Petition for Writ of Certiorari — FortStewart Schools v. FLRA

the dhuperme Count of the Waniteh States

Octoser TERM, 1989 -

:. Fort STEWART SCHOOLS, PETITIONER 4

._ FEDERAL LABOR RELATIONS AUTHORITY AND J

| Fort STEWART ASSOCIATION OF EDUCATORS E

7 PETITION FOR A WRIT OF CERTIORARI Ss

4 TO THE UNITED STATES COURT OF APPEALS f

FOR THE ELEVENTH CIRCUIT :

>

: |

; WILLIAM C. BRYSON ;

S Acting Solicitor General 4

STUART E. SCHIFFER .

Acting Assistant Attorney General

; DAVID L, SHAPIRO

Deputy Solicitor General

CHRISTOPHER J, WRIGHT :

Assistant to the Solicitor General

a. WILLIAM KANTER

_*. Attorneys

g Depattment of Justice ;

. Washington, D.C. 20530 |

(202) 633-2217 ‘

QUESTIONS PRESENTED

1. Whether the wages and money-related fringe bene-

fits of federal employees whose rate of compensation is

not entirely fixed by statute are negotiable “conditions of

employment” under 5 U.S.C. 7103(a).

2. Whether compensation-related proposals—such as

the Union’s proposal in this case to raise the salaries of

employees at two schools for dependents of Army person-

nel by 13.5% —are non-negotiable because they interfere

with an agency’s management right under 5 U.S.C.

7106(a)(1) to set the agency’s budget. -

3.. Whether the Union’s proposals in this case are non- .

negotiable under 5 U.S.C. 7117 because they are “the sub-

ject of [an] agency rule or regulation” for which there is a

“compelling need.”

(I)

TABLE OF CONTENTS

Page

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Statutory and regulatory provisions involved ............... 2

EE EEE ESTE TTTTE TET 5

Reasons for granting the petition .....................4655. ll

Conclusion .......... Read taieWereesccsceeecveveeesceees 22

Appendix A .... 22... cece eee cece reece cece ceeeneecess la

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TABLE OF AUTHORITIES

Cases:

Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464

Te ei ak cwekbcceseces 6

Chevron U.S.A. v. Natural Resources Defense Council,

cnc cceccsccccesceces 15

Department of Defense Dependents Schools v. FLRA,

863 Fl2d 988 (D.C. Cir. 1988), reh’g en banc granted

Ces cc cbey cscs sandhe obicce 11, 12, 14,

15, 16, 17, 18

Department of the Navy, Military Sealift Command v.

FLRA, 836 F.2d 1409 (3d Cir. 1988) .............. mone, 62,

13, 16-17, 18

Department of the Treasury, Bureau of Engraving and

Printing v. FLRA, 838 F.2d 1341 (D.C. Cir. 1988) ...11, 13-14

FLRA vy. Aberdeen Proving Ground, Department of the

ED ccc ccc ccccccccccess 6

Fort Knox Dependent Schools v. FLRA, No. 87-3395

Ce eee * ee ae 11, 12,

13, 14, 18, 20

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) .......... 17

National Federation of Federal Employees v. FLRA, 789

i Sa cck ccc ccc cece. 7

Nuclear Regulatory Commission v. FLRA, 859 F.2d 302

(4th Cir. 1988), reh’g en banc granted (Jan. 6, 1989)... 11, 12

(11)

“Te oe noon.”

—..,

V

Cases — Continued: Page Statutes and regulation — Continued: Page

United States Department of Defense Dependent Schools, SE nk LGWadeed SeCdesbateesceweued 3, 8, 9, 10,

Fort Bragg v. FLRA, 838 F.2d 129 (4th Cir. 1988) ..... 11, 12 13, 20, 21, 22

West Point Elementary School Teachers Association v. ED vnc ccccosecnenenccessceessente 3, 5, 20, 21

FEBA, COP ESE SOCOM. ONY +02 0000. -orveen. a has GR ARIS ISSIR ES oa 4, 8, 21

Statutes and regulation: ‘ ry ee ll, .

Act of 2... 3, 1985, Pub. L. No. 99-167, § 824, 99 Stat. I. occ poccwcenccecéscocecensesedens

RSE PA, SA ye CRE RA eae Cc eae 14 on nn nck n5eheanseseenae neéaat 11

Civil Servi.e Reform Act of 1978: Amt TR, TEErO CABG occ ccc ccccvccccccccccceesss 4, 8, 20

REE SS a ee 5

De IE Sa cc vccccvccccccccsss 16 Miscellaneous:

5 U.S.C, 5343(a) note (§ 704(a)) ....... 66. cee, 16 I oe ls 2 Nedenscuunes 17

5 U.S.C. 5343(b) note (§ 704(b)) ..... 2... 6... 16 PETG de dvntececcevesesss SxtGeeceneuuns 17, 18

PE PIES a SSE S664 64sec vccvocsencscnen 11, 14 Pre TT Terr etre r se ee TT 17

5 U.S.C. 7101 ef seg. ........ eben eee eeeeeeneees 6 asd oda nnd cds 6 xend barman Seen 17, 18

De avon 50s oés cvcvecenancumabl 2, 6 S BOPP rrr 17

Fis be resccvdeventddnccceuseaées 2,14 Es evo ncapak assontsanracagnsveceees 17

Fn oie k 60060 sseedecésdeckouxaue 2 EN, cas 0i cde icdiccdisessvecddeseiaets 17

5 U.S.C. TIOS(aM12) 0... eee eee eee eee 6 ee ees cas ie cerseseaneesuns 17

5 U.S.C. 7103(a)(14) TREREELUESERELERELETE. Cree 2, 9, 14 124 Cong. Rec. H9638 (daily ed. Sept. 13, 1978) ae et 18

PED. 5. cs wcedewcccéebbeeds 2 291. 3CF.R. 127(1982) 0

SUM ooo cocci sees eccccccecces: 6 Exec. Onder Ne. $2,208, 3C-0.R. 57 (5985)........----

DF is occ dées tncccevecdcaéccenn 7 House Comm. on Post Office and Civil Service, Sub-

DT oO iss. dnb dneddidesWaenawekes 2, 19 comm. on Postal Personnel and Modernization, 96th

a ons dv 56bs 0s tia cessceen 8 Cong., Ist Sess., Legislative History of the Federal

ST ae a 6 Service Labor-Management Relations Statute (1979) . . 17

PN in. seb ds4 ded cddcbaceavecesbes 17 H.R. Rep. No. 1403, 95th Cong., 2d Sess. (1978) ........ 17

5 U.S.C. I i itl nee Be ee ee 6 , a 17

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ee 2,7,8

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ob awecsescaunies 6

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National Labor Relations Act, 29 U.S.C. 158(d)........ 16

Pe kG a sarc won ceeae intinebie nied <0 11, 13

’ _

In the Supreme Court of the Gnited States

OCTOBER TERM, 1989

No.

Fort STEWART SCHOOLS, PETITIONER

Vv.

FEDERAL LABOR RELATIONS AUTHORITY AND

Fort STEWART ASSOCIATION OF EDUCATORS

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The Acting Solicitor General, on behalf of the Fort

Stewart Schools, petitions for a writ of certiorari to review

the decision of the United States Court of Appeals for the

Eleventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App., infra,

la-30a) is reported at 860 F.2d 396. The decision of the

Federal Labor Relations Authority (App., infra, 31a-54a)

is reported at 28 F.L.R.A. 547.

JURISDICTION

The judgment of the court of appeals was entered on

November 21, 1988. A timely petition for rehearing was

denied on February 17, 1989 (App., infra, 55a-56a). On

May 11, 1989, Justice Kennedy extended the time for filing

a petition for a writ of certiorari to and including July 17,

1989. The jurisdiction of this Court is invoked under 28

U.S.C. 1254(1).

(1)

2

STATUTORY AND REGULATORY PROVISIONS INVOLVED

A. The Federal Service Labor-Management Relations Statute

Section 7102 (5 U.S.C.) provides in relevant part:

Each employee shall have the right * * *

* * * * *

(2) to engage in collective bargaining with re-

spect to conditions of employment through rep- —

resentatives chosen by employees under this

chapter.

Section 7103 (5 U.S.C.) provides in relevant part:

(a) For the purpose of this chapter —

* * * * *

(14) “conditions of employment” means per-

sonnel policies, practices, and matters, whether

established by rule, regulation, or otherwise, af-

fecting working conditions, except that such

term does not include policies, practices, and

matters

* * af ad *

(C) to the extent such matters are specifi-

cally provided for by Federal statute[.]

Section 7106(a)(1) (S U.S.C.) provides:

(a) Subject to subsection (b) of this section, nothing

in this chapter shall affect the authority of any man-

agement official of any agency —

(1) to determine the mission, budget, organiza-

tion, number of employees, and internal security

practices of the agency.

Section 7117 (S U.S.C.) provides in relevant part:

(a)(1) Subject to paragraph (2) of this subsection,

the duty to bargain in good faith shall, to the ex-

3

tent not inconsistent with any Federal law or any

Government-wide rule or regulation, extend to

matters which are the subject of any rule or regu-

lation only if the rule or regulation is not a

Government-wide rule or regulation.

(2) The duty to bargain in good faith shall, to

the extent not inconsistent with Federal law or

any Government-wide rule or regulation, extend

to matters which are the subject of any agency

rule or regulation referred to in paragraph (3) of

this subsection only if the Authority has deter-

mined under subsection (b) of this section that no

compelling need (as determined under regula-

tions prescribed by the Authority) exists for the

rule or regulation.

B. The dependents schools statute and regulation

Section 241 (20 U.S.C.) provides in relevant part:

(a) In the case of children who reside on Federal

property —

7 =: = + *

the Secretary shall make such arrangements (other

than arrangements with respect to the acquisition of

land, the erection of facilities, interest, or debt serv-

ice) as may be necessary to provide free public educa-

tion for such children. * * * To the maximum extent

practicable, the local educational agency, or the head

of the Federal department or agency, with which any

arrangement is made under this section, shall take

such action as may be necessary to ensure that the

education provided pursuant to such arrangement is

comparable to free public education provided for

children in comparable communities in the State, or,

4

in the case of education provided under this section

outside the continental United States, Alaska, and

Hawaii, comparable to free public education provid-

ed for children in the District of Columbia. For the

purpose of providing such comparable education,

personnel may be employed and the compensation,

tenure, leave, hours of work, and other incidents of

the employment relationship may be fixed without re-

gard to the Civil Service Act and rules * * *.

(e) To the maximum extent practicable, the Secre-

tary shall limit the total payments made pursuant to

any such arrangement for educating children within

the continental United States, Alaska, or Hawaii, to

an amount per pupil which will not exceed the per

pupil cost of free public education provided for

children in comparable communities in the State. The

Secretary shall limit the total payments made pur-

suant to any such arrangement for educating children

outside the continental United States, Alaska, or

Hawaii, to an amount per pupil which will not exceed

the amount he determines to be necessary to provide

education comparable to the free public education

provided for children in the District of Columbia.

Army Reg. 352-3, 1-7 provides:

Comparison factors. Education provided pursuant to

the provisions of Section 6 for children residing on

Federal property 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:

a. Qualifications of professional and nonprofes-

sional personnel.

b. Pupil-teacher ratios.

5

c. Curriculum for grades offered, including

kindergarten and summer school, if applicable.

d. Accreditation by State or other accrediting

association.

e. Transportation services (student and support).

f. Length of regular and/or summer term(s).

g. Types and numbers of professional and non-

professional positions.

h. Salary schedules.

i. Conditions of employment.

j. Instructional equipment and supplies.

STATEMENT

Fort Stewart, an Army base in Georgia, operates two

elementary schools for dependents of military and civilian

personnel. The Fort Stewart Association of Educators (the

Union) is the bargaining representative for approximately

100 professional and nonprofessional employees of the

Fort Stewart Schools. Unlike most federal employees,

teachers and cther personnel at dependents schools are not

classified and paid under the “General Schedule” set forth

at 5 U.S.C. 5332. Rather, the dependents schools statute,

20 U.S.C. 241(a), directs the Army to provide an educa-

tion comparable to that provided at public schools in the

State and states that “[flor the purposes of providing such

comparable education, * * * compensation * * * may be

fixed without regard to the Civil Service Act and rules.”

At issue here are three Union proposals relating to em-

ployee compensation, including a proposal (Proposal 2)

that “the salary increase for all bargaining unit members

will be 13.5%.” App., infra, 2a n.2.' The Fort Stewart

' The other two proposals are quite lengthy and contain numerous

subparts. Proposal 3 relates to the circumstances under which em-

ployees are provided paid and unpaid leave. Proposal | addresses a

6

Schools declined to bargain over the proposals, contend-

ing that they are not negotiable under Title VII of the Civil

Service Reform Act of 1978, 5 U.S.C. 7101 et seg., known

as the Federal Service Labor-Management Relations

Statute (the Statute). The Federal Labor Relations

Authority rejected this contention, and its conclusion that

the proposals are negotiable was upheld by the Eleventh

Circuit.

1. The Statute provides a “comprehensive * * *

scheme governing labor relations between federal agencies

and their employees.” Bureau of Alcohol, Tobacco and

Firearms v. FLRA, 464 U.S. 89, 91 (1983). Among other

things, the Statute expressly recognizes the right of federal

employees to form and join unions (see, e.g., 5 U.S.C.

7102), and imposes upon management officials of federal

agencies a general duty to bargain with their employees’

unions over “conditions of employment.” See FLRA v.

Aberdeen Proving Ground, Department of the Army, 108

S. Ct. 1261 (1988); Bureau of Alcohol, Tobacco and

Firearms v. FLRA, 464 U.S. at 92; 5 U.S.C. 7103(a)(12),

7114, 7116(a)(S), 7117.

The Statute provides that if, during bargaining, man-

agement officials decline to negotiate over a particular

proposal submitted by a union, believing “that the duty to

bargain in good faith does not extend to [such] matter” (5

U.S.C. 7117(c)(1)), the union may file a negotiability ap-

peal with the Federal Labor Relations Authority. See 5

U.S.C. 7105(a)(2)(E), 7117(c). The FLRA’s rulings on

negotiability are reviewable in the courts of appeals. See 5

U.S.C. 7123.

In contrast to the National Labor Relations Act, a deci-

sion that a particular proposal is negotiable under the

variety of subjects, including such matters as summer school salaries

and reimbursement for use of personal vehicles for school business.

App., infra, 21a-30a.

7

Statute does more than simply require the parties to

bargain in good faith. If negotiations reach an impasse,

“either party may request the Federal Service Impasses

Panel to consider the matter” (5 U.S.C. 7119(b)(1)), and

the Panel may resolve the dispute by ordering the incor-

poration of the contested proposal into the collective

bargaining agreement. 5 U.S.C. 7119(c)(5)(B)(iii); see Na-

tional Federation of Federal Employees v. FLRA, 789

F.2d 944, 945 (D.C. Cir. 1986).

2. The Army contended that the proposals at issue

were non-negotiable for three reasons. First, it argued that

proposals relating to employee compensation do not con-

cern “conditions of employment” since the Statute limits

the definition of that phrase to “personnel policies, prac-

tices, and matters * * * affecting working conditions.”

Second, the Army argued that the proposals were non-

negotiable under the “management rights” provision of the

Statute (5 U.S.C. 7106), a provision that further limits the

scope of negotiations. As relevant to this case, that provi-

sion states that “nothing in this chapter shall affect the

authority of any management official of any agency —(1)

to determine the * * * budget * * * of the agency.” The

Army claimed that the proposals at issue — particularly the

proposal to raise employees’ salaries by 13.5% — would in-

terfere with its right to determine its budget.

Third, the Army relied on a provision of the Statute (5

U.S.C. 7117) stating that the duty to bargain does not ex-

tend to proposals that are “inconsistent with any Federal

law or any Government-wide rule or regulation” (5 U.S.C.

7117(a)(1)), and that the duty to bargain extends to pro-

posals that are “the subject of any agency rule or regula-

tion * * * only if the Authority has determined * * * that

no compelling need (as determined under regulations pre-

scribed by the Authority) exists for the rule or regulation”

(S U.S.C. 7117(a)(2)). Another law, the dependents

schools statute (20 U.S.C. 241(e)) provides that “[t]o the

maximum extent practicable,” expenditures at dependents

schools should be limited “to an amount per pupil which

will not exceed the per pupil cost of free public education

provided for children in comparable communities in the

State.” In implementing that law, the Army has provided

by regulation that, “to the maximum extent practicable,”

salary schedules at dependents schools should be the same

as salary schedules at comparable public schools in the

State. Army Reg. 352-3, 1-7(h). The Army contended that

the proposals at issue conflicted with Section 241 and its

implementing regulation, and declined to negotiate for

that reason as well.

3. With the exception of three minor subparts of the

proposals, the FLRA rejected the Army’s arguments.” The

FLRA first noted that it had previously rejected the argu-

ment that compensation is not a riegotiable “condition{ ]

of employment.” App., infra, 35a. It next held that the

Army had not established that the Union’s proposals

would infringe on the Army’s right to determine its budget

because the Army had not shown that the inclusion of any

or all of the proposals in the collective bargaining agree-

ment would “result in significant and unavoidable in-

> The FLRA held that two of the 15 subparts of Proposal | were not

negotiable because they were inconsistent with federal law. (Subparts

L and M propose that the schools provide free health and life in-

surance, but federal law limits the amount the schools may contribute

toward health insurance and specifically requires union members to

contribute toward life insurance. The FLRA therefore held those sub-

parts non-negotiable under Section 7117(a)(1). App., infra, 41a. The

FLRA also held that Section F of Proposal 3, which proposed that

leave without pay “may be approved at the discretion of the immediate

supervisor,” was not negotiable. It concluded that the subpart in-

fringed on management's reserved right under Section 7106(a)(2)(B) to

assign work. App., infra, 44a.

9

creases in cost not affected by compensating benefits.” /d.

at 37a. Finally, relying on its prior cases involving teachers

at dependents schools, the FLRA held that Section 241

does not require that employees’ salaries be set by com-

parison with salaries at state public schools and that the

Army’s regulation to that effect is not justified by a “com-

pelling need.” App., infra, 40a-41a. The FLRA according-

ly ordered the schools to negotiate with the Union over the

three proposals.

Chairman Calhoun dissented. Referring to his conclu-

sion in a prior case, he stated: “[I}n the absence of a clear

expression of congressional intent to make wages and

money-related fringe benefits negotiable, 1 would find that

these matters are not within the duty to bargain.” App.,

infra, 46a.

4. The Eleventh Circuit affirmed. App., infra, la-30a.

It first deferred to the FLRA’s conclusion that compensa-

tion-related proposals are generally negotiable where em-

ployees are not subject to the General Schedule. Although

the Statute defines negotiable “conditions of employment”

as “persounel policies, practices and matters * * * affect-

ing working conditions” (5 U.S.C. 7103(a)(14)), the court

concluded that “|{t}his definition alone does not exclude

compensation and fringe benefits.” App., infra, 7a. Turn-

ing to the numerous statements in the legislative history

that compensation would not be negotiable under the

Statute, the court dismissed them on the ground that the

statements were made “with the understanding that Con-

gress generally regulates such matters.” /d. at 10a. The

court acknowledged (id. at 9a) the decision of the Third

Circuit holding that compensation is not a negotiable

“condition[ ] of employment” (Department of the Navy,

Military Sealift Command vy. FLRA, 836 F.2d 1409

(1988)), but stated that it agreed with the Second Circuit’s

10

contrary conclusion in West Point Elementary School

Teachers Association v. FLRA, 855 F.2d 936 (1988).

The court gave three reasons for agreeing with the Sec-

ond Circuit that such proposals do not interfere with the

Army’s right to determine its budget. First, the court said

that “[t}he proposals would not necessarily increase the

Army’s costs” (App., infra, 20a), although it did not ex-

plain how a 13.5% increase in salaries could fail to in-

crease costs. Second, the court stated that “any increase in

the employees’ salaries would not significantly increase the

Army’s budget,” which “includes bases, troops, weapons,

vehicles, other equipment, salaries for all other officers,

and expenses for its eight other schools.” /bid. Third, the

court said that the Army had failed to establish “that no

compensating benefits would offset such costs even if its

costs increased.” /bid.

The court also agreed with the Second Circuit that the

proposals were not precluded by Section 241 of the de-

pendents schools statute or the Army’s implementing

regulation. The court recognized that “Section 241 re-

quires that the Army ‘to the maximum extent practicable’

provide a comparable education to local public schools at

a cost per pupil not exceeding the per pupil cost of free

public education in local communities.” App., infra, 13a.

However, the court concluded, the Army could maintain

cost parity and educational comparability despite wide

variations in teachers’ salaries. “For example, books,

building maintenance, athletic programs, clubs, and lunch

services also enter into this calculation.” /d. at 19a. For

that reason, the court found that there was no “compelling

need” for the Army’s regulation providing that employees’

salaries must be set by comparison with those at compara-

able public schools.

11

REASONS FOR GRANTING THE PETITION

Review is warranted because the court below incorrectly

decided an issue of considerable importance to the federal

government, and the issue is one on which the courts of

appeals are in conflict.

1. There are “forty-odd federal pay systems which are

not entirely fixed by statute.” Department of Defense De-

pendents Schools v. FLRA, 863 F.2d 988, 989 (D.C. Cir.

1988), reh’g en banc granted (Feb. 6, 1989). Disputes in-

volving employees of the Army’s domestic dependents

schools have spawned decisions by the Second Circuit

(West Point), the Fourth Circuit (United States Depart-

ment of Defense Dependent Schools, Fort Bragg v.

FLRA, 838 F.2d 129, 130 (4th Cir. 1988) (vacated)), and

the Sixth Circuit (Fort Knox Dependent Schools v. FLRA,

No. 87-3395 (May 11, 1989), petition for reh’g en banc

pending (filed June 23, 1989). In addition, the courts of

appeals have considered cases involving teachers at over-

seas dependents schools (Department of Defense Depend-

ents Schools), which are guverned by a different statute

(20 U.S.C. 902) from that governing domestic schools;

civilian mariners employed by the Navy (Military Sealift

Command), whose pay, under 5 U.S.C. 5348, is set by

comparison with mariners employed by private vessels;

electricians employed by the Bureau of Engraving and

Printing (Department of the Treasury, Bureau of Engrav-

ing and Printing v. FLRA, 838 F.2d 1341 (D.C. Cir.

1988)), who are “prevailing rate employees” governed by 5

U.S.C. 5349(a); and employees of the Nuclear Regulatory

Commission (Nuclear Regulatory Commission v. FLRA,

859 F.2d 302 (4th Cir. 1988), reh’g en banc granted (Jan.

6, 1989)), who are excepted from the General Schedule by

42 U.S.C. 2201(d). As these cases illustrate, the forty-odd

categories of federal employees affected by the questions

12

presented here involve a large and diverse group. Whether

they may negotiate over the amount of compensation

(wages and money-related fringe benefits) they receive is a

question of great importance to the employees and their

agencies.

The courts of appeals are split as to the first question

presented — whether compensation is a negotiable “condi-

tion{ ] of employment.” The Third Circuit (Military Sea-

lift Command), the Sixth Circuit (Fort Knox), and the

District of Columbia Circuit (Department of Defense

Dependents Schools) have held that compensation is not

negotiable. The Second Circuit (West Point) and the

Fourth Circuit (Nuclear Regulatory Commission),’ as well

as the court below, have held that compensation is

negotiable. The conflict is express: the court below ac-

knowledged its disagreement with the Third Circuit (App.,

infra, 9a); the District of Columbia Circuit noted that it

was “fully aware of contrary decisions” by the court

below, the Third Circuit, and the Fourth Circuit (863 F.2d

at 994 n.12); and the Sixth Circuit cited the decisions of

the three circuilts that have upheld the FLRA (including

the decision here) while it followed the other two (slip op.

6-7). Although rehearing en banc has been granted by the

District of Columbia and Fourth Circuits, and a petition

for rehearing is pending in the Sixth Circuit, the conflict

can only be resolved by this Court, since the Third Circuit

disagrees with both the Second Circuit and the court below

and the decisions of all three circuits are final.

There is no express conflict on the question whether

compensation-related proposals conflict with manage-

ment’s right to control its budget. The Second Circuit and

> Under the Fourth Circuit’s rules, the panel decision in Nuclear

Regulatory Commission was vacated when rehearing en banc was

granted.

13

the court below have upheld the FLRA’s position that pay

is almost always negotiable despite the management rights

provision, while the three courts holding that pay is not a

negotiable “condition[{ ] of employment” did not reach the

issue. This question should be considered by this Court be-

cause it is closely related to the first question presented:

the budget control clause of the management rights provi-

sion reinforces the view that Congress did not intend com-

pensation-related proposals to be negotiable. Moreover, if

the Court concludes that compensation is a negotiable

“condition[{ ] of employment,” then a decision is needed

with respect to the management rights issue in order to

resolve the dispute in this case and all of the related cases.

The third question presented also warrants considera-

tion by this Court. There is a direct conflict on this ques-

tion — whether there is a “compelling need” for the Army

regulation providing that compensation rates at depend-

ents schools are to be set by comparison with rates at com-

parable public schools. Like the court below, the Second

Circuit in West Point (855 F.2d at 942-943) has agreed

with the FLRA, while the Sixth Circuit held to the con-

trary in Fort Knox, expressly disagreeing with the decision

below and the decision in West Point (slip op. 6-7).*

In addition, most of the cases raising the question

whether compensation is a negotiable “condition[ ] of em-

ployment” involve statutes providing that pay rates are to

be set by comparison with some other group of employees.

See, e.g., Military Sealift Command (Navy civilian

mariners’ pay rates are set by comparison with rates paid

private mariners under 5 U.S.C. 5348); Bureau of Engrav-

* As the Sixth Circuit noted (slip op. 7), the Fourth Circuit in Fort

Bragg, in a decision that was subsequently vacated as moot, also held

that, under Section 241, there is a “compelling need” for the Army's

regulation.

14

ing and Printing (electricians are “prevailing rate em-

ployees” under 5 U.S.C. 5349(a)); Department of Defense

Dependents Schools (overseas teachers’ salaries are set by

comparison with salaries at large urban school districts

under 20 U.S.C. 902). The FLRA’s approach has been to

hold that since each of these statutes grants the agency in-

volved some discretion, virtually any proposal relating to

compensation is subject to negotiation. In our view, how-

ever, Congress’s direction that compensation be set on the

basis of a comparison with other rates of pay is not con-

sistent with such a broad view of negotiability.

Thus, if this Court does not agree with us on the proper

disposition of the first and second questions presented, it

would need to reach the third question in order to resolve

this dispute; moreover, disposition of that question would

also resolve a direct conflict in the circuits and would pro-

vide guidance in many other cases. Accordingly, review is

warranted with respect to all three questions presented.

2. The court of appeals decided each of the three ques-

tions in this case incorrectly.

a. Congress extended collective bargaining in the

federal sector only to “conditions of employment” (5

U.S.C. 7102(2)), which it defined as “personnel policies,

practices, and matters, whether established by rule, regu-

lation, or otherwise, affecting working conditions.” 5

U.S.C. 7103(a)(14). Although the FLRA’s interpretation

* In Fort Knox, the dissenting judge noted (slip op. 13 n.3) that

Congress in 1985 directed the Army to submit, by March 1, 1986, a

plan to transfer the domestic dependents schools to the local school

districts of the States iin which the schools are located. Act of Dec. 3,

1985, Pub. L. No. 99-167, § 824, 99 Stat. 992. However, the Army

found that the States were not anxious to operate the schools, and, in-

stead of submitting a plan to transfer the schools, the Army submitted

a letter to Congress explaining its finding. Thus, there is no current

plan to transfer the schools to the States.

— 15

of the Statute is entitled to deference if that interpretation

is a reasonable reading of an ambiguous provision, a

“straightforward, natural reading of the statutory lan-

guage fails to yield the FLRA’s interpretation, namely that

‘working conditions’ should be read to include ‘wages. Far

from it. The term ‘working conditions’ ordinarily calls to

mind the day-to-day circumstances under which an em-

ployee performs his or her job. Thus, for example, [the

District of Columbia Circuit] has upheld the FLRA’s con-

clusion that matters relating to job safety and office en-

vironment are ‘central’ to an employee’s working condi-

tions. However, it is entirely unclear how an employee's

compensation can be seen as ‘affecting’ such working con-

ditions.” Department of Defense Dependents Schools, 863

F.2d at 990 (citation omitted). Compensation is properly

viewed as a “term” of employment rather than a “condi-

tion” of employment, and the Statute does not make

“terms of employment” negotiable. .

Moreover, because matters of compensation are typical-

ly at the core of collective bargaining in the private sector,

one would expect that any congressional purpose to in-

clude that subject within the scope of collective bargaining

in the federal sector would be clearly expressed. But no

such expression can be found. Thus, the Statute stands in

striking contrast with the two instances where Congress

did make clear its intent to permit federal employees to

bargain over compensation. First, the Postal Reorganiza-

* As the District of Columbia Circuit stated in that case,

“[Djeference is, of course appropriate in a Chevron Step Two

analysis, where the issue would be whether the FLRA’s interpretation

of its own statute is reasonable; but deference is not the correct

analytic mode under Chevron Step One, where our task is to assess in-

dependently the evidence of Congressional intent.” 863 F.2d at 994

n.12. (The court’s reference was to Chevron U.S.A. v. Natural Re-

sources Defense Council, Inc., 467 U.S. 837, 842-843 & n.9 (1984).)

16

tion Act grants to postal workers the right to bargain over

“wages, hours, and working conditions.” 39 U.S.C. 120

note. By referring separately to “wages” and “working

conditions,” Congress showed that it does not consider the

latter to include the former.’

Second, Section 704 of the Civil Service Reform Act of

1978, 5 U.S.C. 5343 note, provides in subsection (a) that

“prevailing rate employees” who bargained over wages and

other matters prior to August 19, 1972, may continue to

bargain over “terms and conditions of employment,” and

in subsection (b) that the “pay and pay practices” subject

to negotiation under the provision are to be negotiated in

accordance with current prevailing practices. If, as the

FLRA has held, the Federal Service Labor-Management

Relations Statute confers on federal employees who are to

be paid according to prevailing practices a general right to

bargain about wages, Congress did not need to enact Sec-

tion 704 in order to create a special rule allowing negotia-

tion by workers in bargaining units that had negotiated

over wages prior to August 19, 1972.

The legislative history of the Statute “is replete * * *

with indications that Congress did not intend to subject

pay of federal employees to bargaining.” Military Sealift

’ Similarly, the National Labor Relations Act (NLRA), 29 U.S.C.

158(d), separates “wages” from “working conditions” in making

“wages, hours, and other terms and conditions of employment”

negotiable. The court below noted that the NLRA refers to other con-

ditions of employment, and concluded that the language of Section

158(d) supports the FLRA’s conclusion that compensation is a “condi-

tion{ } of employment.” App., infra, 8a. However, the NLRA refers

to “other terms and conditions of employment” (emphasis added). We

agree with the District of Columbia Circuit that “other terms * * * of

employment” refers back to “wages,” while “other * * * conditions of

employment” refers back to “hours.” See Department of Defense

Dependents Schools, 863 F.2d at 991 n.3.

17

Command, 836 F.2d at 1417. Representative Ford had

proposed a bill which would have provided for “the nego-

tiation of pay and other major money-related fringe bene-

fits.” See 124 Cong. Rec. 25,721 (1978) (discussing H.R.

9094). And Representative Heftel, during the House Com-

mittee markup of the federal labor statute, introduced a

proposal that would have extended the obligation to

negotiate to “pay practices” and “overtime practices” so

far as “consonant with law and regulation.” House

Comm. on Post Office and Civil Service, Subcomm. on

Postal Personnel and Modernization, 96th Cong., Ist

Sess., Legislative History of the Federal Service Labor-

Management Relations Statute 1087-1088 (1979) (propos-

ing néw Section 7115(b)). “Neither proposal was adopted,

a fact of no little interpretive significance.” Department of

Defense Dependents Schools, 863 F.2d at 992 (citing INS

v. Cardoza-Fonseca, 480 U.S. 421, 442-443 (1987)).

In addition, both the Senate and House Committee

reports state unequivocally that the federal labor statute

does not provide for “bargaining on wages or fringe bene-

fits.” H.R. Rep. No. 1403, 95th Cong., 2d Sess. 12 (1978);

see also S. Rep. No. 969, 95th Cong., 2d Sess. 13 (1978).

Furthermore, every legislator who addressed the issue of

compensation—and there were several (see, e.g., 124

Cong. Rec. 25,716 (1978) (remarks of Rep. Udall); id. at

29,182 (remarks of Rep. Udall); id. at 24,286; id. at 25,720

(remarks of Rep. Clay); id. at 25,721 (remarks of Rep.

Ford); id. at 29,188 (remarks of Rep. Derwinski); id. at

27,549 (remarks of Sen. Sasser))— stated that it was not

negotiable. There is not a single statement in the entire

legislative history to the effect that compensation fell

within the general bargaining duty established by the

federal labor statute.*

* In reaching its conclusion, the court below relied heavily on a

statement of Congressman Clay that when a statute merely vests dis-

The court of appeals suggested that Congress ratified

two decisions of the FLRA’s predecessor, the Federal

Labor Relations Council, which supported the proposition

that federal employees may negotiate over wages not

specifically set by statute. App., infra, 12a-l3a. The

District of Columbia Circuit explained why those deci-

sions do not compel affirmance of the FLRA’s conclusion:

“Although we will normally presume that Congress in-

tends to continue the interpretation accorded to a prior

statute when it substantially re-enacts that law, such a pre-

sumption is plainly inapposite in a situation, such as the

case at hand, where Congress has clearly expressed its in-

tent to the contrary.” Department of Defense Dependents

Schools, 863 F.2d at 993 n.9. Indeed, “[mJore than that,

logic indicates that Congress would not leave to various

federal agencies the authority to expand the budgets and

fiscal limitations placed upon those agencies by requiring

them to bargain about increases in pay and fringe benefits

once budget boundaries were set by the Congress. It is ob-

vious that salary and fringe benefits are the items most

likely to invc!ve substantial overspending if left to collec-

tive bargaining, particularly with respect to a school

system for minor dependents of United States military and

civilian personnel.” Fort Knox, slip op. 5.

cretionary authority over a matter with a particular official, the mat-

ter is subject to bargaining. App., infra, lla (quoting 124 Cong. Rec.

H9638 (daily ed. Sept. 13, 1978)). That statement did not address the

question of compensation. When Representative Clay did address that

question, he twice “assure{d] [his] colleagues that there is nothing in

th{e federal labor statute] which allows Federal employees the right to

*** negotiate over pay and money-related fringe benefits.” 124

Cong. Rec. 25,720 (1978); see also id. at 24,286 (remarks of Rep.

Clay). To read Congressman Clay’s general statement as supporting

the court of appeals’ position thus “puts Congressman Clay at war

with himself over the issue.” Military Sealift Command, 836 F.2d at

1418.

19

b. The court of appeals also erred in holding that the

proposals at issue do not infringe on the Army’s right to

control its budget. The FLRA’s test of negotiability under

the budget control clause of the management rights provi-

sion (Section 7106(a)(1)) requires an agency to “make a

substantial showing that the proposal requires the inclu-

sion of a particular program or amount in its budget or

that the proposal will result in significant and unavoidable

increases in cost not affected by compensating benefits.”

App., infra, 36a. The Army should be held to have satis-

fied that test simply by showing that the Union proposed a

13.5% pay raise for all employees. Yet the court of ap-

peals found that showing insufficient on three grounds,

none of which should be sustained.

First, the court suggested that the Army had failed to

show that the proposals would “necessarily increase [its]

costs.” App., infra, 20a. That observation overlooks the

obvious fact that salaries are a major component of any

school budget and that a 13.5% increase in salaries would

have to increase costs.

Second, the court suggested that any increase in costs

would not be significant. It reached that conclusion only

by comparing the increase in the cost of operating the de-

pendents schools to the Army’s budget as a whole, in-

cluding its budget for armaments. App., infra, 20a. That

approach is plainly flawed. Whether a proposal will cause

a significant increase in costs should be tested by compari-

son with the costs of the program employing the bargain-

ing unit employees, not the entire agency budget. Other-

wise, virtually no proposal could be found to be “signifi-

cant.” That is certainly the case with respect to the depend-

ents schools operated by the Army. Given the size of the

Army’s share of the defense budget, any proposal involv-

ing dependents schools could only amount to a tiny per-

centage of the Army’s total expenditures.

20

Finally, the court stated that the Army had failed to es-

tablish that any increase in costs resulting from the pro-

posals would not be offset by “compensating benefits.”

App., infra, 20a. As an initial matter, it is not clear what

compensating economic benefits might flow from a flat

across-the-board salary increase. Moreover, the require-

ment of such a showing ic contrary to the Statute. The

quintessential decision that any entity, be it a federal agen-

cy or a private party, makes when crafting a budget is

whether the benefits that flow from a given action exceed

its costs. See Exec. Order No. 12,291, 3 C.F.R. 127 (1982)

(requiring cost-benefit analysis for agency actions). A

budget is, in essence, a series of decisions designed to

maximize the benefits obtained from spending a discrete

amount of money. To say that agency management has

the right to determine the agency’s budget is to say that it is

up to management, and management alone, to determine

the best allocation of the agency’s resources.

c. The court of appeals also erred in concluding that

there is no “compelling need” for the Army’s regulation

(Army Reg. 352-3, 1-7) requiring that salaries be set by

comparison with salaries at public schools. The court cor-

rectly noted that because Section 241 is not part of the

Federal Service Labor-Management Relations Statute, the

FLRA’s construction of that provision is not entitled to

deference. App., infra, 13a. However, the court erred in

failing to defer to the Army’s reasonable construction of

the dependents schools statute. See Fort Knox, slip op.

6-7.

Under Section 241(a), the Army must “take such action

as may be necessary to ensure that the education provided

* * * is comparable to free public education provided for

children in comparable communities in the State * * *,

[and] [flor the purpose of providing such comparable

education, personnel may be employed and the compensa-

21

tion * * * fixed without regard to the Civil Service Act and

rules.” In addition, Section 241(e) provides that, “[t}o the

maximum extent practicable,” the Army “shall limit the

total payments made pursuant to any such arrangement _

for educating children * * * to an amount per pupil which

will not exceed the per pupil cost of free public education

provided for children in comparable communities in the

State.” The Army in its regulation has reasonably inter-

preted Congress’s mandate to require that the various

components of an educational system listed in its regula-

tion—including both salary schedules and such items as

pupil-teacher ratios, transportation services, and instruc-

tional equipment and supplies — shall be modeled on those

of comparable public schools. Indeed, it is difficult to con-

ceive how the Army could implement Section 241 without

modeling each major component of dependents schools on

state public schools.

The court of appeals’ suggestion that the Army could

comply with Section 241 while paying salaries significantly

in excess of those paid at public schools (App., in/ra,

18a-19a) is fanciful. Suppose, for example, that a depend-

ents school made major increases in pupil-teacher ratios in

order to maintain the level of per-pupil costs despite a

large salary increase (such as a 13.5% increase), and the

parents of children at the schools charged that the Army

had violated Section 241(a) by failing to provide an educa-

tion “comparable to free public education provided for

children in comparable communities ‘in the State.” The

Army would surely not be able to defend, say, a 40-1 stu-

dent teacher ratio, when comparable public schools had a

20-1 ratio, by showing that it was paying its teachers more

than the going rate.

The 13.5% increase and other money-related requests

proposed here — proposals not even purporting to be based

on practices at public schools in comparable commu-

22

nities — are contrary to both the regulation and .he man-

date of Section 241 and are therefore non-negotiable.® In-

deed, the direct violation of Section 241 that such pro-

posals would entail is itself demonstrative of the “com-

pelling need” for the regulation.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

WILLIAM C. BRYSON.

Acting Solicitor General*

STUART E. SCHIFFER

Acting Assistant Attorney General

DaAviD L. SHAPIRO

Deputy Solicitor General

CHRISTOPHER J. WRIGHT

Assistant to the Solicitor General

WILLIAM KANTER

Rick RICHMOND

Altorneys

JULY 1989

* Chairman Calhoun noted in his dissent from the FLRA’s decision

(App., infra, 46a) that Subproposals A and D of the first proposal

(which appear to be contrary to the request for a 13.5% salary in-

crease in the second proposal) seem to assume that management will

set salaries by comparison with public school salaries. By those pro-

posals, the Union appears only to ask for information concerning the

data the Army collects and for consultation with management con-

cerning salaries. As Chairman Calhoun concluded, those proposals

are not objectionable.

* The Solicitor General is disqualified in this case.

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 87-8734

ForT STEWART SCHOOLS, PETITIONER, CROSS-RESPONDENT

Vv.

FEDERAL LABOR RELATIONS AUTHORITY, RESPONDENT,

CROSS-PETITIONER

Fort Stewart Association of

Educators, Intervenor

Nov. 21, 1988

Before: VANCE and Hatcuett, Circuit Judges, and

Nessitt*, District Judge.

HATCHETT, Circuit Judge:

Fort Stewart Schools (Army) seeks review of a Federal

Labor Relations Authority (FLRA) decision and order

requiring it to negotiate three proposals with the Fort

Stewart Association for Educators (Union). The FLRA

and the Union cross-petition this court to enforce the

FLRA’s decision and order. For the reasons discussed

below, we grant the FLRA’s and Union’s petition to

enforce the FLRA’s order and deny the Army’s petition

for review.

* Honorable Lenore C. Nesbitt, U.S. District Judge for the

Southern District of Florida, sitting by designation.

(la)

2a ;

FACTS

The Army operates two elementary schools for military

and civilian personnel’s dependents (dependents schools)

at Fort Stewart, Georgia. See 20 U.S.C. § 241 (1974 &

Supp. 1988) (Secretary of Education authorized to make

arrangements with federal agencies to operate schools

under certain circumstances). The schools provide free

public education for military and civilian personnel’s

children who reside on the federal property. The Union,

an affiliate of the National Education Association, acts as

the collective bargaining representative for the schools’

ninety-nine teachers and other employees.

During contract negotiations with the Army, the Union

submitted three proposals for bargaining. The first pro-

posal included sections which set mileage reimbursement,

mandated certain insurance programs, and gave the Union

the right to review and comment on salary schedules.' The

second proposal suggested a fixed salary increase of

13.5-percent for the teachers and other employees for the

subsequent school year.? The third proposal detailed

various leave practices such as personal leave, sick leave,

professional teave, maternity leave, and leave without

pay.’ The Army refused to negotiate these three pro-

posals, contending that the proposals did not involve man-

datory bargaining matters.

PROCEDURAL HISTORY

The Union filed a negotiability appeal with the FLRA

seeking a determination that each proposal involved a

' See Appendix A.

? Proposal 2.

The Association and the Employer agree that the salary increase for

all bargaining unit members will be 13.5% for the school year.

> See Appendix B.

3a

mandatory bargaining subject. See § U.S.C. § 7117(c):

(1980). The FLRA agreed with the Union and ordered the

Army to negotiate the three proposals with the Union.‘

In reaching its decision, the FLRA rejected all the

Army’s contentions. First, the FLRA dismissed the Army’s

contention that the proposals do not concern conditions of

employment. The FLRA reiterated its prior conclusion

that the Federal Service Labor-Management Relations Act

(FSLMRA) does not preclude all bargaining over

employee compensation. 5 U.S.C. §§ 7101-7135 (1980).

See Fort Bragg Unit of N.C. Assoc. of Educators, Nat'l.

Educ. Assoc. and Fort Bragg Dependents Schools, Fort

Bragg, N.C., 12 F.L.R.A. 519 (1983) (WESTLAW FLB-

FLRA database) (Congress did not intend to exclude

dependents schools’ employees’ compensation and related

benefits from negotiable conditions of employment in the

FSLMRA). Furthermore, the FLRA found that the pro-

posals involved “conditions of employment” because “the

matters proposed are not specifically provided for by law

and are within the discretion of the [Army]; and . . . the

proposals are not otherwise inconsistent with law, ap-

plicable government-wide rule or regulation, or with an

[Army] regulation supported by a compelling need.”*

American Federation of Government Employees; AFL-

CIO, Local 1897 and Dept. of the Air Force, Eglin Air

Force Base, Florida, 24 F.L.R.A. (No. 41) 377 (1986)

(WESTLAW FLB-FLRA database). Chairman Calhoun

dissented, however, claiming that the duty to bargain does

* The FLRA excluded three sections from its order: Sections L and

M of Proposal | and Section F of Proposal 3. The FLRA held that

these sections involved nonnegotiable matters.

* Alternatively, the FLRA concluded that even if the Army properly

refrained from negotiating the compensation matters, it still had a

duty to negotiate Sections A, C, and D of Proposal | because they did

not involve compensation.

4a

not encompass proposals concerning wages and money-

related fringe benefits absent a clear congressional intent

to make such matters negotiable.

The FLRA also held that the proposals did not interfere

with the Army’s right to determine its budget. The FLRA

concluded that the Army failed to show that the proposals

would significantly and unavoidably increase the Army’s

costs without producing compensating benefits to offset

the alleged costs. See American Federal [sic] of Gov’t

Employees, AFL-CIO and Air Force Logistics Command,

Wright-Patterson Air Force Base, Ohio, 2 F.L.R.A. (No.

77) 604 (1980) (WESTLAW FLB-FLRA database), en-

forced as to other matters sub nom. Dep’t of the Air Force

v. FLRA, 659 F.2d 1140 (D.C.Cir.1981), cert. denied sub

nom., AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443, 71

L.Ed.2d 658 (1982) (interference with the right to set a

budget requires prescribing particular programs or

amount allocated for such programs, or causing inevitable

significant cost increases without any offsetting benefits).

The FLRA rejected the Army’s contention that bargain-

ing Over compensation violates other federal laws. First,

the FLRA determined that the proposals do not conflict

with laws that regulate the solicitation of contract bids in

the procurement process. The procurement laws mandate

that federal agencies award contracts for professional serv-

ices through competitive bidding. 10 U.S.C. § 2304 (1983

& Supp.1988). The FLRA noted that it previously dis-

missed this same claim because procurement law does not

govern teachers and employees in the dependents school

system. See Fort Knox Teachers Assoc. and Board of

Educ. of the Fort Knox Dependent Schools, 27 F.L.R.A.

(No. 34) 203 (1987) (WESTLAW FLB-FLRA database)

(dependent school teachers and employees are federal

government employees rather than independent contrac-

Sa

tors making procurement laws inapplicable to them). Sec-

ond, the FLRA concluded that the proposals do not

violate the Anti-Deficiency Act. The Anti-Deficiency Act

prohibits an agency from obligating itself to pay money

before Congress appropriates funds. 31 U.S.C. § 1341

(1983). Although the proposals obligate the Army to

spend funds for salaries in the succeeding fiscal year, the

FLRA noted that the Army’s obligation accrues only when

the employees earn the salaries. Fort Knox Dependent

Schools, 27 F.L.R.A. at 217. Therefore, the government

will appropriate funds before the Army incurs these

obligations.

Finally, the FLRA ruled that the Army did not establish

a compelling need for its regulation that requires it to pay

dependents schools’ employees a comparable salary to

local public school employees. The FLRA, relying on a

prior decision, held that “nothing in either [20 U.S.C.

§ 241] or its legislative history persuades us that Congress

intended to restrict the [Army’s] discretion as to the par-

ticular employment practices which could be adopted.”

See Fort Knox Teachers Assoc., 27 F.L.R.A. at 216 (com-

parable education requirement in section 241 does not

mandate comparable compensation). Consequently, the

FLRA concluded that the Army failed to demonstrate a

compelling need for its regulation. Moreover, the FLRA

concluded that even if a compelling need existed, the

Army did not show that Sections A through G, and I and

J, of Proposal | conflicted with the Army’s regulation.

The Army brought this petition for review of the

FLRA’s decision and order pursuant to the FSLMRA. See

5 U.S.C. § 7123(a) (1980). In response, the FLRA and the

Union cross-petitioned for enforcement of the FLRA’s

order. See 5 U.S.C. § 7123(b) (1980).

/ 6a

ISSUES

The Army petitions for review of the following issues:

(1) Whether the Army has a statutory duty to bargain

because the Union’s proposals involve “conditions of

employment” within the Army’s discretion; (2) whether the

Army established a compelling need for its regulation that

mandates equality of compensation between employees in

dependents schools and local public schools; and (3)

whether the Union’s proposals interfere with the Army’s

right to determine its own budget.

DISCUSSION

A. Conditions of Employment

The FSLMRA gives federal employees the right to

negotiate over “conditions of employment.” 5 U.S.C.

§ 7102(2) (1980). Conditions of employment include “per-

sonnel policies, practices, and matters, whether estab-

lished by rule or regulation, or otherwise, affecting work-

ing conditions....” 5 U.S.C. § 7103(a)(14) (1980).

Despite this broad definition, Congress has imposed two

limits on the scope of the duty to bargain. First, the term

“conditions of employment” excludes any matters

“specifically provided for by Federal Statute.” 5 U.S.C.

§ 7103(a)(14)(C) (1980). Second, the duty to bargain ex-

cludes matters that conflict with “any Federal law or

Government-wide rule or regulation,” or any agency

regulation for which a compelling need exists. 5 U.S.C.

§ 7117(a)(2) (1980).

The Army contends that “conditions of employment” in

the FSLMRA do not include wages and money-related

benefits. The Army further contends that even if the term

“conditions of employment” is ambiguous, the Union’s

proposals conflict with federal law, excluding them from

7a

the statutory duty to bargain. The Union and the FLRA

contend that the Army has a duty to negotiate the Union’s

proposal because the proposals involve conditions of

employment within the Army’s discretion.

1. Congressional Intent: FSLMRA’s Language and Legislative

History

Relying on prior decisions, the FLRA determined that

the FSLMRA does not prohibit bargaining over compen-

sation and fringe benefits under the following conditions:

the agency has discretion over such matters; Congress has

not specifically provided for these matters; and the pro-

posals do not conflict with law, government-wide rule or

regulation, or an agency regulation for which a compelling

need exists. Fort Knox Teachers Assoc. and Fort Knox

Dependents Schools, 28 F.L.R.A. (No. 29) 179 (1987)

(WESTLAW, FLB-FLRA Database). Because this FLRA

decision is within its authority, we must defer to its conclu-

sion unless it is “arbitrary, capricious, an abuse of discre-

tion, or otherwise not in accordance with law.” 5 U.S.C.

§ 706(2) (1977); West Point Elementary School Teachers

Assoc. v. FLRA, 855 F.2d 936, 939-40 (2d Cir.1988); see

Library of Congress v. FLRA, 699 F.2d 1280, 1289

(D.C.Cir.1983) (“Congress has specifically entrusted the

[FLRA] with the responsibility to define the proper sub-

jects for collective bargaining [under the FSLMRA\J,

drawing upon its expertise and understanding of the

special needs of the public sector labor relations.”)

Our examination of the FSLMRA and its legislative

history supports the FLRA’s conclusion. The FSLMRA

defines conditions of employment as “personnel policies,

practices and matters ... affecting working

conditions... .” 5 U.S.C. § 7103(a)(14) (1980). This

definition alone does not exclude compensation and fringe

benefits.

The Army, however, argues that a comparison between

the FSLMRA and the National Labor Relations Act

(NLRA) reveals that “conditions of employment” do not

include wage and fringe benefits. The NLRA allows

bargaining over “wages, hours and other terms and condi-

tions of employment.” 29 U.S.C. § 158(d) (Supp. 1988)

(emphasis added). The Army urges that “conditions of

employment” in the FSLMRA encompasses a narrower

range of bargainable matters than the NLRA terminology

because the FSLMRA did not specifically list wages and

hours as bargainable matters. In contrast to the Army’s

position, the absence of the terms “wages” and “hours”

from the FSLMRA does not prove that Congress intended

to exclude them from negotiations. Rather, the NLRA’s

description of bargainable matters supports the FLRA’s

position. By using the word “other,” Congress included

wages and hours in the general category of “conditions of

employment.” Congress likely specified “wages” and

“hours” in the NLRA merely to illustrate the meaning of

the new term “conditions of employment.” In_ the

FSLMRA, Congress simply used the general term “condi-

tions of employment,” which encompasses wages, to

define the scope of negotiable matters.

The Army further argues that another section of the

FSLMRA demonstrates that Congress did not intend con-

ditions of employment to include wages. The Civil Service

Reform Act of 1978, which includes the FSLMRA,

specifically provides that the FSLMRA does not apply to

prevailing rate employees who had negotiated over pay

prior to August 19, 1972, to the extent that any of the

FSLMRA’s provisions conflict with their negotiation prac-

tices. The Army contends that this section serves no pur-

pose if the FSLMRA authorizes employees, whose wages

Congress did not set, to bargain for wages. The legislative

9a

history demonstrates that this section serves a purpose

even if the FSLMRA allows bargaining over wages. Con-

gressman Ford stated this section’s purpose: “This provi-

sion is required because of two recent rulings by the

Comptroller General which ... held that specific

legislative authorization was necessary for these employees

to continue to negotiate such provisions in accordance

with prevailing private industry practice.” 124 Cong. Rec.

H8468 daily ed. Aug. 11, 1978) (remarks of Rep. Ford).

Thus, this provision clarifies and extends the exemption

from the prevailing rate act for such employees. American

Federal of Government Employees, 24 F.L.R.A. at 380.

Turning from the FSLMRA’s language to its legislative

history, the Army argues, citing the Third Circuit, that

Congress did not intend to allow bargaining over compen-

sation. The Third Circuit recently held that Congress did

not intend the FSLMRA to allow bargaining over the

Navy’s pay practices for the Military Sealift Command’s

(MSC) civilian mariners. Dep’t. of the Navy, Military

Sealift Command v. FLRA, 836 F.2d 1409 (3d Cir.1988).

The court found that section 5348 of the prevailing rate

system specifically gives the Navy limited discretion over

the MSC’s pay practices. Dep’t. of the Navy, 836 F.2d at

1410. Because bargaining over such pay practices is out-

side the Navy’s discretion, such negotiation would conflict

with law, excluding the matters from the duty to bargain.

The court examined the FSLMRA’s legislative history to

determine if Congress intended the FSLMRA to supersede

section 5348 and subject the MSC’s pay practices to collec-

tive bargaining. Dep’t. of the Navy, 836 F.2d at 1417. The

court concluded that Congress did not intend the

FSLMRA to allow federal employees to negotiate over

compensation. Dep’t. of the Navy, 836 F.2d at 1419.

In contrast, the Second Circuit implicitly adopted the

FLRA’s conclusion that the FSLMRA does not bar

10a

neguiiation of proposals involving compensation and

fringe benefits. See West Point Elementary School

Teachers Assoc., at 942. The court concluded that “condi-

tions of employment” in the FSLMRA included wage and

fringe benefit proposals when the federal government did

not specifically provide for such matters. West Point

Elementary School Teachers Assoc., at 942.

Despite the Third Circuit’s holding that Congress did

not intend the FSLMRA to allow federal employees to

bargain over wages, we agree with the FLRA and the Sec-

ond Circuit that Congress did not intend to preclude all

bargaining over compensation. The legislative history in-

dicates that Congress intended to treat wages and fringe

benefits as other conditions of employment; the parties

must bargain over them unless a federal statute specifically

provides for them or the proposed matters would conflict

with law. See § U.S.C. §§ 7103(a)(14)(C) and

7117(a)(1)(1980). Because federal law dictates nearly all

federal employees’ wages, the legislative history contains

many general statements claiming that the FSLMRA does

not make wages negotiable. See 5 U.S.C. § 5341-5349

(1980 & Supp.1988).

A close examination of the congressional reports and

debates reveals that the FSLMRA’s supporters made these

statements with the understanding that Congress generally

regulates such matters through its prevailing rate acts, not

with the understanding that the FSLMRA barred all wage

negotiations. The House Report on the Committee’s bill

provides: “Federal pay will continue to be set in accord-

ance with the pay provisions of title 5, and fringe benefits,

including retirement, insurance, and leave, will continue

to be set by Congress.” H.R.Rep. No. 95-1403, 95th

Cong., 2d Sess. 12 (1978). Congressman Udall, the spon-

sor of the amended version which Congress ultimately

enacted into law stated, “[t}here is not

in this bill or in this title - hae per bendy ceeray

ing for wages and fringe benefits and retirement. rr

these major regulations about wages and hours and retire-

ment and benefits will continue to be established by law

through congressional action.” 124 Cong.Rec. H9633

(daily ed. Sept. 13, 1978) (remarks of Rep. Udall);

reprinted in Subcomm. on Postal Personnel and Moder.

nization of the House Comm. on Post Office and Civil

ere 96th Cong., Ist Sess., Legislative History of the

al Service Labor-Management Relations Statute, Ti-

tle VII of the Civil Service Reform Act of 1978. at 923

(1979) [hereinafter Legislative History]. Moreover, Con-

gressman Ford who strenuously advocated the bill’s adop-

tion stated: “[NJo matters that are governed by statute

(such as pay, money-related fringe benefits, retirement

and so forth) could be altered by a negotiated agreement.”

124 Cong.Rec. H8468 (daily ed. Aug. 11, 1978) (remarks

of Rep. Ford); Legislative History at 855-56 (emphasis

added). Finally, Congressman Clay, supporting Con-

gressman Udall’s substitute legislation, stated:

Section 7103(a)(14)(D), removing from subjects of

bargaining those matters specifically sauetiel Oe by

Federal Statute, was adopted by the committee and re-

tained in the Udall substitute with the clear under-

standing that only matters “specifically” provided for

by statute would be excluded under this subsection.

Thus, where a statute merely vests authority over a

particular subject with an agency official with the of-

ficial given discretion in exercising that authority, the

particular subject is not excluded by this subsection

from the duty to bargain over conditions of employ-

ment.

124 Cong.Rec. H9638 (daily ed. Sept. 13, 1978) (remarks

of Rep. Clay); Legislative History at 933. Thus, although

12a

some legislators’ remarks baldly assert that wages are not

negotiable, the above comments indicate that the

legislators merely were assuring their peers that the

FSLMRA would not supplant specific laws which set

wages and benefits.

The legislative history additionally demonstrates that

Congress intended the FSLMRA to continue the existing

practices regarding the negotiation of wages. Con-

gressman Clay stated that “employees still . . . cannot

bargain over pay.” 124 Cong. Rec. E4293 (daily ed. Aug.

3, 1978) (remarks of Rep. Clay); Legislative History at 839

(emphasis added). Similarly, Congressman Devinski

stated that wages and fringe benefits remained beyond the

scope of collective bargaining. 124 Cong.Rec. H9639

(daily ed. Sept. 13, 1978) (remarks of Rep. Devinski);

Legislative History at 935.

One such existing practice allowed federal empldyees t0

negotiate wages in the rare instances where Congress did

not specifically establish wages and fringe benefits.

American Fed’n of Gov’t Employees, 24 F.L.R.A. at 381;

see United Fed’n of College Teachers, Local 1460 and U.S.

Merchant Marine Academy, 1 FLRC 211 (1972) (Federal

Labor Relations Council (FLRC) held that the academy’s

teachers could bargain for their wages because their pro-

posals did not violate the laws giving the Secretary of

Commerce discretion to set their salaries); Overseas Educ.

Assoc., Inc. and Dept. of Defense, Office of Dependents

Schools, 6 FLRC 231 (1978) (the duty to bargain encom-

passed proposals involving procedures and formulas for

setting teacher compensation because the federal act

governing these teachers’ pay did not bar negotiation on

the proposals). Congress should have known of this prac-

tice because the FSLMRA specifically mandates that deci-

sions under Executive Order 11941 continue in effect

l3a

unless superceded [sic]; the FLRC administered the

es sic}; above

Ne under this executive order. 5 U.S.C. § 7135(b)

a ey ap we -_ with the FLRA that Con-

to preclude bargaini

related benefits. eect

2. Relationship of the Union's Proposals to Federal Law

; As mentioned above, the FSLMRA excludes from con-

ditions of employment any matters provided for by federal

Statute or inconsistent with federal law. $ U.S.C

§§ 7103(a\(14(C) & 7117(a\(2) (1980). Although the

federal prevailing rate act sets wages for most federal

employees, the statute creating the Fort Stewart schools

specifically excludes the schools’ employees from these

federal laws. See 20 U.S.C. § 241. The Army contends

however, that federal law still provides for these

employees’ wages and benefits. The Army argues that sec-

tion 241 specifically sets compensation and leave practices

for these employees because this section requires it to com-

pensate the dependents schools’ employees according to

local public school practices. The FLRA concluded that

section 241 does not require the Army to equalize the

dependents school employees’ and local school employees’

compensation. We need not defer to the FLRA’s conclu-

sion, however, because such deference only applies when

the FLRA interprets the FSLMRA. See West Point

Elementary School Teachers Assoc., at 940; Dep't. of

Treasury v. FLRA, 837 F.2d 1163, 1167 (D.C.Cir.1988)

(courts need not defer to FLRA decision interpreting a

statute other than the FSLMRA).

Section 241 requires that the Army “to the maximum ex-

tent practicable” provide a comparable education to local

public schools at a cost per pupil not exceeding the per

pupil cost of free public education in local communities.

l4a

20 U.S.C. § 241(a) & (e) (1974 & Supp. 1988). The Second

Circuit recently held that these provisions did not

specifically set the dependents schools’ teachers’ salaries

because the Army could maintain cost parity and educa-

tional comparability despite wide variations in teachers’

salaries; consequently, the Second Circuit concluded that

the Army had a duty to bargain over a salary proposal.

West Point Elementary School Teachers Assoc., at 943.

We agree with the Second Circuit that section 241 does

not specifically provide for the schools’ teachers’ and other

employees’ wages. First, section 241 as a whole

demonstrates that the Army has wide discretion to set

these employees’ salaries. The third sentence of section

241(a) requires dependents schools outside the continental

United States, Alaska, and Hawaii to provide a “com-

parable education” to free public schools in the District of

Columbia. 20 U.S.C. § 241(a) (Supp.1988). In 1978, Con-

gress added another sentence to section 241(a) which

reads: “Personnel provided for under this subsection out-

side of the continental United States, Alaska, and Hawaii,

shall receive such compensation, tenure, leave, hours of

work, and other incidents of employment on the same

basis as provided for similar positions in the public schools

in the District of Columbia.” 20 U.S.C. § 241(a)

(Supp. 1988). Interpreting “comparable education” to in-

clude comparable salaries would make the additional

sentence redundant.

The Army avgues that this sentence is not redundant if

“comparable education” includes comparable wages, but

rather, the sentence is unnecessary if comparable educa-

tion did not incorporate comparable salaries. According

to the Army, Congress amended section 241 because it

wanted to raise the Puerto Rican dependents school

employees’ salaries above the local schools’ insufficent

lSa

wages. The Army argues that Congress could have raised

their salaries without amending section 241 if this section

wath ne deh epost orm enema

not have needed to amend section 241 to raise the Puerto

Rican schools’ employees’ pay. Section 241 already re-

quired the Army to provide the schools outside the United

States with a comparable education to the District of Co-

lumbia’s public schools; therefore, Congress did not need

to add the new sentence if Congress only intended to raise

the schools’ salaries. Rather, Congress added this sentence

to correct the existing pay practices which “invite{d] abuse

but not specifying personnel practices, especially regard-

ing salary. . . .” H.R.Rep. No. 1137, 95th Cong., 2d Sess.

108, reprinted in 1978 U.S.Code Cong. & Admin.News

4971, 5078. Consequently, if comparable education in-

cluded comparable salaries, Congress would not have

needed to pass this amendment. We decline to construe the

Statute to render this provision mere surplusage. See

United States v. Wang Kim Bo, 472 F.2d 720, 722 (Sth

costae should not construe statutes to make

w or surpl where

included the words). sn ee

Second, the legislative history demonstrates that Con-

gress did not intend comparable education to require iden-

tical salaries. In 1959, the Comptroller General issued a

decision holding that under section 241 as it existed at that

time, the Army could not compensate West Point teachers

according to teachers’ salaries in a neighboring city. In

response to the Army’s legislative proposals to change this

ruling, Congress amended section 241 in 1965 to provide:

“For the purpose of providing such comparable education,

meee

l6a

personnel may be employed and the compensation,

tenure, leave, hours of work and other incidents of the

employment relationship may be fixed without regard to

the Civil Service Act and rules. . . .” 20 U.S.C. § 241(a)

(1974 & Supp. 1988) (emphasis added). By choosing the

term “may,” Congress did not require the military depart-

ments to establish compensation in accordance with local

public schools, but merely gave military departments the

discretion to deviate from the prevailing rate act and

establish compensation in such manner.

A senate report similarly demonstrates that section 241

accompanying the 1965 amendment illustrates that Con-

gress amended section 241 in response to the Army's re-

quest to compensate teachers comparable to the teaching

profession rather than to local school practices. S.Rep.

No. 311, 89th Cong., Ist Sess., reprinted in 1965 U.S.

Code Cong. & Admin. News 1910, 1913. The Army ex-

plained that the federal pay acts did not practically accom-

modate the teaching profession: teachers’ salary schedules

are set on a school-year basis while the federal pay acts set

salaries on a calendar year; federal employees receive over-

time pay but teachers receive fixed amounts for extracur-

ricular activities; and teachers do not observe the forty-

hour work week of most federal employees. See 1965

U.S.Code Cong. & Admin.News at 1913. Because of these

differences, the Army concluded: “Based upon the

Department’s experience in operating [dependents]

schools, it is highly desirable that the personnel practices

for instructional personnel be patterend after those usually

encountered in the teacher profession rather than those

which have been developed for the Federal Service as a

whole.” 1965 U.S.Code & Admin. News at 1913. Thus,

Congress amended section 241 to allow the Army to com-

pensate its teachers in accordance with the entire teaching

EE —y———————— lll

17a

profession rather than mandating it to adhere to the local

public schools’ pay practices.

We conclude that section 241 does not compel the Army

to follow local public schools’ pay practices, therefore, the

Army has discretion for setting the dependents schools’

employees’ salaries. Because the Army has such discretion,

the Union’s proposals do not conflict with or involve mat-

ters specifically set by law. Consequently, we hold that the

Union’s compensation and fringe benefits proposals in-

a conditions of employment subject to the duty to

gain.

B. Compelling Need

As stated above, no duty to bargain exists over pro-

posals that conflict with an agency regulation for which a

compelling need exists. 5 U.S.C. § 7117(a)(2) (1980). The

Army contends that the Union’s proposals conflict with

Army Regulation 352-3, 1-7 and that a compelling need

exists for this regulation. This regulation requires the

dependents schools’ salary schedules to equal those of the

local schools “to the maximum extent practicable.”*

* This regulation provides:

1-7. Comparison factors. Education provided pursuant to the

provisions of Section 6 for children residing on Federal property

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:

a. Qualifications of professional and nonprofessional per-

b. Pupil-teacher ratios.

c. Curriculum for grades offered, including kindergarten and

summer school, if applicable.

d. Accreditation by State or other accrediting association.

e. Transportation services (student and support).

f. Length of regular and/or summer term(s).

18a

Because some of the Union’s proposals conflict with this

regulation, we must decide whether a compelling need ex-

ists for this regulation.’

The FLRA and the Second Circuit have concluded that

no compelling need exists for this regulation. A compel-

ling need exists if the “rule or regulation is essential, as

distinguished from helpful or desirable, to the accomplish-

ment. . . of functions of the [Army]. . . . [or] the rule or

regulation implements a mandate to the [Army]. . . under

law ... which implementation is essentially nondiscre-

tionary in nature.” 5 C.F.R. § 2424.11(a) & (c) (1986). We

agree with the FLRA and the Second Circuit that Army

Regulation 352-3, 1-7 does not “implement a mandate to

the Army” because as discussed above, section 241 does

not require the Army to compensate its school employees

according to local public school practices. Accord West

Point Elementary School Teachers Assoc., at 943. Similar-

ly, this regulation is not “essential” to the Army providing

a comparable education at a comparable cost per pupil. As

the Second Circuit recently concluded, the Army can

achieve both of these goals notwithstanding large varia-

tions in the employees’ wages because many expenses

beyond their salaries enter into the per pupil expenditures.

g. Types and numbers of professional and nonprofessional posi-

tions.

h. Salary schedules.

i. Conditions of employment.

j. Instructional equipment and supplies. Army Regulation AR

352-3, 1-7. '

’ After deciding that no compelling need exists for the Army’s

regulation, the FLRA concluded that the Army did not show that Sec-

tions A through G, I and J of Proposal | conflicted with the regula-

tion. Because we find that no compelling need exists for this regula-

tion, we need not address whether these sections conflict with the

Army regulation.

19a

West Point Elementary School Teachers Assoc., at 943.

For example, books, building maintenance, athletic pro-

grams, clubs, and lunch services also enter into this

calculation. Many factors other than teachers’ compensa-

tion also affect the quality of educatior.. Moreover, sec-

tion 241 requires equality only to the maximum extent

possible, not exact equality. Consequently, the Army has

not established a compelling need for this regulation.

C. Army’s Right to Set its Budget

The Army finally contends that the Union’s proposals

infringe upon its right to set its budget. The FLRA con-

cluded that the Army failed to demonstrate that the

Union’s proposals interfere with its right to determine its

budget. We must give deference to the FLRA’s decision

because this decision involves the application of the

FSLMRA. See 5 U.S.C. § 7106(a)(1) (Army has a right to

set its budget); see also Bureau of Alcohol, Tobacco and

Firearms v. FLRA, 464 U.S. 89, 97, 104 S.Ct. 439, 444, 78

L.Ed.2d 195 (1983) (FLRA is entitled to considerable

deference when it applies the FSLMRA io federal labor

relations disputes). Further, we accept the FLRA’s find-

ings of fact because the record as a whole provides

substantial evidence to support such findings. See 5

U.S.C. § 7123(c) (1980).

In West Point, the Second Circuit rejected the Army’s

contention that a salary proposal interfered with its right

to set its budget. The court noted that the proposal did not

specify particular salary figures and that the proposal

would not necessarily increase the Army’s costs. West

Point Elementary School Teachers Assoc., at 944. Conse-

quently, the court deferred to the FLRA’s decision that the

proposal violated such right.

20a

We similarly defer to the FLRA’s decision that the

Union’s proposals do not invade the Army’s right to make

its budget. A proposal does not infringe on an agency’s

right to determine its budget merely because the proposed

matter will increase the agency’s costs. AFGE and Air

Force Logistics Command, 2 F.L.R.A. at 607. Rather, an

agency must show either that the proposals “(1) prescribe

the particular programs or operations the agency would

include in its budget or . . . prescribe the amount to be

allocated in the budget,” or (2) would cause significant and

unavoidable cost increases without creating any compen-

sating benefits. AFGE and Air Force Logistics Command,

2 F.L.R.A. 604. The FLRA concluded that the Army did

not demonstrate that the proposals would cause substan-

tial and unavoidable cost increases.

The evidence supports this conclusion. The proposals

would not necessarily increase the Army’s costs; the Army

did not specify any amount by which the proposed matters

would increase its budget. Further, any increase in the

employees’ salaries would not significantly increase the

Army’s budget; the Army concedes that its budget includes

bases, troops, weapons, vehicles, other equipment,

salaries for all other officers, and expenses for its eight

other schools. Finally, the Army did not establish that no

compensating benefits would offset such costs even if its

costs increased. Therefore, we defer to the FLRA’s deci-

sion because the record supports the FLRA’s conclusions

and hold that the Army failed to establish that the Union’s

proposals would interfere with its right to determine its

budget.

CONCLUSION

For the above reasons, we hold that the Union’s pro-

posals concerning compensation and fringe benefits in-

2la

volve conditions of employment within the agency’s discre-

tion, Creating a statutory duty to bargain. Furthermore, we

conclude that the FLRA properly found that the Army did

not establish a compelling need for its regulations. Finally,

we hold that the FLRA properly held that the Union’s pro-

posals did not interfere with the Army’s right to determine

rte ee . Conseq , uently, we grant the FLRA’s and the

s 10n to enforce the FLRA’

the Army’s petition for review. ss saleataae

AFFIRMED.

APPENDIX A

Proposal 1

Article 25: Salary and Benefits

A. The salary schedule shall be subject to annual

review beginning approximately the 15th of

December of each year. The Association shall be

consulted in the review. Employer will maintain

salaries on a competitive level with comparable

school districts. The comparable school districts

which shall be used for salary and fringe benefits

comparison purposes shall be Liberty and

Chatham Counties and Atlanta City Schools.

B. The ceiling for years of experience shall be ex-

tended from 16 to 20 years.

C. Pay lanes on the salary schedule shall be

established for each category of teachers at Fort

Stewart Schools justified by the results of a wage ~

survey system conducted by the Employer.

D. A copy of all data collected shall be provided to

the. Association for independent analysis. The

Employer shall consult the Association to ex-

plain its analysis and attempt to resolve any dif-

ferences of opinion before the salary schedule is

developed.

22a

All increases on the salary schedule shall be ap-

plied across the board.

The salary schedule shall reflect the cost of living

increase no later than thirty (30) days after it is

released by the Federal government.

. Completion of Higher Level Education

1. A teacher who completes the advanced

education required to qualify for a salary

under a higher education salary schedule

shall be assigned the higher salary rate

retroactive to the Ist day of the school year

preceding the date the education was com-

pleted. Such adjustment shall be made upon

receipt of written documentation in which

the college or university concerned specifies

the date when the teacher completed the ad-

vanced education, or the date when the

teacher met the requirements for a specific

degrec.

Maintain procedure for development of salary

schedule for all unit members who are on the

civil service pay scales.

Summer school salaries shall be based on the

unit member’s regular hourly rate of pay.

Any unit member whose employment is ter-

minated by the Employer will be given a lump

sum payment for unused sick leave.

Mileage Reimbursement

The use of personally owned vehicles for

authorized school business shall be reimbursed

at the rate of 40 cents per mile.

23a

L. Health Insurance

The Employer shall pay the full amount of

health insurance premium for each unit member

who elects to participate in the health insurance

program. The Employer will pay the premium

for the family coverage portion in the health

benefit program if the unit member desires this

M. Life Insurance Benefit

The Employer shall pay the full amount of life

insurance preisium for each unit member. The

coverage shall be the basic life insurance plan.

Unit members shall have the option to pay the

i for any additional insurance options

elected.

N. Unit members will continue to receive all health

benefits currently held which have not been spe-

cifically enumerated in previous articles of this

Agreement.

O. Any subsequent benefits provided to the Federal

service in health benefits, insurance benefits,

disability and retirement, sick leave, and workers

compensation shall automatically accrue to the

unit members.

APPENDIX B

Proposal 3

Article 11: Leave

Section 1. Sick and annual leave for Unit Members

whose services are required for twelve (12) months

will accrue and be granted in accordance with the An-

24a

nual and Sick Leave Act of 1951, as amended 5 USC

Chapter 63 and applicable Civilian Personnel Regula-

tions.

Section 2. Sick leave, annual leave, administrative,

and other types of leave for those Unit Members

whose services are not required for twelve (12)

months will be administered as follows:

A.

Sick Leave. Unit members shall accumulate sick

leave at a rate of four (4) hours per pay period

not to exceed thirteen (13) days shall be ac-

credited to Unit Members at the beginning of the

school year. Sick leave will accumulate without

limit and can be taken for any time during the

school year, but payment for sick leave taken in

excess of that earned will be recovered. No ac-

crued sick leave shall be carried over to any suc-

ceeding period when there is a break in federal

employment in excess of three (3) continuous

years.

1. Sick leave will be granted for the following

purposes:

(a) medical, dental or optical examination or

treatment;

(b) sickness or injury;

(c) medical disability connected with pregnan-

cy,

es

7

25a

(d) exposure to a contagious disease;

(e) illness of a member of the immediate family

or near relative who resides in the same

household or for whom the employee is. finan-

cially responsibl-;

(f) death of an immediate family member or

near relative.

2. As used in this section, immediate family

shall mean spouse, grandparent, parent-in-law,

child, grandchild, or sibling. Near relative shall

include immediate family and extend to first

cousin, aunt, uncle, niece, nephew, brother-in-

law, daughter-in-law, or son-in-law.

3. In the cases requiring a substitute teacher,

absence chargeable to sick leave will be for not

less than four (4) hours. When no substitute is

employed, sick leave will be taken in multiples of

one hour. The decision as to whether a substitute

is required shall be made solely by management

officials.

4. Unit members must obtain approval from

the principal before sick leave that has not been

accrued can be used.

5. Unit members may be required to provide a

doctor's statement in the case of a period of

absence which exceeds five (5) consecutive days.

6. Upon retirement, credit for unused sick

leave shall be administered in accordance with

FPM Supplement 831-1 Subchapter $3-7.

7. The Employer and Association shall meet by

November fifteen (15) to discuss the establish-

ment of a sick leave bank.

26a

B. Personal Leave

1. During any school year, a unit member may

utilize up to a maximum of three days of ac-

cumulated sick leave for personal reasons.

Notification of the use of such leave will be made

one (1) day in advance. Two (2) days of personal

leave may be carried over to the next year for a

maximum of five (5) personal days.

2. No personal leave will be taken on the day

before or immediately after spring vacation,

testing days, nor on inservice days or conference

days unless such leave has been approved by the

Superintendent.

3. Personal leave will be for not less than four

(4) hours in those cases where a substitute

teacher is employed. When no substitute is

employed, personal leave will be taken in

multiples of one hour. The decision as to

whether a substitute is required shall be made

solely by management officials.

Professional Leave of Absence. Professional

leave of absence may be granted by the

Employer subject to the following:

1. After five (5) years of continuous service at

Fort Stewart, sabbatical leave of absence

without pay may be granted for up to one (1)

employee per school year at the discretion of the

Employer. Such leave shall be granted for the

purpose of advanced study, research, profes-

sional writing, or other experience of recognized

value in an employee’s restrictive field.

2. Applications will be submitted to the

Superintendent of Schools not later than | April

27a

of the school year prior to the year th. leave is to

be taken. Applications will include:

(a) reason for leave;

(b) proposed length of time;

(c) where leave will be spent;

(d) outline of studies or activities to be taken.

3. Professional leave of absence will normal

be granted for one (1) school . Lea :

granted for a semester. 4 —-

4. While in a leave status, employees will not

be eligible to accrue sick leave but will be entitled

upon return to duty to any sick leave accrued

prior to the professional leave. Upon return to

duty, the employee will be entitled to advance

one (1) step on the salary schedule, if the studies

Or activities as proposed when the leave was

granted have been completed.

5. Unit members will not accrue seniorit

y but

will be entitled upon return to duty any seniority

accrued prior to the professional leave.

6. While in a leave status employees may con-

tinue their participation in the health and life in-

surance programs by payment of required

premiums.

7. Unit members may utilize i

up to a maxim

of five (5) days with pay per school year for

re — such as school visita-

. erences, workshops. Approval

for the above leave shall be granted by the

Superintendent.

Court Leave. Employees serving on j

jury dut

or subpoenaed to court shell be carried on court

leave without financial loss or loss of sick or an-

nual leave.

1. An employee on court leave may not receive

fees for jury service on regular workdays in a

Federal court. The employees may receive and

retain fees for such duty performed on non-

workdays or on holidays on which the employee

would otherwise have been excused from work.

2. An employee on court leave will accept fees

received from state or municipal courts and turn

them in to the Civilian Pay Section of Fort

Stewart Finance and Accounting Office. The

employee may retain pay received for travel and

subsistence expenses. Fees received for jury duty

service performed outside normal duty hours or

on holidays on which the employee would other-

wise have been excused may be retained.

Maternity/Paternity/Adoption Leave. Mater-

nity, paternity, and adoption leave will be ad-

ministered as follows:

1. For female employees having a child, ac-

cumulated sick leave may be used one and one

half (1%) months prior to having the child upon

presentation of a certificate of incapacity. Once

the child is delivered the employee may use sick

leave up to a period of one and one half (1%)

months after the child is delivered. Once the one

and one half (1%) months of sick leave have

been exhausted and the employee still desires

further time away from work, the employee will

be granted leave without pay. In no case will

leave without pay be granted for more than one

(1) year.

F.

2. For male employees who desire to stay at

home with their child, leave without pay may be

granted for a period not to exceed one (1) year.

A male employee may also make use of personal

leave (see Section 1, paragraph b of this Article)

for paternity leave.

3. For any employee who desires to stay at

home with an adopted child, leave without pay

may be granted for a period not to exceed one (1)

year. Leave without pay may be taken prior to

finalization of the adoption if such leave is

necessary to take part in court proceeding or

other action relating to the adoption. Personal

Leave (Section 1, paragraph b of this Article)

may also be utilized.

4. An employee shall make known intent to re-

quest leave including the type of leave, approx-

imate dates, and anticipated duration to allow

the Employer to prepare for any staffing ad-

justments which may be necessary.

Leave Without Pay (L WOP).

1. LWOP is requested by an employee and may

be approved at the discretion of the immediate

supervisor.

2. Leave without pay may be granted to unit

members for the following reasons:

(a) educational leave or travel;

(b) such other reasons as are approved by the

Superintendent

3. The minimum charge of LWOP is one (1)

ee

r.

Wa

4. Maximum amount of LWOP that may be

taken during one (1) school year is one (1) month

except as provided in Section 1, paragraph 3

(Maternity/Paternity/Adoption Leave).

APPENDIX B

UNITED STATES OF AMERICA

Case No. 0-NG-1071

Fort STEWART (GEORGIA) ASSOCIATION OF EDUCATORS

UNION

AND

Fort STEWART SCHOOLS

AGENCY

DECISION AND ORDER ON NEGOTIABILITY ISSUES’

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) and concerns the negotiability of

three proposals.

Il. Proposals 1 and 2

Proposal |

Article 25: Salary and Benefits

A. The salary schedule shall be subject to annual

review beginning approximately the 15th of

December of each year. The Association shall be

‘ Chairman Calhoun filed a separate opinion agreeing in part and

dissenting in part from the decision in this case.

32a

consulted in the review. Employer will maintain

salaries on a competitive level with comparable

school districts. The comparable school districts

which shall be used for salary and fringe benefits

comparison purposes shall be Liberty and

Chatham Counties and Atlanta City Schools.

The ceiling for years of experience shall be ex-

tended from 16 to 20 years.

Pay lanes on the salary schedule shall be

established for each category of teachers at Fort

Stewart Schools justified by the results of a wage

survey system conducted by the Employer.

A copy of all data collected shall be provided to

the Association for independent analysis. The

Employer shall consult the Association to ex-

plain its analysis and attempt to resolve any dif-

ferences of opinion before the salary schedule is

developed.

All increases on the salary schedule shall be ap-

plied across the board.

. The salary schedule shall reflect the cost of living

‘increase no later than thirty (30) days after it is

released by the Federal government.

. Completion of Higher Level Education

1. A teacher who completes the advanced

education required to qualify for a salary

under a higher education salary schedule

shall be assigned the higher salary rate

retroactive to the Ist day of the school year

preceding the date the education was com-

pleted. Such adjustment shall be made pon

receipt of written documentation in which

the college or university concerned specifies

33a

the date when the teacher completed the ad-

vanced education, or the date when the

teacher met the requirements for a specific

degree.

H. Maintain procedure for development of salary

schedule for all unit members who are on the

civil service pay scales.

Summer school salaries shall be based on the

unit member’s regular hourly rate of pay.

Any unit member whose employment is ter-

minated by the Employer will be given a lump

sum payment for unused sick leave.

Mileage Reimbursement

The use of persona!liy owned vehicles for

authorized school business shall be reimbursed

at the rate of 40¢ per mile.

Health Insurance

The Employer shall pay the full amount of

health insurance premium for each unit member

who elects to participate in the health insurance

program. The Employer will pay the premium

for the family coverage portion in the health

benefit program if the unit member desires this

additional coverage.

Life Insurance Benefit

The Employer shall pay the full amount of life

insurance premium for each unit member. The

coverage shall be the basic life insurance plan.

Unit members shall have the option to pay the

premiums for any additional insurance options

elected.

Unit members will continue to receive all health

benefits currently held which have not been spe-

34a

cifically enumerated in previous articles of this

Agreement.

O. Any subsequent benefits provided to the Federal

service in health benefits, insurance benefits,

disability and retirement, sick leave, and workers

compensation shall automatically accrue to the

unit members.

Proposal 2

The Association and the Employer agree that the

salary increase for all bargaining unit members

will be 13.5% for the school year.

A. Positions of the Parties

The Agency views Proposal 1 and Proposal 2 as

mutually exclusive. Specifically, the Agency claims that

Proposal | was withdrawn and replaced with Proposal 2.

Thus, the Agency contends that Proposal | is not properly

before the Authority. Substantively, the Agency alleges

generally that the proposals do not concern “conditions of

employment,” as defined in section 7103(a)(14) of the

Statute and therefore are outside the duty to bargain under

section 7117. The proposals, in the Agency’s view, also in-

terfere with its right to determine its budget under section

7106(a)(1). The Agency also asserts that the proposals

violate Federal statutes, Agency regulations having the

force and effect of-law, and an Agency regulation for

which a compelling need exists. In addition, the Agency

alleges that sections L, M, N and O of Proposal | are non-

negotiable because they concern matters specifically pro-

vided for by Federal law.

The Union explains that Proposal | concerns the pay-

fixing process for the life of the negotiated agreement and

that Proposal 2 provides for a specific salary increase for

35a

a particular school year. See Memorandum, dated

November 8, 1984, enclosed with the Petition for review.

As to the substance the Union asserts that the proposals

are negotiable based on 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).

B. Analysis and Conclusion

1. Proposal | is properly before the Authority

There is nothing in the record to support the Agency’s

claim that Proposal 2 was submitted as a replacement for

Proposal 1. In addition, based on the Union’s statement of

intent, Proposals 1 and 2 concern different aspects of the

pay-setting process and thus are not mutually exclusive.

2. Conditions of Employment

The Agency’s position, based primarily on the legislative

history of the Statute, is that Congress did not intend to

include teachers’ pay among negotiable conditions of

ey my — Agency argument was considered and

reject y the Authority in Fort Bragg Dependents

School and subsequent cases. Briefly stated, we have con-

sistently held that nothing in the Statute or its legislative

history prevents bargaining over employee compensation

insofar as: (1) the matters proposed are not specifically

provided for by law and are within the discretion of the

agency; and (2) the proposals :nvolved are not otherwise

inconsistent with law, applicable Government-wide rule or

regulation, or with an agency regulation supported by a

compelling need. See also American Federation of

Government Employees, AFL-CIO, Local 1897 and De-

partment of the Air Force, Eglin Air Force Base, Florida,

24 FLRA No. 41 (1986).

OO a

36a

2% FLRA No. 108 (1987), petition for review filed sub

nom. Fort Knox Dependent Schools v. FLRA, No.

87-3593 (6th Cir. Jun. 25, 1987). Thus, the Agency has not

established that either of the proposals concerns a matter

specifically provided for by law, or that they are outside

the Agency’s discretion to adopt.

Moreover, even assuming the correctness of the

Agency’s position respecting negotiation of pay matters,

the Agency has cited no specific grounds for finding sec-

tions A, C and D of Proposal | nonnegotiable. These sec-

tions do not concern the amounts of compensation to be

paid unit employees. Rather, they merely authorize the

Union to review and comment on data used to determine

employee salary schedules. Consequently, even if compen-

sation were found to be a nonnegotiable matter, sections

A, C and D would still be within the Agency’s duty to

bargain.

3. Agency's Right to Determine iis Budget

To establish that a proposal directly interferes with an

agency’s right to determine its budget under section

7106(a)(1) of the Statute, an agency must make a substan-

tial showing that the proposal requires the inclusion of a

particular program or amount in its budget or that the

proposal will result in significant and unavoidable in-

creases in cost not affected by compensating benefits.

The Agency also has failed to show that any increased

Losts, which it asserts are unavoidable, would not be offset

y compensating benefits. Instead, it contends that Con-

38a

gress’ action in exempting teachers from statutes govern-

ing pay and certain benefits for Government employees

constitutes a finding that increases in teachers’ pay are not

offset by compensation benefits. Statement of Position at

8-9. We find this argument unpersuasive. Even assuming

that the congressional action had the implications sug-

gested by the Agency, the legislative action was based on

the cost differential between existing pay and personnel

practices under title $5 U.S. Code and those subsequently

embodied in 20 U.S.C. § 241. The congressional action

therefore cannot be construed to cover the alleged cost in-

creases which would result from implementing these pro-

posals within this bargaining unit. See Fort Knox

Dependents Schools, 28 FLRA No. 29 (1987). Further-

more, as we noted in section B.2., above, nothing in 20

U.S.C. § 241, or in its legislative history as relied upon by

the Agency, indicates that Congress sought to restrict the

Agency’s choice in adopting a particular employment

practice relating to pay and fringe benefits not otherwise

provided for by law. Moreover, as to the requirement that

per pupil expenditures in dependents schools be limited to

the amounts expended by comparable communities in the

same state, the Authority held in Fort Bragg Dependents

Schools, 12 FLRA 519 that employee compensation is but

one of the factors to be considered in determining whether

the limitation has been exceeded.

Finally, the Authority also noted in Fort Bragg

Dependents Schools 12 FLRA 519, 523, that while the

consequences of a proposal necessarily are considered in

the collective bargaining process, “should matters of con-

cern to the Agency, such as cost, prevent the parties from

reaching agreement, that consideration could be presented

to the Federal Service Impasses Panel in a proceeding to

resolve a negotiation impasse pursuant to section 7119 of

the Statute.”

ee

39a

4. Procurement Law and Regulations

The Agency asserts that the violate law,

specifically ly 10 U.S.C. § iaindtnnemen st

contract procurement process. The Agency also

contends that the proposals violate Government procure-

ment regulations having the force and effect of law, which

govern the negotiation and administration of procurement

contracts, namely the Federal Acquisition Regulation. In

effect, the Agency argues that the “personal services con-

tracts” under which bargaining unit employees are hired

must be awarded in conformity with procurement law and

related Federal regulations. and that bargaining over pay

and related fringe benefits is inconsistent with those

Statutory and regulatory requirements.

Federal Government, subject to all statutes governing

Government employment unless expressly exempted. Con-

sequently, we determined that the Agency had failed to

demonstrate that procurement law and regulations applied

in any manner to, or governed the employment relation-

ship of, teachers employed in the dependents school

system. Similarly, the Agency iri this case has failed to

show that procurement law and regulations govern

bargaining unit working conditions.

5. The “Antideficiency Act”

The Agency contends that, because the proposals would

obligate it to expend certain funds for salaries and other

4a

benefits in a succeeding fiscal year, they violate provisions

of the “Antideficiency Act” (the Act), 31 U.S.C. § 1341.

in Fort Knox Dependents Schools, 27 FLRA No. 34, we

examined a similar argument in response to a proposal

concerning both paid and unpaid leave. In rejecting the

Agency’s contention that Proposal 4 in the cited case

violated the Act, we noted that the Comptroller General,

in interpreting the Act, has held that “salaries of Govern-

ment employees, as well as related items that flow from

those salaries such as retirement fund contributions, are

obligations of the Government at the time they are earned,

that is, when the services are provided.” In this case, in-

sofar as the proposals can be said to concern specific

sums, there is no obligation to make payments until the

specific service is rendered by the unit employee. Hence,

there is no showing that the proposals violate the Act.

6. Agency Regulation

The Agency asserts that the proposals violate Army

Regulation (AR) 352-3, an Agency regulation for which it

alleges a compelling need exists under section 2424.11(c)

of the Authority’s Rules and Regulations. Specifically, the

Agency states that its regulations requires equality, to the

maximum practicable extent, between the conditions of

employment in the bargaining unit and those of teachers in

comparable school systems in Georgia where Fort Stewart

is located. In support of its position, the Agency cites 20

U.S.C. § 241(a)(2) which obligates the Agency to take

whatever action is necessary to ensure that the education

provided by its schools is comparable to that provided to

children in similar communities in the same state.

Substantially the same argument was raised by the

Agency to support its claim that there was a compelling

need for AR 352-3 to bar negotiation of Proposal 4 in Fort

7. Sections L and M of Proposal |

Sections L and M of Proposal | would require, respec-

tively, that the Agency provide health insurance and basic

Fort Bragg Dependents Schools, Fort Bragg, North

Carolina, 12 FLRA 519 (1983). Noting that Federal law

limits the amount of the employer’s contribution toward

the cost of health insurance, and specifically requires

employees to contribute toward the cost of life insurance,

the Authority held that the two proposals addressed mat-

ters provided for by Federal statutes. Because the

Statutory provisions cited in Fort Bragg Dependents

Schools remain in effect, we must likewise find that sec-

tions L and M of Proposal | here concern matt

vided for by law. oneal

8. Sections N and O of Proposal |

Section N of Proposal | would continue all health

benefits currently accruing to employees even though not

to be that, because the sections concern matters

law, the two sections are not properly included in the

plicable to sections N and O.

Cc. Conchusion

in accordance with the reasons and cases cited, Pro-

there is a compelling need. Therefore, Proposal | with the

exception of sections L and M, and Proposal 2 are within

the duty to bargain. Sections L. and M of Proposal | are

inconsistent with Federal law and consequently are outside

the duty to bargain under section 7117(a)(1) of the Statute.

itl. Proposal 3

Proposal 3 concerns various types of leave. Because of

its iength, the proposal appears in an Appendix to this

decision.

Knox Dependent Schools; 2%6 FLRA No. 108. The first

part of the disputed propos_! in that case sought to

establish the unit employees’ right to sabbatical leave after

10 years’ continuous service at Fort Knox. In deciding that

the first part of the proposal was negotiable, we held that

it “concerns a condition of employment about which the

Agency has discretion under 20 U.S.C. § 241. Further, the

first portion of the proposal docs not conflict with 20

U.S.C. § 241 or with an Agency regulation for which

compelling need has been established by the Amen"

d4a

Consequently, based on the reasoning and cases cited in

Fort Knox Dependent Schools, ali but section F of Pro-

posal 3 is within the duty to bargain.

Section F of Proposal 3 authorizes leave without pay

(LWOP) Tor unit members. It further provides that

LWOP “may be approved at the discretion of the im-

mediate supervisor.” The Agency contends that the latter

requirement is an impermissible intrusion on its reserved

right to assign work. We agree. In American Federation of

Government Employees, AFL-CIO, Local 32 and Office

of Personnel Management, 14 FLRA 278 (1984), affirmed

sub nom. Local 32, American Federation of Government

Employees v. FLRA, 762 F.2d 138 (D.C. Cir. 1985), the

disputed proposal sought to require that any grievance ini-

tiated by the agency be signed by the agency head. The

proposal was held to violate section 7106(aX2\B) of the

Statute because it prescribed specific duties which par-

ticular nonbargaining unit personnel in the agency would

perform. It was further noted that the proposal would ef-

fectively preclude management's assigning the duty

referenced in the proposal to any other person, thereby

eliminating the discretion inherent in management's nght

to assign work.

Here, section F of the proposal would assign approval

authority for LWOP to specific management officials.

Under its terms such authority could not be assigned to

higher level officials who might be better positioned to

assess the impact of a grant of LWOP upon the overall ef-

fectiveness of operations. Consequently, based on the

reasoning and case cited in Office of Personnel Manage-

ment, we find that section F of Proposal 2 is outside the

duty to bargain because it is inconsistent with manage-

ment’s right to assign work under section 7106(aX2) B) of

the Statute.

Information Systems Command, Redstone Arseng

rsenal Com-

missary, 27 FLRA No. 14, slip op. at 13 (1987).

IV. Order

Issued, Washington, D.C., July 31, 1987.

/s/ Henry B. Frazier, II

Henry B. Frazier Il, Member

/S/ Jean McKee

JEAN McKeg, Member

FEDERAL LABOR

RELATIONS AUTHORITY

* In finding these matters negotiable we make no judgment as to

their respective merits.

46a

Separate Opinion of Chairman Calhoun

I agree with my colleagues that the issues in this case are

essentially the same as those in Fort Knox Teachers

Association and Fort Knox Dependent Schools, 26 FLRA

No. 108 (1987), petition for review filed sub nom. Fort

Knox Dependent Schools v. FLRA, No.-87-3593 (6th Cir.

June 25, 1987). In my opinion in that case, 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. In this case, Proposal 1, subsections A, D, E, F,

G, I, J, K, N, and O, Proposal 2, and Proposal 3 concern

wages and money-related fringe benefits. Because | find

no expression of congressional intent in this case that these

matters be negotiable, | would find these proposals to be

outside the duty to bargain. I note, however, with respect

to subsections A and D of Proposal | that consistent with

the Authority’s decision concerning Proposal 4 in //linois

Nurses Association and Veterans Administration Medical

Center, North Chicago, Illinois, 27 FLRA No. 79 (1987), I

would find negotiable a proposal which simply required

the Agency to provide information to and consult with the

Union on these matiers.

| am unable to determine the meanings of subsections B,

C, and H of Proposal | from the record in this case. In my

view, there is insufficient information on which to make a

negotiability determination on these subsections. | would

dismiss the Union’s petition as to them. In addition, | note

that subsection C(6) of Proposal 3 is similar to section 8(g)

of Provision 10, which the Authority found to be

negotiable in American Federation of Government

Employees, AFL-CIO, Local 1770 and Department of the

Army, Fort Bragg Dependent Schools, Fort Bragg, Nurth

Carolina, 28 FLRA No. 66 (1987). Unlike the provision in

oo

+

et

47a

that case, which required the continuation of insurance

premiums “in accordance with Federal regulations,” Pro-

posal 3 in this case does not refer to applicable regulations.

As such, it would constitute an independent contractual

requirement concerning the matter in my view.

I agree with my colleagues that subsections L and M of

Proposal | concern matters provided for by Federal law.

Issued, Washington, D.C., July 31, 1987.

/8/ Jerry L. Calhoun

Jerry L. CALHOUN, Chairman

FEDERAL LABOR

RELATIONS AUTHORITY

APPENDIX

Proposal 3

Article 11: Leave

Section 1. Sick and annual leave for Unit Members

whose services are required for twelve (12) months

will accrue and be granted in accordance with the An-

nual and Sick Leave Act of 1951, as amended 5 USC

Chapter 63 and applicable Civilian Personnel Regula-

tions.

Section 2. Sick leave, annual leave, administrative,

and other types of leave for those Unit Members

whose services are not required for twelve (12)

months will be administered as follows:

A. Sick Leave. Unit members shall accumulate sick

leave at a rate of four (4) hours per pay period

not to exceed thirteen (13) days shall be ac-

credited to Unit Members at the beginning of the

school year. Sick leave will accumulate without

limit and can be taken for any time during the

school year, but payment for sick leave taken in

excess of that earned will be recovered. No ac-

crued sick leave shall be carried over to any suc-

ceeding period when there is a break in federal

employment in excess of three (3) continuous

years.

1. Sick leave will be granted for the following

purposes:

(a) medical, dental or optical examination or

treatment;

(b) sickness Or injury;

(c) medical disability connected with pregnan-

cy;

(d) exposure to a contagious disease;

(e) illness of a member of the immediate family

or near relative who resides in the same

household or for whom the employee is finan-

cially responsible;

(f) death of an immediate family member or

near relative.

2. As used in this section, immediate family

shall mean spouse, grandparent, parent-in-law,

child, grandchild, or sibling. Near relative shall

include immediate family and extend to first

cousin, aunt, uncle, niece, nephew, brother-in-

law, daughter-in-law, or son-in-law.

3. In the cases requiring a substitute teacher,

absence chargeable to sick leave will be for not

less than four (4) hours. When no substitute is

employed, sick leave will be taken in multiples of

one hour. The decision as to whether a substitute

is required shall be made solely by management

officials.

4. Unit members must obtain approval from

the principal before sick leave that has not been

accrued can be used.

5. Unit members may be required to provide a

doctor’s statement in the case of a period of

absence which exceeds five (5) consecutive days.

6. Upon retirement, credit for unused sick

leave shall be administered in accordance with

FPM Supplement 831-1 Subchapter $3-7.

7. The Employer and Association shall meet by

November fifteen (15) to discuss the establish-

ment of a sick leave bank.

S0a

B. Personal Leave

1. During any school year, a unit member may

utilize up to a maximum of three days of ac-

cumulated sick leave for personal reasons.

Notification of the use of such leave will be made

one (1) day in advance. Two (2) days of personal

leave may be carried over to the next year for a

maximum of five (5) personal days.

2. No personal leave will be taken on the day

before or immediately after spring vacation,

testing days, nor on inservice days or conference

days unless such leave has been approved by the

Superintendent.

3. Personal leave will be for not less than four

(4) hours in those cases where a substitute

teacher is employed. When no substitute is

employed, personal leave will be taken in

multiples of one hour. The decision as to

whether a substitute is required shall be made

solely by management officials.

Professional Leave of Absence. Professional

leave of absence may be granted by the

Employer subject to the following:

1. After five (5) years of continuous service at

Fort Stewart, sabbatical leave of absence

without pay may be granted for up to one (1)

employee per school year at the discretion of the

Employer. Such leave shall be granted for the

purpose of advanced study, research, profes-

sional writing, or other experience of recognized

value in an employee's respective field.

2. Applications will be submitted to the

Superintendent of Schools not later than | April

Sla

of the school year prior to the year the leave is to

be taken. Applications will include:

(a) reason for leave;

(b) proposed length of time;

(c) where leave will be spent;

(d) outline of studies of activities to be taken.

3. Professional leave of absence will normally

be granted for one (1) school year. Leave may be

granted for a semester.

4. While in a leave status, employees will not

be eligible to accrue sick leave but will be entitled

upon return to duty to any sick leave accrued

prior to the professional leave. Upon return to

duty, the employee will be entitled to advance

one (1) step on the salary schedule, if the studies

Of activities as proposed when the leave was

granted have been completed.

5. Unit members will not accrue seniority but

will be entitled upon return to duty any seniority

accrued prior to the professional leave.

6. While in a leave status employees may con-

tinue their participation in the health and life in-

surance programs by payment of required

premiums.

7. Unit members may utilize up to a maximum

of five (5) days with pay per school year for

education related purposes, such as school visita-

tions, conferences, and workshops. Approval

for the above leave shall be granted by the

Superintendent.

Court Leave. Employees serving on jury duty

or subpoenaed to court shall be carried on court

,

52a

leave without financial loss or loss of sick or an-

nual leave.

1. An employee on court leave may not receive

fees for jury service on regular workdays in a

Federal court. The employees may receive and

retain fees for such duty performed on non-

workdays or on holidays on which the employee

would otherwise have been excused from work.

2. An employee on court leave will accept fees

received from state or municipal courts and turn

them in to the Civilian Pay Section of Fort

Stewart Finance and Accounting Office. The

employee may retain pay received for travel and

subsistence expenses. Fees received for jury duty

service performed outside normal duty hours or

on holidays on which the employee would other-

wise have been excused may be retained.

Maternity/Paternity/Adortion Leave. Mater-

nity, paternity, and adoption leave will be ad-

ministered as follows:

1. For female employees having a child, ac-

cumulated sick leave may be used one and one

half (1%) months prior to having the child upon

presentation of a certificate of incapacity. Once

the child is delivered the employee may use sick

leave up to a period of one and one half (1%)

months after the chiid is delivered. Once the one

and one half (1%) months of sick leave have

been “exhausted and the employee still desires

further time away from work, the employee will

be granted leave without pay. In no case will

leave without pay be granted for more than one

(1) year.

F.

53a

2. For male employees who desire to Stay at

home with their child, leave without pay may be

granted for a period not to exceed one (1) year.

A male employee may also make use of personal

leave (see Section 1, paragraph b of this Article)

for paternity leave.

3. For any employee who desires to Stay at

home with an adopted child, leave without pay

may be granted for a period not to exceed one (1)

year. Leave without pay may be taken prior to

finalization of the adoption if such leave is

necessary to take part in court proceeding or

other action relating to the adoption. Personal

Leave (Section 1, paragraph b of the Article)

may also be utilized.

4. An employee shall make known intent to re-

quest leave including the type of leave, approx-

imate dates, and anticipated duration to allow

the Employer to prepare for any staffing ad-

justments which may be necessary.

Leave Without Pay (LWOP).

1. LWOP is requested by an employee and may

be approved at the discretion of the immediate

supervisor.

2. _ Leave without pay may be granted to unit

members for the following reasons:

(a) educational leave or travel;

(b) such other reasons as are approved by the

Superintendent

3. The minimum charge of LWOP is one (1)

hour and additional charges in multiples of one

(1) hour.

S4a

4. Maximum amount of LWOP that may be

taken during one (1) school year is one (1) month

except as provided in Section 1, paragraph e

(Maternity/Paternity/ Adoption Leave).

SSa

APPENDIX C

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 87-8734

FORT STEWART SCHOOLS, PETITIONER. CROSS-RESPONDENT

Vv.

FEDERAL LABOR RELATIONS AUTHORITY, RESPONDENT,

CROSS-PETITIONER

FoRT STEWART ASSOCIATION OF EDUCATORS, INTERVENOR

On Petition for Review of an Order of the Federal

Labor Relations Authority

ON PETITIONS FOR REHEARING AND SUGGESTIONS OF

REHEARING IN BANC

(Opinion November 21, 11 Cir., 1988, F.24 =

(February 17, 1989)

[Filed Feb. 17, 1989]

Before VANCE and HATCHETT, Circuit Judges, and

Nessitt*, Senior District Judge.

PER CURIAM:

(X) The Petitions for Rehearing are DENIED and no

member of this panel nor other Judge in regular active

service on the Court having requested that the Court be

* Honorable Lenore C. Nesbitt, U.S. District Judge for the

Southern District of Florida, sitting by designation.

56a

polled on rehearing in banc (Rule 35, Federal Rules of Ap-

pellate Procedure; Eleventh Circuit Rule 35-5), the Sug-

gestions of Rehearing In Banc are DENIED.

() The Petitions for Rehearing are DENIED and the

Court having been polled at the request of one of the

members of the Court and a majority of the Circuit J udges

who are in regular active service not having voted in favor

of it (Rule 35, Federal Rules of Appellate Procedure;

Eleventh Circuit Rule 35-5), the Suggestions of Rehearing

In Banc are also DENIED.

( ) A member of the Court in active service having re-

quested a poll on the reconsideration of this cause in banc,

and a majority of the judges in active service not having

voted in favor of it, Rehearing In Banc is DENIED.

ENTERED FOR THE COURT:

/8/ Joseph W. Hatchett

JOSEPH W. HATCHETT

United States Circuit Judge

* Honorable Lenore C. Nesbitt, U.S. District Judge for the

Southern District of Florida, sitting by designation.

’ US GOVERNMENT PRINTING OFFICE 1989 — 241.699/00331