40:0657(60)NG - - NAGE and VA Medical Center, Dept. of Memorial Affairs - - 1991 FLRAdec NG - - v40 p657



[ v40 p657 ]
40:0657(60)NG
The decision of the Authority follows:


40 FLRA No. 60

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

SEIU, AFL-CIO

(Union)

and

VETERANS ADMINISTRATION

VETERANS ADMINISTRATION MEDICAL CENTER

DEPARTMENT OF MEMORIAL AFFAIRS(1)  

(Agency)

0-NG-1640

DECISION AND ORDER ON NEGOTIABILITY ISSUES

May 3, 1991

Before Chairman McKee and Members Talkin and Armendariz.

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). It concerns the negotiability of seven provisions of a negotiated agreement that were disapproved by the Agency head under section 7114(c) of the Statute.(2)

Provision 1 requires that whenever possible employees will be given 2 consecutive days off, preferably Saturday and Sunday. We find that Provision l is negotiable because it is consistent with applicable law and Government-wide regulation.

Provision 2 requires that employees be allowed 15 minutes prior to the end of their tour of duty for storage of equipment, personal cleanup, and change of clothing. We find that Provision 2 is negotiable because it is consistent with applicable law and because it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

Provision 4 requires that overtime will normally be scheduled in 8-hour blocks on Saturday. We find that Provision 4 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute because it does not excessively interfere with management's right to assign work under section 7106(a)(2)(B).

Provision 5 requires that the starting time for overtime assignments scheduled on Saturday will be the same as for the regular workweek, unless a majority of the affected employees agree to a different starting time. We conclude that Provision 5 is nonnegotiable because it excessively interferes with the Agency's right to assign work under section 7106(a)(2)(B).

Provision 6 sets forth the circumstances in which the Agency will grant sick leave. We find that Provision 6 is negotiable because it is consistent with applicable law and Government-wide regulation and because it constitutes an appropriate arrangement under section 7106(b)(3).

Provision 8 requires the Agency to utilize employees' skills to the maximum extent possible and, to the extent possible, to distribute the work equitably, within employees' job classifications. We find that Provision 8 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute because it does not excessively interfere with management's right to assign work under section 7106(a)(2)(B).

Provision 9 provides that an employee may request to revoke his or her authorization for union dues allotment after the allotment has been in effect for 1 year. The request will take effect on the pay period following the next March 1 that occurs after the request is made. We find that Provision 9 is nonnegotiable because it is inconsistent with the requirements of section 7115(a) of the Statute.

II.Provision 1

Article 8 - Hours of Work and Tours of Duty

Section 1. The normal basic work week shall be forty (40) hours within an administrative work week of seven (7) days beginning at 0001 Sunday and ending at 2400 Saturday. The normal work day will consist of eight (8) hours. Whenever possible, employees will be given two (2) consecutive days off, preferably Saturday and Sunday. In the event that six or seven days coverage is required, necessitating the establishment of more than one workweek, every effort will be made to assure that equal treatment is afforded employees with respect to Saturdays and Sundays. Uncommon tours of duty that do not afford an employee two (2) consecutive days off between normal workweeks will be kept to a minimum. [Only the underscored portion of the provision is in dispute.]

A. Positions of the Parties

1. Agency

The Agency argues that Provision l is nonnegotiable because it is inconsistent with law and Government-wide regulation. The Agency asserts that 5 U.S.C. § 6101 and 5 C.F.R. § 610.121 require it to consider whether the scheduling of work corresponds with work requirements in a manner that will be cost efficient and will accomplish the mission of the Agency. Agency's Statement of Position at 7. Citing the Authority's decision in Tidewater Virginia Federal Employees Metal Trades Council and Department of the Navy, Navy Public Works Center, Norfolk, Virginia, 25 FLRA 3 (1986) (Tidewater), the Agency contends that Provision 1 prevents it from fulfilling the requirements contained in 5 U.S.C. § 6101 and 5 C.F.R. § 610.121 because the provision requires the Agency to schedule 2 consecutive days off for employees. Id. at 8.

2. Union

The Union contends that Provision 1 is consistent with law and Government-wide regulation. The Union asserts that the use of the phrase "whenever possible" is intended to encourage, but not require, the Agency, when scheduling would permit, to grant employees 2 consecutive days off. Union's Petition for Review at l. The Union contends that Provision 1 is like Proposal 3 in National Association of Government Employees, Local R14-8 and Veterans Administration Medical Center, Topeka, Kansas, 24 FLRA 126 (1986), which provided that "[o]rdinarily employees' days off will be consecutive." The Union argues that the Authority found the proposal to be negotiable because it did not require consecutive days off where the agency determines that such scheduling would adversely affect its mission.

The Union contends further that Provision l is distinguishable from the Tidewater case relied on by the Agency. The Union notes that the proposal in that case prevented management from scheduling overtime without union approval. According to the Union, Provision 1 recognizes that factors such as the Agency's mission and actual work requirements could make scheduling 2 consecutive days off impossible, and, in those circumstances, the Agency would not be required to schedule 2 consecutive days off. Union's Response to the Agency's Statement of Position at l-2. The Union states that "[t]he factors in 5 C.F.R. 610.121 may certainly be taken into account." Id. at 2. Finally, the Union argues that Provision 1 merely codifies the Agency's long-standing practice of scheduling 2 consecutive days off. Id.

B. Analysis and Conclusions

We conclude that Provision 1 is consistent with applicable law and regulation and, therefore, that it is negotiable.

Under 5 U.S.C. § 6101, an agency is required to schedule tours of duty not less than 7 days in advance except when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased. The provisions of 5 U.S.C. § 6101 are implemented by 5 C.F.R. § 610.121, which provides, in pertinent part, as follows:

(a) Except when the head of an agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he or she shall provide that--

. . . . . . .

(2) The basic 40-hour workweek is scheduled on 5 days, Monday through Friday when possible, and the 2 days outside the basic workweek are consecutive;

. . . . . . .

(b)(1) The head of an agency shall schedule the work of his or her employees to accomplish the mission of the agency[.]

. . . . . . .

The Authority has found that 5 C.F.R. § 610.121 is a Government-wide regulation. International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347, 353 (1988) (U.S. Army Engineer District).

In sum, 5 U.S.C. § 6101 and 5 C.F.R. § 610.121(a)(2) and (b)(1) require an agency to establish as a basic workweek employee work schedules which include Monday through Friday, when possible, with 2 consecutive days off. The requirement to schedule a workweek of Monday through Friday, whenever possible, with Saturday and Sunday off, is subject to two exceptions. The agency may depart from the required workweek when it determines that adherence to that workweek would: (1) substantially increase costs; or (2) seriously handicap the agency in carrying out its functions.

The applicable provisions of law and regulation and Provision 1 both provide for a Monday through Friday workweek with Saturday and Sunday off, "when possible." We must, therefore, decide whether Provision 1 would preclude the Agency from changing the basic workweek in circumstances where such a change is permissible under law and regulation.

Provision 1 provides that the workweek will be Monday through Friday, with Saturday and Sunday off, "whenever possible." The Union claims that the provision would not preclude changes in the scheduled workweek where the Agency determines that its "mission or actual work requirements" require a change because in those circumstances it would not be possible to comply with the scheduled workweek. Union's Response at 1. The Agency contends that the provision does not permit consideration of whether costs would be increased or the Agency would be handicapped in carrying out its mission. The Agency asserts that "the language . . . 'whenever possible' is a guarantee of scheduling two days off" and does not permit consideration of whether the Agency's costs would be increased or whether the Agency would be handicapped in carrying out its mission. Agency's Statement of Position at 7.

We reject the Agency's argument that the provision does not permit consideration of the exceptions contained in 5 U.S.C. § 6101 and 5 C.F.R. § 610.121. In view of the use of the phrase "when possible" in 5 C.F.R. § 610.121(a)(2), we fail to see how the use of the phrase "whenever possible" in Provision 1 would impose on the Agency any requirements or limitations different from those imposed by the regulation. The Agency does not offer any specific examples of how Provision 1 would interfere with its consideration of the scheduling factors required by law and regulation. In our view, the provision, and the applicable regulations, merely require the Agency to give employees 2 consecutive days off whenever possible. Nothing in the provision would prevent the Agency from determining, under 5 C.F.R. § 610.121(a), that, because of costs or a determination by the Agency that its mission would be handicapped, such a schedule is not possible.

We conclude, therefore, that Provision 1 is not inconsistent with 5 C.F.R. § 610.121. Thus, we find that our conclusion with respect to Provision 1 in this case is distinguishable from the Authority's holding in Tidewater. In that case, the Authority held that the disputed proposal was inconsistent with 5 C.F.R. § 610.121 because the proposal required the agency to establish work schedules subject to union approval and, consequently, precluded the agency from determining whether a given work schedule would increase costs or handicap the agency in carrying out its functions.

Because Provision 1 does not require the Agency to establish work schedules in any manner that is inconsistent with applicable law or regulation, we find that the provision is negotiable. See, for example, U.S. Army Engineer District, 32 FLRA at 354.

III.Provision 2

Article 8 - Hours of Work and Tours of Duty

Section 2. A period of thirty (30) minutes commencing not earlier than three (3) hours and not later than five (5) hours after the start of work shall be designated as the lunch period. When feasible, a fifteen (15) minute rest period will be provided in a comfortable area as determined by the employer during each approximate four (4) hour portion of the workday. The breaks should be allowed as close to the mid-point of the four-hour period as possible, normally around 9:30 a.m. and 2:15 p.m. Rest periods may not be taken in conjunction with the lunch period, nor utilized to shorten the day. Employees will be allowed to cease work in the field fifteen (15) minutes prior to the end of the daily tour of duty. The last fifteen (15) minutes of the workday shall be used exclusively for storage of equipment, personal cleanup, and change of clothing. [Only the underscored portion of the provision is in dispute.]

A. Positions of the Parties

1. Agency

The Agency contends that Provision 2 is inconsistent with management's right to assign work under section 7106(a)(2)(B) and that it conflicts with law. Citing the Authority's decision in U.S. Army Engineer District, the Agency argues that, by requiring that employees be permitted to use the last 15 minutes of the scheduled workday to personally clean up, the provision prevents management from assigning other work to employees during that time period. Agency's Statement of Position at 9-10. The Agency also argues that the provision is inconsistent with 5 U.S.C. § 6101 because it requires that time used for an activity that is not work must be included in the 40 hours of "work" required by 5 U.S.C. § 6101. Id. at 10-11.

The Agency contends that Provision 2 is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Agency argues that the Union incorrectly equates the effects of routine job responsibilities with adverse effects and notes that employees already are afforded cleanup time at the discretion of the Agency. Agency's Statement of Position at 11-12 and Supplemental Position at 7.

Further, the Agency contends that the Authority's decision in 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 (1988) (Bureau of Engraving and Printing) is not applicable to the issues presented by Provision 2. The Agency states that in Bureau of Engraving and Printing, the allowance of time for personal cleanup was found to be an appropriate arrangement because: (1) the employees were exposed to toxic and hazardous substances in high concentration just before lunch; (2) cleanup was required in order to maintain minimal protection of the employees' health and safety of employees; and (3) employees were subject to discipline for their failure to perform the required personal cleanup.

Unlike the work situation in Bureau of Engraving and Printing, the Agency argues that the requested cleanup time is at the end of the day and: (1) the work itself does not involve a high or intense exposure to toxic or hazardous substances; (2) personal cleanup is not required to maintain the health and safety of employees; and (3) the employees are not subject to discipline for failure to perform personal cleanup. Agency's Supplemental Statement of Position at 7.

The Agency argues that the provision, therefore, excessively interferes with management's right to assign work under section 7106(b)(3).

2. Union

The Union states that the adverse effects of denying personal cleanup time would be to "force employees to mitigate the effects of their job, such as dirt, on their own time, even though they got dirty on the job." Union's Appeal at 2. In its response to the Agency's supplemental statement, the Union argues that Provision 2 is virtually identical to the provision found negotiable in Bureau of Engraving and Printing. Union's Response at 2. The Union asserts that the employees' "duties bring them in constant contact with dirt, grime, oil, grease, lawn care chemicals, pesticides, herbicides, and so forth," and that it is therefore "most reasonable to allow employees to clean up from their dirty work, and to have the opportunity to get rid of dirt and toxic substances." Id. The Union argues that, because employees must turn in and store their equipment, it is of benefit to the Agency to allow them to accomplish this on regular work time rather than after the end of the shift when overtime would have to be paid. Id.  Finally, the Union asserts that the provision simply recognizes the Agency's past practice of providing employees with personal cleanup time. Id.

B. Analysis and Conclusions

We conclude that Provision 2 is consistent with law within the meaning of section 7117(a)(1).(3) We also conclude that the provision constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute because it does not excessively interfere with management's right to assign work under section 7106(a)(2)(B).

Provision 2 would require the Agency to release employees from work 15 minutes before the end of their daily tour of duty for purposes of equipment storage, personal cleanup, and clothing changes.

In American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA No. 38 (1991) (Fort Campbell) (Member Armendariz concurring), we reexamined the Authority's previous decisions involving employees' cleanup time. Based on that reexamination, we held that even though the proposal in that case, which required the agency to provide employees with cleanup time both during their regularly scheduled workdays and during scheduled overtime assignments, directly interfered with management's right to assign work under section 7106(a)(2)(B), the proposal nonetheless constituted a negotiable appropriate arrangement under section 7106(b)(3) because it did not excessively interfere with management's right to assign work.

In reaching the decision in that case, we held that, under law and regulation, an agency has the discretion to consider time spent in cleanup as work. Id., slip op. at 18. We also held that, under law and regulation, cleanup time can constitute compensable work. Accordingly, we stated that we would no longer adhere to previous Authority decisions holding that proposals providing for cleanup time are inconsistent with 5 U.S.C. § 6101. Id., slip op. at 22. In accordance with our decision in Fort Campbell, we therefore reject the Agency's argument that Provision 2 in this case is inconsistent with 5 U.S.C. § 6101.

Moreover, by requiring the Agency to provide employees with time at the end of the day for personal cleanup and equipment storage, Provision 2 in this case is also substantively similar to Proposal 3 in Fort Campbell. In like manner, Provision 2 would prevent the Agency from assigning any other work to employees during the 15 minutes which the provision requires to be used for personal cleanup at the end of the day. Accordingly, consistent with the decision in Fort Campbell, we find that Provision 2 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Because Provision 2 directly interferes with management's right to assign work, we turn now to the question of whether the provision is negotiable as an appropriate arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3) of the Statute. In order to determine whether a proposal or a provision is an arrangement for employees adversely affected by management's exercise of its rights, we look to "the effects or foreseeable effects on employees which flow from the exercise of those rights, and how those effects are adverse." National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31 (1986) (Kansas Army National Guard).

The Union argues that Provision 2 is intended to lessen the effects on employees of unclean and potentially unhealthy working conditions. The employees in this case perform various duties, including hard physical labor, in a national cemetery. The Union states that the duties of the employees "bring them in constant contact with dirt, grime, oil, grease, lawn care chemicals, pesticides, herbicides[.]"  Union's Response at 2. Provision 2, therefore, is intended to ameliorate the adverse effects on employees of constant contact with dirty and potentially harmful substances and chemicals.

The Agency does not dispute the Union's assertions but, rather, characterizes the impact on employees as "minor." Agency's Statement of Position at 11. According to the Agency, Provision 2 "would make routine job responsibilities and routine effects of the job an adverse effect." Id. Based on the record, however, we find that the employees' work with potentially harmful chemicals is not so minor that it does not have an "adverse effect" on those employees. See Overseas Education Association and Department of Defense Dependent Schools, 39 FLRA 153, 159, 168, and 175 (1991). Accordingly, we find that Provision 2 is intended to be an "arrangement" under section 7106(b)(3) for employees adversely affected by the exercise of management's right to assign work.

Because we find that Provision 2 constitutes an arrangement, it is necessary to determine whether it is an "appropriate" arrangement within the meaning of section 7106(b)(3). An arrangement is appropriate if it does not excessively interfere with management's rights under section 7106 of the Statute. In order to determine whether the provision excessively interferes with management's right to assign work, we must determine whether the negative impact on management's right is disproportionate to the benefits to employees conferred by the provision. See Kansas Army National Guard, 21 FLRA at 31-33.

Provision 2 would ameliorate the adverse effects on employees of constant exposure to unclean and potentially harmful substances by requiring the Agency to permit employees to quit work in the field 15 minutes early and to use the last 15 minutes of the workday for equipment storage, personal cleanup, and changes of clothing. The provision would benefit employees by assisting them in the maintenance of their personal safety and hygiene.

The provision would prevent the Agency from assigning other work to employees during the required cleanup period. The Agency argues that the provision imposes a disproportionate burden on management because the provision would "negate a minor impact to the employee, that of washing away the dirt of the job and returning tools and equipment used on the job, with the excessive impact of not allowing management the ability to assign other duties." Agency's Statement of Position at 11.

In assessing the impact of Provision 2 on management's right to assign work, we note that the Agency, at its discretion, currently provides employees with cleanup time. Agency's Supplemental Statement of Position at 7. Moreover, we also note the Union's uncontroverted statement that 

[t]he normal practice is that approximately 30 minutes before the end of the shift, employees begin windup of the jobs. They bring in their equipment and get ready to go. Consequently, there would be virtually no interference with agency operations, as what we are asking happens anyway.

Union's Response at 2.

On balance, we find that Provision 2 does not excessively interfere with management's right to assign work. In the circumstances of this case, the benefits to employees' health and safety outweigh the limitation on management's right to assign work during the period provided in the provision for cleanup and storage of equipment. In particular, the fact that the Agency has already established a cleanup and equipment storage period suggests that the requirement for such a period under Provision 2 would not significantly affect management's ability to assign work. See Fort Campbell, slip op. at 25. Consequently, we find that the burden imposed by the provision on management's right to assign work is not disproportionate to the benefit to employees of the required cleanup period. Accordingly, we conclude that Provision 2 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

IV.Provision 4

Article 9 - Overtime

Section 11. Management agrees that the procedure to be followed in scheduling overtime will be as follows: Overtime will normally be scheduled in 8 hour blocks. When overtime is to be scheduled in 8 hour blocks, it will be scheduled on Saturday. If, due to inclement weather or other reasons, the overtime cannot be performed on Saturday, it will be scheduled during evenings the following week.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 4 interferes with its right to assign work under section 7106(a)(2)(B) of the Statute because it would prevent the management from determining when work will be performed. Agency's Statement of Position at 16. Relying on American Federation of Government Employees, AFL-CIO, Mint Council 157 and Department of the Treasury, Bureau of the Mint, 19 FLRA 640 (1985), the Agency argues that Provision 4 is not a negotiable procedure because it prevents management from determining how much work and how much scheduled overtime is needed to correspond with the Agency's work requirements. Id. at 18-19.

The Agency also contends that the provision is inconsistent with 5 C.F.R. § 610.121, a Government-wide regulation. The Agency asserts that Provision 4 prevents management from fulfilling its obligation to determine work needs as required by 5 C.F.R. § 610.121 because management is precluded from making a determination as to the amount or duration of work. Id. at 19-20.

Finally, the Agency contends that Provision 4 is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Agency argues that the Union has not shown that the scheduling of overtime work during the workweek has had an adverse effect on employees and, therefore, the provision is not an arrangement to alleviate any adverse effect. Agency's Supplemental Statement of Position at 8-9. The Agency asserts that, even assuming the provision were found to be an arrangement, Provision 4 excessively interferes with management's right to assign work because it restricts the Agency's ability to determine its work needs, and the interference outweighs the benefit to employees. Id. at 9, and Agency's Statement of Position at 17-18.

2. Union

The Union contends that the provision constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute, or, alternatively, a procedure within the meaning of section 7106(b)(2). The Union states that "[w]hen the Agency works overtime, it usually does so to set headstones on graves." Union's Response at 3. The Union further states that "employees do a great deal of hard, physical labor for an 8-hour shift." Id. The Union asserts that, because employees' jobs are physically demanding, the provision is intended to mitigate the potentially dangerous effect on employees of requiring them to work beyond their 8-hour shifts during the work week. Id.

The Union argues that Provision 4 does not interfere with the Agency's right to assign overtime work because the Agency's past practice has been to schedule overtime in 8-hour blocks on Saturdays. Therefore, the Union states that the provision is merely an attempt "to codify the normal practice, and provide some guidelines that will make such overtime easier on the employees." Id.

The Union also asserts that Provision 4 does not interfere with the Agency's duty to consider its mission requirements because the provision does not require that overtime must be on Saturday, but rather, requires the Agency to attempt "normally" to schedule overtime on Saturdays, and allows the Agency to schedule such work on other days "because of inclement weather" . . . or other reasons.'" Union's Appeal at 2-3.

B. Analysis and Conclusions

We conclude that Provision 4 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute. However, we also conclude that the provision constitutes an appropriate arrangement under section 7106(b)(3) because it does not excessively interfere with the Agency's right to assign work under section 7106(a)(2)(B).

Provision 4 requires the Agency normally to schedule overtime in 8-hour blocks on Saturdays, with alternative scheduling of overtime on weekday evenings only if Saturdays are not possible due to inclement weather or other reasons. The effect of the provision, therefore, would be to limit the circumstances--the length of the assignment and the day of the week--under which the Agency could require overtime work to be performed.

The right to assign work under section 7106(a)(2)(B) encompasses the right to determine when work which has been assigned will be performed. See, for example, Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 524 (1990) (VAMC). Proposals that restrict the length of an overtime assignment or prescribe the day of the week on which an overtime assignment will be performed are nonnegotiable. See, for example, American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 32 FLRA 1023, 1040-43 (1988) (Naval Weapons Station) (Provision 13) (provision that prevented management from assigning an employee overtime in excess of 4 hours per day held to directly interfere with agency's right to assign work); National Association of Government Employees, Local R1-109, AFL-CIO and Veterans Administration Medical Center, Newington, Connecticut, 26 FLRA 532, 534-35 (1987) (Proposal 4) (proposal that prohibited work assignments to a particular employee on Sunday mornings held to directly interfere with agency's right to assign work). Accordingly, because Provision 4 prescribes the length of an overtime assignment and prescribes the day of the week on which that overtime assignment will be performed, we find that the provision directly interferes with management's right, under section 7106(a)(2)(B) of the Statute, to assign work.

Moreover, we reject the Union's contention that the use of the term "normally" in Provision 4 necessitates the conclusion that the provision does not directly interfere with management's right to assign work. In our view, the use of the term "normally," which qualifies the requirements that the Agency schedule overtime in 8-hour blocks and on Saturdays, does not diminish the effect of the provision on management's right to assign work. Rather than preserving management's right to assign work, the term restricts the exercise of that right by establishing a criterion limiting the range of alternatives from which management can choose in making overtime assignments. Thus, the term "normally" constitutes a substantive limitation on the Agency's right to assign work because it establishes a substantive standard governing management's decision to assign work on overtime. See, for example, American Federation of Government Employees, AFL-CIO, Local 2024 and Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 30 FLRA 650, 653 (1987).

We turn now to the question of whether Provision 4 constitutes an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute. As noted above, in order to determine whether a proposal is an arrangement for employees adversely affected by management's exercise of its rights, we look 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 at 31.

The Union asserts that Provision 4 is intended to lessen the effects on employees, during the regular workweek, of having to perform hard physical work beyond the normal 8-hour shifts. The Union also states that "work beyond the 8-hour shift is potentially dangerous to employees because of exhaustion." Union's Response at 3. Provision 4, therefore, is intended to ameliorate the adverse effects on employees of more than 8 hours of hard physical work in a regular workday by providing that overtime will normally be performed in 8-hour blocks on Saturday. We reject the Agency's contention that there are no adverse effects on employees flowing from the assignment of overtime. See, for example, West Point Elementary School Teachers Association, NEA and United States Military Academy, West Point Elementary School, 34 FLRA 1008, 1011-12 (1990) (West Point Elementary School). Accordingly, we find that Provision 4 is intended to be an "arrangement" under section 7106(b)(3) for employees adversely affected by the exercise of management's right to assign work.

Having found that Provision 4 constitutes an arrangement, it is necessary to determine whether the arrangement is "appropriate" within the meaning of section 7106(b)(3). An arrangement is appropriate if it does not excessively interfere with the exercise of a management right under section 7106 of the Statute. As noted above, in making this determination we consider whether the negative impact on management's right to assign work is disproportionate to the benefits conferred on employees by the provision. Kansas Army National Guard, 21 FLRA at 33.

Provision 4 would ameliorate the adverse effects on employees of being required to do more than 8 hours of physical labor by requiring the Agency "normally" to postpone work which could not be completed during the regular workday until it could be scheduled in an 8-hour block on Saturday. We interpret the term "normally" to mean that the Agency would not be precluded from requiring employees to work overtime where that would be necessary to complete work by a given deadline or to complete a particular task. We conclude, therefore, that the effect of the provision is to require the Agency to delay the completion of overtime work which does not need to be finished at any particular time until it can be completed during an 8-hour overtime workday on a Saturday. Moreover, the provision would not delay the completion of the overtime work indefinitely if circumstances such as inclement weather preclude doing the work on Saturday, but would permit the Agency to schedule the work in addition to the regular workday during the following week. The issue is whether the benefit to employees of the delay in overtime work required by the provision outweighs the effect of that delay on management's ability to schedule and complete work assignments.

The Union claims that the benefit to employees, given the physical nature of their jobs, would be to mitigate the potential danger of exhaustion if overtime assignments are scheduled during the normal workweek. Union's Response at 3. The Union states that the overtime work performed by unit employees is usually the setting of headstones that weigh "a great deal," that it is work that is performed outdoors, and that because it is performed outdoors, cannot be performed at the close of the workday during certain periods of the year due to darkness. Id. The Union also claims that the provision merely expresses the manner in which the Agency already normally schedules overtime assignments and that it is not intended to "mandate an inflexible procedure." Id. According to the Union, "[c]learly, if they do it now, it cannot be an interference." Id.

The Agency, on the other hand, claims that Provision 4 "removes the ability of the Agency to determine and meet its needs by scheduling overtime based on the Agency's assessment of when overtime is necessary." Agency's Supplemental Statement of Position at 9. The Agency states that there is "no basis to believe . . . that a shift of 9 hours a day for 5 days is more strenuous than a shift of 8 hours a day for 5 days with 5 hours on Saturday." Id. The Agency also states that the provision would put it in the position of "being expected to save up work so it can be completed in an 8[-]hour block, regardless of the Agency's needs[.]" Agency's Statement of Position at 17.

In weighing the impact of Provision 4 on management's right to assign work against the benefits the provision would confer on employees, we note at the outset the Union's undisputed claim that the provision reflects existing Agency practice. The Agency offers no evidence that would support the conclusion that this practice has adversely affected its ability to complete work assignments as necessary. The Agency has also offered no evidence that would contradict the Union's description of normal overtime work as the setting of heavy headstones that is physically demanding labor. The Agency's arguments consist of a generalized claim that the provision would affect management's ability to complete work as needed and an expression of disbelief that a 9-hour workday is "strenuous."

However, as noted above, by requiring only that overtime work "normally" be scheduled in 8-hour blocks on Saturday, the provision affords the Agency flexibility in scheduling overtime that must be completed by a given time. Moreover, the Agency has not offered any evidence which is inconsistent with the Union's specific claim that the overtime work that is usually performed by the employees in this case is the physically demanding work of setting headstones. Compare International Association of Fire Fighters, Local F-159 and U.S. Department of the Navy, Naval Station Treasure Island, San Francisco, California, 37 FLRA 836, 838 (1990), and Naval Weapons Station, 32 FLRA at 1037-43, in which the Authority found that the burden on the exercise of management's right to assign training and ensure that employees are adequately prepared to meet the work demands of their positions was not outweighed by the benefit to employees of lessened fatigue.

Accordingly, based upon the foregoing and taking into account the Union's undisputed contention that the provision reflects the Agency's existing practice as to the scheduling of overtime, we conclude that the burden imposed on management's ability to schedule and complete work on overtime does not outweigh the benefit to employees of that practice in alleviating the physical demands of the overtime work. Consequently, we find that Provision 4 does not excessively interfere with management's right to assign work and conclude that the provision is a negotiable appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

V.Provision 5

Article 9 - Overtime

Section 12. When 8 hours overtime is scheduled on Saturday, the starting time will be the same as for the regular work week, unless a majority of the affected employees agrees to a different starting time. The will of the majority will be determined by a vote of the affected employees, with a Union representative present. There will be no solicitation to get employees to agree to a different starting time.

A. Positions of the Parties

1. Agency

The Agency argues that Provision 5 interferes with management's right to assign work under section 7106(a)(2)(B). According to the Agency, the provision would: (1) prevent the Agency from determining when an overtime assignment would start; and (2) condition the starting time for Saturday overtime on employee agreement to that time. Statement of Position at 20-21.

The Agency also contends that Provision 5 does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute because: (1) the scheduling of overtime does not have an adverse effect on employees; and (2) the provision excessively interferes with management's right to assign work because it restricts the Agency's ability to determine its work needs. Agency's Supplemental Statement of Position at 8-10.

2. Union

The Union contends that Provision 5 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. The Union argues that, because employees have felt that they were being coerced by requests from their supervisors to begin Saturday shifts earlier, Provision 5 constitutes a reasonable accommodation which would alleviate employee concerns regarding coercion. Union's Response at 4.

Citing the Authority's decision in Department of the Air Force, Scott Air Force Base, Illinois and National Association of Government Employees, Local R7-23, 33 FLRA 532 (1988) (Scott Air Force Base), affirmed sub nom. National Association of Government Employees, Local R7-23 v. FLRA, 893 F.2d 380 (D.C. Cir. 1990), the Union asserts that Provision 5 concerns the starting time of a shift, a matter that is negotiable at the election of the Agency. Accordingly, the Union contends that Provision 5 cannot be disapproved by the Agency head because the Agency elected to negotiate concerning the subject matter of the provision. Id.

B. Analysis and Conclusions

We conclude that Provision 5 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. Moreover, because we find that the provision excessively interferes with the Agency's right to assign work under section 7106(a)(2)(B), we conclude that the provision does not constitute an appropriate arrangement under section 7106(b)(3) and it is, therefore, nonnegotiable.

Provision 5 would establish the starting time for an Agency assignment of overtime and the method for making changes in that starting time. Specifically, the provision would require the Agency to begin the 8 hours of overtime work scheduled on Saturday at the same time as the starting time for the regular workweek unless a majority of employees to whom overtime has been assigned agree, by vote, to a different starting time.

The Authority has held that management's right to assign work under section 7106(a)(2)(B) includes the right to determine when work assignments will be performed. American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 32 FLRA 210, 216 (1988) (Leavenworth) (proposal requiring reassigned employees to have the same work schedules as they had previously found to directly interfere with the agency's right to assign work). The Authority has also held that an agency's establishment of the starting and quitting times of a tour of duty constitutes an exercise of the right to determine when work will be performed. National Weather Service Employees Organization and U.S. Department of Commerce, National Oceanic and Atmospheric Administration, National Weather Service, 37 FLRA 392, 399-400 (1990) (National Weather Service).

We find that the establishment of starting times for Saturday overtime work in this case constitutes an exercise of management's right under section 7106(a)(2)(B) of the Statute to assign work. Because Provision 5 conditions the starting time of Saturday overtime work on the decision of the employees assigned to that overtime, we find, consistent with Leavenworth and National Weather Service, that Provision 5 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B). See International Organization of Masters, Mates and Pilots, Panama Canal Pilots Branch and Panama Canal Commission, 32 FLRA 269, 272-73 (1988) (proposal conditioning the exercise of a management right on employee agreement held to be nonnegotiable).

We turn now to the question of whether Provision 5 constitutes an "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute. As noted above, in order to determine whether a proposal is an arrangement for employees adversely affected by management's exercise of its rights, we look 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 at 31.

We find that Provision 5 is intended to be an arrangement to minimize the adverse effects on employees of irregular scheduling of the overtime to be performed on Saturdays. The Union states:

[W]hen Saturday work was scheduled, the foremen would approach individual employees and solicit them to come in earlier (or later, but normally earlier) than the normal starting time. Some employees favored this, but many did not and felt coerced into starting earlier. Consequently, we proposed that if a change in the starting time is desired, the affected employees would vote, and the majority would rule.

Union's Response at 4. By providing that the starting time for the 8-hour block of overtime scheduled on Saturday will be the same as the regular work week unless a majority of employees agree otherwise, Provision 5 would ameliorate the adverse effects on employees of erratic starting times and eliminate the pressures put on them by management to agree to earlier starting times. Id.

Having found that Provision 5 constitutes an arrangement, it is necessary to determine whether the arrangement is appropriate within the meaning of section 7106(b)(3). To do so, we consider whether the negative impact on management's right to assign work is disproportionate to the benefits conferred by the provision on employees. See Kansas Army National Guard, 21 FLRA at 33.

Provision 5 restricts management's ability to assign work by preventing the Agency from establishing when the Saturday overtime period will start by subjecting that decision to the agreement of affected employees. In our view, the benefit to employees of control over the starting time of Saturday overtime work is outweighed by the negative effect of the provision on management's right to assign work. The provision would not allow for any circumstances that, in the judgment of management, might necessitate an earlier or a later starting time than the regular starting time or that preferred by a majority of the affected employees. Consequently, we find that the impact on management's right to assign work is disproportionate to the benefits that the provision would afford to employees. Accordingly, we find that Provision 5 excessively interferes with management's right to assign work and that the provision, therefore, does not constitute an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. We conclude that Provision 5 is nonnegotiable.

VI.Provision 6

Article 14 - Sick Leave

Section 1. Employees will accrue sick leave in accordance with applicable law and regulations. Use of sick leave is subject to the approval of the appropriate supervisor. Sick leave will be granted to employees when they are incapacitated for performance of their duties because of illness, under certain circumstances involving contagious diseases as set forth in applicable regulations, or for medical, dental, or optical examination or treatment when required and requested prior to the beginning of the absence. [Only the underscored portion of the provision is in dispute.]

A. Positions of the Parties

1. Agency

The Agency contends that Provision 6 interferes with its right under section 7106(a)(2)(B) of the Statute to assign work. The Agency argues that the provision requires management to grant sick leave requests without being able to consider the needs of the Agency. The Agency states that the granting of sick leave is governed by a Government-wide regulation. The Agency argues that the provision prevents it from requiring that sick leave requests be "supported by evidence administratively acceptable" as required by 5 C.F.R. § 630.403. Agency's Statement of Position at 22. The Agency contends that Provision 6 is not an appropriate arrangement because the Agency's need to be able freely to assign work outweighs the adverse impact on the employees of management's exercise of its right to assign work. Id. at 23-24.

2. Union

The Union states that Provision 6 was intended as an appropriate arrangement to alleviate the "adverse impact [of the] frequent inability of employees to schedule needed medical, dental or optical appointments outside of regular work hours." Union's Appeal at 3-4. The Union argues that Provision 6 does not violate management's right to assign work and is negotiable because the provision merely reiterates the wording of a Government-wide regulation. Union's Response at 4.

B. Analysis and Conclusions

We conclude that Provision 6 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute and, therefore, that it is negotiable.

Provision 6 concerns certain conditions under which the Agency will grant sick leave to employees. The provision requires the Agency to grant sick leave: (1) when employees are unable to perform their duties because of sickness; (2) under certain circumstances involving contagious diseases, as provided for under applicable regulations; and (3) when medical, dental, or optical examination or treatment is required and a request for sick leave is made before the start of the absence.

Under law, 5 U.S.C. § 6307, and regulation, 5 C.F.R. §§ 630.401 - 630.407, an agency shall, upon request, grant sick leave to an employee when the employee: (1) receives medical, dental or optical examination or treatment; (2) is incapacitated for duty because of sickness, injury or pregnancy and confinement; (3) is required to give care and attendance to an immediate family member afflicted with a contagious disease; or (4) has been exposed to a contagious disease. 5 C.F.R. § 630.401. The regulations provide that an agency may require a written request for such leave. 5 C.F.R. § 630.402. The request must be supported by administratively acceptable evidence. An employee's statement or certification that one of the bases exists upon which such leave is to be granted is administratively acceptable evidence for absences of any duration. However, an agency may require a medical certificate or other evidence for absences of more than 3 days or where such leave abuse is suspected. 5 C.F.R. § 630.403; Federal Personnel Manual (FPM) Supplement 990-2, Subchapter S4-2.b. See National Federation of Federal Employees, Local 1380 and U.S. Department of the Navy, Naval Coastal Systems Center, Panama City, Florida, 36 FLRA 725, 737-41 (1990).

The wording of Provision 6 is substantively similar to the language contained in 5 C.F.R. §§ 630.401 - 630.402. Provision 6 neither requires that leave shall be granted on any basis other than those provided in the regulations nor precludes the Agency from granting sick leave to employees under circumstances which the regulations would permit sick leave to be granted. Provision 6, for example, would not prevent the Agency from granting sick leave to employees incapacitated for duty because of pregnancy. We find, therefore, that Provision 6 is not inconsistent with applicable law and regulations.

We also reject the Agency's contentions that Provision 6 is inconsistent with 5 C.F.R. § 630.403. That section, as noted above, concerns the circumstances under which an agency may require an employee to support a claim that he or she is sick. Provision 6 concerns only the circumstances under which the Agency will grant sick leave. The provision does not preclude the Agency from requiring employees to provide documentation to support their claims that sick leave must be granted under the provision.

As to the Agency's claim that the provision directly interferes with management's right to assign work, we note that the decision to grant leave to employees is an exercise of an agency's right to assign work under section 7106(a)(2)(B) of the Statute. Consequently, proposals having the effect of requiring an agency to grant leave, without regard for the agency's need for the employee's services during the period covered by the request, directly interfere with an agency's right to assign work. See, for example, National Federation of Federal Employees and Department of the Interior, Bureau of Land Management, 29 FLRA 1491, 1516 (1987), enforced in relevant part sub nom. Department of the Interior, Bureau of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989); and American Federation of Government Employees, AFL-CIO, Local 2263 and Department of the Air Force, Headquarters, 1606th Air Base Wing (MAC) Kirtland Air Force Base, New Mexico, 15 FLRA 580, 583-84 (1984).

Consistent with the foregoing discussion, Provision 6 would require the Agency to exercise its rights under section 7106(a)(2)(B) to grant sick leave consistent with applicable Government-wide regulations. By placing limitations on the Agency's decision as to whether to grant leave to employees, even limitations contained in Government-wide regulations, Provision 6 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B). See American Federation of Government Employees, Local 2761 and Department of the Army, Army Publications Distribution Center, St. Louis, Missouri, 32 FLRA 1006, 1010-11 (1988).

We turn next to the question of whether a provision requiring management to exercise its rights under section 7106(a) of the Statute in accordance with applicable Government-wide regulations may be negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. In American Federation of Government Employees, Department of Education Council of AFGE Locals and U.S. Department of Education, Washington, D.C., 38 FLRA 1068, 1076-77 (1990), decision on reconsideration, 39 FLRA No. 107 (1991), slip op. at 4-5 (Department of Education), we held that the management rights enumerated in section 7106(a)(2) of the Statute are exercised subject to subsection (b), including the appropriate arrangements provision of section 7106(b)(3). Thus, we may conclude that proposals requiring management to exercise its rights under section 7106(a)(2) in accordance with Government-wide regulations are negotiable as appropriate arrangements under section 7106(b)(3) of the Statute even if Government-wide regulations do not constitute "applicable law" within the meaning of section 7106(a)(2) of the Statute. See Department of Education, 38 FLRA at 1077-78; 39 FLRA No. 107, slip op. at 5-6. Because we find, for the reasons set forth below, that the requirement of Provision 6 that management grant sick leave requests consistent with applicable Government-wide regulations constitutes an appropriate arrangement within the meaning of section 7106(b)(3), we conclude that Provision 6 is negotiable notwithstanding the decision in Internal Revenue Service.

Based on the record in this case, we find that Provision 6 is intended to be an arrangement for employees who are adversely affected by management's decisions as to the assignment of work. According to the Union, the provision alleviates the conflict between work requirements and medical needs by establishing the conditions under which employees will be released from work to attend to those needs.

We also find that the provision is an "appropriate" arrangement because it does not excessively interfere with management's right to assign work under section 7106(a)(2)(B). The Union claims that Provision 6, setting forth the circumstances in which the Agency will grant sick leave, benefits employees by limiting the effect on employees of "the frequent inability of employees to schedule needed medical, dental or optical appointments outside [] regular work hours." Union's Response at 4; Petition for Review at 3-4. The Agency asserts that the Union's claimed benefit is "minor when balanced with the need of the Agency to assign employees." Agency's Statement of Position at 23. The Agency, however, does not provide any evidence as to how the provision would burden the exercise of its right to assign work.

Provision 6 establishes substantive criteria governing management's decision to grant leave to employees for reasons of illness or medical treatment. Because the provision does not preclude management from requiring documentation, however, the provision would not require management to grant leave for any unsubstantiated reason. The provision also requires employees to notify management prior to medical appointments. Accordingly, the provision preserves management's ability to refuse to grant leave where the request for leave is without justification and affords management sufficient notice to make appropriate adjustments in the scheduling of work. On the other hand, the provision allows employees to attend to their legitimate medical needs. In our view, the effect of Provision 6 on management's right to assign work under section 7106(a)(2)(B) is not disproportionate to the benefit afforded employees by the provision. Consequently, we conclude that Provision 6 does not excessively interfere with management's right to assign work. Accordingly, we find that Provision 6 constitutes an appropriate arrangement under section 7106(b)(3) and that it is, therefore, negotiable.

VII.Provision 8

Article 26 - General Provisions

Section 3. Employees['] skills will be utilized to the maximum extent possible within their job classification. To the extent possible, work will be distributed equitably among personnel within job classifications.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 8 interferes with management's right under section 7106(a)(2)(B) of the Statute to assign work because the provision "takes away management's right to make considerations of an employee's relative qualifications and abilities to do particular assignments." The Agency relies on National Treasury Employees Union and Internal Revenue Service, Dallas District, 13 FLRA 48 (1983) (IRS, Dallas). Agency Statement of Position at 26-27. The Agency contends further that the provision is not an appropriate arrangement because the restraint on management's right to assign work is disproportionate to the alleged necessity for preventing possible future inequities in assignments. Id. at 27-28.

2. Union

The Union states that Provision 8 was "intended to have employees work essentially within the bounds of their classifications, utilizing the skills for that classification." Union's Appeal at 4. The Union argues that the provision does not preclude management from assigning duties or from changing or adding duties. The Union also argues that the provision does not interfere with management's right to assign work because it requires equitable distribution of work only among qualified employees within the job classifications that management has already determined will perform certain tasks.

The Union states that the provision was intended as an appropriate arrangement to mitigate the adverse impact that may flow from "a disproportionate assignment of duties to similarly situated employees in the same job classification." Id. The Union claims that the provision would have the effect of preventing the Agency from exercising its right to assign work in a manner that would favor certain employees or act as a disproportionate burden on other employees who are less favored by management. Id. at 4-5.

The Union argues that Provision 8 is distinguishable from the proposal in IRS, Dallas because the proposal in that case required equitable distribution of work without regard to employees' qualifications. Union's Response at 5.

B. Analysis and Conclusions

We find that Provision 8 is negotiable as an appropriate arrangement under section 7106(b)(3) because it does not excessively interfere with management's right to assign work under section 7106(a)(2)(B).

Provision 8 requires that management will: (1) use employees' skills to the maximum extent possible within the employees' job classifications; and (2) to the extent possible, distribute work equitably among employees within job classifications. The provision would restrict management's ability to make work assignments that would not use employees' skills to the maximum extent possible or would not, to the extent possible, result in an equitable distribution of work. The effect of the provision, therefore, is to establish substantive criteria governing the exercise of management's right to assign work.

Proposals that establish general criteria restricting the range of management action pursuant to a right under section 7106 of the Statute constitute a substantive limitation on the exercise of that right. Proposals establishing substantive criteria governing the exercise of a management right directly interfere with that right and are nonnegotiable. See West Point Elementary School, 34 FLRA at 1010 (1990). Because Provision 8 would impose substantive restrictions on management's discretion to make work assignments that could function to disproportionately advantage or disadvantage certain employees, we find that the provision directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. See Naval Weapons Station, 32 FLRA at 1050-53; American Federation of Government Employees, AFL-CIO, Local 1625 and Department of the Navy, Naval Air Station, Oceana, Virginia, 30 FLRA 1105, 1111-14 (1988) (Naval Air Station, Oceana).

In reaching this conclusion, we recognize that terms such as "equitable" or "equitably" have been found to have varying substantive effects. Compare 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, 465-66 (1991) (proposal providing for performance standards to be "fair and equitable" held to be a nonnegotiable criterion governing the content of a performance standard) with National Treasury Employees Union, Chapter 22 and Department of the Treasury, Internal Revenue Service, 29 FLRA 348, 357-58 (1987) (Internal Revenue Service) (two proposals providing that the work of detailed employees, if distributed to other employees, would be distributed to those other employees in a fair and equitable manner held to be a negotiable procedure under section 7106(b)(2)). Because we conclude that terms such as "equitable" and "equitably," when used in proposals that govern the exercise of a management right, constitute substantive restrictions on the exercise of that right, we will no longer follow cases such as Internal Revenue Service to the extent that those cases hold that the use of the terms "equitable" or "equitably" do not constitute a substantive limitation. As demonstrated below, our holding does not mean that proposals using those terms are necessarily nonnegotiable.

We turn to consideration of the Union's contention that Provision 8 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. We note at the outset that similar proposals previously have been held by the Authority not to constitute arrangements for employees adversely affected by the exercise of a management right because the assignment of work was not considered to have an adverse affect on employees. See Naval Air Station, Oceana, 30 FLRA at 1113-14; 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, 1137-38 (1987) (proposals held not to be arrangements because work assignments did not adversely affect employees within the meaning of section 7106(b)(3)). That approach has since been rejected by the Authority following consideration of the court's decision in Overseas Education Association, Inc. v. FLRA, 876 F.2d 960 (D.C. Cir. 1989). See West Point Elementary School, 34 FLRA at 1011-12. Consequently, we will consider, based on the record, whether the requirements of Provision 8--that work be assigned to employees so as to use their skills to the maximum extent possible and that, to the extent possible, work be distributed equitably--constitute an arrangement for employees adversely affected by the exercise of a management right.

The Union states that Provision 8 is designed to address the "adverse impact" on employees of "a disproportionate assignment of duties to similarly situated employees in the same job classification as opposed to other employees in the same job classification." Union's Petition for Review at 4. The Union explains the effect of the provision as follows:

This avoids loading up similar duties on a particular employee or employees for non-mission related reasons, or for arbitrary, capricious or non-merit personal reasons. The advantage to the employee is to avoid being singled out to perform a disproportionate amount of work for improper reasons.

Id. at 4-5. The Union concludes that the provision would "mitigate" the "potential abuse of the right of assignment" because it would preclude the use of work assignments "as harassment of an unfavorite subordinate or reward of a favorite." Union's Response at 5.

The Agency claims that Provision 8 is not based on an "allegation that the employees are presently negatively affected by the distribution of work" and concludes that the provision is "a preventive measure of inappropriate Agency action in distribution of work." Agency's Statement of Position at 28. The Agency also contends that the "negative impact on the Agency's right to assign work is disproportionate to the spurious additional benefit which the provision would afford employees." Id. The Agency concludes, therefore, that the provision excessively interferes with management's right to assign work.

Contrary to the Agency, we find that the fact that the provision is intended to prevent an adverse impact on employees that could potentially result from an assignment of work, rather than to remedy an adverse effect that has been caused by a work assignment, is not dispositive. In National Federation of Federal Employees, Local 2096 and U.S. Department of the Navy, Naval Facilities Engineering Command, Western Division, 36 FLRA 834, 837-41 (1990) (Naval Facilities Engineering Command), we rejected the view that proposals that were intended to eliminate "the possibility of an adverse effect" did not constitute arrangements for adversely affected employees within the meaning of section 7106(b)(3) of the Statute. Naval Facilities Engineering Command, 36 FLRA at 838, quoting Naval Air Station, Oceana, 30 FLRA at 1126-27 (emphasis in original). We stated that there is "no statutory basis for the . . . conclusion . . . that a provision which seeks to eliminate possible adverse effects is not appropriate for consideration as an appropriate arrangement." Naval Facilities Engineering Command, 36 FLRA at 840. We concluded that "we will base determinations as to the negotiability of all proposed arrangements, including arrangements which seek to ameliorate the adverse effects of the exercise of a management right by inhibiting the exercise of that right, on evaluation of the facts and circumstances in each case." Id. at 840-41.

Based on the wording and the Union's explanation of Provision 8, we find that the provision is an arrangement within the meaning of section 7106(b)(3) of the Statute. The provision is intended to limit the adverse effects of management's right to assign work. The provision would benefit employees by ensuring that they are not unfairly deprived of the opportunity to develop their job skills to the maximum extent possible as a result of the assignment of a disproportionate amount of work. We conclude, therefore, that the provision benefits employees by affording them protection against the underutilization of their skills as a result of an inequitable distribution of work and, consequently, that the provision constitutes an arrangement for employees adversely affected by the exercise of a management right.

We also find that Provision 8 is an appropriate arrangement within the meaning of section 7106(b)(3) because it does not excessively interfere with management's right to assign work. In our opinion, the Agency's interest in being able to assign work in a manner that would either improperly favor or disproportionately burden its employees is negligible. The burden on management of providing for the equitable distribution of work and for the utilization of employee skills to the maximum extent possible under Provision 8 is virtually nonexistent. We find that the burden of the provision on management is outweighed by the benefit afforded employees under the provision not only of freedom from disproportionate work assignments, but also of freedom from the adverse effects of the underutilization of their skills. We conclude, therefore, that the provision does not excessively interfere with management's right to assign work under section 7106(b)(3) of the Statute.

In reaching this conclusion, we note that the provision does not require that all employees within a job classification receive "equal" work assignments. That is, as we interpret the effect of the provision, it would not require that all employees have the same amount of a particular type of work or that they all have work assignments that are of the same level of difficulty. In other words, we do not find that the provision removes discretion from management as to differences between employees with respect to experience with or expertise in a particular type of work. We conclude, rather, that the provision is designed to ensure, to the extent possible, overall equity in the distribution of work and, to the maximum extent possible, that employees have an opportunity to develop their skills in all of the work performed within their job classifications.

In conclusion, we find that Provision 8 is consistent with applicable Government-wide regulations. We also find that although Provision 8 directly interferes with management's right to assign work, the provision does not excessively interfere with that right and thus it constitutes an appropriate arrangement under section 7106(b)(3) of the Statute. Consequently, we conclude that Provision 8 is negotiable.

VIII. Provision 9

Article 29 - Payroll Deduction of Union Dues

Section 8. An employee may revoke his/her allotment, after the allotment has been in effect for a period of one year, by submitting a written request to the Chief, Fiscal Service. An employee revocation will take effect the pay period following the next annual revocation date, which will be March 1 of each year. [Only the underscored portion of the provision is in dispute.]

A. Positions of the Parties

1. Agency

The Agency contends that Provision 9 is contrary to section 7115(a) of the Statute. The Agency argues that the provision is to the same effect as Provision 1 in Naval Weapons Station, 32 FLRA 1023. Specifically, the Agency claims that the provision is nonnegotiable because it could preclude an employee from revoking a dues authorization for a period of almost 2 years, a result that is inconsistent with the Statute. Agency's Statement of Position at 28-30.

2. Union

The Union agrees that Provision 9 could in certain circumstances preclude an employee from revoking a dues authorization for a period of about 2 years. The Union argues, however, that "this is a rare occurrence, and does not, to us[,] violate the [S]tatute. The [S]tatute . . . does not . . . place a one-year cap on the deduction. With all due respect, the Authority is simply wrong in [Naval Weapons Station] in holding otherwise." Union's Response at 5-6.

B. Analysis and Conclusions

We conclude that Provision 9 is nonnegotiable because it is inconsistent with section 7115(a) of the Statute.

Under section 7115(a) of the Statute, an authorization for dues withholding "may not be revoked for a period of 1 year." The Authority has held that that language "must be interpreted to mean that authorized dues allotments may be revoked only at intervals of 1 year." U.S. Army, U.S. Army Materiel Development and Readiness Command, Warren, Michigan, 7 FLRA 194, 199 (1981) (footnote omitted). Section 7115(a) means that, while an employee cannot revoke an authorization for dues allotment for a period of 1 year, neither shall the employee be precluded from revoking the authorization for a period or periods greater than 1 year. Naval Weapons Station, 32 FLRA at 1029. Therefore, negotiated agreements that allow such a result are inconsistent with section 7115(a) of the Statute. Id.

Provision 9 provides that an employee may revoke his or her dues allotment, after the allotment has been in effect for 1 year, by submitting a written request. The request will take effect on the pay period following the next March l that occurs after the request is made. Under Provision 9, employees would be precluded from revoking dues authorizations, in almost all cases, for a period in excess of 1 year.

We reaffirm the principle that parties may define the yearly intervals required by section 7115(a) through negotiations as long as those intervals are consistent with section 7115(a). See American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 34 FLRA 1078, 1082 (1990) (Proposal 1, which based the effective date of the revocation of dues deduction on the anniversary of the date when the deduction began, was found to be negotiable). However, because the disputed portion of Provision 9 could preclude an employee from revoking his or her dues authorization for periods greater than 1 year it is inconsistent with section 7115(a) of the Statute and is nonnegotiable.

IX. Order

The Agency must rescind its disapproval of Provisions l, 2, 4, 6 and 8.(4) The petition for review as to Provisions 5 and 9 is dismissed.




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

1. During the pendency of this case the Veterans Administration was reestablished as the Department of Veterans Affairs.

2. The Agency withdrew its disapproval of 3 provisions which concerned: (1) notice of overtime scheduling; (2) use of accrued annual leave; and (3) providing for inside work for employees during extreme cold weather conditions. The issues as to those 3 provisions, therefore, have been rendered moot. Additionally, the Union withdrew its appeal as to Provisions 3 and 7. Accordingly, those provisions will not be considered in this decision.

3. For the reasons stated in his concurring opinion in Fort Campbell, Member Armendariz would find Provision 2 to be 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 and to the extent that the Agency exercises that discretion