32:1023(146)NG - - AFGE LOCAL 1931 and Navy, Naval Weapons Station, Concord, CA - - 1988 FLRAdec NG - - v32 p1023



[ v32 p1023 ]
32:1023(146)NG
The decision of the Authority follows:


32 FLRA No. 146

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, AFL-CIO, LOCAL 1931

Union

and 

DEPARTMENT OF THE NAVY

NAVAL WEAPONS STATION

CONCORD, CALIFORNIA

Agency

Case No. 0-NG-1414

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). It concerns the negotiability of 18 provisions, or portions thereof, of a negotiated agreement. These provisions were disapproved by the head of the Agency under section 7114(c) of the Statute.

We will not consider 23 additional provisions, or portions thereof, contained in the petition for review. The Agency withdrew its allegation of nonnegotiability as to Provisions 2, 4, 5, 6, 7 part two, 17, 30, 35m, and 37. The Union withdrew its appeal as to Provisions 7 part one, 9, 14, 15, 16, 18 (Article 15, Section 15), 21, 23, 25, 26, 28, 29, 32, 35n, and 38.

In its Statement of Position, the Agency stated that it had been informed by the Union that the Union would withdraw Provision 8. The Union's Response to the Agency's Statement of Position did not contradict the Agency's statement and did not in any manner address Provision 8. Therefore, we consider Provision 8 to have been withdrawn by the Union.

The original Petition for Review included Article 15, Section 16 (Provision 18) and Article 37, Section 14 (Provision 40).(1) These provisions have not been addressed by the Agency and/or the Union in their statements of position. Moreover, there is no evidence in the record that the Agency has withdrawn its allegations of nonnegotiability or that the Union has withdrawn the provisions from its appeal. Therefore, we will consider these provisions as being properly before us.

For the reasons which follow, we find Provisions 10, 11, 18, 27, 33 and 39 to be negotiable. We also find the fifth sentence of Provision 31 to be negotiable. Provisions 1, 3, 12, 13, 19, 20, 22, 24, 34, 36, 40, and the first, second, third and fourth sentences of Provision 31 are nonnegotiable.

Summaries of the dispositions of the provisions follow.

Provision 1 states that: (1) employees who have dues withheld for at least 1 year may submit a request for termination of dues withholding through the Union office; and (2) the withholding will be terminated as of the first pay period in March following the submission of the request. We find that Provision 1 violates section 7115(a) of the Statute and is outside the duty to bargain.

Provision 3 allows Union officers or stewards the option of accepting assignment to supervisory positions or continuing as Union representatives. Provision 3 is outside the duty to bargain because it directly interferes with management's rights to assign employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute and does not constitute an appropriate arrangement under section 7106(b)(3).

Provision 10 requires the Agency to make a reasonable effort to minimize the effect of a reduction-in-force (RIF) by reassigning employees to available vacancies for which they are qualified. Although the provision would directly interfere with management's right to make selections for appointments under section 7106(a)(2)(C) and management's right to assign employees to positions under section 7106(a)(2)(A), it constitutes an appropriate arrangement under section 7106(b)(3) and is, therefore, within the duty to bargain.

Provision 11 provides that the Employer will make efforts to reassign or provide training for employees whose positions are eliminated due to automation or labor saving devices. Although the provision directly interferes with the Agency's right to make selections under section 7106(a)(2)(C) and to assign work under section 7106(a)(2)(B), it constitutes an appropriate arrangement under section 7106(b)(3) and is, therefore, within the duty to bargain.

Provision 12 limits the number of "night drills" which the Agency may schedule during certain hours and certain portions of a 24-hour shift. Provision 12 excessively interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute and is, therefore, outside the duty to bargain.

Provision 13 prevents the Agency from assigning an employee overtime in excess of 4 hours per day unless unusual circumstances exist. Provision 13 is outside the duty to bargain because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Provision 18 provides for the equitable distribution of light duty. Provision 18 does not violate management's right to assign work under section 7106(a)(2)(B) and is within the duty to bargain.

The disputed portion of Provision 19 would limit the Agency in imposing discipline to "the minimum necessary to correct the offending employee." The provision would interfere with management's discretion to determine what discipline should be imposed for a particular offense and is, therefore, outside the duty to bargain because it excessively interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute.

Provisions 20 and 22 preclude the use of statements from other employees in discipline and adverse actions proceedings unless those statements are in writing and signed by the employee who made the statement. The provisions are outside the duty to bargain because they are inconsistent with management's right to discipline employees under section 7106(a)(2)(A) of the Statute and are not appropriate arrangements within the meaning of section 7106(b)(3).

Provision 24 would require the Agency to make efforts to use employees' skills to the fullest extent and to provide the maximum feasible number of opportunities for employees to improve their skills through any of a variety of training sources. This provision directly interferes with management's right to assign work and does not constitute an appropriate arrangement. It is outside the duty to bargain.

Provision 27 requires the Agency to comply with Office of Management and Budget (OMB) Circular No. A-76 when it makes determinations concerning contracting out. Provision 27 is a negotiable procedure under section 7106(b)(2) of the Statute and is within the duty to bargain.

Provision 31 concerns fitness-for-duty medical examinations. The first sentence of Provision 31 provides that a fitness-for-duty examination may be required where an employee is unable to perform his or her assigned duties and assignment to other duties is not practicable. We find that that sentence imposes restrictions on the Agency's authority concerning fitness-for-duty examinations which conflict with part 339 of the Code of Federal Regulations and is outside the duty to bargain.

The second, third, and fourth sentences of Provision 31 would allow an employee who undergoes a fitness-for-duty examination to refuse to be examined by a physician designated by the Agency and instead, request to be examined by a physician chosen by the employee at the Agency's expense. These sentences conflict with a Government-wide regulation which provides for the Agency to designate the examining physician and precludes the Agency from paying for the cost of a physical examination by a physician chosen by the employee. Consequently, the second, third, and fourth sentences of Provision 31 are outside the duty to bargain.

The fifth sentence of the provision allows the Agency to make a decision concerning the retention of an employee in an assigned position in accordance with the findings of the fitness-for-duty examination and in accordance with "existing regulations." This sentences does not conflict with regulation or interfere with the discretion of the Agency to prescribe fitness-for-duty examinations. Therefore, the fifth sentence of Provision 31 is within the Agency's duty to bargain.

Provision 33 states that the Agency will provide transportation to and from treatment for employees who are recuperating from job-related injuries. The Agency has discretion to pay travel expenses which are incidental to medical treatment for on-the-job injuries. The provision is consistent with law and is within the Agency's duty to bargain.

Provision 34 requires the Agency to provide "cross training," if feasible and if the training would benefit the Agency and the employee, upon the request of the employee. "Cross training" is training in the duties of a different position. Provision 34 is outside the duty to bargain because it directly interferes with management's right to assign work under section 7106(a)(2)(B) and does not qualify for consideration as an appropriate arrangement.

Provision 36 precludes the reassignment of an employee who is suffering from alcoholism or drug abuse until the employee has been afforded rehabilitative assistance. Provision 36 is outside the duty to bargain under section 7117(a)(1) of the Statute because it conflicts with Executive Order 12564.

The disputed portions of Provision 39 would: (1) establish the duration of the agreement as 3 years from its effective date and would allow for mutually agreed-upon 1-year extensions thereafter; and (2) provide for the agreement to remain in full force and effect during renegotiations until a new agreement takes effect. Provision 39 does not conflict with an Agency regulation for which a compelling need exists under section 7117(a)(2) of the Statute and, therefore, is within the Agency's duty to bargain.

Provision 40 requires the Agency to inform employees who are required to submit to a fitness-for-duty examination that they may be examined at the Agency's medical facilities or by a physician chosen by the employee. Provision 40 is outside the duty to bargain because it is inconsistent with a Government-wide regulation.

The underlined portions of the provisions cited below are in dispute.

II. Provision 1

Article 3. Rights of Employees

Section 2. Nothing in this Agreement shall require an employee to become or to remain a member of the Union or to pay money to the Union except pursuant to a voluntary written authorization by a member for the payment of dues through payroll deduction. Members may elect to make payments directly to the Union. Employees who authorize the deduction of Union dues through a dues withholding agreement must continue that dues withholding from their paycheck for a period of at least one year unless they no longer hold a position within one of the three representational units covered by the agreement. Prior to discontinuing any dues withholding, the Union will be notified in advance. Employees within one of the aforementioned units who have had dues withheld for a period of at least one year and wish to terminate that withholding may submit a termination request to the payroll office via the Union office at any time. However, the withholding will only be terminated as of the first pay period in March following the submission of that request. Allotments shall be made at no cost to the Union exclusive representative or the employee.

A. Positions of the Parties

The Agency states that "{i}t is well established and the agency does not dispute that the union is entitled to negotiate a dues withholding provision which calls for revocation only at annual intervals." Agency's Statement of Position at 4. However, the Agency contends that the disapproved portion of this provision is contrary to section 7115(a) of the Statute because in some circumstances, employees would be precluded from revoking dues authorizations for a period in excess of 1 year. As an example, the Agency asserts that if an employee submitted an authorization for dues withholding in April, the employee could not submit a request to revoke until April of the following year, and the revocation would not take effect until March of the year after that.

The Union states that Provision 1 provides for a standardized procedure for the deduction of dues and the termination of a dues authorization from the salaries of bargaining unit employees. According to the Union, the provision establishes that an employee who has had dues withheld for at least 1 year may submit a termination request which will become effective in the first pay period in March. The Union states that the Authority has held that the parties may define the yearly intervals required by section 7115(a) through negotiations.

B. Discussion

Provision 1 states that: (1) employees who have had dues withheld for at least 1 year may submit a request for termination of dues withholding through the Union office; and (2) the withholding will be terminated as of the first pay period in March following the submission of the request. We find that Provision 1 violates section 7115(a) of the Statute and is outside the duty to bargain.

Under section 7115(a) of the Statute, an authorization for dues withholding "may not be revoked for a period of 1 year." The Authority examined section 7115(a) and its legislative history in U.S. Army, U.S. Army Materiel Development and Readiness Command, Warren, Michigan, 7 FLRA 194 (1981). The Authority held that "the language in section 7115(a) that 'any such assignment may not be revoked for a period of 1 year' must be interpreted to mean that authorized dues allotments may be revoked only at intervals of 1 year." Id. at 199 (footnote omitted).

Additionally, the Authority has held that parties may implement section 7115(a) by defining the yearly intervals required by that section through negotiations. See, for example, Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 19 FLRA 586 (1985). In that case, the parties' negotiated agreement provided that employees could revoke dues authorizations only on the anniversary date of the authorization or during the 10-day period immediately preceding the anniversary date. The Authority found that the negotiated provision constituted a reasonable time period for dues withholding revocation and that the provision was consistent with the Statute.

However, as the Agency's example in its statement of position demonstrates, the disputed portion of the provision in this case could result in situations in which employees would be precluded from revoking dues authorizations for a period of almost 2 years. Such a result is inconsistent with section 7115(a) of the Statute. While we reaffirm the principle that parties may define the yearly intervals required by section 7115(a) through negotiations, as was done, for example, in Portsmouth, proposals submitted in negotiations or provisions resulting from those negotiations must be consistent with the requirements of section 7115(a) in order to be within the duty to bargain. Because the disputed portion of Provision 1 is inconsistent with section 7115(a), it is outside the duty to bargain.

III. Provision 3

Article 6. Union Representation and Conduct of Business

Section 4.

When a Union officer or steward is placed in a supervisory position, he will be given the option of accepting the assignment or continuing as a Union representative. Upon completion of his assignment, he may revert to his former Union capacity.

A. Positions of the Parties

The Agency contends that Provision 3 would allow Union officers and stewards to decline supervisory assignments. The Agency argues that the provision, therefore, is inconsistent with the exercise of management's rights under sections 7106(a)(2)(A), (B), and (C) of the Statute to assign employees, assign work, and select employees for positions. The Agency contends that the proposal would prevent it from making temporary assignments of supervisory work to Union officials and from assigning Union officials to supervisory positions on a temporary basis. The Agency also maintains that the provision would prevent it from selecting Union officials for permanent supervisory positions.

The Agency further asserts that the provision is not an appropriate arrangement under section 7106(b)(3) for employees adversely affected by the exercise of management's rights. With respect to this provision and numerous other provisions in the case, the Agency requests the Authority to reconsider the "excessive interference" test set forth in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). The Agency also argues in the alternative that Provision 3 does not meet the requirements of that test. The Agency contends that: (1) the Union has not identified any adverse effects on employees arising from the exercise of management's rights; and (2) the provision excessively interferes with the exercise of management's rights by preventing the assignment of Union officials to supervisory duties or positions without their consent.

The Union contends that the provision establishes a procedure under which elected Union officials can choose to accept positions outside the bargaining unit or to remain in their positions to fulfill their Union obligations. The Union states that as Federal employees, its officials may request a change to a lower graded position. The Union maintains that assignment of Union officials without their consent conflicts with sections 7114(a)(1) and 7116(a)(1) of the Statute. The Union argues that it is entitled to a variation from civil service rules and regulations in this instance because the provision constitutes a procedure for allowing elected Union officials to remain in their positions to carry out their Union duties.

The Union also contends that the provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The Union denies that the burden imposed by the provision on the exercise of management's right to assign work would outweigh the disruption which is caused by an assignment of Union officials to supervisory duties. The Union maintains that the Agency's interpretation of the provision is unreasonable because it requires Union officials to relinquish their Union positions in order to perform other duties. The Union denies that the provision conflicts with management's right to an excessive degree.

B. Discussion

We find that Provision 3 is outside the duty to bargain because it: (1) directly interferes with management's rights to assign employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute; and (2) does not constitute an appropriate arrangement under section 7106(b)(3).

Provision 3 would give a Union official the option of accepting or refusing an assignment of supervisory duties or an assignment to a supervisory position. The provision would subject management's right to make such assignments to the control of the employee involved. Provision 3 has the same effect as Provisions 1 and 2 in National Treasury Employees Union and Department of the Treasury and U.S. Customs Service, 31 FLRA 181 (1988), petition for review filed sub nom. Department of the Treasury, United States Customs Service v. FLRA, No. 88-1308 (D.C. Cir. Apr. 21, 1988). Those provisions would have prevented management from detailing or temporarily promoting an employee who is a union steward or officer to a supervisory position unless the employee voluntarily relinquished all union responsibilities. We found that those provisions violated management's rights to assign employees and to assign work under section 7106(a)(2)(A) and (B) because they would effectively prevent management from assigning supervisory responsibilities. We also found that the provisions did not constitute appropriate arrangements under section 7106(b)(3) because the provisions excessively interfered with management's rights by enabling an employee to veto an assignment.

Similarly, Provision 3 in the instant case would allow an employee to make the decision as to whether or not to accept an assignment to a supervisory position or to accept an assignment of supervisory duties. We do not agree with the Union that the assignment of Union officials without their consent conflicts with sections 7114(a)(1) and 7116(a)(1) of the Statute. Under the Statute, an agency has the right to assign work to all employees whether or not they are union officials. American Federation of Government Employees, Local 2182, AFL-CIO and Propulsion Laboratory, U.S. Army Research and Technology Laboratories, 26 FLRA 600 (1987) (Provisions 2 and 3).

Consistent with U.S. Customs Service, we find that Provision 3 directly interferes with management's rights to assign employees and to assign work under section 7106(a)(2)(A) and (B) of the Statute. Because the provision directly interferes with the Agency's right to assign Union officials to supervisory positions, it does not constitute a negotiable procedure under section 7106(b)(2). Based on this conclusion, we do not reach the Agency's contentions as to section 7106(a)(2)(C).

Additionally, consistent with U.S. Customs Service, we find that Provision 3 does not constitute an appropriate arrangement under section 7106(b)(3). By permitting employees to refuse an assignment, without taking into account management's interest in assuring that the work of a supervisory position is accomplished, the provision excessively interferes with management's right to assign employees and to assign work. The provision is, therefore, outside the duty to bargain.

We reject the Agency's request that the Authority reconsider the "excessive interference" test for determining whether a matter is an appropriate arrangement under section 7106(b)(3). For the reasons set forth in Kansas Army National Guard and subsequent decisions, we believe that the test is consistent with and furthers the purpose of the Statute. See, for example, International Association of Machinists and Aerospace Workers, Local 726 and Naval Air Rework Facility, North Island, San Diego, CA, 31 FLRA 158 (1988); American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587 (1987) (Provision 1), petition for review as to other matters filed sub nom. U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia v. FLRA, No. 88-8006 (11th Cir. Jan. 5, 1988).

IV. Provision 10

Article 9. Placement of Employees in RIF Situations

Section 1.

The Employer agrees to make a reasonable effort to minimize a reduction-in-force through the reassignment of employees to available vacancies for which they are qualified.

A. Positions of the Parties

The Agency contends that Provision 10 is inconsistent with the rights reserved to the Agency by section 7106(a)(2)(A) and (C) to assign, lay off, and retain employees and to make selections for appointments from any appropriate source. The Agency argues that provisions which require the Agency to reassign or select employees for vacancies or which require the Agency to "attempt" to exercise its management rights in a specific manner interfere with those rights. The Agency further contends that Provision 10 does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) because it would require management to fill vacant positions regardless of whether management had decided to do so.

The Union argues that Provision 10 constitutes an appropriate arrangement for employees who are adversely affected by a reduction-in-force and does not interfere with management's right to select from appropriate sources. The Union states that Provision 10 "preserves management's discretion regarding whether to fill vacant positions and, if so, to fill them with persons qualified to do the work of those positions. The [provision] does not require the [A]gency to fill all vacancies with affected employees." Union's Response at 12.

B. Discussion

Provision 10 is within the duty to bargain. Although the provision directly interferes with management's right to make selections for appointments under section 7106(a)(2)(C) and management's right to assign employees to positions under section 7106(a)(2)(A), it constitutes an appropriate arrangement under section 7106(b)(3). Moreover, because the provision deals with the effects of management's decision to lay off or retain employees, rather than the decision itself, we find that it does not directly interfere with those rights so as to be nonnegotiable on that ground.

Provision 10 is intended to assist employees whose positions are eliminated. The provision provides protection to those employees by requiring management to make a reasonable effort to reassign them to available vacant positions. The record in this case indicates that Provision 10 applies only where management has decided to fill the vacant positions. Union's Response at 12.

Provision 10 obligates management, once it has decided to fill vacant positions, to fill them from a particular source--reassignment of the affected employees. Because Provision 10 dictates the source from which management must select when filling vacancies, it conflicts with management's right to select from any appropriate source under section 7106(a)(2)(C)(ii). National Treasury Employees Union and Department of Health and Human Services, Region X, 25 FLRA 1041, 1046-47 (1987). Similarly, because Provision 10 requires management to reassign an employee, it also directly interferes with management's right to assign employees under section 7106(a)(2)(A). American Federation of Government Employees, Local No. 12 and U.S. Department of Labor, 25 FLRA 987, 990-91 (1987). Consequently, it is outside the duty to bargain unless it constitutes an appropriate arrangement under section 7106(b)(3).

Provision 10 is clearly intended to mitigate against the adverse effects of the exercise of management rights, in this case, elimination of positions through the exercise of management's right to conduct a RIF. We find, therefore, that the provision constitutes a proposed "arrangement" for employees adversely affected by the exercise of management's right to lay off employees within the meaning of section 7106(b)(3). American Federation of Government Employees, AFL-CIO, Local 2635 and Naval Communications Unit, Cutler, East Machias, Maine, 30 FLRA 41 (1987).

As to whether the provision is an "appropriate" arrangement, the Authority has consistently held provisions which require management, where it decides to fill vacant positions, to select qualified employees who are affected by a RIF to be negotiable under section 7106(b)(3). American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105, 1116-18 (1988). The Authority has concluded that, on balance, such proposals do not excessively interfere with management's right to assign and select under section 7106(a)(2)(A) and (C) because the potential benefit to employees outweighs the limited impact on those rights.

Consistent with Naval Air Station, Oceana, Virginia, we find that Provision 10 is an appropriate arrangement within the meaning of section 7106(b)(3) and is within the duty to bargain. See also American Federation of Government Employees, Council 257, AFL-CIO, National Association of Government Inspectors and Quality Assurance Personnel, Local 4004, Naval Aviation Depot, Pensacola, Florida and Department of the Navy, Naval Aviation Depot, Pensacola, Florida, 30 FLRA 1144, 1147-49 (1988); Naval Communications Unit, Cutler, East Machias, Maine, 30 FLRA 41 (1987).

V. Provision 11

Article 9, Section 4

The Employer agrees to make a definite effort to reassign employees whose positions are eliminated due to automation or adoption of labor saving devices consistent with the Station's manpower requirements. The Employer agrees to make a definite effort to retrain employees whose positions are eliminated due to automation provided the cost of such training is not excessive and the employee has the necessary aptitude and adaptability as determined by the employer.

A. Positions of the Parties

The Agency asserts that Provision 11 would require it to make efforts to reassign employees and to retrain employees whose positions are affected by automation or adoption of laborsaving devices. The Agency contends that the provision is inconsistent with rights reserved to the Agency by section 7106(a)(2)(A), (B), and (C) to assign, lay off, and retain employees, to assign work, and to make selections for appointments from any appropriate source. The Agency's arguments regarding the requirement to reassign or to select employees are the same as those presented for Provision 10. Additionally, the Agency asserts that the second sentence of Provision 11, which requires the Agency to retrain employees, interferes with the Agency's right under section 7106(a)(2)(B) to assign work. The Agency contends that the provision does not constitute an appropriate arrangement for employees who are adversely affected by the exercise of management's rights.

The Union argues that Provision 11 is an appropriate arrangement for employees who are adversely affected by an Agency decision to adopt automation or laborsaving devices. The Union asserts that the provision reserves to the Agency all of its management rights. The Union states that the provision's "language on its face leaves the discretion with the agency as to when, where and how such training will be given." Union's Response at 17.

B. Discussion

Provision 11 is within the duty to bargain. Although the provision directly interferes with the Agency's right to make selections under section 7106(a)(2)(C) and to assign work under section 7106(a)(2)(B), it constitutes an appropriate arrangement under section 7106(b)(3).

Provision 11 is intended to assist employees whose positions are eliminated. The first sentence provides protection to those employees by requiring management to make a reasonable effort to reassign them to vacant positions. The record in this case indicates that Provision 11 applies only where management has decided to fill the vacant positions. Union's Response at 17. Provisions which require management to select employees whose jobs have been eliminated for vacancies for which they are qualified and which management has decided to fill are negotiable as appropriate arrangements under section 7106(b)(3). See Naval Communications Unit, Cutler, East Machias, Maine, 30 FLRA 41.

The second sentence of Provision 11 provides further protection to employees by requiring the Agency to make a reasonable effort to train employees who have the aptitude for vacant positions. Under this portion of Provision 11 the Agency determines whether training is needed and what type of training is to be supplied. Union's Response at 17. Provisions which require training for employees whose jobs have been eliminated and who have the ability to benefit from training are negotiable as appropriate arrangements under section 7106(b)(3), as long as they preserve management's discretion to determine the extent and type of training, the numbers and types of employees to be trained given available funding and training authority, and the methods and means by which the training would be accomplished. See Naval Air Station, Oceana, Virginia, 30 FLRA 1105, 1114 (1988); International Plate Printers, Die Stampers and Engravers Union of North America, AFL-CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113 (1987) (Provision 32). The record indicates that Provision 11 is intended to preserve management's discretion to determine all aspects of the training to be assigned. Union's Response at 17.

As discussed above, Provision 11 protects affected employees by requiring management to attempt to reassign the employees or to make efforts to train the employees whose positions are eliminated. Consistent with Naval Communications Unit, Cutler, East Machias, Maine, 30 FLRA 41 and Naval Air Station, Oceana, Virginia, 30 FLRA 1105, therefore, we find Provision 11 to be negotiable as an appropriate arrangement.

VI. Provision 12

Article 10. Hours of Work and Basic Workweek

Section 4.

e. Night drills will be scheduled no more frequently than one per month and at least half of these drills will be scheduled prior to 2200.

A. Positions of the Parties

The Agency contends that Provision 12 directly interferes with management's rights to determine internal security practices under section 7106(a)(1) of the Statute and assign work under section 7106(a)(2)(B). The Agency asserts that the provision interferes with its right to determine internal security practices because the night drills constitute training activity for firefighters which is: (1) intended to protect the personnel and property of the Agency; and (2) aimed at accomplishing the Agency's fire protection objectives. See Agency's Statement of Position at 47-48. The Agency argues that the provision interferes with its right to assign work because it places absolute limits on the Agency's ability to assign training after specified hours. Finally, the Agency maintains that the provision is not an appropriate arrangement for employees adversely affected by the exercise of management's rights. The Agency contends that the assignment of night drills does not adversely affect employees.

The Union states that Provision 12 is intended to prevent undue interruption of the firefighters' allotted hours for sleeping. The Union argues that the provision is a reasonable accommodation for firefighters who work a 24-hour shift. The Union maintains that those employees are assigned only 8 hours for sleeping and eating, and that the hours for sleeping should be as uninterrupted as possible.

B. Discussion

Provision 12 limits the number of "night drills" the Agency may schedule during certain hours and certain portions of a 24-hour shift. We find that Provision 12 excessively interferes with the Agency's right to assign work under 7106(a)(2)(B) of the Statute and is, therefore, outside the duty to bargain.

Provision 12 would require: (1) a maximum of one night drill per month; and (2) at least half of the night drills to be scheduled prior to 10 p.m. Since the night drills are a training activity which occurs during the 24-hour shifts of the Agency's firefighters, they are an assignment of work. Thus, the determination as to when the drills will occur is a matter encompassed with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. See National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588, 591 (1981). By establishing the frequency of night drills and the period during which those drills may occur, Provision 12 directly interferes with the Agency's right to assign training and, thus, with management's right to assign work. Id. See also Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 485, 487-88 (1987), petition for review as to other matters filed sub nom. Department of Defense Dependents Schools v. FLRA, No. 87-1734 (D.C. Cir. Nov. 30, 1987).

The Union states that Provision 12 is intended to eliminate the adverse effects associated with management's intrusion on what has been designated by the Agency as sleeping time for firefighters assigned to work 24-hour shifts. The Agency asserts that there is no adverse effect on employees because the establishment of night drills as a job requirement does not adversely affect employees.

The Union contends only that the scheduling of training exercises during the time designated for sleeping adversely affects employees and that Provision 12 is intended to mitigate against that adverse effect. The Union does not contend that requiring employees to undergo training by itself produces an adverse effect on employees. Compare Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 628, 629-31, 637-41 (1987), petition for review filed sub nom. Overseas Education Association, Inc. v. FLRA, No. 87-1575 (D.C. Cir. Oct. 14, 1987); Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA 384, 395-96 (1987), affirmed mem. sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 30, 1988). Since the language of the provision is consistent with the Union's explanation, we find, contrary to the Agency's argument, that Provision 12 does not concern management's establishment of training as a job requirement for firefighters. Rather, the provision addresses alleged adverse effects which result from the application of that training requirement in the scheduling of particular training exercises.

Provision 12, therefore, is intended as an arrangement for employees who are adversely affected by the exercise of management's right to assign work. For the purposes of this decision, we will assume that the interruption of sleep constitutes an adverse effect. If the proposed arrangement does not excessively interfere with management's rights it is negotiable as an "appropriate arrangement" under section 7106(b)(3) of the Statute. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986).

According to the Union, Provision 12 does not preclude training drills during sleep time. Rather, the Union states that the provision only limits the number of drills which may be scheduled during sleep time. The Union also asserts that the provision does not affect the Agency's ability to assign work during the 8 hours designated as duty time, the 8 hours designated as stand-by time, or the time set aside for meals. See Union's Response at 19-20.

The Agency argues that Provision 12 is not an appropriate arrangement because it would prevent the Agency from conducting drills and training exercises during the times and under the circumstances necessary for it to accomplish its mission. We agree with the Agency's argument.

Provision 12 eliminates all Agency discretion to determine the amount of training which is sufficient to correct deficiencies which are identified by the Agency in performance or "readiness." For example, if the Agency determined that firefighters required additional training to improve their readiness during sleep time, it would be precluded from developing a training program which included extensive night drills (more than one per month) to correct the deficiency. The burden on the exercise of the Agency's right to assign training and ensure that firefighters are adequately prepared to meet the work demands of their positions is not outweighed by the benefit to employees of uninterrupted sleep time.

We conclude that Provision 12 excessively interferes with the exercise of management's right to assign work and, therefore, is not an appropriate arrangement for employees adversely affected by the exercise of management's right to assign work. See American Federation of Government Employees, AFL-CIO, Council of Prison Locals, Local 1661 and U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Connecticut, 29 FLRA 990, 1001-04 (1987), petition for review as to other matters filed sub nom. U.S. Department of Justice, Federal Bureau of Prisons, Federal Correctional Institution, Danbury, Conn. v. FLRA, No. 87-1762 (D.C. Cir. Dec. 14, 1987) (Proposal 21 was not an appropriate arrangement because it did not allow management the discretion to determine the time or manner in which training will be provided). See also American Federation of Government Employees, AFL-CIO, Local 2354 and Department of the Air Force, HQ 90th Combat Support Group, F.E. Warren Air Force Base, Wyoming, 30 FLRA 1130, 1139-40 (1988) (provision requiring that a minimum of 5 hours be set aside for sleeping purposes conflicted with agency's right to assign work).

In light of our conclusion that Provision 12 excessively interferes with the Agency's right to assign work, we need not address the Agency's additional arguments.

VII. Provision 13

Article 12. Overtime

Section 3.

The assignment of overtime work is a function of the Eployer. Overtime shall be distributed in an objective manner among qualified employees under a given supervisor consistent with workload requirements. In assigning overtime work, theEmployer will take into consideration the skill, ability, performance, dependability, work area, undue hardship, and expressed desires of employees to the extent practicable. Volunteers will be requested and assigned first. Except in unusual circumstances employees will not be required to work more than twelve (12) hours in one (1) calendar day. An employee in one job rating will normally not be assigned to overtimework in another job rating as long as qualified employees in the appropriated job rating, who normally perform the work to be done, are readily available and willing to work. Supervisors shall not assign overtime work as a reward or penalty, but solely in accordance with the needs of the Employer.

A. Positions of the Parties

The Agency contends that Provision 13 interferes with its right to assign work because it limits the Agency's discretion to determine the duration of work assignments. The Agency also contends that the provision does not constitute an appropriate arrangement because there is no adverse effect on employees which results from the assignment of overtime. The Agency argues, alternatively, that the provision excessively interferes with the Agency's right to assign work because it absolutely prevents management from assigning overtime in excess of 4 hours per day.

The Union contends that Provision 13 is an appropriate arrangement. The Union states that excessive overtime assignments have a negative impact on employees' physical condition, morale and productivity. The Union also states that forcing employees to work longer than 12 hours in a single day may cause severe hardships related to child care, transportation and fatigue. The Union argues that the impact on management's rights is minimal because the provision: (1) allows overtime assignments in excess of 12 hours in "unusual circumstances"; and (2) leaves the Agency discretion to determine if unusual circumstances exist.

B. Discussion

Provision 13 prevents the Agency from assigning an employee overtime in excess of 4 hours per day unless unusual circumstances exist. We find that Provision 13 is outside the duty to bargain because it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Provision 13 has the same effect as Provision 1 in Bremerton Metal Trades Council and Naval Supply Center Puget Sound, 32 FLRA 643 (1988). The provision in that case prevented the agency from assigning work to employees who had worked the 13 previous days unless the assignments were attributable to unforeseen emergencies or circumstances. We held that the provision interfered with the right to assign work because it imposed conditions on the agency's ability to make work assignments. Like the provision in Naval Supply Center, Puget Sound, Provision 13 would prevent management, except in unusual circumstances, from assigning work to employees who have already worked for a specified period of time. Consistent with Naval Supply Center, Puget Sound, therefore, Provision 13 interferes with the right to assign work because it conditions the Agency's ability to assign overtime on the existence of "unusual circumstances." Compare Tidewater Virginia Federal Employees Metal Trades Council, AFL-CIO and Norfolk Naval Shipyard, 31 FLRA 131, 136-39 (Provisions 5 and 6), reconsideration denied, 32 FLRA 98 (1988) (Provisions 5 and 6 constituted procedures for assigning overtime because the provisions applied after the agency had exercised its right to assign overtime work to particular employees).

The Union asserts that Provision 13 is negotiable as an appropriate arrangement within the meaning of section 7106(b)(3) for employees who are adversely affected by the exercise of the Agency's right to assign work. The Union states that the provision is intended to ameliorate the severe hardships on employees (related to child care, transportation and fatigue) which result from work days in excess of 12 hours. We assume such adverse effects for the purposes of this decision. However, balancing the respective interests of the Agency and the employees, we find that the proposed arrangement excessively interferes with the Agency's right to assign work and, therefore, is outside the duty to bargain.

Although the provision would limit the extent to which overtime work intrudes into employees' personal time, that intrusion is mitigated by the fact that employees receive premium pay for working overtime hours. See, for example, Naval Air Rework Facility, North Island, San Diego, CA, 31 FLRA at 168-69 (intrusion into employees' personal time associated with assignment of holiday work mitigated by premium pay).

We find that the provision's proscription of overtime work in excess of 4 hours has a disproportionately negative impact on the right to assign work as compared to the benefit it would give to employees. Provision 13 significantly restricts the agency's ability to meet work needs and to assign employees with particular skills to work when their skills are needed. Further, allowing overtime assignments in excess of 4 hours in "unusual circumstances" does not cure the negative effect of the provision since the Agency is prohibited from making overtime assignments under normal circumstances. See id. (Provision 6 excessively interfered with management's right to assign work because it proscribed management's ability to require work to be performed on holidays except in specified circumstances).

We conclude that Provision 13 excessively interferes with the Agency's right to assign work because it inhibits the Agency's ability to assign more than 4 hours of overtime work under normal circumstances. Therefore, Provision 13 is outside the duty to bargain.

VIII. Provision 18

Article 15. Sick Leave

Section 16.

The employer agrees to distribute light duty in an equitable manner.

A. Positions of the Parties

The Agency contends that Provision 18 would require it to make light duty assignments and would violate its right to assign work under section 7106(a)(2)(B) of the Statute. The Agency also contends that the provision does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) for employees who are adversely affected by the exercise of management's right because the Union has not identified any adverse effect on employees which would be alleviated by the provision.

The Union did not file a Response to the Agency's Statement of Position on this portion of Provision 18. However, the Union stated in its petition for review that the intent of the provision was to protect the health and well-being of employees who have been medically determined to be unable to perform the full range of their assigned duties. Union's Petition for Review at 15.

B. Discussion

We find that Provision 18 does not violate management's right to assign work under section 7106(a)(2)(B) and conclude that it is within the duty to bargain.

Provision 18 provides only that when light duty is assigned, it will be distributed in an equitable manner. We note that Article 15, Section 15.b, which is not in dispute, provides that light duty assignments will be made if, among other factors, "{t}he employee's abilities are appropriate to the assignment and the work to be performed is productive." Union's Response at 25. In the absence of any statement by the parties to the contrary, we interpret Provision 18, which immediately follows Article 15, Section 15.b, to mean that light duty assignments will be made to qualified employees. Therefore, the provision has the same effect as other proposals--requiring equitable distribution of other types of work assignments among qualified employees--which the Authority has found to be negotiable. See, for example, National Treasury Employees Union, Chapter 22 and Department of the Treasury, Internal Revenue Service, 29 FLRA 348 (1987) (PSC Proposal 11, second sentence), where the Authority found that a proposal requiring that the work of employees selected for details be distributed to other employees in a fair and equitable manner was within the duty to bargain. See also National Federation of Federal Employees, Local 1853 and U.S. Attorney's Office, Eastern District of New York, Brooklyn, N.Y., 29 FLRA 94 (1987) (Provision 3), where the Authority found that a provision requiring supervisors to seek to equitably rotate overtime assignments constituted a negotiable procedure by which the selection of overtime assignments would be made from among volunteers deemed by management to be qualified. See, generally, Naval Air Station, Oceana, Virginia, 30 FLRA 1105 (Provision 6) for a discussion of the relationship between limited duty assignments and management's right to assign work under section 7106(a)(2)(B) of the Statute.

Provision 18 does not require the Agency to make light duty assignments, nor does it deprive the Agency of any discretion in determining which employees should receive those assignments. Rather, the provision merely requires that if light duty assignments are made by the Agency, they will be distributed equitably among qualified employees who are on light duty. Therefore, for the reasons stated in the above decisions, we find that Provision 18 is within the Agency's duty to bargain.

IX. Provision 19

Article 21. Disciplinary Action

Section 1.

The Employer and the Union agree that the purpose

of disciplinary action (Letters of Reprimand, Suspensions of 14 days or less) is to correct the offending employee and maintain discipline and morale among other employees. Any disciplinary action taken will be for just cause and be in accordance with applicable Office of Personnel Management and Navy regulations. All disciplinary action taken against the unit employee shall be the minimum necessary to correct the offending employee.

A. Positions of the Parties

The Agency contends that the disputed portion of Provision 19 interferes with its right under section 7106(a)(2)(A) of the Statute to discipline employees because it limits management's discretion to determine what discipline is appropriate and to impose that discipline. The Agency cites Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 113, and maintains that Provision 19 in the instant case is to the same effect as Provision 22, which was found to be nonnegotiable in that case.

The Agency also contends that Provision 19 is not an appropriate arrangement for employees who are adversely affected by the exercise of management's right to discipline because the provision excessively interferes with that right.

The Union denies that Provision 19 excessively interferes with the Agency's right to discipline. The Union contends that another provision of the parties' agreement, Article 4, Section 1, requires that the agreement be administered in accordance with existing or future Government-wide rules and regulations. The Union states that that requirement "would necessarily include the 'preponderance of evidence' standard required by 5 USC and adhered to by the Merit Systems Protection Board {MSPB}." Union's Response at 26. The Union asserts that the Agency "has failed to establish a standard of review different from 'such cause as will promote the efficiency of the service' as required by 5 USC, Chapter 75." Id. at 27.

B. Discussion

We find that the disputed portion of Provision 19 is outside the duty to bargain because it excessively interferes with the Agency's right to discipline employees under section 7106(a)(2)(A) of the Statute. The disputed portion of the provision would limit the Agency's choice of disciplinary actions to "the minimum necessary to correct the offending employee." The provision would interfere with management's discretion to determine what discipline should be imposed for a particular offense by restricting action to the minimum necessary.

The Union's explanation of the terms of Article 4, Section 1 and its arguments concerning the incorporation of standards of evidence and standards of review applied by MSPB do not relate to the portion of Provision 19 which is in dispute in this case. We confine our decision to that portion of the provision which relates to the choice of the disciplinary action which can be taken against employees.

We agree with the Agency that Provision 19 has the same effect as Provision 22 (subsection a) in Bureau of Engraving and Printing, Washington, D.C. That provision was found to be nonnegotiable because it limited the agency in disciplining an employee to selecting the minimum discipline which could be expected to achieve the proper disciplinary objective. The Authority stated that the provision would improperly limit the agency's discretion in imposing discipline. Id. at 132.

Consistent with Bureau of Engraving and Printing, Washington, D.C., we conclude that Provision 19 is outside the duty to bargain because it interferes with management's right to discipline employees under section 7106(a)(2)(A) by limiting the discipline which can be imposed. See also West Point Elementary School Teachers Association, NEA and The United States Military Academy Elementary School, West Point, New York, 29 FLRA 1531 (1987) (Proposal 4, sections 1 and 2), petition for review filed sub nom. West Point Elementary School Teachers Association v. FLRA, No. 87-4149 (2d Cir. Nov. 18, 1987) (proposal held to be outside the duty to bargain which restricted the agency's right to discipline employees by requiring that management use the guide to disciplinary action contained in its regulations).

We also conclude, consistent with Bureau of Engraving and Printing, Washington, D.C., that the disputed portion of Provision 19 does not constitute an appropriate arrangement under section 7106(b)(3). Like Provision 22 in that case, Provision 19 in the instant case limits the Agency's discretion to determine what discipline to impose by requiring it to impose the minimum discipline necessary. While the provision may provide a benefit to affected employees, we find, as in Bureau of Engraving and Printing, Washington, D.C., that the burden on the exercise of the Agency's right to discipline outweighs that benefit. Consequently, we find that Provision 19 excessively interferes with the Agency's right under section 7106(a)(2)(A) to take disciplinary action.

We find, therefore, that the disputed portion of Provision 19 is outside the Agency's duty to bargain.

X. Provisions 20 and 22

[Provision 20}

Article 21. Section 7

c. Statements received from other employees which are used in Disciplinary Actions must be in writing and signed by the employee.

{Provision 22}

Article 22. Adverse Actions

Section 12.

Statements received from other employees which are used or relied upon in adverse actions must be in writing and signed by the employee.

A. Positions of the Parties

The parties have consolidated their presentations regarding Provisions 20 and 22. Therefore, we will consider these provisions together.

The Agency contends that Provisions 20 and 22 directly interfere with its right to determine its internal security practices under section 7106(a)(1) and its right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency argues that the provisions prevent management from basing disciplinary action on employees' statements which are not in writing and signed by the employees who made them. The Agency asserts that MSPB regulations permit the admission of hearsay evidence in such circumstances, but that the MSPB would not necessarily accord it much weight. The Agency also states that arbitrators generally give less weight to hearsay evidence. Agency's Statement of Position at 83. The Agency argues that the requirement that it obtain written, signed statements whenever it intended to use such statements as evidence would inhibit its ability to conduct investigations and, therefore, would interfere with its internal security practices. The Agency further contends that these provisions do not constitute appropriate arrangements for adversely affected employees within the meaning of section 7106(b)(3).

The Union claims that these provisions are intended to "prevent" the use of hearsay evidence. Union's Petition for Review at 15. The Union also asserts that these provisions encompass Union rights under section 7114(a)(2)(A) of the Statute since the meetings at which the Agency would obtain the statements it intends to use as evidence constitute formal discussions or meetings at which the Union has the right to be present. Union's Response at 29. The Union states that the provisions concern the gathering of "secret evidence" and asserts that the "only requirement in {these provisions} is for the union to be furnished with a written, signed copy of statements made by employees that will be used in disciplinary actions." Id. at 30. The Union also argues that nothing in the provisions would limit the Agency in its deliberations or in its decisions to take disciplinary or adverse actions pursuant to its rights, and that the provisions constitute appropriate arrangements for employees who are adversely affected by the Agency's exercise of its rights.

B. Discussion

Provisions 20 and 22 are outside the duty to bargain. The provisions are inconsistent with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. The provisions excessively interfere with the exercise of management's right and do not constitute appropriate arrangements within the meaning of section 7106(b)(3).

The effect of Provisions 20 and 22 is to require the Agency to obtain written, signed statements from employees whose statements are used or relied on by the Agency in taking disciplinary or adverse actions. This requirement would preclude the use of oral statements, unsigned reports, anonymous information, confidential statements, and similar information at any stage of the disciplinary process. Contrary to the Union's arguments, we find that these provisions restrict the use of employee statements in disciplinary proceedings. Furthermore, the provisions do not concern the Union's presence at a "formal discussion" under section 7114 of the Statute where such statements might be made.

Provisions 20 and 22 restrict the type of evidence which the Agency can use to establish that discipline is warranted. The Agency would be unable to present as evidence statements of employees concerning the matter on which the disciplinary action is based if the Agency were unable to get written and signed statements from the employees who made them. Where evidence is primarily made up of such statements, the inability to comply with the provisions' requirements would preclude management from taking disciplinary action because it would be unable to support that action with evidence. The decision to initiate disciplinary action based upon available evidence, whatever the quality of that evidence, is committed to management's discretion under section 7106(a)(2)(A). Provisions 20 and 22 impermissibly restrict the scope of that discretion.

Provisions 20 and 22 are similar to proposals which were found to be nonnegotiable in National Treasury Employees Union, Chapter 153 and Department of the Treasury, U.S. Customs Service, Region II, 21 FLRA 841, 843-44 (1986). In that case, proposals which would have precluded the agency from investigating non-criminal activity reported by means of a hot line to the agency were found to prevent the agency from taking disciplinary action. The proposals were found to interfere with the agency's right to discipline employees. Compare American Federation of Government Employees, AFL-CIO, Local 1458 and U.S. Department of Justice, Office of the U.S. Attorney, Southern District of Florida, 29 FLRA 3, 14-15 (1987).

We find that Provisions 20 and 22 would have the effect, in circumstances where the Agency's evidence is primarily statements by other employees, of shielding employees from disciplinary or adverse action if the information possessed by the Agency and obtained from other employees were not in the form of signed, written statements. Provisions 20 and 22 would hinder the Agency's ability to take necessary disciplinary and adverse actions. Consequently, Provisions 20 and 22 directly interfere with management's right to discipline under section 7106(a)(2)(A). See American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172, 1174-75 (1987).

The Union claims that Provisions 20 and 22 constitute appropriate arrangements for employees who are adversely affected by Agency decisions to take disciplinary or adverse actions. We find that even assuming that Provisions 20 and 22 constitute "arrangements" for employees who are adversely affected by the exercise of a management right, they do not constitute "appropriate" arrangements within the meaning of section 7106(b)(3).

The Union indicates that the provisions are intended to preclude the use of hearsay evidence in disciplinary proceedings. Union's Petition for Review at 15. However, as the Agency points out, while hearsay evidence is admissible in disciplinary proceedings, both MSPB and arbitrators generally give it less weight than direct evidence. Agency's Statement of Position at 83. The provisions would afford employees additional protection against hearsay evidence by precluding its use altogether. In our view, that additional protection is outweighed by the detrimental effect of the provisions on management's right to discipline. The decision as to whether available evidence, including hearsay evidence, warrants discipline is a judgment reserved to management under section 7106(a)(2)(A). The restrictions on the use of employee statements established by Provisions 20 and 22 excessively interfere with management's ability to make that determination.

We conclude that the provisions do not constitute "appropriate arrangements" within the meaning of section 7106(b)(3) and, therefore, are outside the duty to bargain. See Department of the Treasury, U.S. Customs Service, Region II, 21 FLRA at 845-46. For the above stated reasons, we find that Provisions 20 and 22 are inconsistent with management's right to discipline employees under section 7106(a)(2)(A) and do not constitute appropriate arrangements. In light of this determination, we need not consider the other arguments raised by the Agency.

XI. Provision 24

Article 25. Equal Employment Opportunity

Section 3.

The Employer will utilize to the fullest extent the present skills of employees including the redesigning of jobs where feasible and will provide the maximum feasible opportunity to employees to enhance their skills through on-the-job training, work-study programs, and other training measures so that they may perform at their highest potential accordance with their abilitiesand advance in.

A. Positions of the Parties

The Agency contends that Provision 24 would require it to redesign jobs to use employee skills more fully and to provide various training opportunities for employees to enhance their skills. The Agency asserts that the requirement to redesign jobs and provide training interferes with its right to assign work under section 7106(a)(2)(B). The Agency also maintains that the provision is not an appropriate arrangement.

The Union asserts that Provision 24 is consistent with Federal equal employment opportunity policy, citing Federal Personnel Manual (FPM) chapter 713, subchapter 2-4(c). The Union argues that the provision is negotiable because it does not require training or identify specific training. Union's Response at 33. The Union also contends that Provision 24 constitutes an appropriate arrangement within the meaning of section 7106(b)(3).

B. Discussion

We find that Provision 24 directly interferes with management's right to assign work and does not constitute an appropriate arrangement. It is outside the duty to bargain.

This provision would require the Agency to make efforts to use employees' skills to the fullest extent and to provide the maximum feasible number of opportunities for employees to improve their skills through any of a variety of training sources. Although the record is not clear, it appears that management's obligations under this proposal extend only to job-related training and we adopt that interpretation for purposes of this decision.

Provision 24 is substantively identical to Provision 3 in Naval Air Station, Oceana, Virginia, 30 FLRA at 1111. Moreover, the record provides no basis for interpreting Provision 24 differently from the provision in Naval Air Station, Oceana, Virginia. In that case, we found that Provision 3 directly interfered with management's right to assign work because it required management to provide job-related training during duty hours and, by requiring "job redesign," prescribed the work to be assigned. Id. at 1112. We also concluded that Provision 3 did not qualify for consideration under section 7106(b)(3) because it did not concern adverse effects on employees which resulted from the exercise of a management right. We note that in Naval Air Station, Oceana, Virginia, we indicated that we would no longer follow American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 620-22 (1980), enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945 (1982), which is relied on by the Union.

For the reasons stated in Naval Air Station, Oceana, Virginia, we reach the same conclusion here. See also American Federation of Government Employees, AFL-CIO, Local 1625 and U.S. Navy Fleet Combat Training Center, Atlantic, Dam Neck, Virginia Beach, Virginia, 28 FLRA 1134 (1987). Consequently, we find Provision 24 to be outside the duty to bargain.

XII. Provision 27

Article 26. Contracting Out of Bargaining Unit Work

Section 2.

The parties agree that OMB Circular A-76 shall govern the actions of the parties with respect to contracting out issues.

A. Positions of the Parties

The Agency contends that Provision 27 does not concern a condition of employment because it relates to management's internal deliberative process concerning the exercise of its right to contract out. The Agency also contends that Provision 27 violates management's right to contract out under section 7106(a)(2)(B) since it seeks to make grievable any failure to comply with OMB Circular A-76. The Agency asserts that OMB Circular A-76 is not an applicable law within the meaning of section 7106(a)(2), but instead is a Presidential management directive.

The Agency argues, alternatively, that if OMB Circular A-76 is a "law," it does not place external constraints on the exercise of management's right. According to the Agency, the Circular merely directs management towards particular goals; implementation of the Circular is committed to agency discretion. The Agency asserts that, in light of the above, application of the Circular is not subject to arbitral review.

The Agency also contends that management's failure to comply with the Circular is not a basis to challenge management's decision to contract out under the negotiated grievance procedure. Agency's Statement of Position at 110-23. Moreover, the Agency contends that Provision 27 is inconsistent with the Budget and Accounting Act of 1921, 31 U.S.C. §§ 1 et seq. and the Office of Federal Procurement Policy Act Amendments of 1979, 41 U.S.C. §§ 401 et seq. The Agency maintains that the provision would allow the arbitration of A-76 issues and, thereby, would frustrate significant policy objectives embodied in the Circular and the goal of 31 U.S.C. §§ 1 et seq. and 41 U.S.C. § 401 to establish uniform, Government-wide procurement practices.

The Union contends that Provision 27 constitutes an appropriate arrangement. The Union disputes the Agency's characterization of OMB Circular A-76 and argues that the Circular is a Government-wide regulation.

B. Discussion

Provision 27 requires the Agency to comply with OMB Circular No. A-76 when it makes determinations concerning contracting out. Provision 27 is a negotiable procedure under section 7106(b)(2) of the Statute.

In AFSCME Local 3097 and Department of Justice, Justice Management Division, 31 FLRA 322 (1988), petition for review filed sub nom. Department of Justice, Justice Management Division v. FLRA, No. 88-1316 (D.C. Cir. Apr. 22, 1988), we found that a proposal which is virtually identical to Provision 27 in this case was within the duty to bargain because it: (1) concerned a condition of employment of bargaining unit employees; (2) concerned a rule or regulation within the meaning of section 7103(a)(9)(C)(ii); (3) did not violate management's right to contract out under section 7106(a)(2)(B); and (4) was not inconsistent with law under section 7117(a). We found that the proposal constituted a negotiable procedure under section 7106(b)(2) of the Statute by which the agency exercises its right to contract out under section 7106(a)(2)(B). We also found in that case that: (1) grievances concerning OMB Circular A-76 may be included in the negotiated grievance procedure; and (2) arbitral review of contracting out determinations is consistent with section 7106(a)(2)(B).

The Agency's arguments concerning Provision 27 in this case are substantively the same arguments which we rejected in finding Proposal 1 in Department of Justice, Justice Management Division to be negotiable. The Agency has provided no reasons for a different conclusion in this case. Therefore, for the reasons stated in Department of Justice, Justice Management Division, we find that Provision 27 does not conflict with management's right to make determinations with respect to contracting out. We also find that Provision 27: (1) concerns the conditions of employment of bargaining unit employees; (2) concerns a rule or regulation within the meaning of section 7103(a)(9)(C)(ii); and (3) is not inconsistent with law under section 7117(a) of the Statute. See id. at 323-47.

The Agency refers us to the decision of the United States Court of Appeals for the Fourth Circuit in U.S. Department of Health and Human Services v. FLRA, 844 F.2d 1087 (4th Cir. 1988), denying enforcement of American Federation of Government Employees, AFL-CIO, Local 1923 and Department of Health and Human Services, Office of the Secretary, Office of the General Counsel, Baltimore, Maryland, 22 FLRA 1071 (1986) (where the court rejected the Authority's determination that a proposal to require the agency to make contracting out decisions in accordance with the OMB Circular was negotiable) and the decision of the United States Court of Appeals for the Ninth Circuit in Defense Language Institute, Presidio of Monterey, California v. FLRA, 767 F.2d 1398 (9th Cir. 1985), denying enforcement of National Federation of Federal Employees, Local 1263 and Defense Language Institute, Presidio of Monterey, California, 14 FLRA 761 (1984) (where the court rejected the Authority's determination that a provision requiring the agency to exercise its right to contract out in accordance with OMB Circular A-76 did not impose any particular limitation on management's right).

The Agency asserts that because the Authority is bound by those decisions of the Fourth and Ninth Circuits, we should reconsider our position that proposals requiring compliance with OMB Circular No. A-76 are negotiable. As we previously have stated, we adhere to the view that the Authority's position is correct. See Department of Justice, Justice Management Division, 31 FLRA at 343; National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 27 FLRA 976, 979 n.1 (1987), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 87-1439 (D.C. Cir. Aug. 28, 1987). See also American Federation of Government Employees, AFL-CIO, National Council of EEOC Locals and Equal Employment Opportunity Commission, 10 FLRA 3 (1982) (Proposal 1), enforced sub nom. EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed, 476 U.S. 19 (1986) (per curiam).

Further, we reject the Agency's assertion that Provision 27 is inconsistent with 31 U.S.C. § 6307 and 41 U.S.C. § 405. The Agency states that those provisions give the Director of the Office of Management and Budget and the Administrator of the Office of Federal Procurement Policy authority to prescribe uniform, Government-wide procurement policies. Those policies are embodied in OMB Circular No. A-76, which was issued by the Office of Management and Budget. The Agency argues that the arbitration of contracting out issues under procedures established by a collective bargaining agreement "frustrates a number of significant policy objectives of the Circular and in doing so conflicts with the Congressional goal of uniformly established procurement practices under the above referenced statutes." Agency's Statement of Position at 137.

The Agency's basic argument is that grievances concerning the Circular may not be covered by negotiated grievance procedures. However, we have found that matters related to contracting out, including compliance with OMB Circular A-76 and its Supplement, fall within the definition of "grievance" set out in section 7103(a)(9)(C)(ii) and may be included in a grievance procedure negotiated under section 7121 of the Statute. Department of Justice, Justice Management Division, 31 FLRA at 335-37. The provisions of law cited by the Agency do not exclude contracting out matters from coverage of the parties' negotiated grievance procedures. Therefore, there is no basis for finding that Provision 27 is inconsistent with those provisions of law. See id. at 337.

Provision 27, like Proposal 1 in Department of Justice, Justice Management Division, is a negotiable procedure under section 7106(b)(2) of the Statute.

XIII. Provision 31

Article 27. Health and Safety

Section 14.

[1] When there is evidence that an employee is unable to perform the duties of the assigned position and assignment to other duties is not practicable, a fitness-for-duty medical examination may be required. [2] The employee will normally be examined by the Employer's designated physician; however, if the employee refuses to be examined by the Employer's designated physician, employees may be examinedby a physician of their choice provided the physician is board-certified in the appropriate medical specialty and is acceptable to the Employer. [3] The physician must submit a complete report of the examination directly to the Employer. [4] Under the above conditions, the Employer will inform the employee that the cost of the fitness-for-duty medical examination will not be an expense to the employee. [5] After receipt of the medical report, the decision concerning the retention of the employee in the assigned position will be made by the Employer based on existing regulations.{The sentences have been numbered for the convenience of the reader.}

A. Positions of The Parties

The Agency contends that Provision 31 is nonnegotiable because it is inconsistent with a Government-wide regulation, 5 C.F.R. Part 339, which concerns medical determinations related to employability. The Agency argues that rather than establishing procedures to be followed in implementing the regulation, the provision conflicts with that regulation. The Agency contends that the provision requires the administration of physical examinations in situations where examinations are not required by the regulation and that it improperly allows employees to choose a physician who will be paid by the Agency rather than using a physician designated by the Agency.

The Union denies that the provision conflicts with 5 C.F.R. Part 339. Rather, the Union asserts that the provision conforms to that regulation because the selection of a physician by the employee is conditioned on the selection being "acceptable to the [Agency]" and the regulation provides that agencies shall pay for examinations which they order or offer. The Union also contends that Provision 31 constitutes an appropriate arrangement because it would: (1) benefit employees who might be unfit for duty; and (2) have only a minimal impact on management's rights.

B. Discussion

The Agency bases its allegations of nonnegotiability of Provision 31 on an alleged conflict with 5 C.F.R. Part 339, Medical Determinations Related To Employability. The Agency asserts that the provisions of 5 C.F.R. Part 339 constitute Government-wide regulations within the meaning of section 7117(a)(1).

The Authority has found that "Government-wide rule or regulation" refers to the rules and regulations which are generally applicable to the Federal civilian work force. See, for example, American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 898 (1986). See also National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980). Part 339 of title 5 of the Code of Federal Regulations was promulgated under the authority of 5 U.S.C. § 3301 by the Office of Personnel Management (OPM). We find that 5 C.F.R. Part 339 applies to most Federal civilian employees in the executive branch of the Federal Government. Therefore, those provisions are generally applicable to the Federal civilian work force so as to be "Government-wide" within the meaning of section 7117(a)(1) of the Statute. See Federal Deposit Insurance Corporation, Madison Region, 21 FLRA at 898.

1. First Sentence

The first sentence of Provision 31 provides that a fitness-for-duty examination may be required when: (1) there is evidence that an employee is unable to perform the duties of his/her assigned position, and (2) assignment to other duties is impracticable.

Fitness-for-duty examinations are discussed in part 339 of title 5 of the Code of Federal Regulations. Section 339.301 provides that an agency may "require" an individual to undergo a fitness-for-duty examination in the following three situations: (1) when the position in question has physical/medical standards for selection or retention; (2) when the affected employee is receiving workers compensation benefits or is assigned to limited duties as a result of an on-the-job injury; and (3) when an employee has reassignment rights in a reduction-in-force action to a position which requires specific physical capabilities which differ from the capabilities required of the employee's current position. 5 C.F.R. § 339.301(a), (b), and (c). In addition to these three situations in which a fitness-for-duty examination may be required, an agency may "offer" such an examination when an employee requests a change in duties for medical reasons and the agency determines that it cannot act on the employee's request on the basis of the medical documentation submitted by the employee without verification of the "clinical findings and current clinical status." 5 C.F.R. § 339.301(d).

The regulation does not refer in any way to the assignment of other duties to an affected employee. The regulation does not restrict an agency's authority to require or offer fitness-for-duty examinations to situations when an assignment of other duties is not practicable.

As noted, the first sentence of Provision 31 concerns the Agency's authority to "require" fitness-for-duty examinations and restricts that authority to situations where: (1) there is evidence that an employee is unable to perform the duties of the assigned position; and (2) the assignment of other duties is not practicable. These conditions are more restrictive than those contained in 5 C.F.R. § 339.301. Therefore, the first sentence of Provision 31 conflicts with that regulation and is outside the duty to bargain under section 7117 of the Statute.

2. Second, Third and Fourth Sentences

The second and third sentences would allow an employee who undergoes a fitness-for-duty examination to refuse to be examined by an Agency-designated physician and instead be examined by a physician chosen by the employee and would allow that physician to submit a report of the examination directly to the employer. We find that by granting an employee the option to choose a physician and allowing the employee-chosen physician to submit a report to the Agency, the second and third sentences directly conflict with 5 C.F.R. § 339.302(b), which provides:

The agency shall designate the examining physician, but shall offer the employee or former employee an opportunity to submit medical documentation from his or her personal physician, which the agency shall review and consider.

The second sentence would allow the employee to refuse examination by a physician designated by the Agency and allow the substitution of an examination by a physician chosen by the employee. The Union contends that this is made permissible by the language "acceptable to the Employer." However, section 339.302(b) does not allow such a substitution of physicians, even with the Agency's approval, although it does permit employees to submit medical documentation from their physician for agency review and consideration.

We find that the fourth sentence conflicts with 5 C.F.R. § 339.303, which provides:

Agencies shall pay for all agency ordered or agency offered examinations of employees conducted under this subpart. Agencies shall also pay for all required pre-employment examinations of applicants which are conducted by a physician designated by the agency. However, applicants and employees, not the agency, shall pay for a medical examination conducted by a private physician selected by the applicant or employee, unless a statute, regulation, or appropriations act gives the agency authority to pay this expense. {Emphasis added.}

The fourth sentence would require the Agency to pay the cost of an examination by a physician selected by an employee. However, the Union has not shown that any statute or regulation gives the Agency authority to pay for a fitness-for-duty examination by a private physician selected by an employee in lieu of an Agency-designated physician. Therefore, the fourth sentence conflicts with 5 C.F.R. § 339.303, which provides that in the absence of specific authority for payment, employees shall pay for examinations by private physicians.

3. Fifth Sentence

We find that the Agency has failed to demonstrate that the fifth sentence of Provision 31 conflicts with the provisions of 5 C.F.R. § 339 which set forth the conditions under which medical examinations for fitness-for-duty may be required or offered by agencies. The fifth sentence of the provision does not conflict with the regulation and does not interfere with the Agency's discretion. That sentence merely allows the Agency to make a determination in accordance with the findings of the fitness-for-duty examination and in accordance with "existing regulations." Therefore, the fifth sentence of Provision 31 is within the Agency's duty to bargain.

For the above reasons, the Union's petition for review of the first sentence of Provision 31 is dismissed. The second, third, and fourth sentences conflict with a Government-wide regulation and are outside the duty to bargain. The fifth sentence is within the Agency's duty to bargain.

XIV. Provision 33

Article 27, Section 21.

When an employee is recuperating from a job connected injury and is required to return for treatment, the Employer agrees to provide transportation from the injured employee's home to the place of treatment and return if the employee is not able to obtain his/her own transportation for which she/he would be reimbursed.

A. Positions of the Parties

The Agency contends that Provision 33 concerns a matter which is specifically provided for by Federal statute and, therefore, does not pertain to a condition of employment within the meaning of section 7103(a)(14)(C) of the Statute. The Agency states that 5 U.S.C. §§ 8101 et seq. provides a comprehensive statutory framework for compensating Federal employees who are injured on the job and that the Department of Labor regulates that program by regulations contained in 20 C.F.R. §§ 10.1 et seq. Further, the Agency maintains that Provision 33 is inconsistent with 31 U.S.C. § 1344 because transportation may only be provided for official business, and transportation between an employee's home and place of medical treatment does not constitute official business.

The Union contends that the provision concerns a condition of employment and cites Federal Personnel Manual chapter 810 as a basis for paying expenses for transportation to obtain medical care. The Union denies that Provision 33 conflicts with 31 U.S.C. § 1344.

B. Discussion

1. Provision 33 Does Not Concern a Matter Specifically Provided For By Statute Within the Meaning of Section 7103(a)(14)(C)

Where an agency has discretion over a matter affecting conditions of employment, the Agency is obligated under the Statute to exercise that discretion through bargaining unless the governing law or regulation specifically limits the exercise of discretion to the agency. American Federation of Government Employees, AFL-CIO, National Council of VA Locals and Veterans Administration, 29 FLRA 515, 525 (1987), petition for review as to other matters filed sub nom. Veterans Administration v. FLRA, No. 87-1727 (D.C. Cir. Nov. 27, 1987). Contrary to the Agency's claim, the provision of medical benefits and care, including related transportation, under the Federal Employees' Compensation Act (FECA), 5 U.S.C. § 8103, is not specifically provided for by that statute so as to exclude the matter from the definition of conditions of employment under section 7103(a)(14)(C) of the Statute. Rather, it is a matter which has been placed within the discretion of the Secretary of Labor, who is authorized under 5 U.S.C. § 8149 to prescribe rules and regulations concerning compensation for employees injured in the performance of duty.

We reject any interpretation of section 7103(a)(14)(C) which would hold that reference to a particular matter in a statute is sufficient to except that matter from the definition of conditions of employment. Rather, where a statute specifically provides for or establishes a particular aspect of a matter, that aspect of the matter is not included within the conditions of employment about which an agency is obligated to bargain.

For example, the fact that Federal statutes establish criteria governing overtime work for Federal employees does not remove every aspect of that matter from the duty to bargain for those employees. However, the fact that those statutes specifically provide for the rate of overtime compensation does remove that matter from the duty to bargain. See American Federation of Government Employees, AFL-CIO, Council of Federal Grain Inspection Locals and United States Department of Agriculture, Federal Grain Inspection Service, Washington, D.C., 3 FLRA 530 (1980), affirmed as to other matters sub nom. AFGE v. FLRA, 653 F.2d 669 (D.C. Cir. 1981). See also 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). Compare National Treasury Employees Union, Chapters 213 and 228 and United States Department of Energy, Washington, D.C., 32 FLRA 578 (1988) (Provision 1) (provision which reiterates terms of a statute does not concern a matter which is specifically provided for under section 7103(a)(14)(C) of the Statute).

The fact that the FECA provides for agencies to afford employees injured in job-related accidents with transportation incidental to medical care, or to reimburse them for that transportation, does not mean, however, that transportation for such employees is a matter which is specifically provided for by Federal statute. FECA does not prescribe rates for that transportation or reimbursement for transportation. The matter of the amount of reimbursement is within the discretion of the Agency, subject to Department of Labor regulations. Therefore, reimbursement for transportation incidental to medical care is not a matter which is specifically provided for by Federal statute.

As to National Association of Government Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515 (1987), that case stands for the proposition that in specifically providing the amount of the uniform allowance, Congress intended to include the care and maintenance of the uniform within the amount provided. In stating that 5 U.S.C. § 5901 "deals comprehensively with the payment of a uniform allowance," the Authority found that the allowance was intended to cover both providing the uniform to the employee--as the Statute specifically states--and maintaining the uniform, which is nowhere mentioned in 5 U.S.C. § 5901. The Authority did not state that all aspects of wearing of uniforms are excluded from the duty to bargain by 5 U.S.C. § 5901. Therefore, unless it is otherwise nonnegotiable, Provision 33 is within the duty to bargain.

2. Provision 33 Does Not Conflict With Law, Rule or Regulation

The Agency also asserts that Provision 33 is nonnegotiable because it is inconsistent with Federal statute. The Agency contends that the provision conflicts with 31 U.S.C. § 1344, which provides in relevant part:

(a) Except as specifically provided by law, an appropriation may be expended to maintain, operate,and repair passenger motor vehicles or aircraft of the United States Government that are used only for an official purpose. An official purpose does not include transporting officers or employees of the Government between their domiciles and places of employment . . . .

The Agency contends that use of Government vehicles for transporting employees from their homes to a place of medical treatment is not for an official purpose and, therefore, Provision 33 is inconsistent with 31 U.S.C. § 1344. We disagree with this contention.

The Federal Employees' Compensation Act and regulations issued under its authority by the Secretary of Labor control the provision of compensation for employees for medical expenses resulting from on-the-job injuries. In particular, 5 U.S.C. § 8103(a) provides that an employee who is injured while in the performance of duty "may be furnished necessary and reasonable transportation." Further, 20 C.F.R. § 10.401(a) provides for medical treatment, hospital services, and transportation for claimants under FECA and states that "[a] claimant shall also be entitled to reimbursement of reasonable and necessary expenses, including transportation incident to obtaining authorized medical services, appliances or supplies." FPM chapter 810, subchapter 6-l provides that "{m}edical care includes examination, treatment, and related services such as hospitalization, medications, appliances, supplies, and transportation incident to securing them." Also, FPM chapter 810, subchapter 6-6.g provides that "[w]hen transportation to obtain medical care is not furnished by the Government, the employee may be reimbursed for travel expenses."

Based on the above statutory and regulatory provisions, we conclude that the Agency has the discretion to pay employees' travel expenses which are incidental to medical treatment for on-the-job injuries. Travel for that purpose would not constitute improper transportation between the employee's domicile and place of employment under 5 U.S.C. § 1344(a). Consequently, Provision 33 is not inconsistent with that statute and is within the Agency's duty to bargain.

XV. Provision 34

Article 28. Training and Employee Development

Section 9.

If feasible, and to the mutual benefits of the Employer and employees, cross training will be utilized if requested by an employee.

A. Positions of the Parties

The Agency contends that Provision 34 mandates that the Agency provide cross training for employees and, therefore, interferes with its right to assign work under section 7106(a)(2)(B). The Agency also contends that Provision 34 does not constitute an appropriate arrangement for employees affected by the exercise of a statutory management right.

The Union states that its position on Provision 34 is the same as its position on Provision 24.

B. Discussion

The effect of Provision 34 is to require the Agency to provide cross training upon request of the employee if the training is feasible and if the training would benefit the Agency and the employee. We find that Provision 34 directly interferes with management's right to assign work under section 7106(a)(2)(B) and does not qualify for consideration as an appropriate arrangement.

1. The Provision Directly Interferes with Management's Right to Assign Work

As noted in our discussion of Provision 12, proposals requiring an agency to provide job-related training during duty hours are outside the duty to bargain because the assignment of that type of training constitutes an assignment of work. American Federation of Government Employees, Local 1760, AFL-CIO and Department of Health and Human Services, Social Security Administration, 23 FLRA 168, 177 (1986). See also International Association of Fire Fighters Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438 (1980) (Proposal I).

By obligating the Agency to provide a certain type of job-related training, that is, "cross training" or training in the duties of a different position, the provision directly interferes with management's right under section 7106(a)(2)(B) of the Statute. See, for example, Illinois Nurses Association and Veterans Administration Medical Center, North Chicago, Illinois, 27 FLRA 714, 728-30 (1987), petition for review filed sub nom. Veterans Administration Medical Center, North Chicago, Illinois v. FLRA, No. 87-1405 (D.C. Cir. Aug. 14, 1987); American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 26 FLRA 452 (1987) (Proposal 1).

The use of the qualifying terms "if feasible" and "to the mutual benefit of the Employer and employees" does not remove the limitation on the Agency's right to exercise its discretion under section 7106(a)(2)(B) in making work assignments. See Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA at 1606-09 (Provision 8) (provision requiring management to provide opportunities for employees to improve their skills through training programs, including redesigning jobs where and if feasible, held nonnegotiable). Moreover, in Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA at 1113, we explained that we would no longer follow the Authority's previous holding that the term "where feasible" did not constitute a substantive interference with management's exercise of its rights under the Statute, as found in Wright-Patterson Air Force Base, Ohio, 2 FLRA at 620-22. The substantive terms of Provision 34 would impose an independent contractual obligation to provide cross training independent of statutory and regulatory requirements. Therefore, Provision 34 interferes with management's right to assign work.

2. The Provision is Not an Arrangement Within the Meaning of Section 7106(b)(3)

We turn now to the question of whether the provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. The threshold question in applying the "excessive interference test" is whether the provision is an "arrangement" for adversely affected employees. In U.S. Navy Fleet Combat Training Center, 28 FLRA at 1137-38, the Authority found that a similar proposal was not an arrangement within the meaning of section 7106(b)(3). The proposal required an agency to provide training so that employees could enhance their skills to their fullest potential and advance in accordance with their abilities. The Authority found that the proposal provided a benefit to employees but that it did not mitigate adverse consequences resulting from a management action. It simply enabled employees to improve their existing skills and abilities. Because the Authority considered the proposal not to be an "arrangement" within the meaning of section 7106(b)(3), it was not necessary for the Authority to determine if the proposal was an "appropriate" arrangement.

In our view, Provision 34, like the proposal in U.S. Navy Fleet Combat Training Center, does not address an adverse effect on employees which is the result of the exercise of a management right. Although the provision provides a benefit to employees, it is not a benefit which mitigates against some adverse consequence resulting from a management action. It simply would enable employees to obtain cross training. Since Provision 34 does not address an adverse effect, it does not qualify for consideration under section 7106(b)(3). Therefore, we need not determine whether the provision is an "appropriate" arrangement. See National Federation of Federal Employees, Local 1454 and Veterans Administration, 26 FLRA 848, 852-53 (1987); National Federation of Federal Employees, Local 1461 and Department of the Navy, U.S. Naval Observatory, 26 FLRA 808, 811-12 (1987).

Accordingly, Provision 34 is outside the duty to bargain.

XVI. Provision 36

Article 37. Employee Assistance Program

Section 12.

Inasmuch as alcoholism and drug abuse are defined as a handicapping condition, the parties agree that no employee will be disciplined, reduced in grade, displaced from their present position, or terminated without affording the employee reasonable accommodation and rehabilitative assistance.

A. Positions of the Parties

The Agency contends that Provision 36 directly and excessively interferes with its right to discipline employees. The Agency maintains that the provision would prevent it from disciplining employees who are affected by alcoholism or drug abuse until those employees have been offered unspecified reasonable accommodation and rehabilitative assistance. The Agency also contends that the provision would require it to offer reasonable accommodation to employees who are not entitled to it under law. The Agency argues that the provision would prevent it from taking disciplinary action as long as the employee was progressing satisfactorily in a rehabilitation program. The Agency also asserts that Provision 36 is inconsistent with Section 5(c) of Executive Order 12564 and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

The Union states that the intent of Provision 36 is to ensure that employees who are suffering from handicapping conditions will be afforded an opportunity for rehabilitation and reasonable accommodation prior to having any disciplinary action taken against them. The Union contends that Provision 36 sets forth an arrangement for employees with a handicapping condition (drug abuse). The Union asserts that the Rehabilitation Act of 1973 requires that agencies reasonably accommodate qualified handicapped employees. The Union also asserts that Executive Order 12564 requires that employees who test positive for illegal drugs be referred for treatment or rehabilitation as appropriate.

B. Discussion

Consistent with applicable precedent, we find that drug abuse and alcoholism are handicapping conditions under the Rehabilitation Act, 29 U.S.C. § 791. See Kulling v. Department of Transportation, Federal Aviation Administration, 24 M.S.P.R. 56 (1984) (drug abuse constitutes a handicapping condition under the Rehabilitation Act); McClarty v. United States Postal Service, 15 M.S.P.R. 199 (1983) (alcoholism constitutes a handicapping condition under the Rehabilitation Act). We interpret Provision 36 as precluding the reassignment of an employee who is suffering from alcoholism or drug abuse, including an employee in a sensitive position, until the employee has been afforded rehabilitation assistance. We find that Provision 36, interpreted in this manner, is outside the duty to bargain under section 7117(a)(1) of the Statute because it is inconsistent with Executive Order 12564.

Provision 36 is not merely concerned with an offer of rehabilitative assistance for handicapped employees. The provision would prevent the reassignment of employees involved in a rehabilitation program even if the reassignment is designed to accommodate the employees. Provision 36 would also prevent the reassignment of employees who hold sensitive positions even where the Agency has determined that the reassignment is necessary to prevent undue hardship or to protect the public health or safety or national security.

Provision 36 conflicts with Executive Order 12564. The Executive Order provides, in pertinent part, as follows:

Sec. 5. Personnel Actions.

(a) Agencies shall, in addition to any appropriate personnel actions, refer any employee who is found to use illegal drugs to an Employee Assistance Program for assessment, counseling, and referral for treatment or rehabilitation as appropriate.

(b) Agencies shall initiate action to discipline any employee who is found to use illegal drugs, provided that such action is not required for an employee who:

. . . . . . .

(2) Obtains counseling or rehabilitation through an Employee Assistance Program;

. . . . . . .

(c) Agencies shall not allow any employee to remain on duty in a sensitive position who is fund to use illegal drugs, prior to successful completion of rehabilitation through an Employee Assistance Program. However, as part of a rehabilitation or counseling program, the head of an Executive agency may, in his or her discretion, allow an employee to return to duty in a sensitive position if it is determined that this action would not pose a danger to public health or safety or the national security.

Provision 36 conflicts with the Executive Order because it prevents the Agency from taking a personnel action (including reassignment) against employees who have a handicapping condition (drug abuse) without first affording that employee reasonable accommodation and rehabilitative assistance. Provision 36 prevents the displacement of employees from their positions until the employees have been afforded rehabilitative assistance. The Executive Order specifically provides that the Agency shall take appropriate personnel action in addition to referring an employee to an assistance program and requires the removal of employees from sensitive positions until the agency has determined they do not pose a danger to public health or safety or the national security. Executive Order 12564, Sec. 5.(c).

Executive Order 12564 was issued pursuant to the President's statutory authority to regulate the Civil Service and, therefore, is accorded the force and effect given to a law enacted by Congress. National Federation of Federal Employees, Local 15 and Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois, 30 FLRA 1046, 1070-71 (1988), remanded as to other matters sub nom. Department of the Army, U.S. Army Armament, Munitions and Chemical Command, Rock Island, Illinois v. FLRA, No. 88-1239 (D.C. Cir. May 25, 1988). Provision 36, therefore, is outside the duty to bargain under section 7117(a)(1) of the Statute because it is inconsistent with law.

Since we have found that Provision 36 is inconsistent with law, we need not determine whether Provision 36 conflicts with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.

Further, it is unnecessary to address the Union's claim that Provision 36 constitutes an appropriate arrangement under section 7106(b)(3) since that section applies only when management exercises one of the reserved rights set out elsewhere in section 7106. Section 7106(b)(3) does not make negotiable a matter which is inconsistent with law. Id. at 1071. See also American Federation of Government Employees, Local 1546 and Department of the Army, Sharpe Army Depot, Lathrop, California, 25 FLRA 958 (1987).

XVII. Provision 39

Article 44. Agreement Period and Renegotiations

Section 2. Duration

This agreement shall remain in full force and effect for three (3) years from its effective date and from year to year thereafter, unless either party gives the other written notice of intention to terminate or reopen. Either party may give notice to the other not more than ninety (90) nor less than sixty (60) calendar days prior to the expiration date of this Agreement. Negotiations shall not exceed 60 days. Either during or at the conclusion of this 60 day period, either party may request the services of the Federal Mediation and Conciliation Service. The parties will work with the assigned mediator for a period not to exceed 30 days. If final agreement has not been reached the parties will submit the remaining issues to the Federal Service Impasses Panel. This agreement shall remain in full force and effect during negotiations and until a new contract takes effect.

A. Positions of the Parties

The Agency contends that Provision 39 is inconsistent with an Agency regulation for which there is a compelling need and that it is not negotiable under section 7117(a)(2) of the Statute. The Agency cites Department of Defense (DoD) Civilian Personnel Manual (CPM) 1400.25-M, CPM chapter 711, subchapter 3-4.b, which establishes DoD policy concerning the negotiation of collective bargaining agreements and prescribes that the duration of agreements will not exceed 3 years from their effective date. The Agency acknowledges the Authority's decision in Marine Corps Logistics Base, 29 FLRA 1587 (Provision 9), in which the Authority held that a provision similar to the one in the instant case was not barred by the same DoD regulation. The Agency asserts that the Authority's decision in that case should be reconsidered. In the alternative, the Agency argues that the provisions in Marine Corps Logistics Base should be distinguished from the instant provision which, the Agency maintains, prevents it from complying with its obligation to bring agreements into conformance with Government-wide and agency regulations upon expiration of the agreements.

The Union denies that Provision 39 conflicts with CPM chapter 711, subchapter 3-4.b and contends that the provision does not prevent the Agency from reviewing agreements for conformance with Government-wide regulations. The Union also contends that the Agency has failed to establish a compelling need for the regulation.

B. Discussion

We find that Provision 39 does not conflict with an Agency regulation for which a compelling need exists under section 7117(a)(2) of the Statute and, therefore, conclude that it is within the Agency's duty to bargain. The disputed portions of Provision 39 would give the agreement a duration of 3 years from its effective date and would allow for mutually agreed-upon 1-year extensions thereafter. Provision 39 would also provide for the agreement to remain in full force and effect during renegotiations until a new agreement takes effect. We conclude that this provision does not deny the Agency the opportunity to comply with Government-wide regulations which have come into effect during the term of the agreement or from renegotiating over permissive subjects which it wishes to remove from the agreement.

As the Agency acknowledges, the Authority has considered the regulation on which the Agency relies in regard to a similar contract provision in another case. In Marine Corps Logistics Base, the provision at issue would have allowed the parties' agreement to be extended for 1-year periods. The agency contended that the provision conflicted with DoD Civilian Personnel Manual chapter 711, subchapter 3-4.b, which provides in relevant part:

. . . . . . .

(4) Substantive Government-wide regulations as well as regulations which are issued within DoD, and which do not merely transmit requirements imposed by law, do not override any provisions of a negotiated agreement during the term of that agreement. However, each agreement must be brought into conformance with applicable published policies and regulations of the primary national subdivision and of the DoD and with regulations of appropriate non-DoD authorities, at the time it is renegotiated, or when it is renewed or extended and such renewal or extension will result in its being in effect for more than 3 years and 90 days since it was last brought into conformance with applicable laws and regulations.

. . . . . . .

(6) No agreement will exceed 3 years in duration from its effective date. An agreement may be renewed or extended for a specific period (not to exceed 3 years for each renewal or extension) where the parties so agree, subject to the requirement set forth in subparagraph (4) above.

The Authority rejected the agency's argument in Marine Corps Logistics Base that the provision allowing renewal of agreements for periods of 1 year violated the regulation by preventing it from bringing the agreement into conformance with Government-wide rules and regulations and agency regulations for which a compelling needs exists. The Authority found that because the provision allowed either party to seek renegotiation of the agreement, the agency had sufficient opportunity to comply with the requirement of its regulation and thus the provision was not inconsistent with the regulation. 29 FLRA at 1610.

Similarly, the disputed portions of Provision 39 do not prevent the Agency from bringing agreements into conformance with Government-wide regulations as either party may give notice to the other of intention to terminate or reopen the agreement for renegotiation. Neither do those portions preclude an Agency-head review as required under section 7114(c) of the Statute. In the instant case, as in Marine Corps Logistics Base, the Union has stated that nothing in the provision will prevent the Agency head from reviewing a newly negotiated agreement or one that the parties have mutually agreed to extend. We find that Agency-head review is not precluded by the provision and the Agency is not deprived of the opportunity to bring agreements into conformance with governing regulations.

The last sentence of Provision 39 provides that the contract will remain in full force and effect during negotiations and until a new contract takes effect. However, that sentence does not prevent the Agency from bringing contracts into conformance with applicable laws and regulations. The Agency has the opportunity to give notice to the Union that it wishes to reopen the contract 90 days prior to its expiration. If the Agency provides appropriate notice, all matters would be reopened and subject to renegotiation. The Agency would have full opportunity to comply with its obligations under CPM chapter 711, subchapter 3-4.b. See Merit Systems Protection Board Professional Association and Merit Systems Protection Board, Washington, D.C., 30 FLRA 852, 861 (1988).

We find no reason to depart from the decision in Marine Corps Logistics Base on this point. Further, we disagree with the Agency that that decision is not applicable to the instant case. Since Provision 39 allows the Agency the opportunity to comply with its regulation by announcing its intention to renegotiate agreements upon expiration or before renewal, there is no inconsistency with the requirements of CPM chapter 711, subchapter 3-4.b. In the absence of any inconsistency, there is no need to pass on the issue of whether there is a compelling need for that regulatory provision. Therefore, as the Agency has failed to establish that Provision 39 is inconsistent with an Agency regulation for which a compelling need exists, Provision 39 is within the duty to bargain.

XVIII. Provision 40

Article 37. Employee Assistance Program

Section 14.

If an employee is required to undergo a fitness for duty examination, the employee will be informe that they may be examined by the Naval Regional Medical Center, (NRMC) Branch Clinic, Concord or a physician of their own choice.

A. Positions of the Parties

The Agency contends that Provision 40 conflicts with 5 C.F.R. Part 339, which the Agency asserts is a Government-wide regulation.

The Union states that the provision is intended to protect employees from performing duties which they are unable to perform.

B. Discussion

Provision 40 requires the Agency to inform employees who are required to submit to a fitness for duty examination that they may be examined at the Agency's medical facilities or by a physician chosen by the employee. We find that Provision 40 is outside the duty to bargain because it is inconsistent with a Government-wide regulation.

Section 339.302 of title 5 of the Code of Federal Regulations (C.F.R.) establishes the examination procedures which an agency must follow when it orders or offers a medical examination to determine whether an individual is fit for Federal employment. That section provides, in pertinent part:

(b) The agency shall designate the examining physician, but shall offer the employee or former employee an opportunity to submit medical documentation from his or her personal physician, which the agency shall review and consider.