[ v61 p327 ]
61 FLRA No. 60
DEPARTMENT OF DEFENSE
DOMESTIC DEPENDENT ELEMENTARY
AND SECONDARY SCHOOLS
PUERTO RICO DISTRICT
DECISION AND ORDER
ON NEGOTIABILITY ISSUES
September 30, 2005
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2424 of the Authority's Regulations. The appeal concerns the negotiability of three proposals. The Agency filed a statement of position, to which the Union filed a response. The Agency also filed a reply brief.
For the reasons which follow, we find that Proposal 1 is outside the duty to bargain and that Proposal 2 does not present an issue that may be decided in a negotiability appeal. Accordingly, we dismiss the appeal as to Proposals 1 and 2. We further find that Proposal 3 is within the duty to bargain.
The Department of Defense Domestic Dependent Elementary and Secondary Schools (DDESS) operates elementary and secondary schools in the United States, its commonwealths, territories and possessions, pursuant to 10 U.S.C. § 2164. DDESS operated seven schools in the Puerto Rico District, which was reduced to five schools in the 2004-2005 school year. The Union holds certification for a unit consisting of classroom teachers and other professional employees. The parties negotiated a collective bargaining agreement that expired on July 31, 2003. See Statement of Position at 3; Response at 3. Prior to its expiration, the Agency notified the Union of its intent to negotiate a new agreement. [n2] See Statement of Position, Attachment 9 at 3. There is no evidence in the record whether a new term agreement has been reached.
Prior to the events giving rise to this case, the Agency provided education technicians (aides), who are not in the bargaining unit, to accompany kindergarten students to certain classes. In November 2002, the Union filed a grievance claiming that the Agency violated its published staffing standards and the parties' collective bargaining agreement when the Agency terminated this practice. See Statement of Position, Attachment 1 at 1. In settlement of the grievance, the parties entered into a Memorandum of Understanding (MOU) in October 2003, in which they agreed that future changes to teachers' working conditions, including the assignment or removal of education aides to certain classes, will be subject to impact and implementation bargaining in accordance with the Labor-Management Relations Statute.
In September 2004, the Union advised the Agency that the Agency was refusing to assign aides to accompany kindergarten students to certain classes and that such conduct violated the MOU, the parties' agreement and the Statute. Id., Attachment 6 at 1. The Agency thereafter advised the Union that it would "reinstate the practice of the 2003-2004 school year immediately." Id., Attachment 7 at 1. The Agency also informed the Union "that this letter will also serve as notice of intent to I & I Bargain this issue due to the limited resources and the needs within the school." Id.
The Union submitted several proposals, including the three proposals at issue here, and the parties met to discuss them. Subsequently, the Agency advised the Union that the decision to terminate the practice of assigning aides to certain classes would not be reconsidered and that the Union's proposal to continue the practice [ v61 p328 ] and expand it to other classes was nonnegotiable. The Agency further stated that "[s]ince [the Union] has now declined to engage in impact and implementation bargaining over the Agency's decision to cease this practice, please be advised that the practice will be terminated effective 10 January 2005." Id., Attachment 10 at 2.
The Union then filed its petition for review.
III. Preliminary Matters
In its petition, and at the post-petition conference, the Union requested to sever the proposals. The Agency did not object to the severance request. See Record of Post-Petition Conference (Record) at 1. [n3]
Section 2424.2(h) of the Authority's Regulations defines severance as
the division of a proposal or provision into separate parts having independent meaning, for the purpose of determining whether any of the separate parts is within the duty to bargain or is contrary to law. In effect, severance results in the creation of separate proposals or provisions. Severance applies when some parts of the proposal or provision are determined to be outside the duty to bargain or contrary to law.
In this case, Proposals 1, 2, and 3, which are set forth below, are already separate proposals. Consequently, severance does not apply. See, e.g., Professional Airways Systems Specialists, 60 FLRA 609, 609 n.1 (2005) (PASS) (severance did not apply where the proposals were already separate proposals).
B. Hearing Request
The Union requested a hearing, asserting that "[a]n independent inquiry can best determine the nature of the practice and the effects of not complying with the standards." Petition for Review at 10. The Union explained at the post-petition conference that there were factual questions regarding: (1) the number of students in certain kindergarten classes; (2) the Agency's obligation to provide aides; and (3) whether the Agency has properly allocated aides according to the Agency's staffing authorizations. The Agency took the position that the factual matters are not relevant to the question of negotiability.
In its response, the Union reiterated its view that there are facts in dispute. In addition, the Union disputed certain statements made in the Agency's statement of position regarding: (1) the grievance that resulted in the MOU and the effect of the MOU; (2) whether aides engage in co-planning with classroom teachers; and (3) the basis on which the number of positions and pupil-staff ratio is established.
Section 2424.31 of the Authority's Regulations provides, as relevant here, that hearings may be conducted "[w]hen necessary to resolve disputed issues of material fact . . . ." In this case, the Union has not demonstrated that there are any disputed issues of material fact. For example, the precise nature of one of the duties assigned to the aides, even if disputed, is not a material fact that needs to be resolved. Consequently, we find that a hearing is not necessary and we deny the Union's request.
IV. Proposal 1
We propose that the Employer comply with DDESS staffing standards by providing education technician resource to teachers of kindergarten special classes as well as to the teachers of self-contained kindergarten students. The staffing standards allocate "kindergarten aides" to the kindergarten students according to an established ratio.
A. Meaning of the Proposal
The Union explained that this proposal would require the Agency to assign aides to "accompany" kindergarten students to all special classes, comprised of physical education, culture, art and music, as well as to self-contained classes, that is, homeroom classes in which core subjects are taught. Record at 2. We find, based on the record, that the Union intends for the aides to remain with the students, either in their special classes or in their homerooms. The Union further explained that the Agency would not be required to change the number of aides currently employed but "would be required to redirect their duties to include assisting teachers of the kindergarten special classes." Id. at 2-3. The Agency agreed with the Union's explanation. As the Union's explanation comports with the wording of the proposal, we adopt the explanation. See Nat'l Educ. Ass'n, Overseas Educ. Ass'n, Laurel Bay Teachers Ass'n, 51 FLRA 733, 737 (1996). [ v61 p329 ]
B. Positions of the Parties
The Agency claims that the proposal excessively interferes with the right to assign work. In this regard, the Agency states that its staffing standards do not allocate kindergarten aides to kindergarten students and that such aides "may be assigned duties by school administrators . . . in support of any legitimate school function." Statement of Position at 7. The Agency explains that aides accompany students to their special classes for the first few weeks of the school year in order to establish a routine for the students. After that time, the aides remain in the classroom to assist the kindergarten teacher or they may be assigned to assist with lunchroom supervision or the arrival and departure of school buses. The Agency adds that the proposal is an attempt to bargain over "the assignment of work of employees (educational aides) who are not in the bargaining unit represented by this Union." Reply at 3.
The Union claims that the proposal is a negotiable appropriate arrangement under § 7106(b)(3) of the Statute. According to the Union, the proposal is intended to provide support for kindergarten teachers and "will enhance safety of students in all environments." Petition for Review at 5. The Union states that "[k]indergarten students will be accompanied by aides in a regular education classroom or special classes held in a classroom, gym, or open spaces." Id. The Union also claims that the proposal simply requires the Agency to adhere to a policy articulated by the former school superintendent regarding the assignment of aides, namely, that aides "`are hired as full time employees to work with pre-kindergarten and kindergarten students on a full time basis in both instructional and non-instructional settings which they do.' (Exhibit 4)[.]" Response at 6. According to the Union, its proposal does not prevent the Agency from assigning work.
C. Analysis and Conclusions
The parties dispute whether the proposal affects, or excessively interferes with, the right to assign work.
The right to assign work under § 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what position the duties will be assigned. See, e.g., AFGE, Local 3529, 56 FLRA 1049, 1050 (2001); AFGE, Local 1985, 55 FLRA 1145, 1148 (1999). Proposals that require the assignment of specific duties to identified individuals, including management officials, affect management's right to assign work under § 7106(a)(2)(B) of the Statute. See AFGE, Local 1923, 44 FLRA 1405, 1428 (1992).
In this case, Proposal 1 would require the Agency to assign aides to remain with kindergarten students in their various classes, such as physical education, culture, art and music, as well as in their homeroom classes. As the proposal would require the Agency to assign particular tasks to the aides, we find that the proposal affects the right to assign work.
Next, we address whether the proposal is negotiable as an appropriate arrangement. [n4]
In determining whether a proposal is an appropriate arrangement under § 7106(b)(3) of the Statute, the Authority uses the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). The Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. See United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992); AFGE, Local 1900, 51 FLRA 133, 141 (1995). The claimed arrangement must also be sufficiently "tailored" to compensate employees suffering adverse effects attributable to the exercise of management's rights. See AFGE, Local 2280, Iron Mountain, Mich., 57 FLRA 742, 743 (2002). As the Authority has explained, relying on United States Dep't of the Interior, Minerals Mgmt. Serv., New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992), § 7106(b)(3) brings within the duty to bargain proposals that provide a balm only to the hurts arising as a consequence of the management actions under § 7106 giving rise to a bargaining obligation. AFGE, Nat'l Border Patrol Council, 51 FLRA 1308, 1319 (1996). See also NAGE, Local R14-23, 53 FLRA 1440, 1443 (1998).
If a proposal is determined to be an arrangement pertaining to the exercise of management's rights, then the Authority determines whether it excessively interferes with the relevant management right. The Authority reaches this determination by weighing the [ v61 p330 ] "competing practical needs of employees and managers." KANG, 21 FLRA at 31-32.
Even assuming that Proposal 1 is an arrangement, we find that the proposal excessively interferes with the right to assign work. As explained by the Union, the proposal is designed to provide support for kindergarten teachers and enhance the safety of students. These benefits may well be significant. However, by requiring the Agency to assign a specific task to the aides, namely remaining with kindergarten students either in their homerooms or in their special classes, the proposal would totally preclude the Agency from assigning other tasks to the aides. In this respect, the Agency asserts that aides are assigned wherever their services are needed, which includes assisting teachers with planning activities and monitoring students in other settings, such as the lunchroom and arriving and departing on school buses. There is no evidence that the existing complement of aides would be able to accomplish these assigned tasks if they were to remain with the kindergarten students. By limiting the assignment of work to one specific task, we conclude, on balance, that the proposal excessively interferes with the right to assign work. See, e.g., Internat'l Assn. of Fire Fighters, 59 FLRA 832 (2004).
For the reasons set forth above, we find that Proposal 1 is outside the duty to bargain.
V. Proposal 2
ACEA proposes bargaining over compensation for the special subject kindergarten teachers who have been denied the resource of ed. Techs assistance while teaching kinder children.
A. Meaning of the Proposal
The parties agreed that the proposal would require the Agency to negotiate with the Union over additional compensation for teachers who are not assisted by aides. See Record at 3.
B. Positions of the Parties
The Agency asserts that the proposal is outside the duty to bargain because it is "covered by" Article 28, Section g of the parties' agreement. [n5] The Agency adds that "[i]f the Union wished to propose such new substantive language, then it must do so in accordance with Article 2, section e.(1), and not as an aside to impact and implementation bargaining over the cessation of a practice." Statement of Position at 7-8. In its reply brief, the Agency asserts that "if this proposal were determined to be negotiable, the Agency would be subjected to bargaining dual compensation for the same work[,] . . . [and] that a Federal employee cannot be paid twice for the same work." Reply at 4.
The Union states that by denying the assistance of aides, teachers must be "doubly diligent" and that "the employer has expanded their instructional responsibilities as well as significantly increas[ing] their legal liability in an unsafe work environment." Petition for Review at 6.
The Union disputes the Agency's "covered by" argument, asserting that "[t]here is nothing in the contract which prohibits additional compensation for those teachers who as a result of management's unilateral action need to supervise doubly high student ratios in far more dangerous situations than the core classroom." Response at 9. The Union states that additional compensation has been awarded by arbitrators during the term of the agreement for various additional duties performed by teachers.
The Union also claims that the proposal is negotiable as an appropriate arrangement under § 7106(b)(3) of the Statute for teachers affected by the withdrawal of assistance provided by the aides. The Union adds that it has the right to negotiate compensation as part of impact and implementation bargaining, citing 10 U.S.C. § 2164. See Response at 11.
C. Analysis and Conclusions
The Agency claims that it cannot provide "dual compensation" for affected teachers because they "cannot be paid twice for the same work." Reply at 4. We construe this claim as an assertion that the proposal is contrary to law. However, we find that this argument is not properly before the Authority because it was made for the first time in the Agency's reply brief and is not responsive to arguments the Union made in its response. [ v61 p331 ]
Section 2424.26(c) of the Authority's Regulations states that an "agency's reply is specifically limited to the matters raised for the first time in the exclusive representative's response." See also note 4, supra. As relevant here, the Union's response includes a claim that compensation is negotiable under 10 U.S.C. § 2164. The Agency does not dispute this claim. To the contrary, the Agency acknowledges that compensation itself is within the duty to bargain, as evidenced by the Agency's statement that salary schedules are included in the parties' agreement.
Rather, the Agency argues that dual compensation is unavailable. In our view, the Agency's argument with respect to dual compensation is not responsive to any of the matters raised by the Union in its response. Consistent with § 2424.26(c), we do not consider the Agency's claim. [n6]
The Agency's only remaining claim presented with respect to Proposal 2 is that the subject matter of the proposal -- compensation for teachers -- is covered by Article 28, Section g of the parties' agreement. This claim raises a bargaining obligation dispute, which is defined in § 2424.2(a) of the Authority's Regulations as "a disagreement between an exclusive representative and an agency concerning whether, in the specific circumstances involved in a particular case, the parties are obligated to bargain over a proposal that otherwise may be negotiable." [n7] The Authority's Regulations further specify, in § 2424.2(d), that a negotiability appeal "that concerns only a bargaining obligation dispute may not be resolved under [negotiability proceedings]."
As the only issue properly raised by the Agency concerns a bargaining obligation dispute that may not be resolved in this proceeding, we dismiss the petition for review as to Proposal 2.
VI. Proposal 3
ACEA proposes continuation with the "status quo" of assigning an education technician to accompany kindergarten students to physical education classes until good faith negotiations have been completed. This will ensure all kindergarten students have the assistance of full time education technicians when students are attending physical education program.
A. Meaning of the Proposal
The parties agreed that the proposal would require the Agency to return to the status quo, as it existed prior to January 10, 2005, "where education technicians were required to assist kindergarten teachers during [physical education] classes, in addition to self-contained classes." Record at 3. The status quo would be maintained until such time as impact and implementation negotiations are completed.
B. Positions of the Parties
The Agency claims that the proposal "would unduly restrict and interfere with the Agency's right to assign work to education aides." Statement of Position at 8.
The Union asserts that the proposal is a "negotiable arrangement" and "a procedure which the employer will observe while negotiating the action of changing a practice." Response at 12-13. The Union also states that the proposal will have no impact "since it is what is being done as of today." Petition for Review at 8.
C. Analysis and Conclusions
The Authority has held, as a general matter, that a proposal that requires only that an agency maintain the status quo pending the completion of bargaining constitutes a negotiable procedure within the meaning of § 7106(b)(2) of the Statute. See AFGE, Local 3258, 48 FLRA 232, 240-41 (1993). See also NAGE, Local R1-109, 53 FLRA 403, 418 (1997); AFGE, Dep't of Education Council of Locals, 36 FLRA 130, 131-34 (1990). [n8]
In this regard, the Authority has held that
Proposals that preclude an agency from exercising a management right unless or until other events occur are generally not within the duty to bargain. See, e.g., NAGE, Local R1-109, [ v61 p332 ] 53 FLRA FLRA 403, 417-18 (1997) (VAMC, Newington); AFGE, Local 1345, 48 FLRA 168, 174 (1993). Exceptions to this general approach include proposals to delay management action pending completion of bargaining or applicable appellate processes. Such proposals are viewed to be within the duty to bargain as procedures within the meaning of § 7106(b)(2). See AFGE, Local 3258, 48 FLRA 232, 241-43 (1993). However, the exception does not apply when implementation of the management action to be delayed is necessary for the functioning of the agency. See VAMC, Newington, 53 FLRA at 420 (Proposal 11) (proposal to delay the detail of a nuclear medicine technician pending completion of bargaining was not within the duty to bargain because the agency had established that the detail was essential to its patient care function).
NAGE, Locals R5-136 and R5-150, 55 FLRA 679, 680-81 (1999).
The above-cited precedent recognizes that, with respect to the exercise of management's rights, some delay -- and, therefore, some effect -- is inevitable in order to enable parties to fulfill their bargaining rights under the Statute. See also Assn of Civ. Technicians, Montana Air Chap. No. 29 v. FLRA, 22 F.3d 1150, 1155 (D.C. Cir. 1994) ("§ 7106(b) is indisputably an exception to § 7106(a))." See also Defense Logistics Council of AFGE Locals, 810 F.2d 234, 241 (D.C. Cir. 1987) (citing NTEU v. FLRA, 712 F.2d 669, 672-73 (D.C. Cir. 1983) (a stay in disciplinary proceedings pending resort to the negotiated grievance procedure "might postpone enforcement of a management right, but that delay alone . . . `would not take a proposal outside the statutory obligation to negotiate.'")). Cf. Dep't of the Treasury, IRS v. FLRA, 862 F.2d 880, 883 (D.C. Cir. 1988) (proposal obligating agency to refrain from making contracting out determination pending arbitration of grievances held nonnegotiable as delay attendant to such action could "compromise the managerial judgment involved in procuring products or services necessary to the agency's mission when they are needed.").
The effect on management rights that the Authority has found acceptable -- and negotiable -- is in stark contrast to status quo proposals, found nonnegotiable by the Authority, in which agencies would have been required to continue an illegal practice or bargain over a matter that was excluded from statutory conditions of employment. See, e.g., NAGE, Local R1-109, 37 FLRA 448, 456-57 (1990) (proposal to prevent agency from changing rest break practice until negotiability issues are decided and bargained to final agreement found nonnegotiable as practice was contrary to a Government-wide regulation); NAGE, Local R14-23, 54 FLRA 1302 1307-10 (1998) (Member Wasserman, dissenting in part) (proposal to maintain status quo of grade and job series for various positions until certain actions are taken concerned classification matters and was outside the duty to bargain under § 7103(a)(14)(B) of the Statute).
Consistent with well-established Authority precedent finding negotiable proposals that simply defer the exercise of management rights pending the completion of the statutory bargaining process, and noting the absence of any assertion or showing that the proposal here comes within the exception pertaining to the necessary functioning of the Agency, we find that Proposal 3 is a negotiable procedure.
In reaching this result, we note that Proposal 3 is similar to Proposal 1, insofar as both proposals address the practice of assigning aides to accompany kindergarten students to various classes. There are significant differences between the two proposals, however. Proposal 1 is intended not only to require the Agency to assign aides to accompany students to their physical education classes and their homerooms, as does Proposal 3, but also requires the aides to accompany students to all of their special classes, which includes culture, art and music. Proposal 3 does not include these additional special classes. In addition, Proposal 1 would require the Agency to maintain the assignment of aides for the duration of the negotiated agreement while Proposal 3 would require the assignment of aides only until such time as the parties fulfill their statutory bargaining obligations.
In addition, Proposals 1 and 3 are similar to two of the disputed proposals in NFFE, Local 1214, 40 FLRA 1181 (1991) (NFFE). In NFFE, Proposal 1 sought to delay implementation of an employee certification program for 6 years. The Authority found that the proposal was nonnegotiable based on its excessive interference with management's rights. In contrast, the Authority found that Proposal 6, which sought to maintain the status quo pending a future negotiability determination by the Authority, was a negotiable procedure. The Authority distinguished the two proposals by noting that Proposal 6 required the agency "only to satisfy the bargaining obligations it has undertaken under the Statute . . . ." 40 FLRA at 1204. Similarly here, Proposal 3 merely requires the Agency to bargain over the impact and implementation of the change in assignment of aides. We note that there is no claim by the Agency, or evidence in the record, that the Agency is not otherwise [ v61 p333 ] required to bargain over the impact and implementation of the change.
Having found, in this case, that Proposal 3 constitutes a procedure under § 7106(b)(2) of the Statute, there is no need to address the Union's additional claim that the proposal is a negotiable arrangement.
In sum, we find that Proposal 3 is within the duty to bargain.
The petition for review concerning Proposals 1 and 2 is dismissed. The Agency shall, upon request, or as otherwise agreed to by the parties, bargain with respect to Proposal 3.
Opinion of Chairman Cabaniss, dissenting in part:
I write separately to explain why I do not agree that Proposal 3 is within the Agency's duty to bargain. As the majority notes, the Authority finds negotiable proposals to maintain the status quo during negotiations. However, the maintenance of the status quo in the present case would preclude the Agency from assigning any other work to the teachers' aides other than this one specific task. That has the same effect on the Agency's right to assign work as the effect of Proposal 1, i.e., the preclusion of the Agency's ability to assign any other type of work to these employees. Yet, all are in agreement that Proposal 1 is outside of the Agency's duty to bargain because the proposal excessively interferes with the Agency's ability to assign work under § 7106(a).
Given these circumstances, I would find that an agency is not obligated to maintain the status quo when doing so improperly infringes on an agency's § 7106(a) right. I am aware of our precedent regarding the maintenance of the status quo during negotiations. I am also aware that other Authority precedent directly contradicts the majority position.
In addition to permitting an agency to implement changes when consistent with the necessary functioning of the agency, the Authority has recognized other circumstances in which an agency may implement changed working conditions without violating section 7116(a)(5), in each of which the agency implements at its peril if the exception asserted by the agency is determined not to apply. [n.8]
United States Immigration and Naturalization Serv., Wash., D.C., 55 FLRA 69, 73 (1999). As relevant here, note 8 of that decision, at 55 FLRA 73, relates the following information:
[A]n agency may lawfully implement changes when necessary to correct an unlawful practice. See, e.g., Department of the Interior, U.S. Geological Survey, Conservation Division, Gulf of Mexico Region, Metairie, Louisiana, 9 FLRA 543, 568 n.9 (1982). In this regard, an agency that implements a change in order to correct an unlawful practice is only obligated to bargain after implementation over the impact and implementation of the change. See Department of the Air Force, Air Force Logistics Command, Ogden Air Logistics Center, Hill Air Force Base, Utah, 17 FLRA 394 (1985).
I conclude from the above that "consistent with the necessary functioning of the agency" is not the only [ v61 p334 ] instance where an agency legally has the right to unilaterally implement a change to conditions of employment without violating its bargaining obligations under the Statute.
In that regard as well, I also see no basis for attempting to draw some legal distinction between the "unlawful practice" noted above and a contract provision that is contrary to law because it impermissibly conflicts with § 7106(a). Contract provisions that violate § 7106 of the Statute are contrary to law, like any other unlawful practice, and an agency cannot be forced to comply with such a provision. See, e.g., United States Dep't of Justice, Fed. Bur. Of Prisons, Fed. Transfer Ctr., Oklahoma City, Okla., 58 FLRA 109 (2002) (concurring opinions by Chairman Cabaniss, Member Armendariz, and Member Pope). As noted by my concurring opinion in that decision, there is no diminishment of the illegality of a contract provision contrary to § 7106, even though the parties initially implemented it. Section 7114(c)(2) reflects an agency's right to review a collective bargaining agreement to determine whether it is in accordance with "the provisions of this chapter and any other applicable law, rule, or regulation." Actions taken to ensure that a provision is "in accordance with the provisions of this chapter" include, inter alia, whether a provision excessively interferes with the agency's rights under § 7106(a) and thus impermissibly conflicts with § 7106(b)(3). See, e.g., NTEU, 55 FLRA 1174, 1175 (1999) (disapproval of provision caused examination to determine whether provision excessively interfered with agency rights, in violation of § 7106(b)(3)). Section 7114(c)(3) goes on to note that, even where an agency does not approve or disapprove an agreement under § 7114(c)(2), the agreement then goes into effect and is binding, subject to those same "provisions of this chapter and any other applicable law, rule, or regulation[.]"
The Authority reached that conclusion in Veterans Admin., Washington, D.C. and Veterans Admin. Med. Ctr., Minneapolis, Mn., 15 FLRA 948, 953 (1984). There the Authority dismissed a complaint against an agency accused of refusing to abide by certain contract provisions the agency believed were in violation of "applicable law." The Authority held that, even though the agency's disavowal of the legality of the provisions was not timely under § 7114(c)(2), "such tardiness does not alter the result" of the agency's actions because of § 7114(c)(3). Id. Moreover, in NTEU, Chptr. 52, 23 FLRA 720, 722 (1986) (NTEU), the Authority elaborated even further on the effect of a contract provision found contrary to the Statute or applicable law, rule, or regulation. There the Authority dismissed a union's negotiability appeal because the agency-head review being appealed was untimely accomplished under § 7114(c).
Our conclusion that this case does not present a negotiability dispute does not, of course, mean that any provisions in the agreement which are contrary to the Statute or any other applicable law, rule or regulation, are enforceable. Rather, as the Authority has repeatedly held in like cases, a question as to the validity of such provisions may be raised in other appropriate proceedings (such as grievance arbitration and unfair labor practice proceedings) and, if the agreement provisions are found to be violative of the Statute or any other applicable law, rule or regulation, they would be void and unenforceable. See American Federation of Government Employees, AFL-CIO, Local 1858, 4 FLRA 361 (1980), motion for reconsideration denied, 4 FLRA 363 (1981).
NTEU, 23 at 722. Consequently, I fail to see how requiring an agency to continue applying a "void and unenforceable" contract provision can constitute a legal procedure under our Statute and our traditional status quo precedent, as the majority claims.
The 40 FLRA 1181 decision cited by the majority does not support any different outcome. There the maintenance of the status quo during negotiations did not require the continuation of a "void and enforceable" contract provision. Thus, that case has no relevancy to the legal question in this case, and I would find that the status quo proposal here, based upon the facts of this case, is contrary to law.
Finally, as to the assertion in the majority opinion that Proposal 3 is sufficiently different from Proposal 1 to find Proposal 3 within the duty to bargain, the distinction noted does not warrant any different outcome under our precedent. Proposal 3 still requires the Agency to exercise its right to assign work in a particular way by always assigning the education technicians the work of accompanying students to physical education classes. That is still an absolute requirement from which the Agency would not be able to deviate from.
A proposal does not constitute an appropriate arrangement where the proposal negates or nullifies management's proposed exercise (or not) of its § 7106(a) right. See, e.g., AFGE, National Council of Field Labor Locals, Local 2139, 57 FLRA 292, 294 (2001) (proposal that completely precludes the Agency from using language it wishes to use in customer service [ v61 p335 ] policy outweighs benefits to employees); IFPTE, Local 1, 49 FLRA 225, 249 (1994) (IFPTE) (proposal acted as absolute restriction on right to assign particular duties to certain employees, found not to be appropriate arrangement); NFFE, Local 28, 47 FLRA 873, 876-80 (1993) (union proposal, in response to agency internal security determination to use unannounced random spot checks of all hand carried items, was to require such checks only where reason to believe unauthorized possession or theft occurred: Authority found proposal would severely limit agency internal security determination, thus would not be an appropriate arrangement); NFFE, Local 15, 30 FLRA 1046, 1057-58 (1988) (proposal that completely negated the Agency's decision to use random drug testing for purposes of protecting security would reverse the substantive impact of that decision and is not an appropriate arrangement); NAGE, Local R7-23, 23 FLRA 753, 759 (1986) (Local R7-23) (proposal which negates management's exercise of its right to determine internal security is excessive when it reverses the substantive effect of management's action). The Authority reached these conclusions, even where the proposals' benefits to employees were significant, finding that proposals do not constitute appropriate arrangements where the proposal erode or reverse the substantive effect of a management action taken pursuant to its management rights. IFPTE, 49 FLRA at 249; Local R7-23, 23 FLRA at 759. And, as relates more specifically to the right to assign work, blanket prohibitions on an agency's right to assign or not assign work to certain employees excessively interfere with an agency's right to assign work. See, e.g., NFFE, Local 2192, 59 FLRA 868, 870-71 (2004) (Chairman Cabaniss dissenting as to other matters).
I also am not convinced that holding the exercise of the Agency's right in abeyance for the duration of collective bargaining is necessarily any less dramatic a period of time than the six years referenced by the Authority regarding proposal 1 in NFFE, Local 1214, 40 FLRA 1181 (1991). Regrettably, negotiating a collective bargaining agreement can assume a life of its own when one considers negotiability appeals, impasse resolution procedures, and the relationship of the parties. Thankfully, most agencies and unions appear not to have such lengthy collective bargaining processes, but some do. Thus, I would not automatically conclude that the length of time here for requiring the Agency to forego the exercise of its § 7106(a) rights here is legally insignificant.
Accordingly, I dissent from the majority opinion as to Proposal 3 and would find that proposal outside of the Agency's duty to bargain because it excessively interferes with the Agency's right to assign work under § 7106(a).
Footnote # 1 for 61 FLRA No. 60 - Authority's Decision
Footnote # 2 for 61 FLRA No. 60 - Authority's Decision
this Agreement shall commence on 1 August 2000 and continue in full force and effect through 31 July 2003. Either party may request commencement of negotiations for a new agreement . . . . If neither party serves notice of its intent to renegotiate this Agreement, the Agreement shall be automatically renewed for one (1) year periods.
Footnote # 3 for 61 FLRA No. 60 - Authority's Decision
We do not consider the Agency's argument, made for the first time in its reply brief, that Proposal 3 "only has validity if Proposals [1 and 2] are found to be negotiable." Reply at 5. The argument is not responsive to any argument that the Union made initially in its response. See 5 C.F.R. § 2424.26(c) ("The agency's reply is specifically limited to the matters raised for the first time in the exclusive representative's response.").
Footnote # 4 for 61 FLRA No. 60 - Authority's Decision
In its Response, the Union states that its proposals concern § 7106(b)(2) matters. See Response at 5. Other than this statement, the Union provides no basis on which to assess whether Proposal 1 constitutes a negotiable procedure. As such, we reject the Union's § 7106(b)(2) claim as to Proposal 1 on the basis that it is a bare assertion. See, e.g., PASS, 60 FLRA 609, 612 (2005) (union's claim that proposals constitute negotiable procedures rejected as bare assertion).
Footnote # 5 for 61 FLRA No. 60 - Authority's Decision
If the Employer decides to extend the duty day or year of a unit employee by assigning work (exclusive of voluntarily accepted EDAs and summer school), the employee shall be compensated at a rate equal to the employee's "wages earned" rate during the regular duty year. Employees paid COLA for such work prior to Agency head approval of this Agreement shall not be required to repay such COLA.
Footnote # 6 for 61 FLRA No. 60 - Authority's Decision
Footnote # 7 for 61 FLRA No. 60 - Authority's Decision
Authority regulations specify that an example of a bargaining obligation dispute is a claim that a proposal "concerns a matter that is covered by a collective bargaining agreement[.]" 5 C.F.R. § 2424.2(a)(1).
Footnote # 8 for 61 FLRA No. 60 - Authority's Decision
As discussed more fully, infra, a proposal that would require an agency to maintain an illegal practice, however, is outside the scope of bargaining. See, e.g.,NAGE, Local R1 100, 47 FLRA 750, 758-59 (1993) (proposals to maintain the status quo until parties complete bargaining held nonnegotiable where agency would have been required to continue an unlawful practice in contravention of federal licensing requirements.