28:0547(67)NG - FORT STEWART (GEORGIA) ASSOCIATION OF EDUCATORS VS
[ v28 p547 ]
The decision of the Authority follows:
28 FLRA NO. 67 FORT STEWART (GEORGIA) ASSOCIATION OF EDUCATORS Union and FORT STEWART SCHOOLS Agency Case No. 0-NG-1071
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 three proposals.
II. Proposals 1 and 2
Article 25: Salary and Benefits
A. The salary schedule shall be subject to annual review beginning approximately the 15th of December of each year. The Association shall be consulted in the review. Employer will maintain salaries on a competitive level with comparable school districts. The comparable school districts which shall be used for salary and fringe benefits comparison purposes shall be Liberty and Chatham Counties and Atlanta City Schools.
B. The ceiling for years of experience shall be extended from 16 to 20 years.
C. Pay lanes on the salary schedule shall be established for each category of teachers at Fort Stewart schools justified by the results of a wage survey system conducted by the Employer.
D. A copy of all data collected shall be provided to the Association for independent analysis. The Employer shall consult the Association to explain its analysis and attempt to resolve any differences of opinion before the salary schedule is developed.
E. All increases on the salary schedule shall be applied across the board.
F. The salary schedule shall reflect the cost of living increase no later than thirty (30) days after it is released by the Federal government.
G. Completion of Higher Level Education
I. A teacher who completes the advanced education required to qualify for a salary under a higher education salary schedule shall be assigned the higher salary rate retroactive to the 1st day of the school year preceding the date the education was completed. Such adjustment shall be made upon receipt of written documentation in which the college or university concerned specifies the date when the teacher completed the advanced education, or the date when the teacher met the requirements for a specific degree.
H. Maintain procedure for development of salary schedule for all unit members who are on the civil service pay scales.
I. Summer school salaries shall be based on the unit member's regular hourly rate of pay.
J. Any unit member whose employment is terminated by the Employer will be given a lump sum payment for unused sick leave.
K. Mileage Reimbursement
The use of personally owned vehicles for authorized school business shall be reimbursed at the rate of 40cts per mile.
L. Health Insurance
The Employer shall pay the full amount of health insurance premium for each unit member who elects to participate in the health insurance program. The Employer will pay the premium for the family coverage portion in the health benefit program if the unit member desires this additional coverage.
M. Life Insurance Benefit
The Employer shall pay the full amount of life insurance premium for each unit member. The coverage shall be the basic life insurance plan. Unit members shall have the option to pay the premiums for any additional insurance options elected.
N. Unit members will continue to receive all health benefits currently held which have not been specifically enumerated in previous articles of this Agreement.
O. Any subsequent benefits provided to the Federal service in health benefits, insurance benefits, disability and retirement, sick leave, and workers compensation shall automatically accrue to the unit members.
The Association and the Employer agree that the salary increase for all bargaining unit members will be 13.5% for the school year.
A. Positions of the Parties
The Agency views Proposal 1 and Proposal 2 as mutually exclusive. specifically, the Agency claims that Proposal 1 was withdrawn and replaced with Proposal 2. Thus, the Agency contends that Proposal 1 is not properly before the Authority. Substantively, the Agency alleges generally that the proposals do not concern "conditions of employment," as defined in section 7103(a)(14) of the Statute and therefore, are outside the duty to bargain under section 7117. The proposals, in the Agency's view, also interfere with its right to determine its budget under section 7106(a)(1). The Agency also asserts that the proposals violate Federal statutes, Agency regulations having the force and effect of law, and an Agency regulation for which a compelling need exists. In addition, the Agency alleges that sections L, M, N and O of Proposal 1 are nonnegotiable because they concern matters specifically provided for by Federal law.
The Union explains that Proposal 1 concerns the pay-fixing process for the life of the negotiated agreement and that Proposal 2 provides for a specific salary increase for a particular school year. See Memorandum, dated November 8, 1984, enclosed with the Petition for review. As to the substance the Union asserts that the proposals are negotiable based on 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).
B. Analysis and Conclusion
1. Proposal 1 is properly before the Authority
There is nothing in the record to support the Agency's claim that Proposal 2 was submitted as a replacement for Proposal 1. In addition, based on the Union's statement of intent, Proposals 1 and 2 concern different aspects of the pay-setting process and thus are not mutually exclusive.
2. Conditions of Employment
The Agency's position, based primarily on the legislative history of the Statute, is that Congress did not intend to include teachers' pay among negotiable conditions of employment. This Agency argument was considered and rejected by the Authority in Fort Bragg Dependents Schools and subsequent cases. Briefly stated, we have consistently held that nothing in the Statute or its legislative history prevents bargaining over employee compensation 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 involved are not otherwise inconsistent with law, applicable Government-wide rule or regulation, or with an agency regulation supported by a compelling need. See also 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).
Here, the employees covered by the proposals are employed under the provisions of 20 U.S.C. 241. We have previously held that nothing in 20 U.S.C. 241 or in its legislative history, relied upon by the Agency, indicates that Congress intended to restrict an agency's discretion concerning the particular employment practices relating to compensation which could be adopted. Fort Knox Teachers Association and Fort Knox Dependent Schools, 26 FLRA No. 108 (1987), petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3593 (6th Cir. Jun. 25, 1987). Thus, the Agency has not established that either of the proposals concerns a matter specifically provided for by law, or that they are outside the Agency's discretion to adopt.
Moreover, even assuming the correctness of the Agency's position respecting negotiation of pay matters, the Agency has cited no specific grounds for finding sections A, C and D of Proposal 1 nonnegotiable. These sections do not concern the amounts of compensation to be paid unit employees. Rather, they merely authorize the Union to review and comment on data used to determine employee salary schedules. Consequently, even if compensation were found to be a nonnegotiable matter, sections A, C and D would still be within the Agency's duty to bargain.
3. Agency's Right to Determine its Budget
To establish that a proposal directly interferes with an agency's right to determine its budget under section 7106(a)(1) of the Statute, an agency must make a substantial showing that the proposal requires the inclusion of a particular program or amount in its budget or that the proposal will result in significant and unavoidable increases in cost not affected by compensating benefits. American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced as to other matters sub nom. Department of the Air Force v. Federal Labor Relations Authority 695 F.2d 1140 (D.C. Cir. 1981), cert. denied sub non. AFGE v. FLRA, 455 U.S. 945 (1982).
The Agency here contends that finding these proposals negotiable would result in a significant increase in costs for the entire dependents school system. It points out that the system is comprised of seven additional bargaining units with 626 members whose salaries total $11.3 million. It reasons that, if the proposals are found to be negotiable, the other units would seek to negotiate on similar proposals. Statement of Position at 9.
In our view, the Agency's reasoning does not satisfy the requirement of a substantial showing that the proposal would result in substantial and unavoidable cost increases not offset by compensating benefits. While the Agency provides us with the information set forth immediately above, it does not indicate how many employees would actually be affected by the proposals or the monetary increase which would be directly attributable to implementation of the proposals in other bargaining units within the system. In fact, the Agency does not advise us of the amount of the increase resulting from the proposals within the bargaining unit itself. Thus, the Agency has failed to establish that increased costs could be expected or even that increased costs would be unavoidable. See Fort Knox Teachers Association and Fort Knox Dependents Schools, 28 FLRA No. 29 (1987).
The Agency also has failed to show that any increased costs, which it asserts are unavoidable, would not be offset by compensating benefits. Instead, it contends that Congress' action in exempting teachers from statutes governing pay and certain benefits for Government employees constitutes a finding that increases in teachers' pay are not offset by compensating benefits. Statement of Position at 8-9. We find this argument unpersuasive. Even assuming that the congressional action had the implications suggested by the Agency, the legislative action was based on the cost differential between existing pay and personnel practices under title 5 U.S. Code and those subsequently embodied in 20 U.S.C. 241. The congressional action therefore cannot be construed to cover the alleged cost increases which would result from implementing these proposals within this bargaining unit. See Fort Knox Dependents Schools, 28 FLRA No. 29 (1987). Furthermore, as we noted in section B.2., above, nothing in 20 U.S.C. 241, or in its legislative history as relied upon by the Agency, indicates that Congress sought to restrict the Agency's choice in adopting a particular employment practice relating to pay and fringe benefits not otherwise provided for by law. Moreover, as to the requirement that per pupil expenditures in dependents schools be limited to the amounts expended by comparable communities in the same state, the Authority held in Fort Bragg Dependents Schools, 12 FLRA 519 that employee compensation is but one of the factors to be considered in determining whether the limitation has been exceeded.
Finally, the Authority also noted in Fort Bragg Dependents Schools 12 FLRA 519, 523, that while the consequences of a proposal necessarily are considered in the collective bargaining process, "should matters of concern to the Agency, such as cost, prevent the parties from reaching agreement, that consideration could be presented to the Federal Service Impasses Panel in a proceeding to resolve a negotiation impasse pursuant to section 7119 of the Statute."
4. Procurement Law and Regulations
The Agency asserts that the proposals violate law, specifically 10 U.S.C. 2304 concerning the solicitation of contract bids in the procurement process. The Agency also contends that the proposals violate Government procurement regulations having the force and effect of law, which govern the negotiation and administration of procurement contracts, namely the Federal Acquisition Regulation. In effect, the Agency argues that the "personal services contracts" under which bargaining unit employees are hired must be awarded in conformity with procurement law and related Federal regulations, and that bargaining over pay and related fringe benefits is inconsistent with those statutory and regulatory requirements.
We find that claim to be without merit. Essentially the same claim was raised by the Agency and rejected in Fort Knox Teachers Association and Board of Education of the Fort Knox Dependents Schools, 27 FLRA No. 34 (1987). In that case, we noted the well-established principle that teachers employed under 20 U.S.C. 241 are not independent contractors but, rather, are employees of the Federal Government, subject to all statutes governing Government employment unless expressly exempted. Consequently, we determined that the Agency had failed to demonstrate that procurement law and regulations applied in any manner to, or governed the employment relationship of, teachers employed in the dependents school system. Similarly, the Agency in this case has failed to show that procurement law and regulations govern bargaining unit working conditions.
5. The "Antideficiency Act"
The Agency contends that, because the proposals would obligate it to expend certain funds for salaries and other benefits in a succeeding fiscal year, they violate provisions of the "Antideficiency Act" (the Act), 31 U.S.C. 1341.
In Fort Knox Dependents Schools, 27 FLRA No. 34, we examined a similar argument in response to a proposal concerning both paid and unpaid leave. In rejecting the Agency's contention that Proposal 4 in the cited case violated the Act, we noted that the Comptroller General, in interpreting the Act, has held that "salaries of Government employees, as well as related items that flow from those salaries such as retirement fund contributions, are obligations of the Government at the time they are earned, that is, when the services are provided." In this case, insofar as the proposals can be said to concern specific sums, there is no obligation to make payments until the specific service is rendered by the unit employee. Hence, there is no showing that the proposals violate the Act.
6. Agency Regulation
The Agency asserts that the proposals violate Army Regulation (AR) 352-3, an Agency regulation for which it alleges a compelling need exists under section 2424.11(c) of the Authority's Rules and Regulations. Specifically, the Agency states that its regulation requires equality, to the maximum practicable extent, between the conditions of employment in the bargaining unit and those of teachers in comparable school systems in Georgia where Fort Stewart is located. In support of its position, the Agency cites 20 U.S.C. 241(a)(2) which obligates the Agency to take whatever action is necessary to ensure that the education provided by its schools is comparable to that provided to children in similar communities in the same state.
Substantially the same argument was raised by the Agency to support its claim that there was a compelling need for AR 352-3 to bar negotiation of Proposal 4 in Fort Knox Dependents Schools, 27 FLRA No. 34. In that case, we found "nothing in either the law or its legislative history which persuades us that Congress intended to restrict the Agency's discretion as to the particular employment practices which could be adopted." Consequently, we held that the Agency failed to sustain its burden of showing a compelling need for AR 352-3. Moreover, even assuming the Agency had supported its compelling need argument here, it has not shown how sections A through G, I and J of Proposal 1, which assume that pay rates will be fixed in accordance with pay practices in comparable schools systems, conflict with AR 352-3.
7. Sections L and M of Proposal 1
Sections L and M of Proposal 1 would require, respectively, that the Agency provide health insurance and basic life insurance free of cost to employees. These two sections are to the same effect as Proposals 14 and 17 found nonnegotiable 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 Federal law limits the amount of the employer's contribution toward the cost of health insurance, and specifically requires employees to contribute toward the cost of life insurance, the Authority held that the two proposals addressed matters provided for by Federal statutes. Because the statutory provisions cited in Fort Bragg Dependents Schools remain in effect, we must likewise find that sections L and M of Proposal 1 here concern matters provided for by law.
8. Sections N and O of Proposal 1
Section N of Proposal I would continue all health benefits currently accruing to employees even though not specifically referred to in the negotiated agreement. Section O would ensure that all subsequent miscellaneous benefits bestowed on the Federal service would also be received by unit employees. The Agency's position appears to be that, because the sections concern matters covered by law, the two sections are not properly included in the negotiated agreement. We disagree. In National Treasury Employees Union and Internal Revenue Service, 3 FLRA 693 (1980) (Proposals II and III), two proposals sought to incorporate statutory provisions governing prohibited personnel practices and merit system principles into the parties' agreement. In that case the Authority held that the union could appropriately incorporate provisions of law in the negotiated [ agreement for the purpose of enforcing them by means of the negotiated grievance procedure. Here, the disputed sections seek to ensure that employees receive the enumerated benefit to which they are, or may be, entitled under law. Consequently, the reasoning set; forth in Internal Revenue Service is applicable to sections N and O.
In accordance with the reasons and cases cited, Proposal 1, with the exception of sections L and M, and Proposal 2 do not conflict with law, applicable Government-wide regulations, or with Agency regulations for which there is a compelling need. Therefore, Proposal 1 with the exception of sections L and M, and Proposal 2 are within the duty to bargain. Sections L and M of Proposal 1 are inconsistent with Federal law and consequently are outside the duty to bargain under section 7117(a)(1) of the Statute.
III. Proposal 3
Proposal 3 concerns various types of leave. Because of its length, the proposal appears in an Appendix to this decision.
A. Positions of the Parties
The Agency takes the position that, with the exception of the section concerning leave without pay (section F), Proposal 3 addresses money-related fringe benefits and therefore is nonnegotiable for the same reasons as stated with regard to the Union's salary and benefits proposals. Section F assigns responsibility for approving leave without pay requests to the requester's immediate supervisor. Based on American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, 14 FLRA 278 (1984), affirmed sub nom. Local 32, American Federation of Government Employees v. FLRA, 762 F.2d 138 (D.C. Cir. 1985), among other cases, a proposal, such as section F, which prescribes a specific function to be performed by a person outside the bargaining unit is not within the duty to bargain.
The Union contends that this proposal also falls within the holding of Fort Bragg Dependents Schools, 12 FLRA 519 and consequently, it is negotiable.
B. Analysis and Conclusion
The issue of whether the various types of leave for teachers in the Agency's dependents schools are appropriate subjects for bargaining was examined in Fort Knox Dependent Schools, 26 FLRA No. 108, The first part of the disputed proposal in that case sought to establish the unit employees' right to sabbatical leave after 10 years' continuous service at Fort Knox. In deciding that the first part of the proposal was negotiable, we held that it "concerns a condition of employment about which the Agency has discretion under 20 U.S.C. 241. Further, the first portion of the proposal does not conflict with 20 U.S.C. 241 or with an Agency regulation for which a compelling need has been established by the Agency." Consequently, based on the reasoning and cases cited in Fort Knox Dependent Schools, all but section F of Proposal 3 is within the duty to bargain.
Section F of Proposal 3 authorizes leave without pay (LWOP) for unit members. It further provides that LWOP "May be approved at the discretion of the immediate supervisor." The Agency contends that the latter requirement is an impermissible intrusion on its reserved right to assign work. We agree. In American Federation of Government Employees, AFL - CIO, Local 32 and Office of Personnel Management, 14 FLRA 278 (1984), affirmed sub nom. Local 32, American Federation of Government Employees v. FLRA, 762 F.2d 138 (D.C. Cir. 1985), the disputed proposal sought to require that any grievance initiated by the agency be signed by the agency head. The proposal was held to violate section 7106(a)(2)(B) of the Statute because it prescribed specific duties which particular nonbargaining unit personnel in the agency would perform. It was further noted that the proposal would effectively preclude management's assigning the duty referenced in the proposal to any other person, thereby eliminating the discretion inherent in management's right to assign work.
Here, section F of the proposal would assign approval authority for LWOP to specific management officials. Under its terms such authority could not be assigned to higher level officials who might be better positioned to assess the impact of a grant of LWOP upon the overall effectiveness of operations. Consequently, based on the reasoning and case cited in Office of Personnel Management, we find that section F of Proposal 2 is outside the duty to bargain because it is inconsistent with management's right to assign work under section 7106(a)(2)(B) of the Statute.
However, we note that if this section were revised to preserve management's right to designate the individual who would approve requests for LWOP, it would be negotiable. See American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command, Redstone Arsenal Commissary, 27 FLRA No. 14, slip op. at 13 (1987).
The Agency must upon request or as otherwise agreed to by the parties, negotiate over: Proposal I with the exception of sections L and M; Proposal 2; and Proposal 3, except for section F. 2 The petition for review is dismissed insofar as it pertains to sections L and M of Proposal I and section F of Proposal 3.
Issued, Washington, D.C., July 31, 1987.
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun
I agree with my colleagues that the issues in this case are essentially the same as those in Fort Knox Teachers Association and Fort Knox Dependent schools, 26 FLRA No. 108 (1987), petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3593 (6th Cir. June 25, 1987). In my opinion in that case, 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. In this case, Proposal 1, subsections A, D, E, F, G, I, J, K, N, and O, Proposal 2, and Proposal 3 concern wages and money-related fringe benefits. Because I find no expression of congressional intent in this case that these matters be negotiable, I would find these proposals to be outside the duty to bargain. I note, however, with respect to subsections A and D of Proposal 1 that consistent with the Authority's decision concerning Proposal 4 in Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA No. 79 (1987), I would find negotiable a proposal which simply required the Agency to provide information to and consult with the Union on these matters.
I am unable to determine the meanings of subsections B, C, and H of Proposal 1 from the record in this case. In my view, there is insufficient information on which to make a negotiability determination on these subsections. I would dismiss the Union's petition as to them. In addition, I note that subsection C(6) of Proposal 3 is similar to section 8(g) of Provision 10, which the Authority found to be negotiable in American Federation of Government Employees. AFL - CIO, Local 1770 and Department of the Army, Fort Bragg Dependent Schools, Fort Bragg, North Carolina, 28 FLRA No. 66 (1987). Unlike the provision in that case, which required the continuation of insurance premiums "in accordance with Federal regulations," Proposal 3 in this case does not refer to applicable regulations. As such, it would constitute an independent contractual requirement concerning the matter in my view.
I agree with my colleagues that subsections L and M of Proposal 1 concern matters provided for by Federal law.
Issued, Washington, D.C., July 31, 1987.
Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY
Article 11: Leave
Section 1. Sick and annual leave for Unit Members whose services are required for twelve (12) months will accrue and be granted in accordance with the Annual and Sick Leave Act of 1951, as amended 5 USC Chapter 63 and applicable Civilian Personnel Regulations.
Section 2. Sick leave, annual leave, administrative, and other types of leave for those Unit Members whose services are not required for twelve (12) months will be administered as follows:
A. Sick Leave. Unit members shall accumulate sick leave at a rate of four (4) hours per pay period not to exceed thirteen (13) days shall be accredited to Unit Members at the beginning of the school year. Sick leave will accumulate without limit and can be taken for any time during the school year, but payment for sick leave taken in excess of that earned will be recovered. No accrued sick leave shall be carried over to any succeeding period when there is a break in federal employment in excess of three (3) continuous years.
1. Sick leave will be granted for the following purposes:
(a) medical, dental or optical examination or treatment;
(b) sickness or injury;
(c) medical disability connected with pregnancy;
(d) exposure to a contagious disease;
(e) illness of a member of the immediate family or near relative who resides in the same household or for whom the employee is financially responsible;
(f) death of an immediate family member or near relative.
2. As used in this section, immediate family shall mean spouse, grandparent, parent-in-law, child, grandchild, or sibling. Near relative shall include immediate family and extend to first cousin, aunt, uncle, niece, nephew, brother-in-law, daughter-in-law, or son-in-law.
3. In the cases requiring a substitute teacher, absence chargeable to sick leave will be for not less than four (4) hours. When no substitute is employed, sick leave will be taken in multiples of one hour. The decision as to whether a substitute is required shall be made solely by management officials.
4. Unit members must obtain approval from the principal before sick leave that has not been accrued can be used.
5. Unit members may be required to provide a doctor's statement in the case of a period of absence which exceeds five (5) consecutive days.
6. Upon retirement, credit for unused sick leave shall be administered in accordance with FPM Supplement 831-1 Subchapter S3-7.
7. The Employer and Association shall meet by November fifteen (15) to discuss the establishment of a sick leave bank.
B. Personal Leave
1. During any school year, a unit member may utilize up to a maximum of three days of accumulated sick leave for personal reasons. Notification of the use of such leave will be made one (1) day in advance. Two (2) days of personal leave may be carried over to the next year for a maximum of five (5) personal days.
2. No personal leave will be taken on the day before or immediately after spring vacation, testing days, nor on inservice days or conference days unless such leave has been approved by the Superintendent.
3. Personal leave will be for not less than four (4) hours in those cases where a substitute teacher is employed. When no substitute is employed, personal leave will be taken in multiples of one hour. The decision as to whether a substitute is required shall be made solely by management officials.
C. Professional Leave of Absence. Professional leave of absence may be granted by the Employer subject to the following:
1. After five (5) years of continuous service at Fort Stewart, sabbatical leave of absence without pay may be granted for up to one (1) employee per school year at the discretion of the Employer. Such leave shall