[00:00:00] Speaker 04: case number 19-1111 Attili's Consolidated Education Association [00:00:50] Speaker 01: May it please the court, my name is Richard Hearn and I represent the school teachers of the DoD military bases in Puerto Rico. [00:00:58] Speaker 01: In the Croswell Air Force Base case, [00:01:00] Speaker 01: The FLRA held that if the panel or an interest arbitrator could resolve an impasse that involves a negotiability dispute by applying existing authority case law, he should do so. [00:01:12] Speaker 01: And that's exactly what fact finder Matt Frankowitz did in his 2016 report and recommendation. [00:01:19] Speaker 03: Only if there's case law on all fours, right? [00:01:25] Speaker 01: It should be substantially, the effect of the proposal should be substantially similar, is what the FLRA case law says. [00:01:33] Speaker 00: And here it seems the nub of the difference that the authority has identified is that there's no precedent dealing with a provision that tells the employees, you have to do this hour of work, but you can do it whenever you want. [00:01:50] Speaker 00: And that that has not been upheld [00:01:53] Speaker 00: as consistent with the manager's prerogative? [00:01:56] Speaker 01: There's nothing in Section 1 that says anything about when the employee performs that additional hour of work. [00:02:04] Speaker 00: Didn't the authority interpret it as allowing the employees to do that work whenever, I'm not getting the exact language, but at a time of their own choosing? [00:02:16] Speaker 01: Well, but that is not what [00:02:20] Speaker 01: The fact finder found this fact and the impasse panel found and the administrative law judge found that they found two things. [00:02:29] Speaker 01: Number one, that this case really wasn't about when the employees perform an eighth hour of work. [00:02:36] Speaker 01: It is really about whether the employees can be required to perform a ninth hour of work without compensation. [00:02:42] Speaker 00: Right, I understand that that hadn't been disputed that way and that the debate hadn't been framed up that way and that the employer, in fact, proposed this language and did not object to the fact that the employees could do the prep work at a time of their choosing that wasn't disputed. [00:03:03] Speaker 00: And it does seem equitably rather unfair that they can come in at the last hour. [00:03:08] Speaker 00: But what I understand the authority's position to be is that this provision allows the employees to do their prep work at a time of their choosing and that that [00:03:20] Speaker 00: It's sort of an open and shut case of interfering with employer product. [00:03:23] Speaker 01: But the contract doesn't say anything about when the work is to be performed. [00:03:27] Speaker 00: No. [00:03:27] Speaker 00: But the authority found at JA 276 that employees may perform their paid hour preparation professional tasks at a time of their choosing. [00:03:37] Speaker 01: OK. [00:03:37] Speaker 01: But in so writing that, the authority completely ignored the factual record and the factual findings that everybody was talking about two different hours of work. [00:03:50] Speaker 01: The record is clear that the Department of Defense was talking about, still wants the employees to perform this preparation work at home, but without compensation. [00:04:05] Speaker 01: And we also need to remember that there is, the issue of where you perform your work is totally negotiable. [00:04:13] Speaker 01: That's never been in dispute. [00:04:16] Speaker 01: The question that the fact finder and the impasse panel and the authorities in the FLRA's general counsel and the administrative law judge and member Dubester all understood was this was not a dispute or a case about a situation where DOD wanted the teachers to do their grading, their preparation for class, the lesson plans at school immediately after [00:04:46] Speaker 01: of the school day. [00:04:48] Speaker 02: Can you, you know, I find this section 1A and 1B very confusing. [00:04:56] Speaker 02: It's on page 9 of your brief. [00:04:58] Speaker 02: I wonder if you can walk me through that because unless I understand that, I don't understand this case. [00:05:04] Speaker 02: Of course. [00:05:04] Speaker 02: Okay. [00:05:05] Speaker 02: So the first, 1A says that you, the school teacher, have to be on the premises for seven and a half hours every work day. [00:05:15] Speaker 02: Including a half hour lunch. [00:05:17] Speaker 02: Well, it doesn't say the half hour has to be. [00:05:20] Speaker 02: The lunch, I guess you could have... It includes the 30-minute non-paid lunch break. [00:05:24] Speaker 02: Yeah, but you don't have to be present for the lunch. [00:05:26] Speaker 02: No. [00:05:28] Speaker 02: Well, functionally, I mean, I know the basin functionally have to... Well, they go outside and eat a sandwich on the park bench. [00:05:34] Speaker 02: But anyway, so seven and a half hours, they have to be on the premises, right? [00:05:40] Speaker ?: Yes. [00:05:40] Speaker 02: The next paragraph says we're taking into account one hour preparation and you don't have to be on the premises for that. [00:05:48] Speaker 02: So is that one hour? [00:05:50] Speaker 02: In addition to the seven and a half hours in 1A. [00:05:56] Speaker 01: The 1B says when we have fixed your compensation, it is with the realization and the expectation that after the day is over, after the seven and a half hours over, you're going to be performing, you do perform an extra hour of preparation work. [00:06:15] Speaker 01: And the record is clear that what everybody. [00:06:18] Speaker 01: But not compensated then. [00:06:20] Speaker 01: That is just fixed into the annual salary. [00:06:23] Speaker 01: When we set down... Yeah, yeah, yeah. [00:06:26] Speaker 02: Okay, so in other words, the hourly rate that they get or their annual salary takes into account an assumption that they're going to be doing one hour of preparation. [00:06:37] Speaker 02: Now, you say it's at the end of the day. [00:06:39] Speaker 02: What is it in 1B that says it can't be in the morning before they go to school? [00:06:47] Speaker 01: It doesn't address that. [00:06:49] Speaker 01: It doesn't address when. [00:06:52] Speaker 01: It only says we know you're doing an extra hour of work. [00:06:57] Speaker 02: But then the other thing is it says that the agency reserves the right to require that this eighth hour, but you've just told me that it's not the eighth hour because they're already required to do seven and a half hours. [00:07:12] Speaker 02: That would make it eight and a half hours. [00:07:18] Speaker 01: Second through last sentence of 1B is an exception to 1A. [00:07:26] Speaker 01: It's basically we can keep you on a particular work day, which has been interpreted to be on occasion. [00:07:33] Speaker 01: We can keep you at school for certain kinds of meetings on a particular day. [00:07:39] Speaker 01: that's been interpreted by an arbitrator as not on a regular recurring basis. [00:07:43] Speaker 01: Now, we've got to remember that the crux of this, what makes it all negotiable, is that on any day, on any day whatsoever, DOD can tell the teachers you stay after school an extra hour or two or whatever, after that seven and a half hour day, and under 3D, they get paid a little bit more. [00:08:05] Speaker 02: I guess what throws me for a loop is this phrase, that this eighth hour, and I don't know what they're talking about there. [00:08:12] Speaker 02: Are they talking about the eighth hour of one hour preparation? [00:08:16] Speaker 02: Are they talking about the seven and a half hours in A? [00:08:19] Speaker 01: It's talking about the additional, it's talking about that the hour that we [00:08:31] Speaker 01: that we took into consideration in fixing your annual compensation. [00:08:36] Speaker 01: Occasionally, we can have you stay at school for an extra hour a day. [00:08:42] Speaker 00: Displacing on those particular work days the compensated preparation time. [00:08:52] Speaker 00: Yes. [00:08:53] Speaker 00: And how does that interact with the following sentence? [00:08:55] Speaker 00: You mentioned the not more than 10 general faculty meetings. [00:08:58] Speaker 00: And the not more than 10 general faculty meetings are [00:09:00] Speaker 00: a permissible subcategory of the particular workday caveat, or are they compensated? [00:09:06] Speaker 00: Those are particular. [00:09:08] Speaker 01: Yes, on those days, we agreed at the table back in 2011 that they could hold them there 10 times for a faculty meeting [00:09:21] Speaker 00: And they don't have to get paid the next day. [00:09:24] Speaker 03: Even though on that day the teacher still has to grade the homework and get ready for class. [00:09:29] Speaker 03: Correct. [00:09:30] Speaker 00: And so there's two categories of activities that the employer may direct employees to do. [00:09:39] Speaker 00: One is up to ten faculty meetings and the other is [00:09:42] Speaker 00: on particular work days, training, staff development, and faculty meetings. [00:09:46] Speaker 01: Correct. [00:09:47] Speaker 00: And the particular work days has been interpreted to be not on a regular and ongoing basis. [00:09:51] Speaker 01: That's correct. [00:09:52] Speaker 00: So on a regular and ongoing basis, if the employer wants to say, look, we're going to do upgrading, we're going to do long-term planning, we need you to do committee service, and we need you to be there for one or two hours after work, the employer also has the prerogative to schedule that. [00:10:07] Speaker 00: But in keeping with the duty day definition for purposes of the wage, [00:10:12] Speaker 00: they have to pay extra. [00:10:13] Speaker 01: Correct. [00:10:15] Speaker 00: Not time and a half, but one time and the employees can opt for comp time instead. [00:10:20] Speaker 04: Correct. [00:10:21] Speaker 00: So the question that I have is taking for a moment the authority's understanding that the precedents do not render this issue negotiable. [00:10:35] Speaker 00: If there were a savings clause that the parties had bargained for here, [00:10:41] Speaker 00: that made the one hour of prep time at a time of the employee's choosing subject to the employer's right to require that eighth hour of the duty day, the preparation be done at a particular time. [00:10:59] Speaker 00: Is it your understanding that that would be legally permissible and that that would resolve any problem that they have? [00:11:04] Speaker 00: So imagine that the authority prevails. [00:11:10] Speaker 00: And you have to go back to the drawing board. [00:11:12] Speaker 04: Yes. [00:11:13] Speaker 00: Would it solve the problem, as you understand it, and I understand you resist their view of the law, so I'm not going to hold you to any concessions because I'm asking you to assume that they went on remand. [00:11:24] Speaker 00: Would the problem be resolved by simply negotiating that the preparation time that the employees may serve at a time of their choosing [00:11:37] Speaker 00: is subject to the employer's right to require that their preparation be done at a particular time. [00:11:45] Speaker 00: In other words, the employer can say, look, you have to do your preparation either before dinner or after breakfast. [00:11:52] Speaker 01: If the employer says you have to do it at school, at the school building right before after the school day, they can do it. [00:12:04] Speaker 01: And they can do it now. [00:12:04] Speaker 01: They just have to pay more. [00:12:06] Speaker 00: But I'm talking about separate pay. [00:12:08] Speaker 00: They already are paying for the prep time. [00:12:11] Speaker 00: They already are paying for it. [00:12:13] Speaker 00: And putting aside the disputes over how the immediate post-school time, and I realize those were the disputes, the immediate post-school time is used and how often it's subject to additional compensation or not, it seems like the authority's claim here is that as a formal matter, and I realize this is not the party's concern, but the authority is saying as a formal matter you cannot give [00:12:36] Speaker 00: the employees paid time that they get to schedule at their discretion without reserving for the employer control over when that work happens. [00:12:46] Speaker 00: And all I'm saying is, okay, so could they reserve the control over when that work happens with a savings clause that said employees may do their prep at a time of their choosing, subject to the employer's right to require that that be done at a particular time? [00:13:04] Speaker 00: And it seems bizarre to you, because the employer never has cared when that happens. [00:13:08] Speaker 01: And the employer still doesn't care. [00:13:11] Speaker 00: Right. [00:13:11] Speaker 00: So exercise that responsibility. [00:13:13] Speaker 01: Well, because then what will result there is exactly what the fact finder, the impasse panel, and the ALJ and member DeBoester said is not to happen, is that the teachers will still have to do the additional prep time. [00:13:33] Speaker 01: at home and it will not be factored in. [00:13:34] Speaker 00: No, no, no, but they would get paid for it. [00:13:36] Speaker 00: I'm talking about they would get paid for it. [00:13:37] Speaker 01: We're talking about the eighth hour. [00:13:39] Speaker 01: Yeah. [00:13:40] Speaker 01: But then they don't really come in. [00:13:44] Speaker 01: If they go to committee meetings at 3.30 to 4.30 when you would otherwise go home. [00:13:51] Speaker 00: Right. [00:13:51] Speaker 00: Then they'd have to pay more. [00:13:53] Speaker 00: Under the caveat? [00:13:54] Speaker 00: Or unless it was within the caveat, which said that it's one of those 10 meetings or a particular day. [00:14:00] Speaker 00: Correct. [00:14:00] Speaker 00: So all of that. [00:14:00] Speaker 01: With the language that I think, Judge Palogra, the language you have suggested, is exactly what DOD wants. [00:14:08] Speaker 01: They'll just want to keep them there for those extra committee meetings and not pay them for the time they spend at home. [00:14:13] Speaker 00: For their preparation work, the employer would say, do your preparation work. [00:14:21] Speaker 00: before dinner or do your preparation work at a particular time. [00:14:26] Speaker 00: And that wouldn't affect how you interpret the obligations and prerogatives with respect to the after school meetings or training or what have you. [00:14:38] Speaker 00: The terms of this agreement would govern which are paid and which are not paid. [00:14:43] Speaker 00: But I take it that they're raising a rather formal [00:14:46] Speaker 00: objection that hasn't really been an issue as a practical matter between the parties, but it nonetheless goes to jurisdiction. [00:14:53] Speaker 01: Well, my resistance to it, Judge Pollard, is that formalism, telling the parties to go back and negotiate this formalism, we're at the end of this contract. [00:15:06] Speaker 01: It's going to throw out the pay raises that the teachers were supposed to get for the past four years, they're supposed to get for the next year. [00:15:16] Speaker 01: With the authority, the authority didn't just want them to renegotiate, told the parties to renegotiate 1B. [00:15:23] Speaker 01: They said renegotiate all of Section 1, even though the rest of it's legal. [00:15:27] Speaker 01: And renegotiate all the wages. [00:15:30] Speaker 01: And renegotiate the wages retroactively, even though you, the people have already worked the time, you can't retroactively negotiate how much time people spend. [00:15:38] Speaker 01: It's going to throw out the whole contract. [00:15:40] Speaker 01: Everybody's going to lose their wages. [00:15:41] Speaker 01: We're going to be back to square one with the contract reopening next year. [00:15:46] Speaker 02: If the school teacher under 1A is required to be on the premises for seven and a half hours each work day, right, is there any indication that they're teaching for seven and a half hours? [00:16:03] Speaker 02: There's no requirement in this that they be teaching for seven and a half hours. [00:16:08] Speaker 01: During that seven and a half hours, they have to do whatever the employer tells them to do, except that there is a clause later in the contract that says they do get some prep time built into that seven and a half hours. [00:16:21] Speaker 02: Under this, they could be doing this one hour prep time before school on the morning. [00:16:28] Speaker 02: They can be doing it during school when they're not involved in teaching. [00:16:34] Speaker 02: at the school. [00:16:35] Speaker 02: They can be doing it after they finish their teaching at the school or they could do it at home at night. [00:16:41] Speaker 01: They can't do it during the seven and a half hour day. [00:16:43] Speaker 01: They have other assignments in that seven and a half hour day. [00:16:48] Speaker 02: That's what I asked you. [00:16:52] Speaker 02: Let me put it another way. [00:16:53] Speaker 02: Does the evidence show that for the seven and a half hours the teacher is there, that they're teaching all seven and a half hours? [00:17:00] Speaker 01: There is [00:17:01] Speaker 01: 45 minutes a day on average where they have an additional preparation period. [00:17:06] Speaker 00: Right, but they're required as a matter of their contract to do an additional hour of preparation. [00:17:14] Speaker 00: Even if they could, you know, under some measure get done during the day what they would need for the next day, it would be their obligation under the contract to do further preparation for an hour every day. [00:17:25] Speaker 01: Yes, and the community superintendent testified and it's in the [00:17:31] Speaker 01: Fact Finders report that the teachers spend at least an hour a day at home doing lesson plans, grading tests, preparing for lectures. [00:17:44] Speaker 00: And sometimes they have three hours, but they only get compensated for the one hour outside of the duty day and the 45 minutes within. [00:17:51] Speaker 01: Well, they're not really hourly employees. [00:17:53] Speaker 01: It was just hortatory. [00:17:55] Speaker 01: That language was just added hortatory as a basis. [00:17:59] Speaker 01: Back in 2011, there was a federal employee pay freeze that didn't apply to these teachers because the salaries are set by statute. [00:18:07] Speaker 01: But to make it look like they weren't getting a pay freeze, we negotiated additional pay for them. [00:18:16] Speaker 01: And DOD threw that sentence in there saying, OK, we're going to now compensate. [00:18:23] Speaker 01: We're going to acknowledge that we're compensating you for the work we acknowledge that you're doing at home. [00:18:28] Speaker 01: And that's how we get your annual salary. [00:18:30] Speaker 02: I think the most remarkable thing about this case is that it's here. [00:18:33] Speaker 02: I mean, it seems like something that should have been resolved between the parties long ago. [00:18:40] Speaker 02: You've got four decisions now. [00:18:43] Speaker 02: Yes. [00:18:44] Speaker 02: And about to get another one from us. [00:18:45] Speaker 02: And it's just incredible. [00:18:47] Speaker 01: We tried, Your Honor. [00:18:49] Speaker 01: I tried. [00:18:50] Speaker 01: I was one of the bargainers at the beginning. [00:18:52] Speaker 01: I tried at every step of the way to get the features of that contract. [00:18:56] Speaker 03: May get at the same issue that Judge Pillard was pressing you on, different way of thinking about it, which is the contract says you have to work seven and a half hours, you have to be on the premises seven and a half hours. [00:19:19] Speaker 03: And it says, and working seven, and then it says we assume you'll be working an eighth hour. [00:19:25] Speaker 03: And it says sometimes that can be on the premises for things like faculty meetings, but that's the exception. [00:19:34] Speaker 03: And generally speaking, employees can do the eighth hour off premises. [00:19:42] Speaker 03: Isn't the most reasonable reading of that scheme that the teachers are given discretion with regard to that eighth hour [00:19:55] Speaker 03: when they're not on the premises for things like faculty meetings, that they have discretion not only with respect to where they work, but also with respect to when they work? [00:20:11] Speaker 01: They don't have discretion if you read 3D with it. [00:20:15] Speaker 01: The employer can say, we want you to do your lesson plans and everything you're going to otherwise do at home. [00:20:20] Speaker 01: We want you to do it in the school building after the 7 and 1 half hour day. [00:20:24] Speaker 01: If they do that, they have to pay them for it. [00:20:26] Speaker 03: 3D says additional work hours beyond the eight hours. [00:20:33] Speaker 01: But it's been interpreted and applied to be additional and beyond the 1A, because it's... Right. [00:20:42] Speaker 00: But no, beyond the 1A plus B, because it's the eight hours. [00:20:49] Speaker 00: is their work hours. [00:20:50] Speaker 01: Because the factual record is clear that the employer still expects them to do this work. [00:20:57] Speaker 03: I understand, but under this scheme why would the employer care whether the teacher, when the teacher is spending an hour a day at home grading papers, whether the teacher does that [00:21:12] Speaker 03: early morning before school or late night after the kids are in bed. [00:21:17] Speaker 03: DOD does not care. [00:21:19] Speaker 03: And they still expect them to do it. [00:21:20] Speaker 03: They just don't want it to be finished. [00:21:22] Speaker 03: But doesn't that imply that this contract leaves to the teachers the question not just of where to work, but also when to work? [00:21:36] Speaker 01: The employer does. [00:21:37] Speaker 01: On the eighth hour. [00:21:39] Speaker 01: Why not? [00:21:40] Speaker 01: Because what DOD wants them to do is they want them to work a ninth hour. [00:21:46] Speaker 01: That's what everybody understood this. [00:21:48] Speaker 01: Everybody except the two-member majority of the authority understood that what DOD wanted was a ninth hour. [00:21:55] Speaker 03: Let's just talk about the text of the agreement and assume for purposes of my question that I read additional work hours in D [00:22:08] Speaker 03: to mean additional above and beyond the eight hours in A plus B? [00:22:17] Speaker 01: My resistance to that reading is that we have a full bargaining history record with this fact-finder report from two years, from the two contracts, fully laying out what the party's intent was and how it's to operate and what the different hours and pay was for. [00:22:37] Speaker 01: Plus, we have an intervening arbitration decision by Arbitrator Render that puts further understanding on it. [00:22:45] Speaker 01: And that's in the Joint Appendix. [00:22:51] Speaker 01: All right, so let's... We have a wealth of a factual bargaining history. [00:23:01] Speaker 01: as a result of this faculty process. [00:23:03] Speaker 03: So on your reading, what happens if the school says, the employer says, we insist, you have this eighth hour of preparation, on the days when it is not subject to faculty meetings or whatever, we insist that you do it [00:23:28] Speaker 03: immediately after your last class. [00:23:31] Speaker 03: We want that homework grade at ASAP, so you must do that hour immediately after your last class. [00:23:38] Speaker 01: If it's at school, they have to pay more. [00:23:40] Speaker 01: They have to pay for the extra hour. [00:23:42] Speaker 03: But it's not an extra hour. [00:23:43] Speaker 01: I'm talking about the eighth hour, not the ninth. [00:23:46] Speaker 01: But that's what was bargained for. [00:23:52] Speaker 03: I don't get that at all. [00:23:54] Speaker 03: We're debating what the conditions are [00:23:57] Speaker 03: on the eighth hour with regard to when and where. [00:24:01] Speaker 03: And you keep wanting to talk about the ninth hour. [00:24:04] Speaker 03: That's just a different question. [00:24:05] Speaker 01: Because DOD has said clearly, and I can quote from their brief, that they still expect the teachers to do that prep work at home, but they just don't want to pay for it. [00:24:26] Speaker 01: In supplemental appendix, page 55, the deed is briefed in support of the gross motion for summary judgment. [00:24:35] Speaker 01: The agency has decided it's simply not going to treat the prep time as a compensable task. [00:24:40] Speaker 01: Instead, quite common among professional employees, they should perform some of their own work outside the compensable workday. [00:24:48] Speaker 01: They're saying that is the supplemental appendix, page 55. [00:24:53] Speaker 01: And that's, I'm sorry, that's a DOD brief before the authority? [00:24:57] Speaker 01: Yes. [00:25:02] Speaker 00: We'll give you some rebuttal time. [00:25:04] Speaker 00: OK, thank you. [00:25:05] Speaker 00: If my colleagues are fine with that, we'll hear from the authority. [00:25:08] Speaker 04: Thank you. [00:25:18] Speaker 05: Your honors, may it please the court, Sarah Blakadar for the respondents, the Federal Labor Relations Authority. [00:25:23] Speaker 05: And we respectfully request the court affirm the May 2019 authority decision that applied well-established authority precedent regarding management's right to assign work, and that confine the passes panel's jurisdiction to that authorized by the Federal Labor Relations Management Statute. [00:25:39] Speaker 05: By contract. [00:25:40] Speaker 03: The authority under review, the order under review has two distinct holdings. [00:25:45] Speaker 03: One, on enforceability. [00:25:48] Speaker 03: before the impasse panel and one on negotiability. [00:25:53] Speaker 05: Yes, Your Honor. [00:25:54] Speaker 03: And you haven't even tried to defend the second one in this Court. [00:25:59] Speaker 05: The negotiability of Article 19. [00:26:03] Speaker 03: Your Honor, we... You just have one footnote saying these two issues are separate. [00:26:10] Speaker 05: Your Honor, first the authority's decision did note that Article 19 was not similar to previously approved language and so [00:26:17] Speaker 05: the panel was without authority to order the parties to implement it. [00:26:23] Speaker 05: And specifically looking at the language in Fort Bragg and overseas education, which have been cited to in this case, the language there is only analogous to the language in this contract that simply set the... And that's where you're on your relatively stronger ground, but the authority went on to say in addition [00:26:45] Speaker 03: We can reach negotiability and we choose to reach negotiability and we decide negotiability. [00:26:52] Speaker 05: Yes, Your Honor. [00:26:53] Speaker 03: I mean, it would have been nice to have a defense of that. [00:26:58] Speaker 05: Well, Your Honor, the provisions here are not negotiable because they direct the ability to control when an hour of work that is compensated happens. [00:27:10] Speaker 05: to the employees and not to the agency. [00:27:13] Speaker 00: I can't say I see that except in the authority's own description. [00:27:17] Speaker 00: Because if you look at NTU, which is the principal authority on which the authority relies, the provision there expressly said that whether the field work or whether the field employee performs work before or after visiting an alternative workplace shall be at the discretion of the field employee. [00:27:37] Speaker 00: So actually allocating to the employee [00:27:41] Speaker 00: of CBA-protected choice. [00:27:44] Speaker 00: Whereas in this case, Section 1B doesn't mention employee discretion over when to perform the eighth hour at all. [00:27:52] Speaker 00: Leaving open, one would think that management has discretion if it ever had any interest in telling the employee when to do its prep, which it has never, in this case, ever expressed. [00:28:04] Speaker 00: So it seems like the authority, correct me if I'm wrong, is taking this very formal view, picking up on a problem that neither party actually thought was a problem, which is the idea that employees, after they go home, after parent-teacher meetings, after faculty meetings, after continuing education, when they go home and they have an hour of prep for which the contract says they will be paid, [00:28:31] Speaker 00: The employer has never expressed an interest in whether that be done before dinner, after dinner, late at night, early in the morning before going to work. [00:28:41] Speaker 00: But the authority, perhaps reasonably, and I guess that's the question for us, has said that infringes on the employer's ability to sign work. [00:28:51] Speaker 00: Am I right? [00:28:53] Speaker 05: Yes, Your Honor. [00:28:54] Speaker 05: The authority relied upon the undisputed characterization in the proceedings that this [00:28:59] Speaker 05: article reserved to the employees the discretion as to when to perform their hour of preparation and planning. [00:29:05] Speaker 05: And as the argument here today has continued to underscore, it is the petitioner's view that it is only if they pay for a ninth hour of compensation that the school can request that the planning and preparation occur at the beginning or at the end of the school day on the work site. [00:29:22] Speaker 05: And that's not to assign them to a faculty meeting or anything of that nature. [00:29:26] Speaker 05: That is simply to have an eighth hour of work be performed continuously, so eight continuous paid hours, and to direct those employees to perform that planning and preparation work at the end of the school day would require additional compensation. [00:29:40] Speaker 05: And that is what is violative of management's rights, which are clearly established by authority precedent. [00:29:46] Speaker 00: But the employer has actually never asked for that. [00:29:50] Speaker 00: And I don't see that that would actually be in conflict with the contract. [00:29:53] Speaker 00: If the employer said, actually, we'd really like everyone to do their prep work right after school, we're not going to have any faculty meetings. [00:30:02] Speaker 00: We're not going to have any continuing education. [00:30:05] Speaker 00: We're just going to have you do your prep work right after school. [00:30:11] Speaker 00: There's no record that they don't have the prerogative to do that. [00:30:15] Speaker 05: Yes, Your Honor, the record actually has indicated and the arguments continue to indicate that if the employer here wanted to do that, they would be required to pay for additional time. [00:30:27] Speaker 00: That was never the issue that I saw in the record. [00:30:29] Speaker 00: What I saw in the record was the employer substituting different activities for the paid prep work. [00:30:38] Speaker 00: and saying, we're going to pay you for those different activities rather than the prep work. [00:30:43] Speaker 00: And then the union says, well, actually, no, we have a prep work hour in the contract. [00:30:48] Speaker 00: So the thing you want us to do, that extra activity, is a ninth hour rather than an eighth hour. [00:30:52] Speaker 00: That's the dispute. [00:30:53] Speaker 00: I mean, correct me if I'm wrong, if there's somewhere in the record where the employer here said, we want to control when you do the prep work as such. [00:31:02] Speaker 05: Your Honor, it is correct that that is part of what the agency has been arguing, that they want to have more control over exactly what tasks are assigned, but that is not the authority's holding here. [00:31:13] Speaker 00: Right, the authority held that the difficulty is that the employer here lacks the ability to tell the employees when to do their prep work. [00:31:20] Speaker 00: Yes, that's correct. [00:31:22] Speaker 00: And I question why that is if neither of the parties here read the agreement that way. [00:31:28] Speaker 05: The case of the parties here, Your Honor, have been considering the agreement to prevent such thing, to prevent the employer agency here from controlling exactly when the prep work would be directed if they are directing only prep work. [00:31:43] Speaker 05: So the arguments have often focused on what other work that the agency can compel the employees to do and if they are required to pay extra for that. [00:31:52] Speaker 05: However, that is part of why the authority here [00:31:55] Speaker 05: found it prudent to make the negotiability decision because there are very broad arguments about the negotiability of this provision and the authority therefore provided an interpretation of the statute applicable to this case and the facts to tell them exactly which portion of this contract was violative of management's rights. [00:32:15] Speaker 00: So if they went back to the drawing board and everything else about the fact finders [00:32:24] Speaker 00: order were in place and they said we're going to agree to all of that and we're also going to add a savings clause to the effect of that the assignment of the eighth hour of the duty day for prep work may be directed, when the prep work takes place, qua prep work may be assigned by the employer. [00:32:52] Speaker 00: Would that fix the problem, the negotiability problem that the authority has identified? [00:32:57] Speaker 05: Your Honor, that very likely would fix the problem. [00:33:00] Speaker 05: Not without the exact language, I won't commit the authority to a definite position, but it sounds like this is a language in savings provision that would remedy the negotiability issue identified by the authority. [00:33:10] Speaker 00: Now, why isn't that already the case under the existing contract as the parties have understood it? [00:33:17] Speaker 05: Well, Your Honor, I don't know exactly why each party hasn't chosen to adopt the provisions you've suggested, but I would note... One reading of the record is they think it's already that way. [00:33:28] Speaker 00: They think it's already there. [00:33:29] Speaker 00: No, Your Honor. [00:33:30] Speaker 00: If the employer ever wanted to tell the employees when they would be most alert and most undistracted to do their prep work at home, it could. [00:33:39] Speaker 05: No, Your Honor, the authority, or sorry, the agency has been asserting throughout the process that they don't have the ability to control this eighth hour of paid work and direct the employees to perform work at a specific time. [00:33:52] Speaker 03: And that's their position, but why is it right? [00:33:59] Speaker 05: The arguments that have been discussed here today also highlight that the union believes that this contract protects them from having the hour of planning and preparation work to be directed to them to be done at a specific time. [00:34:13] Speaker 05: They continue to argue that other provisions allow the agency to direct an additional eighth hour of work [00:34:22] Speaker 05: but that that actually is being compensated as a ninth hour of work. [00:34:27] Speaker 03: Put aside the party's positions. [00:34:30] Speaker 03: Just read the contract. [00:34:32] Speaker 03: If the contract is silent on this point we've been discussing, which is when the teachers have to do the eighth hour of prep work, [00:34:48] Speaker 03: If one interpretation makes the contract unlawful and another one makes it lawful, why wouldn't you just adopt the lawful interpretation? [00:35:02] Speaker 05: The authority needed to decide this case on the undisputed representations that were put before it about what this contract term means and how it's being applied between the parties. [00:35:12] Speaker 03: As opposed to what the contract actually says. [00:35:16] Speaker 05: Well, the contract does not say that the employees have unfettered discretion, but that would have been a very obvious violation of management rights. [00:35:26] Speaker 05: So that's unlikely to be the exact terms that any party would write into the contract. [00:35:30] Speaker 05: But it has been the practice between these parties and the undisputed assertion throughout the arguments before the agency, or the authority by the agency, that this allows sole discretion to the employees to determine. [00:35:43] Speaker 00: And the question, I think I have [00:35:47] Speaker 00: question that may be beyond the record in this case, but the employer has an interest in managing the work. [00:36:00] Speaker 05: Yes, Your Honor. [00:36:01] Speaker 00: And the reason that the immediately post-school hour has been at issue is because the employer has other things other than prep that it wants to require during that period. [00:36:14] Speaker 00: Yes, Your Honor. [00:36:16] Speaker 00: Is it correct, this is my understanding of the record, that the employees and their representatives have never said no, you cannot schedule things because I, as employee, have a prerogative to choose when after the duty day is over, I'm gonna do my prep and I'm exerting that prerogative to do my prep in that hour and therefore I'm unavailable for faculty meetings. [00:36:44] Speaker 00: They've never taken that position, have they? [00:36:46] Speaker 05: Your Honor, I do not recall anything like that on the record. [00:36:48] Speaker 05: Right. [00:36:49] Speaker 00: And if the employer wanted, under the authority's reading, if the employer wanted to say, you teachers have to do your prep work after dinner, could they do that? [00:37:06] Speaker 05: Do they actually have that managerial prerogative? [00:37:08] Speaker 05: According to the party's interpretation and the practice throughout this collective bargaining agreement, no, they don't have that prerogative. [00:37:14] Speaker 00: I'm saying if their prerogative were under the statute were correctly recognized. [00:37:19] Speaker 00: In other words, I'm trying to get a sense of what the authority is trying to make sure is respected in terms of the employer's prerogative. [00:37:27] Speaker 00: It should have, in your view, the authority, the power to tell the employees when between the end of one due day and the beginning of the next, [00:37:37] Speaker 00: the prep is done. [00:37:39] Speaker 05: Yes, Your Honor. [00:37:40] Speaker 00: And I'm just probing that because it seems odd to me that an employer would actually have a legitimate interest in the timing of that. [00:37:46] Speaker 00: Let's say it's after midnight. [00:37:49] Speaker 00: What if I'm not a night owl? [00:37:52] Speaker 05: Yes, Your Honor. [00:37:52] Speaker 05: I understand that. [00:37:53] Speaker 05: And there are other provisions of federal law and of labor relations law that would still require them to bargain over the impacts of a management rights decision. [00:38:03] Speaker 05: And so the impacts and implementation of a policy about [00:38:07] Speaker 05: when they want to schedule the planning and preparation work, but still be up for debate between the parties. [00:38:13] Speaker 05: It is they need to reserve that right and that ability to management to direct when the work is going to be done. [00:38:19] Speaker 02: Are these teachers subject to the federal version of the Fair Labor Standards Act? [00:38:29] Speaker 05: Your Honor, I am not sure what the answer to that question is. [00:38:32] Speaker 05: I would have to get back to the court. [00:38:34] Speaker 02: You know why I'm asking? [00:38:36] Speaker 02: I don't think the Fair Labor Standards Act has a definition of work week in it. [00:38:42] Speaker 05: Yes, 40 hours a week, Your Honor. [00:38:43] Speaker 02: Right. [00:38:44] Speaker 02: And any time spent more than the 40 hours is compensable at time and a half. [00:38:53] Speaker 05: Yes, Your Honor. [00:38:53] Speaker 02: At the hourly rate. [00:38:55] Speaker 02: And I'm wondering whether that [00:38:56] Speaker 02: There is a federal provision that duplicates the, and I've forgotten the name of it, that duplicates that statute for the private sector. [00:39:06] Speaker 02: And I'm wondering whether the prospect of time and a half overtime is what's driving this dispute. [00:39:14] Speaker 05: Your Honor, it's possible that that's a motivation here. [00:39:17] Speaker 05: The authority does not have insight into why the parties want the provisions exactly the way they want them. [00:39:24] Speaker 05: more that the authority here looked at what was written. [00:39:27] Speaker 05: And in fact, in a way that is very similar to the case in NTEU, there the parties had actually reduced what was kind of a standard practice between the employees and the agencies to writing. [00:39:37] Speaker 05: But that reduction to the contract still violated management's right to assign work. [00:39:44] Speaker 05: The law applies regardless of whether it's occasionally the practice of an agency to allow certain types of discretion. [00:39:51] Speaker 05: And even with the changes imposed here, the agency may still choose to lead to the discretion of the teachers from time to time when they perform their planning work, but it is not permissible under the statute and the authority's precedent to inscribe that into a collective bargaining agreement. [00:40:08] Speaker 00: NTU seemed different to me in a couple of ways. [00:40:10] Speaker 00: Maybe you can help me see how it's more applicable here. [00:40:14] Speaker 00: One is that the provision there did affirmatively say [00:40:18] Speaker 00: that the disputed work, the timing of the disputed work, shall be at the discretion of the field employee. [00:40:26] Speaker 00: So affirmatively assigned the employee control over the timing, which this contract doesn't do. [00:40:31] Speaker 05: Yes, but in this case, Your Honor, it's been the undisputed contention of the agency that the practice and the interpretation both parties hold of this contract is that it is the discretion of the employees to determine when to do their planning and preparation work. [00:40:48] Speaker 00: Be that as it may, I think the union disputes that reading of the record, but we can hear from Mr. Hearn on that. [00:40:56] Speaker 00: The second way that it seems a little bit different from NTU is the implication of the employee's prerogative to time the sequence of her work in NTU had pay implications. [00:41:11] Speaker 00: Basically, if the employee did 15 minutes [00:41:14] Speaker 00: or more of work at the primary duty station before commuting to an alternate duty station, then the full commute time would be paid. [00:41:23] Speaker 00: Whereas if they went straight to the alternate duty station, they wouldn't get paid for that. [00:41:27] Speaker 00: So they're basically putting in the employees' hands. [00:41:32] Speaker 00: a spigot on am I going to do work that gets additional pay or not, which is something that is much more clearly a derogation of an employer's right to assign work than the notion of whether I do my class prep before dinner, after dinner, or before breakfast. [00:41:50] Speaker 05: I accept, Your Honor, that the arguments here today have been that if the employer, the agency here, [00:41:55] Speaker 05: wanted to assign the eighth hour of paid compensation work to be completed at the end of the work day, and that work, and the only work done during that time was planning and preparation, the union has continued to argue that that would actually require a ninth hour of pay. [00:42:10] Speaker 00: Where is a site for that on the record? [00:42:12] Speaker 00: Because I did not glean that. [00:42:15] Speaker 00: If it's going to be prep work that would be at the end of the duty day, that there would have to be additional compensation for that. [00:42:21] Speaker 05: I don't have a site that I can immediately give to for this, but this is what was said by counsel in his argument here today. [00:42:30] Speaker 05: And this is the crux of the argument about Section 3D in the contract, as well as the other provisions in Section 1A, is that because there are these other things that allow the parties to do this additional compensation for a ninth hour of work during the week, [00:42:51] Speaker 05: which is actually just an eighth hour of work accomplished at the school site. [00:42:54] Speaker 05: You can also look to the joint appendix for the earlier arbitration between these parties, which I believe is at 57, sorry, 59. [00:43:08] Speaker 05: And that's the arbitration in 2012 relating to these provisions where they talked about how these additional eighth contiguous hour at the school day [00:43:16] Speaker 05: or not something that the employer could order as a matter of course because that would violate the contract. [00:43:22] Speaker 00: But not specifying that it would be the eighth hour. [00:43:25] Speaker 00: I mean, the employer here has never asked, I thought you acknowledged this before, has never asked for the eighth hour immediately after the ordinary duty day to be devoted to the ordinary prep work. [00:43:38] Speaker 00: Yes. [00:43:38] Speaker 00: Never been on the table and never been refused by the union. [00:43:40] Speaker 00: Has it? [00:43:41] Speaker 00: Am I missing something? [00:43:42] Speaker 05: Well, Your Honor, the broader argument that the agency has continued to make is that they should be able to order an eighth hour at school. [00:43:51] Speaker 05: In prep work? [00:43:53] Speaker 05: No, just in general. [00:43:54] Speaker 05: They should be able to do that. [00:43:56] Speaker 05: And what the authority's decision says is that's too far. [00:43:59] Speaker 05: But what we do know is that the contention that has been undisputed throughout this process, that the employees and not the agency control when the planning and preparation hour is conducted. [00:44:12] Speaker 05: is not acceptable under the statute. [00:44:14] Speaker 03: And the linchpin of your administrative order with regard to both enforceability and negotiability is that proposition. [00:44:28] Speaker 03: You say the panel observed and the parties don't dispute, employees may perform their paid hour at a time of their choosing. [00:44:36] Speaker 03: Yes, Your Honor. [00:44:39] Speaker 03: Your opponents say this is a very obvious error because you're treating as a panel finding something that was just a position of one of the parties. [00:44:57] Speaker 03: And your response to that is, well, it was undisputed. [00:45:00] Speaker 03: So to me, this case might come down to the question whether that proposition was or wasn't disputed. [00:45:08] Speaker 03: before the agency. [00:45:11] Speaker 05: Your Honor, it hasn't been. [00:45:12] Speaker 03: You haven't given me any great textual reason to think the contract is about when rather than where. [00:45:21] Speaker 03: So you're essentially relying on a concession by a party before you. [00:45:27] Speaker 05: Yes, Your Honor. [00:45:28] Speaker 05: I mean, this is the arguments that were before the authority and what it had to base its ruling on. [00:45:32] Speaker 05: So yes, that's correct, Your Honor. [00:45:36] Speaker 00: It seems puzzling to me that the authority would take this position given the description of the importance in, is it Carswell, of empowering impasse panels and fact-finders to help resolve disputes. [00:45:58] Speaker 05: The ability to resolve disputes is important, but the ability to impose contract language on the party has always been cabined by the negotiability issue. [00:46:07] Speaker 05: And so from the beginning, that's why the authority addressed in its decision that this was so dissimilar to prior language that it removed the ability of the panel to actually impose it. [00:46:19] Speaker 05: And then as they further went on to explain, to resolve this long-running dispute between the parties, [00:46:25] Speaker 05: There is a portion of this language that violates management rights and so is non-negotiable. [00:46:30] Speaker 00: And on the completely separate question about the scope of what was sent to the impasse's panel, it's not the authority's position that had the parties intended, for example, had the union and its letter said, you know, enough of our disagreement is just these few provisions, [00:46:49] Speaker 00: We'd like the whole agreement to go before the impasse's panel. [00:46:53] Speaker 00: There's no reason why that would have been beyond the jurisdiction of the panel, is there? [00:46:58] Speaker 05: Well, there would have to be facts to demonstrate that the parties were at impasse over those other articles. [00:47:04] Speaker 00: But let's say they said that, you know, this is an agreement. [00:47:06] Speaker 00: Everything relates to everything else. [00:47:09] Speaker 00: And we can't say we would tie this with a bow, even on the things. [00:47:12] Speaker 00: That's why they call it tentative agreement. [00:47:14] Speaker 00: And therefore, let's bring the whole package. [00:47:18] Speaker 00: The authority is not saying that that would not be permissible, is it? [00:47:23] Speaker 05: There might be a factual record that would, in what you described, make that all part of the panel's jurisdiction. [00:47:29] Speaker 05: Here, obviously, the mention of the 21 articles that they were already at agreement over was completely absent from any of the panel proceedings, save the one sentence in the FactFinder's report and the one sentence in the panel's decision. [00:47:43] Speaker 05: And so that is why there was no jurisdiction over these issues here. [00:47:47] Speaker 00: Thank you. [00:47:55] Speaker 01: I think I'm more worried about the big picture here. [00:48:03] Speaker 01: I'm less worried about preserving 1B or having to renegotiate 1B than I am about losing this whole contract, all the effort and time that everybody went into over the years to put this together. [00:48:15] Speaker 01: to go back and have to renegotiate the salary and everything else when this contract is about to expire. [00:48:23] Speaker 01: With regard to the tentative agreement issue, I think that [00:48:28] Speaker 01: That issue is a little bit more simpler than it's really been portrayed. [00:48:35] Speaker 01: We need to remember that there were two unfair labor practices here, a violation of A5, the duty to bargain in good faith, and A6, failure to implement an FSIP award. [00:48:47] Speaker 01: Assuming the FSIP did not have jurisdiction, [00:48:50] Speaker 01: to impose the tenet of agreements, and we think they do. [00:48:52] Speaker 01: But even assuming that, you still have the A5 violation, because by the time the panel decision had been issued, everything else had been agreed to. [00:49:02] Speaker 01: We were at the end of the road, we had completed a contract, and the agency had an obligation to execute and implement the contract, regardless of whether or not the impasse panel technically had jurisdiction to impose the tenet of agreements or not. [00:49:16] Speaker 01: So and finally I think that part of the tension that's been exposed here today about when the employees do this prep work and all is we need to remember that the FLRA has ruled that 1A is negotiable and enforceable and that's the language that's been previous in the earlier cases. [00:49:41] Speaker 01: that you can negotiate a cap on the number of hours you spend at school without additional compensation. [00:49:49] Speaker 01: That is not in dispute, okay? [00:49:52] Speaker 01: And to say that, well, we can keep you an extra hour, and that's all right, that cannot be reconciled with [00:50:04] Speaker 01: The negotiability of a cap on the number of hours that a teacher can be required to stay at school without additional pay. [00:50:13] Speaker 01: And that is, the authority said 1A is negotiable. [00:50:18] Speaker 01: That was the same language that was in the Laurel Bay case and the Fort Bragg schools case. [00:50:23] Speaker 02: The analog to the Fair Labor Standards Act contains a definition of work week, doesn't it? [00:50:33] Speaker 01: Yes, Judge Raynove, I'm glad you asked that. [00:50:35] Speaker 01: These teachers- It's eight hours, or four. [00:50:39] Speaker 01: Right. [00:50:39] Speaker 01: The federal employee pay statutes, all those other work week requirements, and the Title V laws concerning federal employee pay do not apply to these teachers. [00:50:49] Speaker 01: And that's why they have the ability to negotiate pay. [00:50:51] Speaker 01: They're exempt from those. [00:50:53] Speaker 01: They're exempt from all those, and that's why under the Fort Stewart Schools case at the Supreme Court, [00:50:58] Speaker 01: that we are the right to negotiate that. [00:51:01] Speaker 02: That explains the definition in B, because if you were under the comparable Fair Labor Standards Act, that's an admission that would require a time and a half pay. [00:51:13] Speaker 01: Yeah, that's not, the time and a half pay is not the issue here. [00:51:17] Speaker 01: And those pay, those civil service pay statutes do not apply to these teachers. [00:51:22] Speaker 00: And in fact, they don't get time and a half for any nine to eight hours, it's just straight time. [00:51:26] Speaker 01: I think the clause is if they cash out the comp time at the end of the school year, they make it an hour, one and a quarter of their work. [00:51:35] Speaker 00: So they took it at comp time and then turned around and cashed it out? [00:51:38] Speaker 01: I think that it's in section three somewhere, I think, or it's in the PACE article somewhere. [00:51:47] Speaker 02: In 3-D when it talks about compensatory time, is that vacation or sick leave? [00:51:52] Speaker 01: No, that's just take a day off during the school year. [00:51:57] Speaker 01: which is all subject to the employer. [00:51:59] Speaker 01: The comp time, the teacher doesn't have the right to take it any time they want. [00:52:05] Speaker 01: And so comp time is always subject to the principal saying, yeah, we can spare you for the day. [00:52:10] Speaker 02: So basically, it's vacation time? [00:52:14] Speaker ?: Yeah, yeah. [00:52:15] Speaker 01: OK. [00:52:15] Speaker 01: Thank you. [00:52:16] Speaker 00: Thank you. [00:52:16] Speaker 00: The case is submitted.