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27:0750(80)NG - Fort Knox Teachers Ass'n and Fort Knox Dependents Schools -- 1987 FLRAdec NG

[ v27 p750 ]
The decision of the Authority follows:

 27 FLRA No. 80
                                            Case No. 0-NG-905
                         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) and concerns the
 negotiability of two proposals.
                             II.  Waiver Issue
    The Agency contends that the two disputed proposals are not properly
 before the Authority because of a "zipper clause" in the parties'
 negotiated agreement.  The clause precludes modifying, adding to, or
 deleting from the agreement any subject matter, whether included in the
 agreement or not, except for matters which must be negotiated by law.
 The Agency notes that the agreement has a reopener provision, but
 asserts that the two proposals were not introduced in accordance with
 that provision's requirements.
    The Union contends that the disputed proposals constitute matters
 which by law must be negotiated.  The Union also asserts that the
 disputed proposals were presented to management in conformity with the
 reopener provision.
    We have held that when a union appeals an agency's allegation that a
 proposal is nonnegotiable, the union is entitled to a decision by the
 Authority on whether the proposal is negotiable under the Statute
 despite the existence of other factual issues allegedly related to the
 appeal.  The record in this case contains no evidence in support of
 either party's position concerning the waiver provision.  Further, there
 is no documentation to show whether the proposals were or were not
 introduced in conformity with the agreement's reopener clause.  Hence,
 in accordance with our practice in negotiability appeals, we do not
 decide here whether the facts surrounding this case relieved the Agency
 of any duty to bargain.  See, e.g., American Federation of Government
 Employees Local No. 12 and U.S. Department of Labor, 25 FLRA No. 83
 (1987).  Rather, these issues should be resolved in other appropriate
 proceedings.  See American Federation of Government Employees, AFL-CIO,
 Local 2736 and Department of the Air Force, Headquarters 379th Combat
 Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302,
 306 n.6 (1984).
                             III.  Proposal 1
    The FLRA Members have expressed different opinions concerning
 Proposal 1.  The decision and order on Proposal 1 and Chairman Calhoun's
 separate opinion immediately follow the decision and order on Proposal
                              IV.  Proposal 2
    Extreme Temperatures
          A.  On any school day when the temperature as reported by the
       Fort Knox Weather Station exceeds 85 degrees, school for that day
       will be dismissed at 1:30 p.m.
          B.  Should the superintendent act upon his authority and
       dismiss schools because heat and humidity has become such that it
       interferes with the school program (learning process), we propose
       that such dismissal be handled as other times when schools are
       dismissed early in that when the children are dismissed, the
       teachers will remain for building level activities guided by
       building principals.
                       A.  Positions of the Parties
    The Agency asserts that Proposal 2 is nonnegotiable because it does
 not concern conditions of employment of employees in the bargaining
 unit.  The Agency's assertion is based on the Union's explanation that
 the proposal "reflects the Association's concern over the health and
 safety of the students during times of extreme heat."
    The Union contends that the proposal addresses a condition of
 employment.  It points out that extreme heat affects the behavior of the
 students and that student misbehavior has an adverse effect on the
 entire classroom environment.
                        B.  Analysis and Conclusion
    It appears from the record that the parties' dispute centers on
 paragraph A of Proposal 2.  Consequently our analysis and conclusion
 will be limited to that paragraph and subsequent references to "Proposal
 2" or the "proposal" should be read to apply only to paragraph A.
    1.  Condition of Employment
    In Antilles Consolidated Education Association and Antilles
 Consolidated School System, 22 FLRA No. 23 (1986), the Authority stated
 that, in deciding whether a proposal involves a condition of employment
 of bargaining unit employees, two basic factors would be considered:
          (1) Whether the matter proposed to be bargained pertains to
       bargaining unit employees;  and
          (2) The nature and extent of the effect of the matter proposed
       to be bargained on working conditions of those employees.
    Contrary to the Agency's contention we find that Proposal 2 affects
 working conditions of bargaining unit employees.  Specifically, and as
 previously noted, the Union contends that students tend to become unruly
 and inattentive in extreme heat which adversely affects the ability of
 bargaining unit employees to carry out their teaching duties.  Thus,
 while Proposal 2 does not expressly mention bargaining unit employees it
 is clearly intended to enable bargaining unit employees to perform more
 efficiently.  A similar rationale was advanced by the union for Proposal
 1 in American Federation of Government Employees, AFL-CIO, National
 Council of SSA Field Operations Locals and Social Security
 Administration, 25 FLRA No. 50 (1987).  Proposal 1 in that case provided
 that volunteers and "stay-in-school" appointees would be assigned work
 supplementing the assignments of bargaining unit employees.  The union
 pointed out that the individuals who were the subject of the proposal,
 although not bargaining unit members, performed functions which made the
 jobs of unit employees "less hectic".  On that basis we found that the
 proposal affected working conditions within the bargaining unit even
 though we held the proposal to be nonnegotiable on other grounds.
 Similarly, Proposal 2 here is intended to make the work of unit
 employees less trying.  Accordingly, based on the reasoning in Social
 Security Administration we find the proposal to be concerned with unit
 working conditions.
    2.  Assignment of Work
    Our conclusion that the proposal affects unit working conditions is
 not dispositive of the negotiability question however.  The primary work
 of the employees in this bargaining unit is to teach students.
 Obviously, when the students are not present, bargaining unit employees
 cannot carry out their primary work assignments.  In effect, therefore,
 Proposal 2 would prevent the Agency from assigning certain kinds of work
 to unit employees in the circumstances described.  In this regard the
 proposal is to the same effect as Proposal 1 which was before the
 Authority in International Association of Fire Fighters, Local F-61 and
 Philadelphia Naval Shipyard, 3 FLRA 438 (1980).  One section of the
 proposal in that case would have prevented the assigning of outdoor
 training activities to unit employees when the outside temperature was
 above or below specified levels or when certain other adverse weather
 conditions prevailed.  Noting initially that the assignment of training
 was the assignment of work, the Authority characterized the proposal as
 establishing "arbitrary absolute limits on the assignment of outdoors
 training(.)" Consequently, the Authority found that the proposal, "by
 placing absolute limits on the agency's ability to assign training to
 unit personnel during duty hours violates the agency's right to assign
 work under section 7106(a)(2)(B) of the Statute." Because the proposal
 here likewise imposes limitations on the assignment of work based on
 weather considerations, in accordance with Philadelphia Naval Shipyard,
 Proposal 2 is inconsistent with the Agency's right to assign work and is
 outside the duty to bargain.
                                 V.  Order
    The Union's petition for review is dismissed.
    Issued, Washington, D.C., June 25, 1987.
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                     DECISION AND ORDER ON PROPOSAL 1
                                Proposal 1
                              Salary Schedule
          The Fort Knox Teachers Association requests negotiations with
       the Fort Knox Dependen(ts) Schools over salary and fringe benefits
       for the certified staff.
                       A.  Positions of the Parties
    The Agency asserts that Proposal 1 is not sufficiently specific or
 delimited in form and content so as to permit a negotiability
 determination.  On the merits, the Agency contends that the proposal is
 inconsistent with Federal law, agency regulations having the force and
 effect of law, and an agency regulation for which there exists a
 compelling need.  According to the Agency, the proposal also interferes
 with its right under section 7106(a)(1) of the Statute to determine its
 budget and does not concern a "condition of employment" to be negotiated
 under section 7117 of the Statute.
    The Union asserts that the holding 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) supports the negotiability of Proposal 1.
                               B.  Analysis
    In Fort Bragg Dependents Schools it was noted that 20 U.S.C. Section
 241(a), which covers employees in this bargaining unit, vests an agency
 with the discretion to fix the compensation of employees concerned
 without regard to statutes providing for the compensation of most
 Federal employees.  Consequently, it was held that proposals fixing pay
 rates of unit employees were within the duty to bargain because
 compensation was a condition of employment not otherwise provided for by
 Federal statute, and because the proposals concerned matters over which
 the agency head had discretion.
    However, in finding the compensation proposals to be negotiable, two
 specific agency contentions were examined.  The agency first contended
 that the proposals violated 20 U.S.C. Section 241(e) which requires
 that, to the maximum extent practicable, the agency's per pupil costs
 not exceed the per pupil costs for public education expended by
 comparable communities in the same state.  Although the agency's
 argument was rejected, immplicit in the consideration of it was the
 possibility that the proposals might have been nonnegotiable had the
 agency adequately supported its case.  The agency in Fort Bragg
 Dependents Schools also contended that the compensation proposals
 interfered with its right to determine its budget under section
 7106(a)(1) of the Statute.  That argument was also rejected because the
 agency did not demonstrate that the proposals dictated a particular
 program or sum of money to be included in the agency's budget nor did it
 make a substantial showing that the proposals would result in
 significant and unavoidable cost increases not offset by compensating
 benefits.  Again, the proposals were found negotiable because the agency
 failed to sustain its burden of proof.
    Proposal 1 seeks, in part, to obligate the Agency to bargain over
 "salary." As has been noted, salaries for employees like those covered
 by this proposal are negotiable.  However, as has also been shown,
 negotiation over teachers' salaries is not without statutory limitation.
  The generalized call for bargaining over salaries contained in this
 proposal makes it impossible to ascertain whether or not subsequent
 negotiations would be within the limits of negotiability.  That is, the
 proposal's form renders it impossible for either party to advance or to
 refute an argument in support of its negotiability.  Consequently,
 Proposal 2 does not set forth sufficient and specific information so as
 to enable us to reach a reasoned decision.
    Provision 1 also contains a broad-based call for negotiations over
 "fringe benefits." In Fort Bragg Dependents Schools several proposals
 concerned matters which fall under the heading of "fringe benefits",
 including life, medical and dental insurance.  Those proposals were held
 to be nonnegotiable because they concerned matters specifically provided
 for by Federal statute.  Here, it is impossible to determine from the
 proposal's language whether or not the bargaining sought would encompass
 "fringe benefit" specifically provided for by statute.  See also, the
 analysis of Proposal 20 in the same case.
                              C.  Conclusion
    Proposal 1 does not set forth sufficient and specific information so
 as to enable us to reach a reasoned determination on its negotiability
 under law and regulation.  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 our Rules and Regulations.
 See Association of Civilian Technicians, Alabama ACT and State of
 Alabama National Guard, 2 FLRA 313 (1979).
                                 D.  Order
    The Union's petition for review on Proposal 1 is dismissed.
    Issued, Washington, D.C., June 25, 1987.
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                   Separate Opinion of Chairman Calhoun
    I agree that Proposal 1 is not sufficiently specific to rule on its
 negotiability and therefore, concur in the majority's conclusion that
 the Union's petition for review as to it should be dismissed.  Further,
 the proposal concerns the wages and fringe benefits, including
 money-related fringes.  In my view, a clear expression of Congressional
 intent is necessary to find proposals in these areas to be within the
 duty to bargain.  See my opinions 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);  and Fort Knox Teachers
 Association and Board of Education of the Fort Knox Dependents Schools,
 27 FLRA No. 34 (1987).
    Issued, Washington, D.C., June 25, 1987.
                                       Jerry L. Calhoun, Chairman
                                       FEDERAL LABOR RELATIONS AUTHORITY