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The decision of the Authority follows:
25 FLRA No. 95 FORT KNOX TEACHERS ASSOCIATION Union and FORT KNOX DEPENDENT SCHOOLS Agency Case No. 0-NG-845 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case comes before the Authority because of a negotiability appeal filed under section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues as to the negotiability of a single proposal. II. Proposal Voluntary bus chaperone duty shall be in effect. Should no volunteers be available, a randomly selected list of teacher-chaperones shall be drawn from among all teachers at the school requiring chaperone duty. Duty will rotate in order according to the list. The same list will be used from one year to the next so that chaperone duty is equitably distributed among all teachers. Overtime at time and one half shall be the rate of compensation to any teacher performing bus chaperone duty which goes beyond the normal school day. Overtime compensation shall be provided all employees performing such duty, whether on a voluntary or roster basis. III. Positions of the Parties The Agency contends that the petition should be dismissed because it is procedurally defective. Substantively, the Agency asserts that that portion of the proposal which relates to the assignment of bus chaperone duty conflicts with its management right to assign employees. It also asserts that the portion of the proposal which relates to compensation for such duty (1) conflicts with law; (2) conflicts with an agency regulation for which a compelling need exists; and (3) does not concern a condition of employment within the meaning of the Statute. The Union states that the bus chaperone duty to which the proposal refers does not relate to supervising the loading and unloading of school busses on a daily basis which the Union concedes is encompassed within the regular duties of teachers. Rather, the proposal refers to bus chaperone duty when a teacher accompanies students travelling by bus to extracurricular activities such as sports events, band activities, and field trips. The Union denies that the proposal conflicts with management rights, law or regulation and argues that it concerns a condition of employment. IV. Analysis and Conclusions A. Procedural Issue The Agency has filed a motion to dismiss the petition in this case based on the alleged failure of the Union to serve the head of the agency in a timely manner in accordance with the provision of section 2424.4(b) of the Authority's Rules and Regulations. We deny the motion for the following reasons. The Agency's claim centers on the Union's failure to serve the Department of Defense. However, the record indicates that the petition was served on, among others, the Deputy Director, Labor-Management Relations, Department of Defense, as well as the Agency officials who issued the Agency's allegation of nonnegotiability and signed the Agency statement of position which was submitted to the Authority. In these circumstances, noting particularly that the Agency has not contended that it was in any way prejudiced by the manner in which the Union served the petition, we find that service of the petition was adequate. See American Federation of Government Employees, AFL-CIO, Local 3004 and Department of the Army and Air Force, National Guard Bureau, 15 FLRA 270 (1984). B. The First Portion of the Proposal Conflicts with the Agency's Management Rights This portion of the proposal states: Voluntary bus chaperone duty shall be in effect. Should no volunteers be available, a randomly selected list of teacher-chaperones shall be drawn from among all teachers at the school requiring chaperone duty. Duty will rotate in order according to the list. The same list will be used from one year to the next so that chaperone duty is equitably distributed among all teachers. The Union contends that no specific skills or qualifications are necessary for bus chaperone duty and, therefore, this portion of the proposal is nothing more than a procedure by which the Agency will exercise its right to assign employees. It is not clear to us from the language of the proposal and the record as a whole whether the proposal is concerned with the assignment of work, under section 7106(a)(2)(B), or the assignment of employees, under section 7106(a)(2)(A). However, whether the proposal is intended to apply to assignment of employees to positions -- assign employees -- or to assignment of work or duties to employees -- assign work -- it is nonnegotiable in either case. The Authority has held that the right under section 7106(a)(2)(A) to assign employees includes the discretion to determine the particular qualifications and skills needed to perform the work, and to make judgments in determining whether a particular employee meets those qualifications. American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603, 612-14 (1980) enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140, 1148-49 (D.C. Cir. 1981), cert. denied, sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). The Authority has also found that the same discretion is inherent in the right under section 7106(a)(2)(B) to assign work. Laborers International Union of North America, AFL-CIO, Local 1276 and Veterans Administration, National Cemetery Office, San Francisco, California, 9 FLRA 703 (1982). As explained by the Union this portion of the proposal presumes that there are no qualifications necessary to perform bus chaperone duties and, consequently, all teachers are equally qualified for those duties. Thus the proposal effectively deprives management of the discretion to make judgments as to (1) the personnel requirements of the work of the position, that is, the qualifications and skills needed to do the work, as well as such job-related individual characteristics as judgment, and (2) as to which employees meet those requirements. Rather, this portion of the proposal would compel the Agency to assign bus chaperone duties to volunteers or to all teachers on a rotational basis. It therefore conflicts with management's rights under section 7106(a)(2) to assign employees and to assign work. See American Federation of Government Employees, National Council of Social Security Administration Field Operations Locals, AFL-CIO and Social Security Administration, Office of Field Operations, Baltimore, Maryland, 17 FLRA 11 (1985) (Proposal 2). Compare National Cemetery Office, 9 FLRA 703 (1982), in which the contract provisions involved reserved to the agency the discretion to determine which employees were qualified to perform specific work. The Authority held that those provisions did not conflict with the Statute by requiring that, where two or more equally qualified employees were available, assignment would be based on seniority. V. The Second Portion of the Proposal The Members of the Authority disagree over the negotiability of this portion of the proposal. The Decision and Order of the Authority is on page 5 of this decision. Chairman Calhoun's opinion is on page 11. VI. Order The Union's petition for review is dismissed insofar as it concerns that portion of the proposal which addresses the manner in which bus chaperone duties will be assigned. Issued, Washington, D.C., February 27, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY DECISION AND ORDER ON THE SECOND PORTION OF THE PROPOSAL I. The Proposal Overtime at time and one half shall be the rate of compensation to any teacher performing bus chaperone duty which goes beyond the normal school day. Overtime compensation shall be provided all employees performing such duty, whether on a voluntary or roster basis. II. Analysis and Conclusion A. This Portion of the Proposal Is Within the Duty to Bargain This portion of the proposal would require compensation on an overtime basis when bus chaperone duties go beyond the normal school day. For the reasons which follow, we find this portion of the proposal is within the duty to bargain. /1/ 1. This Aspect of the Proposal Does Not Conflict with Law The Agency asserts that this part of the proposal conflicts with 20 U.S.C. Section 241 and 5 U.S.C. Section 5542. We find that it conflicts with neither provision. A. 20 U.S.C. Section 241 Section 241 of title 20 relevantly requires that under specified circumstances the Secretary of Education shall make arrangements for providing a free public education for children residing on Federal property and children of members of the Armed Forces on active duty. It further provides that for purposes of providing such education personnel may be employed whose compensation and other incidents of the employment relationship may be fixed without regard to "the Civil Service act and rules" and specified portions of title 5. 20 U.S.C. Section 241(a). Additionally, it states that "to the maximum extent practicable" the Secretary shall limit total payments made for such education within the Continental United States to an amount per pupil which does not exceed the amount spent in comparable communities in the State in which the school is located. 20 U.S.C. Section 241(e). The Agency contends that under these provisions the pay and benefits of teachers must be comparable to the pay and benefits of teachers in schools in comparable communities -- in this case comparable communities in Kentucky. It contends that, because the payment of overtime as proposed would exceed the salaries and benefits provided teachers in such communities, the proposal conflicts with the limitations imposed by 20 U.S.C. Section 241. Additionally, it asserts, based on its interpretation of the legislative history underlying one of the laws /2/ which established the provisions of 20 U.S.C. Section 241, that one purpose of that particular law was to avoid paying teachers overtime. Specifically, it relies on the Senate Report accompanying the legislation which became law in which the committee "took note" of and reproduced a letter from the Secretary of the Army which concerned the legislation before it. /3/ The letter expressed support for that portion of the legislation which provided for the employment, compensation and other conditions of employment of teachers to be established without regard to various Civil Service laws and rules. It noted that the proposed legislation reflected existing practice and cited some "illustrative" practices. Two of the illustrative practices cited were: (1) No overtime pay because teachers were expected to devote whatever time was necessary to accomplish customary curricular and extracurricular activities; and (2) addition of fixed amounts to their basic salaries as compensation for assigned extracurricular activities. We find that the second portion of the proposal conflicts with neither the express terms of 20 U.S.C. Section 241 nor the intent of Congress underlying that provision. First, with respect to the argument that the proposal would conflict with the express provisions of 20 U.S.C. Section 241(e) by causing the Agency to exceed the limitations on the total per pupil costs of providing an education which are set forth therein, the Authority rejected the same argument in 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), noting that compensation is only one aspect of total cost. As in Fort Bragg, the Agency in this case has not demonstrated that the proposal would necessarily prevent it from achieving the overall cost limitations specified in 20 U.S.C. Section 241(e). /4/ Insofar as the proposal in the present case requires the payment of overtime compensation, it is materially to the same effect as Union Proposal 13 in Fort Bragg. Therefore, for the reasons set forth in Fort Bragg the Authority finds that the proposal does not conflict with the terms of 20 U.S.C. Section 241. Second, in our view, the Agency has not demonstrated by analysis of legislative history that Congress intended to prohibit the payment of overtime compensation such as that proposed herein. Rather, the Senate Report relied on by the Agency articulates the "purpose" of the legislation sought as being to except certain teachers from coverage under various provisions of law relating to civil service employment including, among others, those relating to pay. The statements quoted above of the Secretary of the Army specifically relating to overtime were merely "illustrative of some of the practices" relating to teacher employment which had been adopted by Department of Defense and which deviated from the provisions of statutes affecting Federal employees generally. We find nothing, however, in either the law or the legislative history relied upon by the Agency which persuades us that the Congress intended to codify any specific practices such as when to pay overtime. b. 5 U.S.C. Section 5542 20 U.S.C. Section 241(a) specifically excepts the teachers involved here from coverage under, among other provisions, 5 U.S.C. Section 5542. The Agency's argument that the overtime compensation for these teachers is governed by the provisions of 5 U.S.C. Section 5542 therefore is inapposite and need not be considered further. 2. Compelling Need The Agency asserts that the proposal conflicts with a provision of its regulations which states that: /5/ 1-7. Compensation factors. Education provided . . . will be considered comparable to free public education offered by selected communities in the State when the following portions are, to the maximum extent practicable, equal: . . . . . . . h. Salary schedules. It contends that salary schedules in contracts covering teachers in surrounding Kentucky communities list all compensable extracurricular activities and that bus chaperone duties are not among them. Consequently, it asserts that the proposal conflicts with its regulatory provision that the salary schedules be equal to those of the surrounding communities. It contends that this provision implements in a nondiscretionary manner a mandate of Congress to pattern personnel practices after those found in the non-Federal service teaching profession, not after those found in the Federal service, generally. It asserts therefore that there is a "compelling need" for the regulation under Section 2424.11(c) of the Authority's regulations. Assuming without deciding that the proposal conflicts with the Agency's regulation, we find that the Agency has not established a compelling need under Section 2424.11(c) of the Authority's regulations. The Agency's argument on this point is essentially based on the same interpretation of the legislative history of Pub. L. No. 89-77 which we rejected in section C(1)(a). That is, the Agency concludes, based on Pub. L. No. 89-77 and the language of the committee report cited in note 4, above, that Congress intended that the compensation practices of public schools in comparable communities in the state in which the particular dependent school is located must be applied to the teachers at the dependent school. As set forth above, the Agency has not established that the language of 20 U.S.C. Section 241 or the intent of Congress in enacting the provisions in question mandates adoption of any specific employment or compensation practices. Consequently, we cannot find that the Agency's regulation reflects the nondiscretionary implementation of a mandate of Congress. Thus, we hold that the Agency has not demonstrated that a compelling need exists for its regulation to bar negotiations on this proposal. 3. Conditions of Employment We find that the Agency has not supported its argument that the proposal as it relates to premium pay does not concern conditions of employment. In support of its argument it asserts that: (1) "premium pay" is specifically provided for by law, i.e., in title 5; and (2) Congress did not intend pay to come within the ambit of "conditions of employment." As to the Agency's first assertion, we noted previously that 20 U.S.C. Section 241 explicitly excludes teachers from coverage under the provisions governing overtime found at 5 U.S.C. Section 5542. Consequently, we reject the Agency's argument here that the overtime provisions of title 5 specifically provided for the overtime of the employees to whom the proposal would apply. Turning to the second assertion, we recently reaffirmed that nothing in the Statute or its legislative history bars negotiation of proposals concerning compensation of employees insofar as (1) the matters proposed are not specifically provided for by law and are within the discretion of the agency and (2) the proposals are not otherwise inconsistent with law, Government-wide rule or regulation or an agency regulation for which a compelling need exist. American Federation of Government Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1986), petition for review filed sub nom. Department of the Air Force, Eglin Air Force Base, Florida v. FLRA, No. 87-3073 (11th Cir. Feb. 2, 1987). Hence, we find that the portion of the proposal concerning overtime pay concerns a condition of employment about which as noted in section A(1)(a) above, the Agency has discretion pursuant to 20 U.S.C. Section 241. 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. Summary and Conclusions This portion of the proposal, which would require compensation on an overtime basis for bus chaperone duties which extend beyond the normal school day, duties is within the duty to bargain. This portion of the proposal concerns a condition of employment about which the Agency has discretion under 20 U.S.C. Section 241. Further, it does not conflict with either 20 U.S.C. Section 241 or 5 U.S.C. Section 5542 as asserted by the Agency. Lastly, we find that it does not conflict with an Agency regulation for which a compelling need has been established by the Agency. III. Order The Agency must negotiate upon request, or as otherwise agreed to by the parties, over that portion of the proposal which addresses compensation for bus chaperone duty. Issued, Washington, D.C., February 27, 1987. /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) In finding this portion of the proposal negotiable, we make no judgment as to its merits. (2) Pub. L. No. 89-77, 79 Stat. 244 (1965), reprinted in 1965 U.S. Code Cong. & Ad. News 257. (3) S. Rep. No. 311, 89th Cong., 1st Sess., reprinted in 1965 U.S. Code Cong. & Ad. News 1910. Relevant portions appear as the Appendix to this Decision. (4) If, in combination with other practices and proposals relating to expenditures, such circumstances would result, the Agency has recourse to raising this argument before the Federal Service Impasses Panel in support of its position as to the merits of this and other proposals should an impasse occur in conjunction with negotiations. (5) AR 352-3 Separate opinion of Chairman Calhoun In my opinion in American Federation of Government Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1986), petition for review filed sub nom. Department of the Air Force, Eglin Air Force Base, Florida v. FLRA, 87-3073 (11th Cir. February 2, 1987), I stated that in the absence of a clear expression of Congressional intent to make wages and money-related fringe benefits negotiable, I would find that these matters are not within the duty to bargain under the Statute. I find no such expression in this case. Therefore, I do not join the majority. Issued, Washington, D.C., Februa?y 27, 1987. /s/ Jerry L. Calhoun, Chairman Appendix S. Rep. No. 311, 89th Cong., 1st Sess. provides in relevant part: Section 2 of H.R. 5874, if enacted, would modify conditions of employment of teachers in dependents' schools in the United States. In adopting section 2 as an amendment to H.R. 5874 the committee took note of the request contained in correspondence under date of March 4, 1965, received from the Honorable Stephen Ailes, Secretary of the Army, reproduced below: Department of the Army, Washington, D.C. Hon. Hubert H. Humphrey, President of the Senate. Dear Mr. President: A draft of legislation to amend section 6(a) of the Act of September 30, 1950, relating to conditions of employment of teachers in dependents' schools, is enclosed. This proposal is part of the Department of Defense's legislative program for the 89th Congress and the Bureau of the Budget advises that, from the standpoint of the administration's program, there is no objection to the presentation of this proposal for the consideration of the Congress. The Department of the Army has been designated as the representative of the Department of Defense for this legislation. It is recommended that the proposal be enacted by the Congress. PURPOSE OF THE LEGISLATION The purpose of the proposed legislation is to amend section 6(a) of the act of September 30, 1950, chapter 1124, as amended (20 U.S.C. 241(a)), to provide that the employment, compensation, and other conditions of employment of teachers engaged under that section 6 may be established without regard to the Civil Service Act and rules (5 U.S.C. 631), the Classification Act of 1949 as amended (5 U.S.C. 1071), the Annual and Sick Leave Act of 1951, as amended (5 U.S.C. 2061), the Federal Employees Pay Act of 1945, as amended (5 U.S.C. 901), the Veterans' Preference Act of 1944, as amended (5 U.S.C. 851), and the Performance Rating Act of 1950, as amended (5 U.S.C. 2001). . . . . . . . The military services had considered that the present language of section 6 was sufficiently broad to permit the extension of the salary fixing system and pay and leave practices applicable in public schools' jurisdictions to its teachers in the dependents' schools. Employment practices and contract clauses have been established, therefore, to reflect the practices which exist in the public schools. However, they vary considerably from the provisions of statutes affecting Federal employees generally. The following are illustrative of some of these practices: . . . . . . . (c) No provision is made for overtime pay since teachers are expected to devote whatever time is necessary to preparation for class sessions, grading of papers, and other customary curricular and extracurricular activities. (d) Fixed amounts are added to the teachers' basic salary to compensate for extracurricular activities which they are assigned. . . . . . . . The Comptroller General has ruled Comp. Gen. B-138773, May 15, 1959) that the general language of section 6 exempts school personnel only from the Civil Service Act and rules, as amended, and the Classification Act of 1949, as amended, and that other laws which affect Federal employees continue to apply to personnel in the dependents' schools. In his letter to the Secretary of Defense, dated November 13, 1961 Comp. Gen. B-146622), the Comptroller General stated further that the present practices could be continued temporarily with the understanding that clarifying legislation would be developed and presented for consideration during the 2d session of the 87th Congress. A legislative proposal was submitted to the Congress on June 7, 1962, and resubmitted on January 29, 1963; however, there was no action taken with respect to the proposal. Based upon the Department's experience in operating section 6 schools, it is highly desirable that the personnel practices for instructional personnel be patterned after those usually encountered in the teaching profession rather than those which have been developed for the Federal service as a whole. The attached draft legislation would provide clear legislative authority considered necessary to permit continuation of present practices.