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The decision of the Authority follows:
26 FLRA No. 108 FORT KNOX TEACHERS ASSOCIATION Union and FORT KNOX DEPENDENT SCHOOLS Agency Case No. 0-NG-876 DECISION AND ORDER ON NEGOTIABILITY ISSUE /1/ I. Statement of the Case This case is 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). The appeal concerns the negotiability of the following two-part proposal: 1. After ten years of continuous service at Fort Knox, a one year sabbatical leave shall be granted upon request by the individual unit member. Such leave shall be granted by FKBE for educational advancement or appropriate travel of the unit member. The one year sabbatical leave granted for education advancement shall be for one hundred percent of the unit member's base pay. The one year sabbatical leave granted for appropriate travel shall be for seventy-five percent of the unit member's base pay. 2. The unit member shall be reinstated to his original position at the end of the sabbatical. The same unit member shall not be eligible for another sabbatical until an additional ten years of continuous service at Fort Knox is completed. Unit members granted sabbatical leave will enter into an agreement to remain in the Fort Knox school system for a minimum of three years after completing their year of sabbatical leave. II. Positions of the Parties The Agency essentially contends that the portion of the proposal which relates to granting sabbatical leave to an employee for travel purposes is nonnegotiable because it: (1) does not concern conditions of employment within the meaning of the Statute; (2) conflicts with law; and (3) conflicts with an agency regulation for which a compelling need exists. The Agency also asserts that the portion of the proposal which relates to the reinstating of an employee to his/her original position at the end of the sabbatical leave violates management's right to assign employees under section 7106(a)(2)(A) and conflicts with law. The Union denies that the proposal conflicts with law or regulation. It also argues that the proposal concerns a condition of employment and denies that the proposal violates management rights to assign employees under section 7106(a)(2)(A). III. Analysis A. The First Portion of the Proposal Is Within the Duty To Bargain 1. Statutory Considerations 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), appeal docketed sub nom. Department of the Air Force, Eglin Air Force Base, Florida v. FLRA, No. 87-3037 (11th Cir. Feb. 2, 1987), the Authority held nothing in the Statute, or its legislative history, bars negotiation of proposals relating to pay and fringe benefits insofar as (1) the matters proposed are not specifically provided for by law and are otherwise inconsistent with law, Government-wide rule or regulation or an agency regulation for which a compelling need exists. Based on the analytical framework established there, we held that the proposal in Eglin Air Force Base, which required the agency to pay up to a certain percentage of the premium cost of health insurance for non-appropriated fund employees, was within the duty to bargain. We noted in that case also that in the Federal sector, wages and fringe benefits of most employees are established and controlled by law. However, there are exceptions where matters concerning the nature and amount of the wages and fringe benefits are left to the discretion of the employing agencies. See also American Federation of Government Employees, AFL-CIO, Local 997 and Department of the Air Force, Maxwell Air Force Base, Alabama, 24 FLRA No. 51 (1986), appeal filed sub nom. Department of the Air Force, Maxwell Air Force Base, Alabama v. FLRA, No. 87-7102 (11th Cir. Feb. 11, 1987) (proposal concerning payment by the employer for various other types of insurance, including health insurance, was found to be within the scope of bargaining). In the present case the first portion of the proposal would, in relevant part, require the Agency to grant Fort Knox Dependent School teachers, employed in the bargaining unit under 20 U.S.C. Section 241(a), a 1-year sabbatical leave for educational advancement at full pay or a 1-year sabbatical leave for appropriate travel at 75 percent pay. The Agency argues that this portion of the proposal violates 20 U.S.C. Section 241. Essentially, the Agency argues that based on the express language of 20 U.S.C. Section 241 and the legislative history underlying one of the laws which established the provisions of 20 U.S.C. Section 241, /2/ the Agency's per pupil cost in Dependent Schools is limited to the per pupil cost of free public education in comparable communities in the appropriate state, here, Kentucky. According to the Agency, since payroll costs account for nearly 80 percent of all expenditures, it is not possible to conform to the statutory mandate of comparable per pupil costs without limiting teacher salaries and benefits to levels which are comparable to those provided in Kentucky. The Agency claims that since applicable Kentucky law does not permit a leave of absence for travel purposes, this portion of the proposal would increase the benefits provided to bargaining unit employees as compared to those accorded to teachers in Kentucky. Thus, the Agency concludes this portion of the proposal is inconsistent with the express provisions of 20 U.S.C. Section 241 and its applicable legislative history. With respect to the argument that the proposal would conflict with the express provisions of 20 U.S.C. Section 241 by causing the Agency to exceed the limitations on the total per pupil costs of providing an education which are set forth in that statute, 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 limitation specified in 20 U.S.C. Section 241. /3/ Further, in our view the Agency has not demonstrated by analysis of legislative history that Congress intended the Agency to be bound to match exactly the conditions of employment of teachers in local school districts. Rather, the Senate Report relied upon 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 and fringe benefits. The statements of the Secretary of the Army quoted in the Senate Report merely illustrated some of the practices relating to teacher employment which had been adopted by the Department of Defense and which deviated from provisions of statutes affecting Federal employees generally. We find nothing in either the law or the legislative history relied upon by the Agency which persuades us that Congress intended to restrict the Agency's discretion as to the particluar employment practices relating to pay and fringe benefits which could be adopted. See also Fort Knox Teachers Association and Fort Know Dependent Schools, 25 FLRA No. 95 (second portion of the proposal) (1987), petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3395 (6th Cir. Apr. 27, 1987). 2. Compelling Need The Agency asserts that this portion of the proposal conflicts with a provision of its Army Regulation (AR) 352-3 which states that: 1-7. Compensation Factors. Education provided . . . will be considered comparable to free public education offered by selected communities of the State when the following factors are, to the maximum extent practicable, equal: * * * * h. Conditions of employment. It contends that private sector teacher contracts in Kentucky do not contain provisions granting sabbatical leave for travel reasons and compensation is not provided for that purpose. Consequently, it asserts that the proposal conflicts with its regulatory provision stating that conditions of employment, to the maximum extent practicable, in the dependent schools are 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. 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 this portion of the proposal conflicts with the Agency 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. 89-7 which we rjected in section A(1) of this decision. That is, the Agency concludes, based on Pub. L. No. 89-77 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 20 U.S.C. Section 241 or its legislative history, mandates adoption of any specific employment or compensation practices. Rather, Congress left the Agency with discretion within certain specified guidelines to establish compensation and other employment practices. Consequently, we hold that the Agency has not demonstrated that a compelling need exists for its regulation to bar negotiations on this part of the proposal. B. The Second Portion of the Proposal Is Outside the Duty to Bargain 1. The Second Portion of the Proposal Conflicts with the Right to Assign Employees The second portion of the proposal would require the Agency to assign a teacher to his/her original position when that teacher returned from sabbatical leave. It is well established that under section 7106(a)(2)(A) of the Statute the right to assign an employee to a position includes the discretion to determine which employee will be assigned. See American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980), affirmed sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1982), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982). This portion of the proposal restricts the Agency's discretion to determine which employee to assign to a position. Specifically, it requires the Agency to assign a returning employee to the particular position that employee had filled before taking sabbatical leave. It prevents the Agency from assigning that returning employee to any other available position or any other employee to that position. Thus, this portion of the proposal is nonnegotiable. See also American Federation of Government Employees, AFL-CIO, Local 3529 and Defense Contract Audit Agency, 3 FLRA 301 (1980). 2. The Second Portion of the Proposal does not Conflict with Law The Agency contends that this part of the proposal would entitle employees to their original position upon completion of their sabbatical leave. Thus, according to the Agency, as this part of the proposal would obligate the Government for expenditure of funds in a succeeding fiscal year, it violates the provisions of the Antideficiency Act, 31 U.S.C. Section 1341(a), which provides in part as follows: Section 1341. Limitations on expending and obligating amounts (a)(1) An officer or employee of the United States Government or of the District of Columbia government may not -- (A) make or authorize an expenditure or obligation exceeding an amount available in the appropriation or fund for expenditure or obligation; or (B) involve either government in a contract or obligation for the payment of money before an appropriation is made unless authorized by law. In support of its position the Agency relies upon a number of Comptroller General decisions interpreting the Antideficiency Act. Contrary to the Agency's view however, we find that this part of the proposal does not violate the Antideficiency Act. In our view, the bargaining unit teachers employed under 20 U.S.C. Section 241 are employees of the Government and subject to all statutes pertaining to Government employment unless specifically exempted. Accord, 58 Comp. Gen. 430 (1979) and cases cited in that decision. The Agency in this case has established that a requirement to reinstate an employee returning from a sabbatical leave is inconsistent with the holdings of the Comptroller General that salaries of Government employees, as well as related items that flow from those salaries such as retirement fund contributions, are obligations only at the time the salaries are earned, that is, when the services are rendered, in this case, when the returned employee actually provides services. See, for example, 38 Comp. Gen. 316 (1958). Thus, negotiation of this part of the proposal would not obligate the Government for expenditure of funds in a succeeding fiscal year in violation of the Antideficiency Act. See also Unpublished Decision of the Comp. Gen., B-187881, Oct. 3, 1977. IV. Summary and Conclusions We conclude that the first portion of the proposal which relates to granting certain employees a 1-year sabbatical leave concerns a condition of employment about which the Agency has discretion under 20 U.S.C. Section 241. Further, the first portion of the proposal does not conflict with 20 U.S.C. Section 241 or with an Agency regulation for which a compelling need has been established by the Agency. The second portion of the proposal which requires the Agency to reassign a teacher to his/her original position after completion of his/her sabbatical leave conflicts with management's right to assign employees under section 7106(a)(2)(A). However, this portion of the proposal does not conflict with 31 U.S.C. Section 1341(a) the Antideficiency Act. V. Order The Agency must negotiate upon request or as otherwise agreed to by the parties over that portion of the proposal granting certain employees sabbatical leave for travel. /4/ However, the Union's petition as to that portion of the proposal which addresses the reassignment of a teacher to their original position after the completion of sabbatical leave is dismissed. Issued, Washington, D.C., April 30, 1987. /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY 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, Flordia v. FLRA, No. 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 see no such statement of Congressional intent in this case. Therefore, I do not join the majority decision. See also Fort Knox Teachers Association and Fort Knox Dependent Schools, 25 FLRA No. 95 (1987), petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3395 (6th Cir. April 27, 1987); and American Federation of Government Employees, AFL-CIO, Local 1770 and U.S. Department of Defense, Dependent Schools, Fort Bragg, North Carolina, 25 FLRA No. 96 (1987), petition for review filed sub nom. Department of Defense, Dependent Schools, Fort Bragg, North Carolina v. FLRA, No. 87-3061 (4th Cir. April 27, 1987). I agree with the majority that the second portion of the proposal is nonnegotiable because it conflicts with the Agency's right to assign work. Issued, Washington, D.C., April 30, 1987. /s/ Jerry L. Calhoun, Chairman --------------- FOOTNOTES$ --------------- (1) Chairman Calhoun dissents for the reasons stated in his separate opinion. (2) Pub. L. No. 89-77, 79 Stat. 244 (1965), reprinted in 1965 U.S. Code Cong. & Ad. News 257. (3) If, in combination with other practices and proposals relating to expenditures, such circumstance 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. (4) In finding this portion of the proposal to be negotiable we make no judgment on its merits.