracy, California, 14 FLRA 686 (1984) (Union Proposal 5). The proposal herein would absolutely bar the Agency from requiring that an employee attend "after-hour PTO or PTA meetings other than those necessitating their presence, such as the PTO 'Open House' meeting where the participation of the unit is necessary for the adequate presentation of the program." As such, this express limitation on an agency's ability to require an employee to accept a certain assignment of work violates management's right under the Statute. The Union asserts that mandatory attendance at an after-hour PTO or PTA is not part of normal duty hours and therefore such attendance should be voluntary. However, whether or not the assignment of work occurs during the normal duty hours is not germane to whether a proposal violates management's right to assign. In this regard, it is clear management has the right to assign, for example, overtime work. Cf. American Federation of Government Employees, AFL-CIO, International Council of U.S. Marshals Service Locals and Department of Justice, U.S. Marshals Service, 11 FLRA 672 (1983) (Union Proposal 2) (wherein the Authority found that Union Proposal 2 directly interfered with management's right to assign work under section 7106(a)(2)(B) since it precluded the agency from assigning work normally performed by unit employees to supervisors, beyond their normal duty hours, where the work otherwise would be performed by unit employees on overtime). Similarly, the assignment of duties outside the normal duty hours is within management's right to assign work. Thus, Union Proposal 4 is not within the duty to bargain. Union Proposal 5 Communication The Fort Knox Teachers Association will have free access to communicate with unit members when such will not interfere with the normal instructional program of the school, including the use of the intercom system and the opportunity to make announcements at faculty meetings. The Association shall be given the opportunity to make announcements at faculty meetings. The Association shall also be permitted, during non-pupil contract (sic) time, to call into meeting members of the bargaining unit for the purpose of implementing matters subject to the bargaining agreement. Union Proposal 5 would require, among other things, that the Union be allowed free access to communicate with its members, including the use of the intercom system and the opportunity to make announcements at faculty meetings, unless such access interferes with the normal instructional program of the school. The Agency states, without contradiction by the Union, that the Union seeks to make announcements of union activities at faculty meetings which are held "for the purpose of discussing mission-related activities" of the Agency. It contends, therefore, that the Union's proposal violates section 7131(b) of the Statute /7/ because such meetings constitute duty time. Section 7131(b) of the Statute requires that activities relating to the internal business of a labor organization be performed by an employee while that employee is in a nonduty status, i.e., not on duty time. The Statute does not expressly define the phrase "internal business of a labor organization." In American Federation of Government Employees, AFL-CIO, Local 2823 and Veterans Administration Regional Office, Cleveland, Ohio, 2 FLRA 4 (1979), the Authority held that Congress intended to proscribe the use of duty time for activities relating to the Union as an organization and pertaining to the operation of that organization, such as union business meetings, communication with members, contracting for goods and services, payment of bills, and other similar and associated activities. Thus, insofar as the Union's stated intent of Union Proposal 5 includes the opportunity to make announcements of union activities and to call meetings, the proposal concerns activities relating to internal union business. Further, the Authority agrees with the Agency's contention that the faculty meetings in question are for the purpose of discussing mission-related activities and, thus, such meetings constitute duty time. Hence, since the proposal herein would require that faculty meetings during duty time include union communication with its bargaining unit members, the Authority concludes that under section 7131(b) of the Statute Union Proposal 5 is not within the duty to bargain, based on the reasoning in Veterans Administration Regional Office. 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 Proposal 1 and 2. Furthermore, IT IS ORDERED that the Union's petition for review as to Union Proposals 3, 4 and 5, be, and it hereby is, dismissed. Issued, Washington, D.C., August 22, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ In its response to the petition for review the Agency withdrew its allegation of nonnegotiability as to five additional Union proposals. Accordingly, there is no longer an issue as to whether those proposals are within the duty to bargain. /2/ 10 U.S.C. 2304 (1984), as modified, reads in relevant part as follows: Sec. 2304. Contracts: competition requirements (a)(1) Except as provided in subsections (b), (c), and (g) and except in the case of procurement procedures otherwise expressly authorized by statute, the head of an agency in conducting a procurement for property or services-- (A) shall obtain full and open competition through the use of competitive procedures in accordance with the requirements of this chapter and the modifications to regulations promulgated pursuant to section 2752 of the Competition in Contracting Act of 1984; and (B) shall use the competitive procedure or combination of competitive procedures that is best suited under the circumstances of the procurement. . . . . (g)(1) In order to promote efficiency and economy in contracting and to avoid unnecessary burdens for agencies and contractors, the regulations modified in accordance with section 2752 of the Competitive in Contracting Act of 1984 shall provide for special simplified procedures for small purchases of property and services. (2) For the purposes of this chapter, a small purchase is a purchase or contract for an amount which does not exceed $25,000. (3) A proposed purchase or contract for an amount above $25,000 may not be divided into several purchases or contracts for lesser amounts in order to use the small purchase procedures required by paragraph (1). (4) In using small purchase procedures, the head of an agency shall promote competition to the maximum extent practicable. /3/ Cf. American Federation of Government Employees, AFL-CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 6 FLRA 314 (1981) (proposal providing, in relevant part, for the speedy repromotion of bargaining unit employees who have been involuntarily downgraded without personal cause and further providing that such employees will be repromoted at the first opportunity except for good cause would only require the agency, when it decided to fill a vacant bargaining unit position, to consider but not necessarily to select the repromotion eligible employee. Thus, the Authority found that the proposal did not violate management's rights under section 7106(a)(2)(C)). /4/ In deciding that Union Proposals 1 and 2 are within the duty to bargain, the Authority makes no judgment as to their merits. /5/ Section 7106(a)(2)(C) provides 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-- . . . . (2) in accordance with applicable laws-- . . . . (C) with respect to filling positions, to make selections for appointments from-- (i) among properly ranked and certified candidates for promotion; or (ii) any other appropriate source(.) /6/ In view of the Authority's decision herein, it is unnecessary to consider the Agency's additional arguments that the proposal is outside the duty to bargain. /7/ Section 7131(b) provides as follows: Sec. 7131. Official time . . . . (b) Any activities performed by any employee relating to the internal business of a labor organization (including the solicitation of membership, elections of labor organization officials, and collection of dues) shall be performed during the time the employee is in a non-duty status.