U.S. Federal Labor Relations Authority

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29:0257(26)NG - OEA VS DOD, DODDS

[ v29 p257 ]
The decision of the Authority follows:

29 FLRA NO. 26






Case No. 0-NG-1353


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 one proposal. For the reasons which follow we find that the proposal is nonnegotiable.

The proposal deals with the school calendar for the 1986-87 school year. When initially the calendar was announced, November 7 and April 10 were scheduled as "teacher workdays"--that is, students would not be present; however, teachers were required to report for duty and were free to perform duties other than teaching classes. These 2 days fell at the end of the first and third marking periods. Subsequently, when this calendar was revised to allow students a longer break at Christmas and Easter, the November 7 and April 10 "teacher workdays" were eliminated. Instead "teacher workdays" were scheduled for December 22 and 23 and "self-developmental" days for teachers were scheduled for April 13-15. The Union's proposal was made in response to the elimination of the "teacher workdays" on November 7 and April 10.

II. The Proposal

November 6/7 and April 9/10 be made half instructional days and half teacher work days.

III. Positions of the Parties

The Agency asserts that the proposal is nonnegotiable because it conflicts with management's rights to assign work and to determine the methods and means of performing its work. 

It further asserts that the proposal is nonnegotiable because of its impact on nonbargaining unit employees. The Union contends that the proposal is negotiable as an appropriate arrangement for employees adversely affected by the Agency's revising the school calendar to eliminate the "teacher workdays" at the end of the first and third quarters. The Union claims that this revision effectively denied teachers an amount of duty time in which to perform end-of-quarter tasks such as computing student grades and preparing lessons for the coming quarter. The Agency denies that employees were adversely affected by the schedule change. It contends that, even if there were an adverse effect, the proposal is not an appropriate arrangement because it would totally negate and thereby excessively interfere with the exercise of management's rights by requiring that the equivalent of one full day be designated as noninstructional time at the end of the first and third quarters.

IV. Analysis and Conclusion

It is well established that the right to assign work under section 7106(a)(2)(B) includes the discretion to determine when the assignments will occur and when the work which has been assigned will be performed. For example, National Federation of Federal Employees, Local 1263 and Defense Language Institute, Foreign Language Center, Presidio of Monterey, California, 7 FLRA 723 (1982). The Authority held nonnegotiable 20 proposals because they allocated specific amounts of time for the accomplishment of specific work by teachers. The proposal in this case would limit the assignment of instructional duties on the specified days to one-half of the duty day. Based on this effect, we find that the proposal conflicts with the right to assign work.

We now turn to the issue of whether the proposal constitutes an appropriate arrangement for employees adversely affected by the exercise of its management rights. In deciding whether a proposal constitutes an "appropriate arrangement" under section 7106(b)(3), the Authority first ascertains whether a proposal is in fact intended to be an arrangement for employees adversely affected by management's exercise of its rights. Then the Authority determines whether the proposed arrangement is appropriate or whether it is inappropriate because it excessively interferes with management's rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986); American Federation of Government Employees, AFL - CIO, Local 2782 v. Federal Labor Relations Authority, 702 F.2d 1183 (D.C. Cir. 1983), reversing and remanding American Federation of Government Employees,  AFL - CIO, Local 2782 and Department of Commerce, Bureau of the Census, Washington, D.C., 7 FLRA 91 (1981).

The Union asserts, and the Agency disputes, that teachers had traditionally been allowed a "teacher workday" at the end of a quarter. The Union's argument is, essentially, that by eliminating the "teacher workdays" at the end of the first and third quarters, the Agency has increased the amount of work which teachers must accomplish at the end of those quarters. Assuming, for the purpose of this decision, that the Agency's action has created additional work requirements as the Union claims, in our view it follows that the proposal concerns the effect 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 the requirements of their jobs 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).

Therefore, this proposal does not concern an "arrangement" for adversely affected employees. Consequently, we need not reach the question of 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, Department of Commerce, 25 FLRA No. 29 (1987) (Proposal 3. K.) petition for review filed sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. March 26, 1987) ; Overseas Education Association and U.S. Department of Defense Dependent Schools, 28 FLRA No. 88 (1987) (Proposal 2) petition for review filed sub nom. Overseas Education Association v. FLRA, No. 87-1468 (D.C. Cir. September 8, 1987).

Furthermore, apart from any other considerations, it does not appear that the proposal constitutes an appropriate arrangement under the circumstances. First, no additional work requirements have been imposed overall. Both before and after the change, the school schedule included two teacher workdays and two instructional days. The days which became teacher workdays after the change may not be at a point in the school year which is "particularly needed," from the Union's point of view. The fact remains, however, that employee work requirements remain exactly the same.

Second, even assuming that the Agency's decision, to place teacher workdays in December rather than in November and April, adversely affected employees at the end of the first and third quarters by requiring them to accomplish both the duties they would have performed on the teacher workdays and the duties necessary during instructional days during the same period of time, the Union's proposal would not be an appropriate arrangement. Prior to the change, November 6 and 7, and April 10 and 11 constituted two instructional days and two teacher workdays. After the Agency's change, those days constitute four instructional days. By requiring that four half-days (November 6 and 7; April 10 and 11) be scheduled as teacher workdays, the Union's proposed arrangement would require the Agency to, in effect, rescind its scheduling changes for those days and reinstitute the previous scheme: two instructional days and two teacher workdays. A proposal which effectively negates the exercise of a management right excessively interferes with the exercise of that right. See National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA No. 97 (1986) (Proposal 3).

In view of the above findings we find it unnecessary to address the Agency's arguments relating to the right under section 7106(b)(1) and the impact of the proposal on employees outside the bargaining unit.

Based on the foregoing, we find that the proposal is not within the duty to bargain.

V. Order

The Union's petition is dismissed.

Issued, Washington, D.C. September 30, 1987.

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member