40:0371(38)NG - - AFGE Local 2022 and Army, HQ, 101st Airborne Division, Ft. Campbell, KY - - 1991 FLRAdec NG - - v40 p371



[ v40 p371 ]
40:0371(38)NG
The decision of the Authority follows:


40 FLRA No. 38

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 2022

(Union)

and

U.S. DEPARTMENT OF THE ARMY

HEADQUARTERS, 101ST AIRBORNE DIVISION

FORT CAMPBELL, KENTUCKY

(Agency)

0-NG-1737

DECISION AND ORDER ON NEGOTIABILITY ISSUES

April 26, 1991

Before Chairman McKee and Members Talkin and Armendariz.(1)

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and involves five proposals.

Proposal 1 provides that in order to permit the adjustment of an employee's grievance in circumstances where an employee and his or her representative work different shifts, the Agency will either change the employee's shift to that of his or her representative or pay overtime. Proposal 1 is found to be negotiable. Proposal 2, which requires the Agency to grant up to 40 hours of administrative leave to employees to attend Boy or Girl Scout functions, is nonnegotiable because it directly interferes with management's right to assign work under section 7106(a)(2)(B). Proposal 3, which allows employees 10 minutes for personal cleanup time before lunch periods and at the end of the workday, is negotiable under section 704(a) of the Civil Service Reform Act to the extent that it covers wage grade employees. To the extent that Proposal 3 covers general schedule employees, it is negotiable as an appropriate arrangement under section 7106(b)(3).

Proposal 4, which provides that employees may not work over 16 hours within a 24-hour period without the Garrison Commander's approval, is nonnegotiable because it excessively interferes with management's right to assign work under section 7106(a)(2)(B). Proposal 6, which requires that Agency employees receive consideration for positions before other candidates are solicited, ranked, or considered for selection, directly interferes with management's right to select under section 7106(a)(2)(C) and is nonnegotiable.

II. Proposal 1

Article 7.

Section 7-2.

Supervisors will give their employees a reasonable amount of time (see Section 7-4) during working hours to prepare their grievances or appeals; to secure advice from Union officials concerning their rights and privileges under this Agreement, and to obtain information or assistance from Union officials pertaining to their grievances and/or appeals. Each employee, prior to leaving his/her work area, will obtain permission from his/her immediate/first-line supervisor. If for any reason that supervisor is not available, the employee will obtain permission from the next/second-line supervisor in the employee's chain of supervision. A supervisor may require an employee to temporarily delay his/her departure if the employee's absence will unduly disrupt work. Overtime pay or compensatory time off in lieu of overtime pay is not authorized for employees to prepare and to present grievance[s], unless such overtime is officially ordered and approved by management. However, when an employee works a shift different than their [sic] representative, the employee's shift will be changed to the representative's shift or overtime will be paid.

[Only the underscored portion is in dispute.]

A. Positions of the Parties

1. The Agency

The Agency contends that the disputed portion of Proposal 1 directly interferes with its rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute. Additionally, the Agency asserts that Proposal 1 interferes with management's right to determine the numbers, types, and grades of employees needed for a particular tour of duty under section 7106(b)(1) of the Statute. The Agency states that the "plain language" of the disputed portion of Proposal 1 requires "that an employee's shift must be changed to the same shift as the union representative when the employee needs to prepare and present a grievance, or overtime must be paid." Statement of Position at 2. However, the Agency notes the Union's agreement, in its petition, "'that overtime compensation should not be used to prepare for grievances.'" Id. at 4.

The Agency asserts that the disputed portion of Proposal 1 "gives no consideration at all to the operational needs of the agency, the qualifications necessary for specific kinds of work, or to the number of employees needed to perform a particular function." Id. at 2. Specifically, the Agency contends that not all of the employees represented by the Union perform shift work. Therefore, the Agency asserts, "having an employee transfer to a different shift does not necessarily mean the employee would be assigned similar duties, or that there would be any work available at all." Id. Additionally, the Agency argues that "there will be instances where an employee's absence for an undetermined period will severely impact the staffing resources of a particular office or shop." Id. at 3.

The Agency also argues that "an employee who would otherwise be able to resolve a grievance during his or her regularly scheduled tour of duty is not entitled to overtime compensation to accommodate a union representative who happens to be assigned to another work schedule." Id. at 4. In support, the Agency cites National Treasury Employees Union v. Gregg, No. 83-546 (D.D.C. Sept. 28, 1983) (Gregg) and Warner Robins Air Logistics Center, Warner Robins, Georgia and American Federation of Government Employees, Local 987, 23 FLRA 270 (1986) (Warner Robins).

2. The Union

The Union contends that the disputed portion of Proposal 1 does not interfere with the Agency's rights under the Statute. In support, the Union argues as follows:

[i]t is not uncommon for employees, representatives, and management officials to have completely different work hours. If overtime compensation cannot be considered, then our only option is to terminate the grievance meeting and continue it another day when overtime can be scheduled or the employee can be reassigned long enough to process the grievance.

Petition for Review at 2. The Union contends that the Agency has the "option" to schedule the meetings on "the employee[']s shift, on regular time, on overtime, or on the representative[']s shift." Id. at 3. Therefore, the Union argues that when the Agency schedules grievance meetings during "either the employee's or representative's off-duty time, then they have, in essence, directed or required them to report at a designated location at a specified time prior or subsequent to their regular shift." Id. at 2. The Union argues that "such time should be compensable at the existing overtime rate . . . ." Id.

B. Analysis

Initially, we note that the disputed portion of Proposal 1 is not expressly limited to meetings where grievances are adjusted. However, the Union asserts that Proposal 1 is intended to address the situation which occurs when management schedules grievance meetings and employees, representatives, and management officials have "completely different work hours." Petition for Review at 2. Moreover, as the Agency notes, the Union states its "agree[ment] that overtime compensation should not be used to prepare for grievances." Id. Based on this record, we conclude that the disputed portion of Proposal 1 applies only when a meeting is scheduled to adjust an employee's grievance and the employee is not on the same shift as his or her representative.

The disputed portion of Proposal 1 requires the Agency to take one of two options when the employee does not work the same shift as his or her representative. One option is to change the employee's shift to the representative's shift. If management does not change the employee's shift, then Proposal 1 requires that management pay overtime.

The negotiability of the disputed portion of Proposal 1 depends on whether the Agency has discretion to pay overtime for the presentation of a grievance. General schedule employees who work in excess of 8 hours a day or 40 hours a week are entitled to either overtime compensation or compensatory time off under 5 U.S.C. §§ 5542 and 5543. In addition, general schedule employees covered by the Fair Labor Standards Act (FLSA) are also entitled to overtime compensation under the provisions of the FLSA if the entitlement would be greater under the FLSA than under 5 U.S.C. § 5542. See 5 C.F.R. § 551.513. Prevailing rate employees are entitled to overtime compensation, "in accordance with sections 5544 and 5550 of title 5, United States Code, or, if eligible, under the provisions of [FLSA] whichever provides the greater overtime benefit." 5 C.F.R. § 532.503(a)(1). Both 5 U.S.C. §§ 5544 and 5550 provide that prevailing rate employees are "entitled to overtime pay for overtime work in excess of 8 hours a day or 40 hours a week."

5 U.S.C. § 5542 provides for the payment of overtime compensation to covered employees for "hours of work officially ordered or approved in excess of 40 hours in an administrative workweek, or . . . in excess of 8 hours in a day[.]" The Office of Personnel Management (OPM) is authorized to promulgate regulations implementing the overtime provisions of 5 U.S.C. § 5542. See 5 U.S.C. § 5548. These regulations, which are set out in 5 C.F.R. Part 550, "Pay Administration (General)," do not specifically discuss whether time spent adjusting grievances is considered hours of work; however, we find nothing in these regulations which would prevent the Agency from ordering and approving overtime for that purpose.

OPM also is responsible for administering the provisions of the FLSA that are applicable to Federal employees. See 29 U.S.C. § 204(f). Implementing regulations, governing hours of work determinations and overtime pay entitlements for general schedule and prevailing rate employees, are set out in 5 C.F.R. Part 551, "Pay Administration under the Fair Labor Standards Act." See 5 C.F.R. §§ 532.503(a)(1) and 551.101(c). The regulations provide generally that "[t]ime that is considered hours of work . . . shall be used . . . to determine an employee's entitlement to . . . overtime pay under the [FLSA.]" 5 C.F.R. § 551.401(d). Time spent adjusting grievances is defined as hours of work under 5 C.F.R. § 551.424(a), which provides:

[t]ime spent by an employee adjusting his or her grievance (or any appealable action) with an agency during the time the employee is required to be on the agency's premises shall be considered hours of work.

If the Agency schedules a meeting to adjust a grievance, we find that management is requiring the grievant to be on the Agency's premises, within the meaning of 5 C.F.R. § 551.424(a). Consequently, consistent with this regulation, we conclude that when an agency schedules a meeting to adjust an employee's grievance, the time the grievant is in the grievance meeting is hours of work for the purpose of computing overtime.

In reaching this conclusion, we note that the language in section (b) of 5 C.F.R. § 551.424, which concerns time spent performing representational functions, establishes a different standard to determine hours of work. 5 C.F.R. § 551.424(b) specifically provides:

"Official time" granted an employee by an agency to perform representational functions during those hours when an employee is otherwise in a duty status shall be considered hours of work. This includes time spent by an employee performing such functions during regular working hours (including regularly scheduled overtime hours), or during a period of irregular, unscheduled overtime work, provided an event arises incident to representational functions that must be dealt with during the irregular, unscheduled overtime period.

It is clear from the wording of 5 C.F.R. § 551.424(b) that an agency may not schedule union representatives for overtime in order to permit them to conduct representational functions. See Gregg; Warner Robins. In contrast, section 551.424(a), which applies to time spent by "an employee adjusting his or her grievance . . . ," states that hours of work includes "time the employee is required to be on the agency's premises." Under this subsection, an agency may schedule a meeting to adjust an employee's grievance and the time spent by the employee constitutes hours of work. Accordingly, we conclude that the disputed portion of Proposal 1, which requires the Agency to pay overtime to the employee for time spent at a meeting scheduled by management to adjust his or her grievance, if the employee's representative is on a different shift, is negotiable.

The Agency cites Gregg and Warner Robins in support of its argument that Proposal 1 is nonnegotiable. However, these cases are inapposite because they concerned whether employees, acting as union representatives, could receive overtime compensation for representational functions. In Gregg, the U.S. District Court for the District of Columbia held that under section 7131(a) of the Statute, union representatives could not receive overtime compensation for time spent beyond their normal workweek serving on a union negotiating team. The court noted that this decision was consistent with 5 C.F.R. § 551.424(b). Similarly, the Authority held in Warner Robins that a union representative, who represented a grievant at a meeting scheduled after the representative's regular workday, was not entitled to overtime compensation under the FLSA. 23 FLRA at 272.

Further, we distinguish the Authority's decision in Wright-Patterson Air Force Base, Ohio, 2750th Air Base Wing and American Federation of Government Employees, Local No. 1138, 23 FLRA 390 (1986) (Wright-Patterson). In Wright-Patterson, the Authority set aside that portion of an arbitrator's award which granted overtime pay to employees for time spent beyond their regularly scheduled duty hours as union witnesses at an arbitration hearing. Relying on Warner Robins, the Authority found "that time spent attending the arbitration hearing as union witnesses is not hours of work under [5 C.F.R. § 551.401(a)] which would entitle the employees to overtime pay or compensatory time off under FLSA." Id. at 392. Additionally, the Authority found that 5 C.F.R. § 551.424(a) did not apply to an employee's "attendance as a union witness at the arbitration hearing to which he was not a party and at which his attendance was not required." Id. at 393. In contrast to Wright-Patterson, which concerned employees who assisted a union as witnesses at an arbitration hearing, the disputed portion of Proposal 1 addresses employees who are adjusting their own grievances.

Finally, we reject the Agency's assertions that Proposal 1 directly interferes with its rights to assign work and employees under section 7106(a)(2)(A) and (B) and interferes with the right to determine the numbers, types, and grades of employees under section 7106(b)(1). Because the Agency has the option under Proposal 1 to assign overtime to an employee to adjust his or her grievance, the proposal does not require management to reassign an employee to another shift when his or her representative is not on the same shift. Rather, Proposal 1 preserves management's right not to reassign the employee because of operational needs, or for any other reason, by giving the Agency the option of paying the grievant overtime.

As Proposal 1 neither requires nor prohibits the reassignment of employees to different shifts, we conclude that the proposal does not directly interfere with the Agency's rights to assign employees and assign work under section 7106(a)(2)(A) and (B) of the Statute or to determine the numbers, types, and grades of employees under 7106(b)(1). Accordingly, that portion of Proposal 1 which gives management the option of making a shift reassignment to facilitate the adjustment of an employee's grievance is negotiable. See American Federation of Government Employees, Department of Education Council of AFGE Locals and Department of Education, 35 FLRA 56, 61 (1990) (Proposal 1) ("A requirement that an agency 'consider' exercising its rights does not require the agency to exercise its rights.").

C. Conclusion

In summary, we find that the disputed portion of Proposal 1, which is applicable to situations where an employee and his or her representative work on different shifts, and which requires that the Agency change an employee's shift to that of his or her representative or pay overtime to permit the adjustment of the employee's grievance, is negotiable.

III. Proposal 2

Article 14.

Section 14-7.

Permanent employees will be excused from work without charge to leave for up to 40 hours annually to attend Boy Scouts of America/Girl Scouts of America summer camp, national jamborees, world jamborees, Philmont Scout Ranch, and other scout functions. These employees must meet the following requirements:

a. Have been in an official scouting leadership position (Scout Master or Assistant Scout Master) for 5 years or longer when applying, and

b. Have been in civil service for 5 years or longer before applying.

[The entire proposal is in dispute.]

A. Positions of the Parties

The Agency states that Proposal 2 does not concern a condition of employment, within the meaning of section 7103(a)(14) of the Statute. According to the Agency, Proposal 2 has "no direct relationship on the work situation or on the employment relationship of unit employees." Statement of Position at 5. The Agency notes the Authority's position that it will examine whether a proposal vitally affects the working conditions of employees in the bargaining unit. Proposal 2, according to the Agency, "does not vitally affect the employees' working conditions." Id. The Agency states that "there is no direct relationship between an employee's scouting activities and the work situation or the employment relationship of bargaining unit employees." Id.

In addition, the Agency asserts that Proposal 2 interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because Proposal 2 "bases the grant of leave on the employee's desire to participate in scouting activities, rather than the agency's need to accomplish its mission." Id. at 7. The Agency argues that Proposal 2 would limit management's right to determine when assigned work will be performed.

The Union argues that Proposal 2 concerns a condition of employment within the meaning of the Statute. The Union asserts that the availability of leave is a factor in choosing or retaining employment on a particular job, and, therefore, it is a working condition.

B. Analysis and Conclusions

1.Proposal 2 Concerns a Condition of Employment

Proposal 2 requires the Agency to excuse permanent employees from work for up to 40 hours annually to attend Boy and/or Girl Scout functions if they meet certain requirements. We reject the Agency's argument that Proposal 2 does not concern a condition of employment within the meaning of section 7103(a)(14) of the Statute. Section 7103(a)(14) of the Statute defines "conditions of employment," in relevant part, as "personnel policies, practices, and matters . . . affecting working conditions." A proposal affecting conditions of employment of bargaining unit employees is within the duty to bargain under the Statute if it is consistent with applicable law or regulations. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 FLRA 335, 338 (1988), decision on remand, AFGE, Local 32, v. FLRA, 853 F.2d 986 (D.C. Cir. 1988).

Administrative leave is defined as "an absence from duty administratively authorized without loss of pay and without charge to leave." Federal Personnel Manual chapter 630, subchapter 11-1. Because administrative leave allows employees to be absent from duty with pay it affects conditions of employment. The fact that the administrative leave requested in Proposal 2 is for participation in a non-work related activity does not alter our conclusion that administrative leave concerns a condition of employment. Accordingly, we find that Proposal 2 concerns a condition of employment within the meaning of section 7103(a)(14) of the Statute.

2.Proposal 2 Directly Interferes With the Right to Assign Work

Proposal 2 states that "employees will be excused from work without charge to leave for up to 40 hours" to attend Boy/Girl Scout functions. Statement of Position at 3. Thus, Proposal 2 would require the Agency, without exception, to authorize employees' administrative leave for up to 40 hours to attend scouting functions if they meet the proposed requirements.

Proposals requiring management to grant leave prevent management from requiring an employee to remain on duty to perform necessary work and, thereby, directly interfere with the right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172, 1178 (1987) (Provision 7) (provision authorizing employees 4 hours of excused absence to donate blood in addition to travel time to and from the blood center held to directly interfere with management's right to assign work). Proposal 2 would require the Agency to grant administrative leave for scouting activities to those employees who meet certain requirements. As the proposal does not preserve the Agency's right to decide whether or not to grant requests for administrative leave, it directly interferes with the Agency's right to assign work. As the Union does not argue that Proposal 2 constitutes an appropriate arrangement, it is nonnegotiable. Compare American Federation of Government Employees, Local 2298 and U.S. Department of the Navy, Polaris Missile Facility, Atlantic, Charleston, South Carolina, 35 FLRA 591, 593 (1990) (proposal providing administrative leave for training held negotiable because management had determined that the training was necessary and training was provided during duty hours).

IV. Proposal 3

Article 17.

Section 17-1. CLEAN-UP TIME

Employer and the Union agree normally ten minutes for personal clean-up time will be allowed employees to their lunch periods and at the end of their workday. Exception: Supervisors may grant designated employees specific approval for longer periods of clean-up time when the type of work being performed by the employees, either on a continuous basis or on any given occasion, justifies a large amount of clean-up time, the employee(s) may request the supervisor to furnish the reasons for the denial. Clean-up time will not be used to extend an employees' [sic] regular scheduled tour of duty nor will it be the basis for granting or compensating overtime pay unless the employee was prevented, for work reasons, from his/her normal, allowable clean-up time.

Section 17-2.

This Article is also applicable to employees required to perform overtime work under Article 18.

[The entire proposal is in dispute.]

A.Positions of the Parties

1.The Agency

The Agency argues that Proposal 3 is nonnegotiable because it interferes with its right to assign work under section 7106(a)(2)(B) of the Statute by "preclud[ing] the assignment of other types of work during the specified period." Statement of Position at 8. Additionally, the Agency rejects the Union's claim that Proposal 3 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. In response to the Union's allegation that employees dealing with toxic materials need cleanup time, the Agency contends that "any employees who are required to work with toxic chemicals are provided with protective equipment and clothing." Id. at 10. Finally, the Agency also argues that Proposal 3 conflicts with 5 U.S.C. § 6101 and is, therefore, nonnegotiable under section 7117(a)(1) of the Statute.

2. The Union

The Union contends that cleanup time has been negotiated by the parties since 1967. According to the Union, "prevailing rate employees in the bargaining unit are entitled to continue to negotiate [cleanup time] under Section 9(b) of the Prevailing Rate Systems Act, . . . since this was a matter subject to negotiations between the parties prior to August 19, 1972." Reply Brief at 2 (emphasis omitted).

Further, the Union states that cleanup time is necessary because both prevailing rate and general schedule employees "are dealing with toxic materials or are required by management to maintain personal cleanliness as part of their duties[.]" Petition for Review at 5. The Union also asserts that "OSHA standards require the clean-up of the work area and/or the washing of hands and other areas of exposure." Reply Brief at 2. The Union argues that employees use toxic products "installation wide" in many departments, such as Medical-Dental, the Fire Department, the oil lab, the Directorate of Logistics, and the Directorate of Engineering and Housing. Id. at 3.

Additionally, the Union argues that Proposal 3 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute because it "mitigates the adverse effect on employees (1) of the unclean and potentially unhealthful conditions in their work and (2) management[']s assignment and direction to maintain personal cleanliness or face adverse consequences and/or discipline." Petition for Review at 5. The Union states "this practice has existed for over a decade without adversely affecting the mission(s) [of the Agency]." Reply Brief at 6.

B.Preliminary Matter

The Union filed a motion requesting that the Authority hold:

a fact finding hearing . . . to determine those employees entitled to maintain the right to negotiate cleanup time: (1) due to the assignment of work detrimental to their health and safety, i.e., exposure to toxic materials, germs and infectious diseases, etc.; and (2) the adverse effect of the requirement to maintain personal cleanliness, i.e., under uniform dress codes, performance evaluations, etc."

Motion for Hearing, October 6, 1989.

The Union argues that the Authority should hold a hearing because "the only way a determination of whether employees are entitled to retain the right to clean up time would be to examine the circumstances of each department branch and office and the circumstances of each employee's job installation wide." Reply Brief at 6. According to the Union, the Agency and the Authority should assume some of the "burden of proving the adverse impact, including evidence pertaining to a massive number of individual employees . . . once the Union has shown a prima facia [sic] case exists." Id.

We reject the Union's argument that the Authority should hold a fact finding hearing concerning Proposal 3. Initially, we note that whether a hearing is held in a negotiability matter is within the Authority's discretion. See 5 C.F.R. § 2424.9 ("A hearing may be held, in the discretion of the Authority, before a determination is made under section 7117(b) or (c)." (emphasis added)). In negotiability matters it is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982); National Federation of Federal Employees, Local 2050 and U.S. Environmental Protection Agency, 35 FLRA 706, 717-18 (1988).

Here, the Union had the opportunity in its Petition for Review and a Reply Brief to explain its position fully and provide any information necessary for the Authority to make a negotiability determination on Proposal 3. Accordingly, we deny the Union's motion that the Authority provide an additional opportunity to the Union to support its arguments by holding a fact finding hearing.

Finally, in its Motion for Hearing, the Union requested that if Proposal 3 was found to be negotiable "that the proposal be referred back to the parties for further fact finding or negotiations with the assistance of the Federal Service Impasses Panel." Motion for Hearing, October 6, 1989. In this regard, we note that section 7119(b)(1) provides that when a negotiation impasse exists "either party may request the Federal Service Impasses Panel [FSIP] to consider the matter[.]" Therefore, whether FSIP assistance is requested is a matter within the control of the parties. See National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 414-15 (1990) for a discussion of FSIP's role in collective bargaining.

C.Analysis and Conclusions

Proposal 3 provides employees with cleanup time both during their regularly scheduled workdays (section 17-1) and during scheduled overtime assignments (section 17-2). As the Agency points out, in International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347, 363-65 (1988) (Army Engineer), the Authority held that a provision requiring the agency to provide employees with "a reasonable amount of time . . . to clean up prior to lunch and at the end of the workday[]" was nonnegotiable because it conflicted with 5 U.S.C. § 6101.(2) The Authority stated, in this regard, that section 6101 requires a basic workweek to consist of 40 hours of work and that time set aside for personal cleanup "cannot be considered 'work' or 'employment' for purposes of fulfilling the requirement for a 40-hour workweek." Id. at 365. See also National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Department of Military Affairs, Illinois Air National Guard, 35 FLRA 740, 748-50 (1990) (Illinois Air National Guard); National Association of Government Employees, SEIU, AFL-CIO and National Guard Bureau, Adjutant General, 26 FLRA 515, 516-17 (1987).

Proposal 3 provides us with an opportunity to reexamine the statutory and regulatory restrictions, other than those in the Statute, applicable to proposals involving cleanup time. We will examine those statutory and regulatory restrictions first, followed by an analysis of the Agency's right to assign work under the Statute. We also note that the bargaining unit in this case includes non-supervisory general schedule and wage grade (prevailing rate) employees. See, for example, Statement of Position at 2. Although non-supervisory wage grade employees are covered by the Fair Labor Standards Act (FLSA), non-supervisory general schedule employees may be excluded from coverage of the FLSA based on the nature of their positions. See, for example, Federal Personnel Manual (FPM) letter 551-7. Thus, we will address the negotiability of the two sections of Provision 3 as they apply to general schedule employees excluded from coverage of the FLSA and as they apply to wage grade and general schedule employees covered by the FLSA.

On reexamination of the statutory and regulatory restrictions, other than those in the Statute, applicable to proposals involving cleanup time, we now conclude, for the following reasons, that such proposals do not conflict with applicable laws and regulations.

1. Hours of Work

(a). General Schedule Employees Excluded from Coverage of the FLSA

We note first that nothing in 5 U.S.C. § 6101, set out above, and nothing in 5 C.F.R. part 610, entitled "Hours of Duty," both of which concern an agency's obligation to establish basic 40-hour work schedules for employees, define what will constitute work or prohibit an agency from assigning personal cleanup during regular duty hours. General schedule employees who work in excess of 8 hours a day or 40 hours a week are entitled to either overtime compensation or compensatory time off under 5 U.S.C. §§ 5542 and 5543. Nothing in 5 U.S.C. §§ 5542 or 5543 precludes an agency from assigning personal cleanup during periods of overtime.

In order to implement the various provisions of law concerning the establishment of basic workweeks and overtime, the Office of Personnel Management (OPM) has promulgated 5 C.F.R. part 550, entitled "Pay Administration (General)," which concerns pay administration for general schedule employees. We note that although 5 C.F.R. part 550 does not define "work," it contains provisions concerning whether certain activities denoted as "principal activities" and "preshift/postshift activities" are compensable as hours of work. For example, with respect to overtime compensation for general schedule employees, 5 C.F.R. § 550.112(a) provides, as relevant here, that:

(a) Time spent in principal activities. Principal activities are the activities that an employee is employed to perform. They are the activities that an employee performs during his or her regularly scheduled administrative workweek (including regular overtime work) and activities performed by an employee during periods of irregular or occasional overtime work . . . .

Further, 5 C.F.R. § 550.112(b) provides, in relevant part, as follows:

(b) Time spent in preshift or postshift activities. A preshift activity is a preparatory activity that an employee performs prior to the commencement of his or her principal activities, and a postshift activity is a concluding activity that an employee performs after the completion of his or her principal activities. Such activities are not principal activities defined in paragraph (a) of this section.

(1)(i) If the head of a department reasonably determines that a preshift or postshift activity is closely related to an employees's principal activities, and that the total time spent in that activity is more than 10 minutes per daily tour of duty, he or she shall credit all of the time spent in that activity, including the 10 minutes, as hours of work.

. . . .

(2) A preshift or postshift activity that is not closely related to the performance of the principal activities is considered a preliminary or postliminary activity. Time spent in preliminary or postliminary activities is excluded from hours of work and is not compensable, even if it occurs between periods of activity that are compensable as hours of work.

OPM has defined "principal activities" for purposes of non-overtime and overtime work in Federal Personnel Manual (FPM) Supplement 990-2, Book 550, Appendix I, at a.(1) as follows:

Principal activities are the activities that an employee is employed to perform. Simply stated, that are the duties of his or her position. They include all activities performed by an employee during his or her regularly scheduled administrative workweek, including regular overtime work. They also include all activities performed by an employee during a period of irregular or occasional overtime work . . . ."

It appears, therefore, that for purposes of pay administration under 5 C.F.R. part 550 and FPM Supplement 990-2, Book 550, work consists of the activities that an employee is employed to perform. It is also clear that the duties an employee is employed to perform include duties that are not necessarily related to the employee's classification or position. See, for example, National Federation of Federal Employees, Local 1655 and Department of Military Affairs, Illinois Air National Guard, 35 FLRA 815 (1990); Independent Letterman Hospital Worker's Union and Department of the Army, Nutrition Care, Letterman Army Medical Center, 29 FLRA 456 (1987) (Proposal 1). OPM notes, in this regard, that because it is a long-standing rule that any time, however small, an employee is required to spend on assigned duties must be counted, "an employee must be compensated for every minute of work performed during his or her regularly scheduled workweek, including regular scheduled overtime." FPM Supplement 990-2, Book 550, Appendix I at a.(2)(a).

OPM has also promulgated detailed guidance for the treatment of activities occurring prior to or after a work shift and has noted that there is no listing by category of preshift or postshift activities that are considered work and, thus, compensable, and activities that are considered preliminary or postliminary activities and, thus, not compensable. Rather, "[w]hether a preshift or postshift activity is considered work or is considered a preliminary or postliminary activity depends on the facts and circumstances of each individual employment situation." FPM Supplement 990-2, Book 550, Appendix I, Exhibit 2. Further, it is noted in Exhibit 2 that an activity such as changing clothes before and after the daily tour of duty which is generally considered to be a preliminary or postliminary activity and, thus, not compensable, is compensable "when extraordinary circumstances are present to make the clothes changing indispensable to the performance of the [employee's] principal activities and where the changing of clothes is required by law, by rule of the employer, or by the nature of the work." Id.

We find nothing in applicable law or regulations that explicitly or implicitly prohibits an agency from requiring employees to clean up as a regular assigned duty during the basic 40-hour workweek or during periods of overtime. Moreover, even in circumstances where cleanup duties are not assigned to employees, if an agency determines that cleanup time: (1) is closely related to the employee's principal activities; (2) is indispensable to the performance of the principal activities; and (3) takes more than 10 minutes per workday, then the employees are to be compensated for that activity under 5 C.F.R. § 550.112(b). There is no showing in this case that the Agency would be unable to make these determinations with respect to cleanup time for General Schedule employees excluded from coverage of the FLSA.

(b). General Schedule and Wage Grade Employees Covered by the FLSA

An agency's obligation to establish basic 40-hour work schedules for employees under 5 U.S.C. § 6101 and 5 C.F.R. § 610 also applies to general schedule and wage grade employees covered by the FLSA. As stated above, nothing in 5 U.S.C. § 6101 and nothing in 5 C.F.R. part 610 limits an agency's right to assign personal cleanup during the basic 40-hour workweek.

Similarly, there is no definition of "work" in the FLSA. See 29 C.F.R. § 785.6 ("The [FLSA], however, contains no definition of 'work'"); Compare 29 U.S.C. § 203(g) (defining "employ" as "to suffer or permit to work.") However, we note that the courts have interpreted the concept of "work" under the FLSA broadly. See, for example, Hill v. U.S., 751 F.2d 810, 812 (6th Cir. 1984), cert. denied sub nom. Cummings v. U.S., 474 U.S. 817 (1985), rehearing denied 474 U.S. 1014 (1985) (court of appeals held that "work" includes "'physical or mental exertion' for the employer's benefit[.]") (Citation omitted). In addition, OPM regulations implementing the FLSA as it applies to Federal employees, sets forth the following "[b]asic principles" in section 551.401:

(a) All time spent by an employee performing an activity for the benefit of an agency and under the control or direction of the agency is "hours of work." Such time includes:

(1) Time during which an employee is required to be on duty;

(2) Time during which an employee is suffered or permitted to work[.]

We note that general schedule and wage grade employees are entitled to overtime compensation either under the FLSA or under any other authority depending on which authority provides the greater benefit. 5 C.F.R. § 551.513. As indicated above, General Schedule employees are entitled to overtime compensation or compensatory time off under 5 U.S.C. §§ 5542 and 5543. As also stated above, nothing in 5 U.S.C. §§ 5542 or 5543 precludes an agency from assigning personal cleanup during periods of overtime. Wage grade employees are entitled to overtime under 5 U.S.C. § 5544. Nothing in 5 U.S.C. § 5544 concerning the overtime entitlement for wage grade employees prohibits an agency from assigning personal cleanup during overtime.

OPM has also issued regulations concerning the overtime entitlement for employees covered by the FLSA in 5 C.F.R. § 551.412, which provides, in relevant part, as follows:

(a)(1) If an agency reasonably determines that a preparatory or concluding activity is closely related to an employee's principal activities, and is indispensable to the performance of the principal activities, and that the total time spent in that activity is more than 10 minutes per workday, the agency shall credit all of the time spent in that activity, including the 10 minutes, as hours of work.

. . . .

(b) A preparatory or concluding activity that is not closely related to the performance of the principal activities is considered a preliminary or postliminary activity. Time spent in preliminary or postliminary activities is excluded from hours of work and is not compensable, even if it occurs between periods of activity that are compensable as hours of work.

OPM has stated that "[p]reshift and postshift activities under title 5 United States Code, are the same as preparatory and concluding activities under the FLSA." FPM Supplement 990-2, Book 550, Appendix I at b.(1). As indicated earlier in this decision, there is no listing by category of preshift or postshift activities that are considered work and, thus, compensable, and activities that are considered preliminary or postliminary activities and, thus, not compensable. Instead, as stated by OPM, "[w]hether a preshift or postshift activity is considered work or is considered a preliminary or postliminary activity depends on the facts and circumstances of each individual employment situation." Id. at Exhibit 2. Further, also as indicated earlier in this decision, it is noted in Exhibit 2 that although an activity such as changing clothes before and after the daily tour of duty is generally considered to be a preliminary or postliminary activity and, thus, not compensable, such activity is compensable "when extraordinary circumstances are present to make the clothes changing indispensable to the performance of the [employee's] principal activities and where the changing of clothes is required by law, by rule of the employer, or by the nature of the work." Id.

Similar to part 550, nothing in part 551 prohibits an agency from requiring employees to cleanup as a regular assigned duty. Moreover, even in circumstances where cleanup duties are not assigned to employees, an agency must compensate employees for the performance of those duties if an agency determines that cleanup duties will last more than 10 minutes per workday, are closely related to an employee's principal activities, and are indispensable to the performance of the employee's principal activities. Indeed, as provided in section 3 of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 203(o), time spent cleaning up which is otherwise a part of principal activity constitutes hours of work unless the parties' custom, practice, or collective bargaining agreement excludes such time. Section 203(o) provides:

Hours worked.--In determining . . . the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective-bargaining agreement applicable to the particular employee.

29 U.S.C. § 203(o) has been applied by the Comptroller General to Federal employees to find an entitlement to pay for time spent by food inspectors in changing their clothes. 60 Comp. Gen. 611 (1981). See also Steiner v. Mitchell, 350 U.S. 247, 255 (1956) (court held that the "clear implication" of 29 U.S.C. 203(o) "is that clothes changing and washing, which are otherwise a part of the principal activity, may be expressly excluded from coverage by agreement."). In other words, unless cleanup time, which is otherwise part of a principal activity, is expressly excluded from hours of work by custom, practice, or an agreement, that time is included within such hours and, as such, constitutes a compensable activity under the FLSA. Compare 29 U.S.C. § 254 (employers are not liable for failing to pay for certain activities unless the parties have expressly agreed that the activities are compensable).

There is no indication in the record before us that the Union is seeking anything other than to require the Agency to assign employees the work of cleaning up. Further, we find nothing in 5 C.F.R. part 551, or the FLSA, which would make illegal an agency determination that employees be required to cleanup during their regular tours of duty or on overtime or, in circumstances where cleanup duties are not assigned to employees, from reasonably determining whether cleanup duties are closely related to an employee's principal activities, and whether they are indispensable to the performance of the employee's principal activities. In fact, it is undisputed that in the case now before us, the Agency has, through collective bargaining, agreed that such time constitutes hours of work for over 10 years. There is, therefore, no evidence that the parties have agreed, under 29 U.S.C. § 203(o), to exclude time spent cleaning up from hours of work. As the Agency does not assert that it acted illegally, and as nothing in law or regulation so indicates, we conclude that nothing in law or regulation prohibits the agency from assigning employees covered by that agreement to cleanup during their regular tours of duty or on overtime.

The case now before us is distinguishable from that in American Federation of Government Employees, Local 987 and U.S. Department of the Air Force, Robins Air Force Base, Georgia, 37 FLRA 197, 207-13 (1990) (Member Armendariz concurring in part and dissenting in part) (Robins Air Force Base), petition for review filed sub nom. Department of the Air Force v. FLRA, No. 90-1530 (D.C. Cir. Nov. 13, 1990). The proposal in that case sought overtime compensation for employees whose departure from work was delayed because of a malfunction of a security gate. There, the employees had ceased work, and the Authority found that waiting at the gate was a postliminary activity for the employees. By contrast, the proposal in this case seeks the Agency's agreement to authorize or approve cleanup time. The Union is, in essence, seeking to require the Agency to assign the employees the work of cleaning up. Stated otherwise, the Union here seeks to negotiate over the work to be assigned to employees during overtime periods. If the Agency agreed, as it has done for over 10 years, to officially order or approve cleanup time, cleanup time would constitute hours of work and payment, whether regular or overtime, would follow.

Consistent with the foregoing, we have no basis on which to conclude that cleanup time cannot constitute compensable work. Accordingly, we will no longer adhere to previous Authority decisions so holding.

2. Right to Assign Work

(a). Wage Grade Employees

The bargaining unit includes wage grade employees who are covered by section 9(b) of the Prevailing Rate Systems Act, Pub. L. No. 92-392, codified at 5 U.S.C. § 5343 (Amendments). Statement of Position at 9 and Reply Brief at 2.

Section 704(a) of the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111, 1218, codified at 5 U.S.C. § 5343 (Amendments) (1988), provides that agencies must continue to negotiate on those terms and conditions of employment and other employment benefits, with respect to prevailing rate employees to whom section 9(b) of Pub. L. No. 92-392 applies, which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, without regard to any provision of the Statute. See United States Information Agency, Voice of America, 37 FLRA 849 (1990) (VOA), decision on remand, 895 F.2d 1449 (D.C. Cir. 1990), petition for review filed sub nom. United States Information Agency, Voice of America v. FLRA, No. 90-1582 (D.C. Cir. Dec. 4, 1990). In VOA, the Authority held that cleanup time relates to terms and conditions of employment because it concerns work assignments. 37 FLRA at 868.

In this case the Agency has not demonstrated or even argued that the requirements of section 704(a) of the CSRA are not met. Thus, we find that the Agency is obligated to bargain over cleanup time for wage grade employees. Id. at 869.

(b). General Schedule Employees

We have held consistently that proposals requiring an agency to provide employees with cleanup time during their hours of duty directly interfere with an agency's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, National Association of Government Employees, Locals R12-122, R12-222 and U.S. Department of Defense, Washington National Guard, Tacoma, Washington, 38 FLRA 295 (1990) (Proposal 1) (Washington National Guard); Illinois Air National Guard, 35 FLRA at 740 (Proposal 4). Proposal 3 would require the Agency to provide employees with cleanup time during their regular tours of duty and on overtime. Accordingly, we find that it directly interferes with the Agency's right to assign work.

As Proposal 3 directly interferes with the Agency's right to assign work, it is nonnegotiable unless it constitutes an appropriate arrangement, under section 7106(b)(3) of the Statute, for employees who are adversely affected by the exercise of a management right. In determining whether a provision constitutes an appropriate arrangement, the Authority first determines whether the provision is intended to be an "arrangement" for employees adversely affected by management's exercise of a management right. If a proposal is determined to be an "arrangement," the Authority determines whether the proposed arrangement is "appropriate," or whether it is inappropriate because it excessively interferes with management's rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986) (Kansas Army National Guard).

The Union argues that Proposal 3 is intended to "mitigate[] the adverse effect[s] on employees (1) of the unclean and potentially unhealthful conditions in their work and (2) management[']s assignment and direction to maintain personal cleanliness or face adverse consequences and/or discipline." Petition for Review at 5. According to the Union, employees throughout the installation are required to handle, or are exposed to, dirty, toxic, or hazardous materials or "are required by management to maintain personal cleanliness as part of their duties . . . ." Id. The Agency acknowledges, in this regard, that "[i]t is a reasonable expectation on the part of any employer that employees maintain an acceptable level of personal cleanliness while on duty." Statement of Position at 9. We conclude that the assignment of work which involves the handling of, or exposure to, dirty, toxic, or hazardous materials, as well as, and in view of, the Agency's expectation of an acceptable level of personal hygiene, has foreseeable adverse effects on employees. Consequently, we conclude that Proposal 3 is intended as an arrangement.

Having concluded that Proposal 3 is an "arrangement," we now consider whether it is "appropriate" within the meaning of section 7106(b)(3). In Kansas Army National Guard, 21 FLRA at 33, the Authority stated that it would consider whether the negative impact on management's rights is disproportionate to the benefits to be derived from the proposed arrangement. Applying that requirement, we must determine whether Proposal 3 excessively interferes with management's right to assign work.

The Union asserts that employees throughout the installation are working with, or exposed to, dirty or "toxic and germ laden materials adverse to their safety[.]" Reply Brief at 2. Further, the Union provides a list of approximately 48 "toxic products" that it claims are being used by employees. Id. at 2-3. Additionally, the Union asserts that secretaries and computer operators use products which are marked with "poison symbols" or are marked "hazardous for humans[,]" and that these employees "eat their lunches at their desks since they do not have a lunch room." Id. at 4. In response to the Agency's assertion that employees using toxic products are provided with protective equipment and clothing, the Union asserts that "OSHA standards require the clean-up of the work area and/or the washing of hands and other areas of exposure." Id. at 2. Additionally, the Union asserts that the parties have tentatively agreed to a contract provision which "requires all employees to maintain personal cleanliness." Petition for Review at 5. The Union argues that employees could be "disciplined for not meeting [an] individual supervisor's personal standard of cleanliness." Reply Brief at 6.

The Agency asserts that, as there are approximately 2000 employees in the bargaining unit, it would lose "a significant amount of time (20 minutes per person, per day)" under Proposal 3 because management would not be able to assign work to employees during the 10-minute cleanup periods. Statement of Position at 10. Consequently, the Agency argues, "the negative impact on the accomplishment of work far outweighs any benefit the union might otherwise perceive." Id. The Agency notes that "not all of the positions the union listed require handling of toxic materials." Id. In addition, the Agency asserts that:

any employees who are required to work with toxic chemicals are provided with protective equipment and clothing. Thus, the employee has complete control over his or her state of cleanliness. Any adverse action taken against an employee in such a positions [sic] is more likely based on the employee's failure to adhere to safety regulations regarding the wearing of protective equipment rather than for lack of personal cleanliness.

Id.

After carefully weighing the parties' arguments, we conclude that Proposal 3 would provide significant benefits to employees. The proposal would assist employees who are in contact with toxic, hazardous, or dirty substances in maintaining personal safety. It is clear from the record that significant numbers of unit employees use, or are exposed to, such substances on a daily basis. In addition, the proposal would benefit employees in general by providing them with paid time to cleanup before lunch and before leaving the worksite.

We conclude also that the proposal could significantly restrict management's right to assign work. As the Agency points out, the bargaining unit involved here consists of approximately 2,000 employees. Although it is not clear how many general schedule employees are in the unit, as opposed to prevailing rate employees who, consistent with our decision above are entitled to negotiate over cleanup time, it is reasonable to assume that a significant number of general schedule employees could, under this proposal, choose to take 20 minutes each day for clean-up purposes.

On balance, however, we find that in the circumstances of this case, Proposal 3 does not excessively interfere with management's right to assign work. We note, in this regard, that it is uncontroverted in the record before us that for over 10 years, unit employees have been able to use paid time for cleanup purposes. The Agency does not assert, and there is no basis in the record on which to conclude, that this practice has interfered to any meaningful degree with the Agency's right to assign work. Moreover, although it appears that previous agreements provided a total of 10 minutes per day for cleanup, the Agency does not assert that the proposal is nonnegotiable because it provides 20, rather than 10, minutes for cleanup. Finally, we note that providing employees with cleanup time also benefits the Agency in that the Agency clearly desires clean employees and a clean environment. The Agency points out, in this regard, that "[i]t is a reasonable expectation on the part of any employer that employees maintain an acceptable level of personal cleanliness while on duty." Statement of Position at 9. Thus, providing employees with the ability to cleanse themselves of toxic substances eliminates risks to employees and possible loss of productivity. Consequently, without addressing what amount of cleanup time would be so unreasonable so as to excessively interfere with the Agency's right to assign work, we conclude here that 20 minutes is not excessive.

It is also uncontroverted in the record before us that "all 2,000 employees have never utilized the washup time or the full amount of time on a consistent basis." Reply Brief at 6. Therefore, although the proposal would provide this benefit to all employees, it would be speculative to assume that all employees would, in fact, use paid time to cleanup or use the full 20 minutes to do so. In effect, the Agency requests us to determine whether Proposal 3 excessively interferes with its right to assign work based on a mathematical computation of the maximum amount of time that could be used under the proposal. We are unwilling to do so, in view not only of the parties' previous practice but also of our common-sense understandings of such matters at the workplace. Instead, consistent with the parties' practice, it is reasonable to conclude that as the proposal provides time to cleanup, that time would not be used if cleanup was not needed.

As stated previously, the Agency points out that "[i]t is a reasonable expectation on the part of any employer that employees maintain an acceptable level of personal cleanliness while on duty." Statement of Position at 9. We agree. We also find it a reasonable expectation of employees that they be permitted a nonexcessive amount of time to do so during their hours of work, especially where they have been so permitted for over 10 years. Accordingly, and in the circumstances of this case, we conclude that Proposal 3 does not excessively interfere with the Agency's right to assign work and, consequently, is negotiable under section 7106(b)(3) of the Statute. Compare The Washington Plate Printers Union, Local No. 2, I.P.D.E.U. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 31 FLRA 1250, 1257 (1988) (Authority found contract provision was an appropriate arrangement where arbitrator found personal cleanup was "'absolutely required for minimal protection of the health of these employees' because there [was] 'a clear and direct relationship between a careful wash-up' and prevention of the adverse consequences of contact with toxic substances.").

V. Proposal 4

Article 18.

Section 18-6.

a. Except for employees engaged in fire protection activities, no employee will be required to work more than eight hours a day without overtime compensation. It is further understood that if an employee is directed or required by the Employer to report at a designated location at a specified time prior or subsequent to his/her regular eight-hour work shift, such time will be considered compensable at the existing overtime rate.

b. No employee will be required to work, including lunch breaks, with or without his consent, beyond 16 hours, or a double shift, within a 24-hour period, unless approved by the Garrison Commander.

[Only the underscored portion is in dispute.]

A. Positions of the Parties

1. The Agency

The Agency argues that the disputed portion of Proposal 4 interferes with its right to assign work under section 7106(a)(2)(B) of the Statute by (1) prescribing that specific duties be performed by a particular non-bargaining unit employee, the Garrison Commander; and (2) "limiting the agency's discretion to determine the duration of the employee's work assignments" by "plac[ing] a condition on the agency's exercise of its right to assign work." Statement of Position at 11. The Agency contends that the Union represents several groups of employees and that each group "has its own Commander who operates independently from the Fort Campbell Garrison Commander." Id. Therefore, the Agency asserts that "the Garrison Commander has absolutely no authority to approve or disapprove these employees' tours of duty." Id.

2. The Union

The Union contends that the disputed portion of Proposal 4 is intended to "[e]stablish procedures to balance the health and well-being of employees working unreasonably long hours." Petition for Review at 6. The Union asserts that the disputed portion of Proposal 4 is a "procedure which [the Agency] will observe in exercising its authority" under section 7106(b)(2). Id. The Union further asserts that the disputed portion of Proposal 4 does not prevent the Agency from "assigning employees to work over 16 straight hours in one day. It merely requires the decision to be reviewed by the Garrison Commander." Id.

B. Analysis and Conclusions

The disputed portion of Proposal 4 requires that if the Agency assigns more than 16 hours' work to employees within a 24-hour period, the assignment must be approved by the Garrison Commander.

Management's right to assign work under section 7106(a)(2)(B) of the Statute encompasses the right to assign specific duties to particular individuals, including management officials. See American Federation of Government Employees, Local 1409 and U.S. Department of the Army, Aberdeen Proving Ground Support Activity, Aberdeen Proving Ground, Maryland, 38 FLRA 747, 752 (1990) (proposal providing that commander had discretion over a particular matter found to directly interfere with management's right to assign work because it singled out a particular individual who would be responsible); National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 484-86 (1990) petition for review filed as to other matters sub nom. U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island v. FLRA, No. 91-1045 (D.C. Cir. Mar. 18, 1991) (proposal providing that activity head designees would take certain actions held to directly interfere with management's right to assign work).

Here, the Agency would be required to assign to the Garrison Commander the function of approving or disapproving employees' extended tours of duty. This requirement is inconsistent with the Agency's right to assign specific duties to particular individuals. Consequently, consistent with the cases cited above, we find that the disputed portion of Proposal 4 directly interferes with management's right to assign work. Inasmuch as the disputed portion of Proposal 4 directly interferes with this right, it does not constitute a negotiable procedure under section 7106(b)(2) of the Statute.

The Union asserts that working beyond 16 hours in a 24-hour period places "unusual demands on employees' physical safety and well-being [which] should be balanced by at least a more than usual or cursory look at the adverse effects upon the employees." Petition for Review at 6. According to the Union, "[w]orking continually for this long can be highly detrimental to employees' health[,] safety and well-being depending on factors such as the danger involved in the work performed, the amount of stress or physical demands, etc." Id. We construe this statement as an assertion that the Union intends the disputed portion of Proposal 4 to be an appropriate arrangement, under section 7106(b)(3) of the Statute, for employees who are adversely affected by the exercise of management's right to assign work.

We determine whether a proposal is an arrangement for employees adversely affected by management's exercise of its rights by looking to "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." Kansas Army National Guard, 21 FLRA 24, 31. We find that it is foreseeable that employees could suffer adverse effects from working more than 16 hours in a 24-hour period and that the disputed portion of Proposal 4 seeks to mitigate these effects by requiring that the Garrison Commander approve such work assignments. Therefore, we conclude that the disputed portion of Proposal 4 is an "arrangement," within the meaning of section 7106(b)(3) of the Statute, to mitigate the adverse effects of management's exercise of its right to assign work for more than 16 hours in a 24-hour period. Next, we examine whether the arrangement is appropriate, or whether it is inappropriate because it excessively interferes with the Agency's right to assign employees. Id. at 31-33.

The Union asserts that the "unusual demands on employees' physical safety and well-being [from working more than 16 hours in a 24-hour period] should be balanced by at least a more than usual or cursory look at the adverse effects upon the employees." Petition for Review at 6. On the other hand, the Agency asserts that the Garrison Commander, who would be required to approve extended tours, "does not have jurisdiction over all employees in the bargaining unit." Statement of Position at 11. According to the Agency, the Union represents employees who work for several different tenants--the Medical Department Activity, the Dental Activity, Information Systems Command, and the Commissary. The Agency asserts that each tenant has its own commander and that the Garrison Commander "has absolutely no authority to approve or disapprove these employees' tours of duty." Id.

Employees would benefit from the disputed portion of Proposal 4. If extended periods of duty required approval at a higher level in an organization, it is less likely that employees would be assigned to work in situations which would negatively affect their safety and health. On the other hand, the Agency asserts, without contradiction by the Union, that the management official named in Proposal 4 does not have authority over all the employees in the bargaining unit. Proposal 4 would, effectively, require that the Agency reorganize its chain of command, at least for the limited purpose of the proposal. Compare U.S. Department of the Navy, United States Marine Corps Headquarters and American Federation of Government Employees, Council 240, 37 FLRA 1304 (1990) (arbitrator's award, which determined that the parties intended "head of the activity" in their negotiated grievance procedure to mean the commanding general, had no substantive effect on the agency's organization and did not interfere with the agency's right to determine its organization).

We find that the burdens imposed on the Agency outweigh the benefit to employees from Proposal 4. Accordingly, noting that the Union does not dispute the Agency's assertions regarding the effect of the proposal on its organization, we conclude that the disputed portion of Proposal 4 excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute and, therefore, is nonnegotiable. Compare National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, 1525 (1987) (provision requiring that the deciding official not be the proposing official held not to excessively interfere with management's right to assign work because (1) it did not specify any particular level within the agency where the final decision would be made and (2) it did not require the agency to modify its organizational structure).

VI. Proposal 6

Article 28.

Section 7-8.

a. Agency employees will receive first consideration for positions. They will be considered before non-agency candidates are solicited, ranked or considered for selection.

A. Positions of the Parties

1. The Agency

The Agency contends that Proposal 6 conflicts with its right to select employees under section 7106(a)(2)(C) of the Statute. The Agency asserts that Proposal 6 is "practically identical" to Proposal 2 in National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 26 FLRA 497 (1987), rev'd sub nom. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, 857 F.2d 819, (D.C. Cir. 1988) (Treasury, BATF). Statement of Position at 13. In Treasury, BATF, the proposal required the agency to rank and consider current employees before soliciting or considering outside applicants. The United States Court of Appeals for the District of Columbia Circuit held that the proposal "would create pressure on . . . managers to promote a reasonably competent agency employee rather than leave a position unfilled during the time it would take to initiate and complete a late-starting search for a more qualified outside candidate." Statement of Position at 12 (quoting Treasury, BATF v. FLRA, 857 F.2d at 822).

2. The Union

The Union contends that the intent of Proposal 6 is "first consideration." Petition for Review at 6. However, the Union asserts that Proposal 6 "does not limit [the Agency's] right to seek a wide range of candidates." Id. The Union contends that Proposal 6 "establishes a procedure which, in turn, establishes the sequence by which management considers those persons developed by the search." Id. (emphasis in original).

B. Analysis and Conclusions

Proposal 6 would require the Agency to give its employees "first consideration" for positions before candidates outside the Agency are solicited, ranked, or considered for selection. In National Association of Government Employees, Local R5-165 and Tennessee Air National Guard, 35 FLRA 886, 889 (1990) (Tennessee Air National Guard), we held that a proposal requiring an agency to rank and consider unit employees before soliciting or considering outside applicants directly interferes with management's right to select employees under section 7106(a)(2)(C) of the Statute. We concluded that the proposal would preclude an agency from assessing the full range of potential candidates when the agency made its initial employment decisions. Id. at 889-90.

We reject the Union's assertion that Proposal 6 does not "limit" the Agency from seeking a "wide range of candidates." Petition for Review at 6. Proposal 6 would require the Agency to consider all of its employees before considering other candidates. As the Authority found in Tennessee Air National Guard, "[a]lthough such a proposal does not prevent management from considering outside candidates, it does preclude an agency from assessing the 'full range of potential candidates' when it makes its initial employment decisions." Id. at 888-89 (quoting Treasury, BATF, 857 F.2d at 822).

In addition, we reject the Union's contention that Proposal 6 "establishes a procedure" to be used by the Agency. By limiting the Agency's ability to select from any appropriate source, Proposal 6 directly interferes with management's right to select under section 7106(a)(2)(C) of the Statute. Consequently, Proposal 6 is not a negotiable procedure. As the Union does not assert that Proposal 6 constitutes an appropriate arrangement, and as Proposal 6 directly interferes with the Agency's right to select, it is nonnegotiable.

VII. Order

The Agency shall upon request, or as otherwise agreed to by the parties, negotiate over Proposals 1 and 3. (3) The petition for review of Proposals 2, 4, and 6 is dismissed.

 

Member Armendariz, concurring as to Proposal 3:

I would find Proposal 3 negotiable insofar as the Agency has discretion under law and regulation to compensate employees for time spent in personal cleanup during regular tours of duty or during overtime and to the extent that the Agency exercises that discretion in a manner that is consistent with applicable law and regulation. See American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA 870, 895-98 (1986); National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6, 8-12 (1986), aff'd sub nom. Department of Treasury, Customs Service v. FLRA, 836 F.2d 1381 (D.C. Cir. 1988).

My colleagues state that they "find nothing in applicable law or regulations that explicitly or implicitly prohibits an agency from requiring employees to clean up as a regular assigned duty during the basic 40-hour workweek or during periods of overtime." Slip op. at 18. I would agree with that statement if it contained the proviso "so long as the conditions in the above-cited OPM regulations are met." Similarly, if the same proviso were added, I would agree with my colleagues' statement (slip op. at 21) that "we find nothing in 5 C.F.R., part 551, or the FLSA, which would make illegal an agency determination that employees be required to cleanup during their regular tours of duty or on overtime[.]" Again, at 22 of the slip opinion, I would make the same point by noting that there is no basis on which to conclude that cleanup time cannot constitute compensable work so long as the conditions in the above-cited OPM regulations are met.

In this regard, I would emphasize that FPM Supplement 990-2, Book 550, Appendix I, Exhibit 2, paragraph b.(5)(f) states that "washing up or showering" is an activity that has been considered to be a preliminary or postliminary activity by the courts and the Department of Labor in the private sector under the FLSA, and that FPM Supplement 990-2, Book 550, Appendix I, Exhibit 2, paragraph a.(1)(b) provides that time spent in preliminary or postliminary activities is excluded from hours of work. See also 5 C.F.R. §§ 550.112(b)(2) and 551.412(b) ("time spent in preliminary or postliminary activities is excluded from hours of work and is not compensable"). However, if an agency reasonably determines that a preparatory or concluding activity like cleanup time: 1) is closely related to the employees' principal activities; 2) is indispensable to the performance of the principal activities; and 3) takes more than 10 minutes per workday, then the employees are to be compensated under 5 C.F.R. §§ 550.112(b)(1)(i) and 551.412(a)(1).




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. Member Armendariz' separate concurring opinion as to Proposal 3 is set forth after the majority opinion.

2.   5 U.S.C. § 6101 provides, in pertinent part:

§ 6101. Basic 40-hour workweek; work schedules; regulations

. . . .

(2) The head of each Executive agency, military department, and of the government of the District of Columbia shall--

(A) establish a basic administrative workweek of 40 hours for each full-time employee in his organization[.]