28:0936(119)NG - OEA VS DOD, DEPENDENTS SCHOOLS
[ v28 p936 ]
The decision of the Authority follows:
28 FLRA NO. 119 OVERSEAS EDUCATION ASSOCIATION Union and DEPARTMENT OF DEFENSE DEPENDENTS SCHOOLS Agency Case No. 0-NG-1225
I. Statement of the Case
This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute). It concerns the negotiability of four proposals pertaining to a new Agency regulation entitled "Department of Defense Dependents Schools Administration of Student Activity Funds" (the SAF regulation).
II. The Proposals are Not Appropriate Arrangements
The Union argues generally that even if the proposals in this case are held to directly interfere with management's rights under section 7106 of the Statute they all are nevertheless negotiable as appropriate arrangements for employees adversely affected by the exercise of those rights within the meaning of section 7106(b)(3). The threshold question is whether each proposal is an "arrangement" for adversely affected employees. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986). The Union states that the purpose of the proposals is to mitigate the adverse effects on certain unit employees of being required to perform additional duties prescribed in the SAF regulation.
Assuming, for the purpose of this decision, that the SAF regulation prescribes additional job requirements as the Union claims, in our view it follows that the proposals concern the effects of management's establishing job requirements. The establishment of job requirements does not, by itself, adversely affect employees. See Department of Health and Human Services, Social Security Administration v. FLRA, 791 F.2d 324 (4th Cir. 1986), reversing National Federation of Federal Employees, Council of Consolidated SSA Locals and Department of Health and Human Services, Social Security Administration, 17 FLRA 657 (1985), (employees are not adversely affected because their job requirements are changed--adverse effect comes when action is taken against them based upon application of those job requirements). Accord Alford v. Department of Health, Education and Welfare, 1 MSPB 305 (1980) (employees may not appeal from the Agency's development of performance standards for their positions but only from actions taken against them on the basis of those standards). Therefore, none of these proposals concerns an "arrangement" for adversely affected employees. Consequently, we need not reach the question whether the proposals are "appropriate" arrangements, since they do not qualify for consideration under section 7106(b) (3). See Patent Office Professional Association and Patent and Trademark Office, 25 FLRA No. 29 (1987) (Proposal 3K) appeal filed sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. March 26, 1987).
III. Proposal 1
Participation by unit employees on the SAF Councils shall be voluntary and shall normally be done during said employees' duty day.
A. Positions of the Parties
The Agency contends that the proposal conflicts with the right to assign work under section 7106(a)(2)(B). It argues that the proposal: (1) precludes assigning unit employees to participate on the Student Activity Fund (SAF) Councils against their wishes; (2) prescribes when a particular assignment of work would be performed; and (3) prevents assigning work occurring outside of the normal duty day. In support of its position, the Agency cites, among other decisions, Fort Knox Teachers Association and Fort Knox Dependent Schools, 19 FLRA 878 (1985).
The Union contends that the Agency's assigning teachers the additional duty of serving on SAF councils is inconsistent with the Defense Department Overseas Teachers Pay and Personnel Practices Act (Overseas Teachers Pay Act or the Act), 20 U.S.C. 901-907. It argues that 20 U.S.C. 901(1) "circumscribes" the duties which can be assigned to teachers. Union Response at 2.
B. Analysis and Conclusion
1. The Assignment of Work Does Not Violate the Overseas Teachers Pay Act.
To support its argument that the Agency's assigning teachers to serve on SAF Councils conflicts with the Overseas Teachers Pay Act, the Union relies on 20 U.S.C. 901(1) which defines the phrase "teaching position" for purposes of coverage by the Act. The section defines the phrase to mean simply those duties and responsibilities which "involve" certain enumerated professional educational activities. We assume, without deciding, for purposes of analysis that serving on SAF Councils exclusively involves duties which are outside the scope of those enumerated in section 901(1). We nevertheless cannot find in the plain language of section 901(l) any indication or even implication that Congress intended to prevent management from assigning other kinds of duties to a teaching position, in addition to those enumerated. Furthermore, the Union has not referred to any portion of the legislative history of the Overseas Teachers Pay Act, or to any judicial interpretation, which would lead us to reach a different conclusion. Consequently, we find that the Union has not supported its claim that the work assigned by the Agency through means of its regulation is in conflict with the Act.
2. The Proposal is Inconsistent with Management's Right to Assign Work
It is well-settled that a proposal may not prohibit assigning duties to bargaining unit employees and that management's right to assign work is not limited to work occurring during normal duty hours. Fort Knox Teachers 19 FLRA 878 (Proposal 4) (Agency's requiring teachers to attend afterhour Parent Teacher Association meetings held to be an assignment of work). This proposal is similar to Proposal 4 in Fort Knox Teachers inasmuch as it would deprive the Agency of its right to require employees to serve on SAF Councils by making participation only voluntary and also insofar as the SAF Councils frequently meet after normal duty hours. Union Response at 2. Accordingly, for the reasons set forth in Fort Knox Teachers, we find that this proposal violates management's right to assign work.
Although the proposal violates management's right to assign work, it is clear to us that in view of the nature of the Student Activity Fund Councils, the Agency could profit from discussions with the Union concerning the procedures by which assignments will be made. In particular, the Councils are concerned with the administration of nonappropriated funds primarily for the benefit of the students involved. While the Councils concern the "work" of the Agency, that work is not as integrally related to the mission of the Agency as were the meetings involved in Fort Knox Teachers, in our view. In other contexts, proposals relating to the use of volunteers for certain work assignments have been held to be negotiable. American Federation of Government Employees, AFL - CIO, Local 1631 and Veterans Administration Medical Center, Chillichothe, Ohio, 25 FLRA No. 26 (1987) (Provision 2); National Treasury Employees Union, Chapter 153 and Department of the Treasury, U.S. Customs Service, 21 FLRA No. 128 (1986) (Proposal 2). It is our view that if Proposal 1 were reworded to provide that "in the absence of qualified volunteers the Agency could assign the work to an employee," it would be negotiable. Although we find the proposal nonnegotiable as written we urge the parties to engage in discussions to resolve the defect and mutually work toward the objectives of the Agency's administration of the SAF Regulation.
The proposal is outside the duty to bargain.
IV. Proposal 2
The FLRA Members have reached differing conclusions concerning Proposal 2. The decision and order on Proposal 2 and Chairman Calhoun's separate opinion immediately follow this decision.
V. Proposal 3
Participation by unit employees in the SAF Councils, Fund Custodian and Bookkeeper positions shall not be used against said employee's annual performance appraisal rating.
A. Positions of the Parties
The Agency contends that the proposal would prevent management from evaluating an employee's performance of certain duties.
The Union argues that service on SAF councils is not a teaching duty found in the critical and noncritical elements of overseas teachers, and therefore it should not be used as a factor in an employee's performance evaluation. It also argues that performing these duties should not affect teachers' performance appraisals because if such work is done without pay and after the workday it does not constitute the job for which they were hired.
B. Analysis and Conclusion
Proposal 3 is outside the duty to bargain. it conflicts with management's rights to assign work and to direct employees by imposing a substantive limitation on the agency's ability to review and evaluate an employee's performance of assigned duties.
Management's rights under the Statute, to assign work and to direct employees encompass the ability to review and evaluate an employee's performance of assigned duties. National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. National Treasury Employees Union v. FLRA, 691 F.2d 553 (D.C. Cir. 1982).
As we explained in connection with Proposal 1, all work assigned to a teacher, including work which is not of a type enumerated in 20 U.S.C. 901(1) as well as work which occurs beyond the normal school day, falls within the scope of management's right to assign work. Fort Knox Teachers 19 FLRA 878 (Proposal 4).
Like the proposal in Fort Knox Teachers, Proposal 3 concerns assigned work--participation on a SAF Council or related assignments. Proposal 3 would preclude management from evaluating an employee's performance of that work. Thus, the proposal would directly interfere with the Agency's ability to review and evaluate an employee's performance of work assigned by management pursuant to its reserved right.
VI. Proposal 4
The FLRA Members have reached the same conclusion concerning Proposal 4 but with different reasoning. The decision and order on Proposal 4 and Chairman Calhoun's separate opinion immediately follow this decision.
The petition for review as to proposals 1 and 3 is dismissed.
Issued, Washington, D.C., September 10,1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
I. Proposal 2
Each participating unit employee shall receive extra compensation at a rate equal to 1 1/2 of their regular rate of pay, for each hour or portion thereof spent fulfilling the requirements of the SAF Councils, beyond the duty day.
A. Positions of the Parties
The Agency contends that the negotiation of wages and money-related fringe benefits was not intended to be subject to negotiations unless subject to the savings provision contained in section 704 of the Civil Service Reform Act of 1978. Agency's Statement of Position at 9. The Agency argues that overseas teachers are not prevailing rate employees and as such are not covered by section 704 of the Civil Service Reform Act. Finally, the Agency also argues that it does not have discretion under the Overseas Teachers Pay Act to negotiate wages.
The Union contends that the proposal is negotiable under the Overseas Teachers Pay Act.
B. Analysis and Conclusion
Proposal 2 is within the duty to bargain. In Overseas Education Association and U.S. Department of Defense Dependents Schools, 28 FLRA No. 88 (1987), (Chairman Calhoun dissenting), we held that Proposal 1 requiring additional compensation for duties performed by teachers beyond the normal workday was within the duty to bargain. The present proposal, involving the same parties, is to the same effect. Accordingly, for the reasons set forth in Overseas Education Association, 28 FLRA No. 88 we find that (1) the present proposal concerns a matter within the negotiable administrative discretion of the Agency under the Overseas Teachers Pay Act; and (2) the provisions of law applicable to prevailing rate employees cited by the Agency have no relevance to the negotiability of pay matters relating to these employees.
II. Proposal 4
This regulation shall not be implemented until an agreement is reached between the parties on the implementation procedures, proposals and impact proposals submitted by OEA.
A. Positions of the Parties
The Agency contends that the proposal is outside the duty to bargain in the circumstances of this case because the regulation has only a de minimis impact on the conditions of employment of bargaining unit employees. It contends that the parties have reached the point of impasse in their negotiations and, therefore, the Agency can implement the regulation. Finally, the Agency contends that the proposal directly interferes with management's right to assign work.
The Union contends that the filing of a negotiability appeal is not an indication of an impasse.
B. Procedural Issues
In addition to claiming that the Union's proposal is nonnegotiable because it is inconsistent with the Agency's right to assign work, the Agency contends that it has no duty to bargain concerning this proposal in the circumstances of this case because (1) no change has been made by the regulation sufficient to give rise to a duty to bargain; and (2) it has negotiated to impasse and is entitled to implement the regulation. Since these claims do not raise issues as to whether the proposal is inconsistent with applicable law, rule or regulation, they do not meet the conditions for review of a negotiability issue under section 2424.1 of our Regulations. American Federation of Government Employees, Local 12, AFL - CIO and Department of Labor, 26 FLRA No. 89 (1987).
Where, as here, the conditions for review of a negotiability issue have otherwise been met, a union is entitled to a decision by the Authority as to whether a proposal is negotiable under the Statute, despite the existence of such additional issues. See, for example, 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). Accordingly, the claimed existence of threshold duty to bargain questions does