[ v19 p814 ]
19:0814(99)NG
The decision of the Authority follows:
19 FLRA No. 99
PANAMA CANAL FEDERATION
OF TEACHERS, LOCAL 29
Union
and
DEPARTMENT OF DEFENSE
DEPENDENTS SCHOOLS,
PANAMA REGION
Agency
Case No. O-NG-817
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute), and raises issues
concerning the negotiability of twelve Union proposals. Upon careful
consideration of the entire record, /1/ including the parties'
contentions, /2/ the Authority makes the following determinations.
The Union, herein, represents teachers employed by the Agency in the
Panama Region. The school system in this region is comprised of 12
elementary schools, 3 secondary schools and a junior college. The
proposals in dispute all deal with aspects of curriculum. Without
contravention, the Agency describes "curriculum" as follows:
The curriculum in the educational field consists of the course
of study offered to students, the content of those courses, the
instructional objectives and functions, and the materials through
which courses will be taught. /3/
Union Proposal 1
Section 1-- Curriculum, curriculum priorities, pilot programs,
and selection of textbooks and teaching materials will be
accomplished through classroom teacher involvement.
Union Proposal 8
Section 8-- All pilot programs and curriculum priorities will
be determined by the CDC RCDC in conjunction with the classroom
teachers. All programs will be clearly outlined and required
materials will be made available as needed.
Union Proposal 1 would mandate classroom teacher participation in the
establishment of curriculum and curriculum priorities, pilot programs
and the selection of textbooks. As regards its intent concerning this
proposal, the Union states that classroom teachers "participate in
committee activities as required to review, evaluate, develop
educational materials and meet NCA (accreditation agency) standards."
Similarly, Union Proposal 8, on its face, would require that all pilot
programs and curriculum priorities be determined by the local and
Regional Curriculum Development Committees with the required
participation of classroom teachers and that the Agency provide the
selected materials as needed.
In agreement with the Agency, the Authority finds that the subject
committees are appointed to study and make recommendations on means of
performing work within the meaning of section 7106(b)(1) of the Statute.
/4/ In National Treasury Employees Union and U.S. Customs Service,
Region VIII, San Francisco, California, 2 FLRA 255, 258 (1979), the
Authority defined the word "means" as it appears in section 7106(b)(1),
stating that it meant "any instrumentality, including an agency, tool,
device, measure, plan or policy used by the agency for accomplishing or
the furthering of the performing of its work." The matters studied by
the committees fall within the ambit of that definition. Curriculum and
textbooks are tools used in the furtherance of the Agency's mission
which is the education of the children of military personnel. /5/
It is well established that a proposal seeking union participation in
the deliberative process leading to the exercise of reserved management
rights under section 7106 of the Statute is outside the duty to bargain.
In this regard, the Authority observed, in National Federation of
Federal Employees, Local 1431 and Veterans Administration Medical
Center, East Orange, New Jersey, 9 FLRA 998, 999 (1982), that: "when
management establishes formal organizational structures to undertake
such deliberations as an integral part of its substantive
decision-making process, a proposal which would require union
participation would have the effect of directly interfering with
management's statutory right to make the decision involved." Of course,
Union Proposals 1 and 8 present a slightly different issue, that is, the
right involved in this case is one which may be negotiated at the
election of the Agency. However, in the Authority's view, the reasoning
in Veterans Administration Medical Center, East Orange is applicable to
the instant dispute. In this regard, it was determined in the cited
case that negotiation over union membership in an organization integral
to the decision-making process concerning a section 7106 right was
tantamount to negotiation over the right itself. Where the matter
concerned is encompassed within section 7106(b)(1), i.e., negotiable
only at the Agency's option, and the committee involved is established
to facilitate decision-making related to that matter, negotiation over
composition of the committee is equivalent to bargaining over the matter
itself. Hence, it is concluded that as the Agency has elected not to
bargain on Union Proposals 1 and 8 they are not within the duty to
bargain.
Union Proposal 2
Section 2-- All required textbooks will have been published
within five (5) years of purchase.
Union Proposal 4
Section 4-- Multi-level classroom materials will be selected by
classroom teachers for individual teaching plans. Management will
provide funds for the purchase of these materials.
Union Proposal 5
Section 5-- Host Nation teachers will be provided books and
teaching materials. The selection of these materials will be
determined by Host Nation teachers in concert with their teaching
colleagues in curriculum meetings.
Union Proposal 2 would place a restriction, i.e., copyright date
within 5 years of purchase, on the choice of textbooks which the Agency
must acquire and use. Union Proposals 4 and 5 would restrict
management's purchase and use of books and teaching materials to those
materials selected by the teachers. Thus, these proposals, by their
terms, would require the Agency to acquire and use certain specific
books and materials. In this regard, the disputed proposals herein are
to the same effect as a proposal in American Federation of Government
Employees, AFL-CIO, Local 1858 and Department of the Army, U.S. Army
Missile Command, Redstone Arsenal, Alabama, 10 FLRA 440 (1982) (Union
Proposal 3) requiring the acquisition and use of certain specific
documents and equipment. In that case, the Authority found that the
disputed proposal concerned the "technology, methods, and means of
performing work" within the meaning of section 7106(b)(1) of the Statute
and, hence, was negotiable only at the election of the Agency.
Consequently, as the instant proposals would likewise provide for the
acquisition and use of certain specified documents and materials, i.e.,
textbooks and teaching materials, they are, for the reasons and cases
cited in Redstone Arsenal, negotiable only at the election of the
Agency. Therefore, in light of the Agency's election not to bargain,
the instant proposals are nonnegotiable.
Union Proposal 3
Section 3-- Principals have the responsibility to establish a
Curriculum Development Committee (CDC) within their assigned
school. Schools will be authorized four days each semester for
the purpose of curriculum development. The members of each school
CDC will be elected from volunteers from the faculty. The Union
may appoint 50% of the membership of this committee. The Regional
Director has the responsibility to establish CDC's within the
Region. The Union may select 50% of the membership to serve on
each RCDC. Teachers who are required by Management to travel,
will be in a per diem and pay status. Recommendations made by
local CDC that are rejected by local Management must be responded
to in writing with rationale for the rejection. If, after a study
of Management's response, the local CDC still supports its
recommendation, the recommendation will be put into effect. (The
underlined portion is not in dispute.)
Union Proposal 9
Section 9-- There may be a semi-annual, local level, teachers'
conference with Regional level and DoDDS-Panama coordinators in
attendance as requested. The conference may be planned through
teacher and student input. Official time will be given for
attendance at the conference.
Union Proposal 11
Section 11-- Curriculum coordinators (local and regional level)
will work with students and teachers in the classroom in order to
maintain a realistic awareness of teaching dynamics and to better
evaluate proposed and pilot programs.
Each of the disputed proposals herein, would, inter alia, require
particular non-bargaining unit employees to perform specified duties.
Union Proposal 3 expressly mandates that "principals" and "the Regional
Director" will establish Curriculum Development Committees "within their
assigned schools" and "within the Region." Union Proposal 9 would
require the attendance at a local level teachers conference of the
"Regional level and DoDDS-Panama coordinators." Union Proposal 11 would
require local and Regional level curriculum coordinators to work with
students and teachers in the classroom.
In this respect, each of the disputed proposals herein is to the same
effect as the proposal in American Federation of Government Employees,
AFL-CIO, Local 32 and Office of Personnel Management, 14 FLRA 278
(1984), aff'd sub nom. Local 32, AFGE v. FLRA, No. 84-1251 (D.C. Cir.
May 10, 1985), which required that a particular non-bargaining unit
employee perform a specific duty. In that case, the Authority found the
proposal to be outside the duty to bargain as it interfered with
management's right, pursuant to section 7106(a)(2)(B) of the Statute, to
assign work.
Since the disputed proposals in this case would also require specific
non-bargaining unit employees to perform particular duties, they are,
for the reasons and case cited in Office of Personnel Management,
likewise, outside the duty to bargain. Accord National Federation of
Federal Employees, Local 1 and Environmental Protection Agency and
Environmental Protection Agency, Region 9, 17 FLRA No. 68 (1985).
Union Proposal 6
Section 6-- Cooperative Work Experience (CWE) Programs will be
planned by concerned sponsors, in conjunction with teachers, Host
Nation teachers, community leaders, and students. Teachers
involved in the CWE Program planning will be on official time or
paid as an extra-curricular activity.
This proposal, by its express terms, would require that the planning
of the Agency's Cooperative Work Experience Programs be accomplished by
certain specified individuals. Some of these individuals are bargaining
unit employees, i.e., teachers, and some are not employed by the Agency
at all, that is, "concerned sponsors" who are local businessmen,
community leaders and students. To the extent the proposal would
require Agency employees to perform certain duties, the planning of CWE
programs, it is inconsistent with management's right to assign work
pursuant to section 7106(a)(2)(A) of the Statute. See, e.g., American
Federation of State, County and Municipal Employees, AFL-CIO, Local 2910
and Library of Congress, 11 FLRA 632 (Union Proposals 1 and 2). In
addition, it is well established that the duty to bargain extends only
to matters affecting conditions of employment of bargaining unit
employees. Service Employees' International Union, AFL-CIO, Local 556
and Department of the Army, Office of the Adjutant General, Hale Koa
Hotel, Honolulu, Hawaii, 9 FLRA 687 (1982). As previously noted, some
of the individuals whom this proposal would require to perform CWE
planning functions are not even employed by the Agency. Thus, to the
extent this proposal specifically requires certain tasks to be performed
by non-employees, it is not within the duty to bargain as it does not
concern conditions of employment of unit employees within the meaning of
section 7103(a)(14) of the Statute. American Federation of Government
Employees, Local 2761 and U.S. Army Adjutant General, Publication
Center, St. Louis, Missouri, 17 FLRA No. 118 (1985) (Union Proposal 2).
Union Proposal 7
Section 7-- Each school faculty will be given a minimum of four
(4) hours, twice monthly, in-service time for curriculum planning
and enrichment. Each faculty will determine the days and time to
be used for this purpose and shall be on official time. The
school curriculum chairperson, department heads and/or grade level
heads and principals will act as coordinators as required.
Union Proposal 12
Section 12-- Preparation for an accreditation agency (such as
the North Central Association) shall be accomplished on official
time. Five (5) school days may be used for this purpose beyond
the days used for inservice. Recertification points will be
given. Furthermore, Management authorizes pay for teachers who
serve in committee chairperson capacities and fill their
responsibilities beyond the official school day.
Union Proposal 7 authorizes the granting of a minimum of four hours
official time, twice monthly, for employees to engage in curriculum
planning. Similarly, Union Proposal 12 authorizes an additional five
days of official time for employees to participate in the preparation
for various educational accreditation evaluations. In agreement with
the Agency, the Authority concludes that these two proposals are
inconsistent with management's right, pursuant to section 7106(a)(2)(B)
of the Statute, to assign work. That is, both disputed proposals
concern duties assigned to Agency employees in their role as teachers.
Specifically, with regard to Proposal 7, curriculum has been determined
to be a means of performing work within the meaning of section
7106(b)(1) of the Statute. (See Authority determination with regard to
Proposals 1 and 8 supra.) It follows, therefore, that requiring
employees to engage in curriculum planning constitutes an assignment of
a part of the work of the Agency in the furtherance of the Agency's
mission to educate the children of military personnel. Similarly, with
regard to Proposal 12, the Union itself concedes that employees are
assigned the additional duties of preparing and planning for
accreditation evaluations. /6/ In this respect, the proposals herein
are to the same effect as the disputed proposals in National Federation
of Federal Employees, Local 1263 and Defense Language Institute, Foreign
Language Center, Presidio of Monterey, California, 7 FLRA 723 (1982)
(Union Proposals I through XX), which provided specific time frames for
the performance, by teachers, of various tasks within the framework of
their positions as teachers. In that case, the Authority found the
proposals to be outside the duty to bargain as they would directly
interfere with the agency's right, pursuant to section 7106(a)(2)(B) of
the Statute, to assign work.
Consequently, as the disputed proposals herein would also allocate
specific amounts of time within which specific tasks will be
accomplished, they are, for the reasons and case cited in Foreign
Language Center, likewise, outside the duty to bargain.
This conclusion is not altered by the Union's argument, made
specifically with respect to Proposal 12 but also applicable to Proposal
7, that section 7131(d) of the Statute /7/ entitles unit employees to
official time for such matters as are specified in the proposal. In
this connection, section 7131 establishes the authority for the granting
of official time under the Statute. That is, subsections (a), (b) and
(c) concern the authorization of official time for contract
negotiations, impasse proceedings and proceedings before the Authority
respectively. While subsection (d) authorizes the granting of official
time to employee representatives in "any amount" the parties agree to be
"reasonable, necessary, and in the public interest," such authorization
is expressly limited to those matters which are not already provided for
in the other portions of section 7131. In the Authority's view,
subsection (d) clearly can only be read to authorize the negotiation of
official time for other labor-management related representational
matters such as contract administration, participation in grievance
arbitration and the like. /8/ Thus, there is no basis for the
authorization of official time for employees to perform assigned duties
as is required by Proposals 7 and 12.
Union Proposal 10
Section 10-- Each School Advisory Council will include one (1)
Union Representative with the standing as a voting ex-officio
member.
This proposal would require that a Union representative participate,
as a voting member, in the meetings of each School Advisory Council.
These Councils, based on the uncontroverted statements of the Agency in
the record of this case, were established by the Agency pursuant to 20
U.S.C. 928 to review, make recommendations and take action with respect
to matters involving budget and curriculum.
In this regard, the Authority has consistently held that proposals
which require union participation in the deliberative process leading to
the exercise of reserved rights under section 7106 of the Statute
directly interfere with those rights and are outside the duty to
bargain. See, e.g., National Federation of Federal Employees, Local
1431 and Veterans Administration Medical Center, East Orange, New
Jersey, 9 FLRA 998 (1982). Thus, as the instant proposal interferes
with management's right to determine its budget pursuant to section
7106(a)(1) of the Statute, /9/ it is not within the Agency's duty to
bargain.
Accordingly, pursuant to section 2424.10 of theAuthority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed. /10/ Issued, Washington, D.C., August 19, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ The Union did not file a Reply Brief in this case.
/2/ The Agency's contention that the Union did not properly serve the
Agency head with a copy of the petition for review as required by
section 2424.4(b) of the Authority's Rules and Regulations cannot be
sustained. The record indicates that the Union submitted satisfactory
evidence that it timely complied with the Authority's procedural
requirements.
/3/ Agency Statement of Position at 3.
/4/ Section 7106(b)(1) of the Statute provides, in relevant part, as
follows:
Sec. 7106. Management rights
. . . .
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency . . . methods, and means of
performing work.
/5/ But cf. American Federation of Government Employees, Local 12,
AFL-CIO and Department of Labor, 17 FLRA No. 98 (1985) (Union Proposal
3), petition for review filed sub nom. Local 12, American Federation of
Government Employees v. FLRA, No. 85-1371 (D.C. Cir. June 19, 1985)
(proposal to establish a committee to study the feasibility of quality
circles to serve as a forum for evaluating employee concerns,
suggestions, etc., involving introduction of new technology did not
directly relate to the introduction of such technology and, therefore,
was a "procedure" within the meaning of section 7106(b)(2) of the
Statute).
/6/ Union Petition for Review, unpaginated, at portion concerning
Proposal 12.
/7/ Section 7131(d) provides in relevant part as follows:
Sec. 7131. Official time
. . . .
(d) Except as provided in the preceding subsections of this
section--
(1) any employee representing an exclusive representative, or
(2) in connection with any other matter covered by this
chapter, any employee in an appropriate unit represented by an
exclusive representative,
shall be granted official time in any amount the agency and the
exclusive representative involved agree to be reasonable,
necessary, and in the public interest.
/8/ See AFGE, Local 2096 v. FLRA, 738 F.2d 633, 637 (4th Cir. 1984),
affirming U.S. Naval Space Surveillance Systems, Dahlgren, Virginia and
U.S. Naval Surface Weapons Center, Dahlgren, Virginia, 12 FLRA 731
(1983).
/9/ Section 7106(a) of the Statute provides, in relevant part, as
follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
(1) to determine the . . . budget(.)
/10/ In view of the Authority's disposition of the proposals in this
case, it is unnecessary to consider the additional Agency arguments
concerning the nonnegotiability of these proposals.