West Point Elementary School Teachers Ass'n v. Federal Labor Relations Authority

Decision Date24 August 1988
Docket Number1185,D,Nos. 861,1097,s. 861
Citation855 F.2d 936
Parties129 L.R.R.M. (BNA) 2291, 48 Ed. Law Rep. 1145 WEST POINT ELEMENTARY SCHOOL TEACHERS ASSOCIATION, Petitioner Cross-Respondent, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent Cross-Petitioner. UNITED STATES MILITARY ACADEMY ELEMENTARY SCHOOL, WEST POINT, NEW YORK, Petitioner Cross-Respondent, v. FEDERAL LABOR RELATIONS AUTHORITY, Respondent Cross-Petitioner, West Point Elementary School Teachers Association, Intervenor. ocket 87-4149, 88-4007 and 88-4051.
CourtU.S. Court of Appeals — Second Circuit

Richard J. Hirn, Washington, D.C. (Deborah Watarz, Schilian, La Penta, Watarz & Gulmi, New York City of counsel) for petitioner cross-respondent intervenor West Point Elementary School Teachers Ass'n.

Marc Richman, Attorney, Appellate Staff Civ. Div. (Richard K. Willard, Asst. Atty. Gen., William Kanter, Attorney, Appellate Staff Civ. Div., Dept. of Justice; William Trivette, Office of the Judge Advocate General, Dept. of the Army, Washington, D.C., of counsel) for petitioner cross-respondent U.S. Military Academy Elementary School.

Jill A. Griffin, Attorney (Ruth E. Peters, Solicitor; William E. Persina, Deputy Solicitor; James F. Blandford, Attorney, Federal Labor Relations Authority, Washington, D.C., of counsel) for respondent cross-petitioner Federal Labor Relations Authority.

Before VAN GRAAFEILAND, NEWMAN and MINER, Circuit Judges.

MINER, Circuit Judge:

Petitioner West Point Elementary School Teachers Association (the "Union") seeks review of a decision and order of the Federal Labor Relations Authority ("FLRA"), which held that the Union's proposals to negotiate over the use of personal service contracts, the accommodation of employee preferences in assigning extracurricular duties and the school calendar are not subject to the duty to bargain under the Federal Service Labor Management Relations Act, 5 U.S.C. Sec. 7101 et seq. (1982 & Supp.IV 1986) (the "FSLMRA"). Petitioner United States Military Academy Elementary School (the "Army" or "Agency") seeks review of the same order, insofar as it directs the Army to bargain with the Union over the salary schedule for teachers. The FLRA requests enforcement of its decision and order, and denial of the petitions for review. For the reasons that follow, we grant the FLRA's petition to enforce the order with respect to the salary schedule and school calendar proposals and deny it

in all other respects. We grant the Union's petition for review on the personal service contract and employee preference proposals and deny it in all other respects. We deny the Army's petition for review in its entirety.

BACKGROUND

The Union represents a bargaining unit of approximately fifty teachers employed by the Department of the Army, pursuant to Section 6, Title I of Pub.L. No. 81-874 (codified at 20 U.S.C. Sec. 241), at the United States Military Academy Elementary School, West Point, New York (the "school"). The Army operates the school to educate the dependents of military and civilian personnel who live on base at West Point. The Union negotiated collective bargaining agreements with the Army in 1977 and 1982. In 1987, during the course of negotiations for a successor agreement, the Army declared five proposals submitted by the Union to be outside the duty to bargain under the FSLMRA. Four of the proposals are the subject of these consolidated petitions.

First, the Union proposed: "Unit employees shall not be requested or required to enter into personal service contracts as a condition of their employment." The Army currently requires teachers to enter into "personal service contracts" in order to be hired. See 32 C.F.R. Sec. 594.5602 (1987). A contract is issued to the teachers once every five years, but must be renewed annually. At the end of five years, teachers are required to reapply for their jobs by submitting a Solicitation, Offer and Award form (SF 33) to the contracting office.

Second, the Union proposed that the Army accommodate employee preferences in assigning extracurricular duties:

The Employer will make every effort to fill extracurricular positions in accordance with the expressed preferences of the qualified employees in the bargaining unit in the school. In the event the Employer does not fill all available positions in accordance with the preferences of the employees, then the Employer agrees to actively seek qualified volunteers from the bargaining unit at the school.

Third, the Union proposed that the establishment of the school calendar be a subject for negotiation. The proposal provides, in pertinent part:

a. The Union recognizes that it is the function of the Employer, after negotiating with the Union, to set the school calendar annually.

* * *

c. By April 1 of each year, the Employer shall present to the Union a proposed calendar for the following school year. The Union may exercise its right to request negotiations with the Employer over the proposed calendar. Such request for calendar negotiations must be submitted to the Employer within fifteen (15) days of the Union's receipt of the proposed calendar. If no request is submitted, the calendar presented by the Employer becomes effective.

Finally, the Union proposed that the teachers' salary schedule be subject to negotiation. The salary proposal provides:

By April 1 of each year, the Employer shall present to the Union a proposed salary schedule for the following school year. The Union may exercise its right to request negotiations with the Employer over the proposed salary schedule. Such request for salary negotiations must be submitted to the Employer within fifteen (15) days of the Union's receipt of the proposed salary schedule. If no request is submitted, the salary schedule presented by the Employer becomes effective.

In response to the Army's written declaration of non-negotiability as to these proposals, the Union filed an appeal with the FLRA, see 5 U.S.C. Sec. 7117(c) (1982). In a decision and order dated November 6, 1987, the FLRA determined that the salary schedule proposal was within the duty to bargain, but the other three proposals were not.

The FLRA rejected the Army's contention that the personal service contracts proposal interferes with its right to determine The FLRA found the employee preference proposal to be outside the duty to bargain because it "condition[s] assignment of extracurricular activities on employee preference" and thus "directly interfere[s] with management's right to assign work," id. (citing Overseas Educ. Ass'n v. Department of Defense Dependents Schools, 29 F.L.R.A. (No. 56) 628 (1987)). The FLRA also found the proposal objectionable because it "would permit the substitution of an arbitrator's judgment for that of management concerning whether management made 'every reasonable effort' to fill extracurricular positions in accordance with the preferences of employees." Jt.App. at 5-6.

its organization and to hire teachers as independent contractors. However, the FLRA found that "the use of personal services contracts by the Agency [is] inseparable from the decision to hire," Jt.App. at 3, and thus, the proposal "directly interferes" with the Army's right to hire under Sec. 7106(a)(2)(A) of the FSLMRA, id. at 4. Because the proposal "constitutes a substantive rather than a procedural limitation" on the Army's right to hire, the FLRA concluded that the proposal was not negotiable. Id. The FLRA also rejected the Union's argument that the Army's use of personal service contracts was in direct violation of the Federal Acquisitions Regulations, 48 C.F.R. Sec. 37.104, finding that the Union had not adequately demonstrated the unlawfulness of such contracts, Jt.App. at 4.

The FLRA also found the proposal over the school calendar to be outside the duty to bargain. The FLRA agreed with the Army that the proposal would interfere with the Army's right to assign work because the proposal would permit the negotiation of holidays and "thus would permit the negotiation of when the assignment of instructional duties would or would not occur," id. at 7. The FLRA therefore rejected the Union's assertion that no interference would occur because the Army retained the right to set the length of the school day or school year and to determine the number of days of instruction. Id. at 6-7.

Finally, a majority of the FLRA panel found that the Union's proposal to negotiate the teachers' salary schedule was within the duty to bargain. Citing Fort Stewart (Georgia) Ass'n of Educators & Fort Stewart Schools, 28 F.L.R.A. (No. 67) 547 (1987), and Fort Knox Teachers Ass'n & Fort Knox Dependents Schools, 28 F.L.R.A. (No. 29) 179 (1987), the FLRA rejected the Army's contention that the proposal was "(1) outside the ambit of conditions of employment under the [FSLMRA]; (2) in violation of the Agency's right under section 7106(a)(1) to determine its budget; (3) inconsistent with procurement law and regulations; (4) in conflict with an Agency regulation for which a compelling need exists; and (5) in violation of the Antideficiency Act, 31 U.S.C. Sec. 1341." Jt.App. at 13. The FLRA found that all of those arguments had been made and rejected in both Fort Stewart and Fort Knox, and that the Army raised "no new or different facts or issues here which would support a different outcome." Id. Chairman Calhoun, however, dissented, opining that "in the absence of a clear expression of Congressional intent to make wages and money-related fringe benefits negotiable ... proposals concerning those matters are not within the duty to bargain." Id. at 15.

In their petitions, the Union and Army present the same arguments they urged upon the FLRA. The FLRA requests that we uphold its decision and order in all respects, and that we enforce its order directing the Army to bargain over the salary schedule proposal.

DISCUSSION
Scope of Review

The FLRA is "entitled to considerable deference when it...

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