[ v26 p934 ]
26:0934(108)NG
The decision of the Authority follows:
26 FLRA No. 108
FORT KNOX TEACHERS ASSOCIATION
Union
and
FORT KNOX DEPENDENT SCHOOLS
Agency
Case No. 0-NG-876
DECISION AND ORDER ON NEGOTIABILITY ISSUE /1/
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). The appeal concerns
the negotiability of the following two-part proposal:
1. After ten years of continuous service at Fort Knox, a one
year sabbatical leave shall be granted upon request by the
individual unit member. Such leave shall be granted by FKBE for
educational advancement or appropriate travel of the unit member.
The one year sabbatical leave granted for education advancement
shall be for one hundred percent of the unit member's base pay.
The one year sabbatical leave granted for appropriate travel shall
be for seventy-five percent of the unit member's base pay.
2. The unit member shall be reinstated to his original
position at the end of the sabbatical. The same unit member shall
not be eligible for another sabbatical until an additional ten
years of continuous service at Fort Knox is completed. Unit
members granted sabbatical leave will enter into an agreement to
remain in the Fort Knox school system for a minimum of three years
after completing their year of sabbatical leave.
II. Positions of the Parties
The Agency essentially contends that the portion of the proposal
which relates to granting sabbatical leave to an employee for travel
purposes is nonnegotiable because it: (1) does not concern conditions
of employment within the meaning of the Statute; (2) conflicts with
law; and (3) conflicts with an agency regulation for which a compelling
need exists. The Agency also asserts that the portion of the proposal
which relates to the reinstating of an employee to his/her original
position at the end of the sabbatical leave violates management's right
to assign employees under section 7106(a)(2)(A) and conflicts with law.
The Union denies that the proposal conflicts with law or regulation.
It also argues that the proposal concerns a condition of employment and
denies that the proposal violates management rights to assign employees
under section 7106(a)(2)(A).
III. Analysis
A. The First Portion of the Proposal Is Within the Duty To
Bargain
1. Statutory Considerations
In 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), appeal docketed sub nom. Department of the Air Force,
Eglin Air Force Base, Florida v. FLRA, No. 87-3037 (11th Cir. Feb. 2,
1987), the Authority held nothing in the Statute, or its legislative
history, bars negotiation of proposals relating to pay and fringe
benefits insofar as (1) the matters proposed are not specifically
provided for by law and are otherwise inconsistent with law,
Government-wide rule or regulation or an agency regulation for which a
compelling need exists. Based on the analytical framework established
there, we held that the proposal in Eglin Air Force Base, which required
the agency to pay up to a certain percentage of the premium cost of
health insurance for non-appropriated fund employees, was within the
duty to bargain. We noted in that case also that in the Federal sector,
wages and fringe benefits of most employees are established and
controlled by law. However, there are exceptions where matters
concerning the nature and amount of the wages and fringe benefits are
left to the discretion of the employing agencies. See also American
Federation of Government Employees, AFL-CIO, Local 997 and Department of
the Air Force, Maxwell Air Force Base, Alabama, 24 FLRA No. 51 (1986),
appeal filed sub nom. Department of the Air Force, Maxwell Air Force
Base, Alabama v. FLRA, No. 87-7102 (11th Cir. Feb. 11, 1987) (proposal
concerning payment by the employer for various other types of insurance,
including health insurance, was found to be within the scope of
bargaining).
In the present case the first portion of the proposal would, in
relevant part, require the Agency to grant Fort Knox Dependent School
teachers, employed in the bargaining unit under 20 U.S.C. Section
241(a), a 1-year sabbatical leave for educational advancement at full
pay or a 1-year sabbatical leave for appropriate travel at 75 percent
pay.
The Agency argues that this portion of the proposal violates 20
U.S.C. Section 241. Essentially, the Agency argues that based on the
express language of 20 U.S.C. Section 241 and the legislative history
underlying one of the laws which established the provisions of 20 U.S.C.
Section 241, /2/ the Agency's per pupil cost in Dependent Schools is
limited to the per pupil cost of free public education in comparable
communities in the appropriate state, here, Kentucky. According to the
Agency, since payroll costs account for nearly 80 percent of all
expenditures, it is not possible to conform to the statutory mandate of
comparable per pupil costs without limiting teacher salaries and
benefits to levels which are comparable to those provided in Kentucky.
The Agency claims that since applicable Kentucky law does not permit a
leave of absence for travel purposes, this portion of the proposal would
increase the benefits provided to bargaining unit employees as compared
to those accorded to teachers in Kentucky. Thus, the Agency concludes
this portion of the proposal is inconsistent with the express provisions
of 20 U.S.C. Section 241 and its applicable legislative history.
With respect to the argument that the proposal would conflict with
the express provisions of 20 U.S.C. Section 241 by causing the Agency to
exceed the limitations on the total per pupil costs of providing an
education which are set forth in that statute, the Authority rejected
the same argument 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
compensation is only one aspect of total cost. As in Fort Bragg, the
Agency in this case has not demonstrated that the proposal would
necessarily prevent it from achieving the overall cost limitation
specified in 20 U.S.C. Section 241. /3/
Further, in our view the Agency has not demonstrated by analysis of
legislative history that Congress intended the Agency to be bound to
match exactly the conditions of employment of teachers in local school
districts. Rather, the Senate Report relied upon by the Agency
articulates the "purpose" of the legislation sought as being to except
certain teachers from coverage under various provisions of law relating
to civil service employment including, among others, those relating to
pay and fringe benefits. The statements of the Secretary of the Army
quoted in the Senate Report merely illustrated some of the practices
relating to teacher employment which had been adopted by the Department
of Defense and which deviated from provisions of statutes affecting
Federal employees generally. We find nothing in either the law or the
legislative history relied upon by the Agency which persuades us that
Congress intended to restrict the Agency's discretion as to the
particluar employment practices relating to pay and fringe benefits
which could be adopted. See also Fort Knox Teachers Association and
Fort Know Dependent Schools, 25 FLRA No. 95 (second portion of the
proposal) (1987), petition for review filed sub nom. Fort Knox Dependent
Schools v. FLRA, No. 87-3395 (6th Cir. Apr. 27, 1987).
2. Compelling Need
The Agency asserts that this portion of the proposal conflicts with a
provision of its Army Regulation (AR) 352-3 which states that:
1-7. Compensation Factors. Education provided . . . will be
considered comparable to free public education offered by selected
communities of the State when the following factors are, to the
maximum extent practicable, equal:
* * * *
h. Conditions of employment.
It contends that private sector teacher contracts in Kentucky do not
contain provisions granting sabbatical leave for travel reasons and
compensation is not provided for that purpose. Consequently, it asserts
that the proposal conflicts with its regulatory provision stating that
conditions of employment, to the maximum extent practicable, in the
dependent schools are equal to those of the surrounding communities. It
contends that this provision implements in a nondiscretionary manner a
mandate of Congress to pattern personnel practices after those found in
the non-Federal service teaching profession. It asserts therefore that
there is a "compelling need" for the regulation under section 2424.11(c)
of the Authority's regulations.
Assuming without deciding that this portion of the proposal conflicts
with the Agency regulation, we find that the Agency has not established
a compelling need under section 2424.11(c) of the Authority's
regulations. The Agency's argument on this point is essentially based
on the same interpretation of the legislative history of Pub. L. No.
89-7 which we rjected in section A(1) of this decision. That is, the
Agency concludes, based on Pub. L. No. 89-77 that Congress intended that
the compensation practices of public schools in comparable communities
in the state in which the particular dependent school is located must be
applied to the teachers at the dependent school. As set forth above,
the Agency has not established that 20 U.S.C. Section 241 or its
legislative history, mandates adoption of any specific employment or
compensation practices. Rather, Congress left the Agency with
discretion within certain specified guidelines to establish compensation
and other employment practices. Consequently, we hold that the Agency
has not demonstrated that a compelling need exists for its regulation to
bar negotiations on this part of the proposal.
B. The Second Portion of the Proposal Is Outside the Duty
to Bargain
1. The Second Portion of the Proposal Conflicts with the
Right to Assign Employees
The second portion of the proposal would require the Agency to assign
a teacher to his/her original position when that teacher returned from
sabbatical leave.
It is well established that under section 7106(a)(2)(A) of the
Statute the right to assign an employee to a position includes the
discretion to determine which employee will be assigned. See American
Federation of Government Employees, AFL-CIO and Air Force Logistics
Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 613 (1980),
affirmed sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C.
Cir. 1982), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982).
This portion of the proposal restricts the Agency's discretion to
determine which employee to assign to a position. Specifically, it
requires the Agency to assign a returning employee to the particular
position that employee had filled before taking sabbatical leave. It
prevents the Agency from assigning that returning employee to any other
available position or any other employee to that position. Thus, this
portion of the proposal is nonnegotiable. See also American Federation
of Government Employees, AFL-CIO, Local 3529 and Defense Contract Audit
Agency, 3 FLRA 301 (1980).
2. The Second Portion of the Proposal does not Conflict
with Law
The Agency contends that this part of the proposal would entitle
employees to their original position upon completion of their sabbatical
leave. Thus, according to the Agency, as this part of the proposal
would obligate the Government for expenditure of funds in a succeeding
fiscal year, it violates the provisions of the Antideficiency Act, 31
U.S.C. Section 1341(a), which provides in part as follows:
Section 1341. Limitations on expending and obligating amounts
(a)(1) An officer or employee of the United States Government
or of the District of Columbia government may not --
(A) make or authorize an expenditure or obligation exceeding an
amount available in the appropriation or fund for expenditure or
obligation; or
(B) involve either government in a contract or obligation for
the payment of money before an appropriation is made unless
authorized by law.
In support of its position the Agency relies upon a number of
Comptroller General decisions interpreting the Antideficiency Act.
Contrary to the Agency's view however, we find that this part of the
proposal does not violate the Antideficiency Act. In our view, the
bargaining unit teachers employed under 20 U.S.C. Section 241 are
employees of the Government and subject to all statutes pertaining to
Government employment unless specifically exempted. Accord, 58 Comp.
Gen. 430 (1979) and cases cited in that decision. The Agency in this
case has established that a requirement to reinstate an employee
returning from a sabbatical leave is inconsistent with the holdings of
the Comptroller General that salaries of Government employees, as well
as related items that flow from those salaries such as retirement fund
contributions, are obligations only at the time the salaries are earned,
that is, when the services are rendered, in this case, when the returned
employee actually provides services. See, for example, 38 Comp. Gen.
316 (1958). Thus, negotiation of this part of the proposal would not
obligate the Government for expenditure of funds in a succeeding fiscal
year in violation of the Antideficiency Act. See also Unpublished
Decision of the Comp. Gen., B-187881, Oct. 3, 1977.
IV. Summary and Conclusions
We conclude that the first portion of the proposal which relates to
granting certain employees a 1-year sabbatical leave concerns a
condition of employment about which the Agency has discretion under 20
U.S.C. Section 241. Further, the first portion of the proposal does not
conflict with 20 U.S.C. Section 241 or with an Agency regulation for
which a compelling need has been established by the Agency.
The second portion of the proposal which requires the Agency to
reassign a teacher to his/her original position after completion of
his/her sabbatical leave conflicts with management's right to assign
employees under section 7106(a)(2)(A). However, this portion of the
proposal does not conflict with 31 U.S.C. Section 1341(a) the
Antideficiency Act.
V. Order
The Agency must negotiate upon request or as otherwise agreed to by
the parties over that portion of the proposal granting certain employees
sabbatical leave for travel. /4/ However, the Union's petition as to
that portion of the proposal which addresses the reassignment of a
teacher to their original position after the completion of sabbatical
leave is dismissed.
Issued, Washington, D.C., April 30, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun
In my opinion in 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), petition for review filed sub nom.
Department of the Air Force, Eglin Air Force Base, Flordia v. FLRA, No.
87-3073 (11th Cir. February 2, 1987), 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 under the Statute. I see no such statement
of Congressional intent in this case. Therefore, I do not join the
majority decision. See also Fort Knox Teachers Association and Fort
Knox Dependent Schools, 25 FLRA No. 95 (1987), petition for review filed
sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3395 (6th Cir.
April 27, 1987); and American Federation of Government Employees,
AFL-CIO, Local 1770 and U.S. Department of Defense, Dependent Schools,
Fort Bragg, North Carolina, 25 FLRA No. 96 (1987), petition for review
filed sub nom. Department of Defense, Dependent Schools, Fort Bragg,
North Carolina v. FLRA, No. 87-3061 (4th Cir. April 27, 1987).
I agree with the majority that the second portion of the proposal is
nonnegotiable because it conflicts with the Agency's right to assign
work.
Issued, Washington, D.C., April 30, 1987.
/s/ Jerry L. Calhoun, Chairman
--------------- FOOTNOTES$ ---------------
(1) Chairman Calhoun dissents for the reasons stated in his separate
opinion.
(2) Pub. L. No. 89-77, 79 Stat. 244 (1965), reprinted in 1965 U.S.
Code Cong. & Ad. News 257.
(3) If, in combination with other practices and proposals relating to
expenditures, such circumstance would result, the Agency has recourse to
raising this argument before the Federal Service Impasses Panel in
support of its position as to the merits of this and other proposals
should an impasse occur in conjunction with negotiations.
(4) In finding this portion of the proposal to be negotiable we make
no judgment on its merits.