44:0738(61)NG - - NAGE Local R14-52 and Red River Army Depot, Texarkana, TX - - 1992 FLRAdec NG - - v44 p738



[ v44 p738 ]
44:0738(61)NG
The decision of the Authority follows:


44 FLRA No. 61

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R14-52

(Union)

and

U.S. DEPARTMENT OF THE ARMY

RED RIVER ARMY DEPOT

TEXARKANA, TEXAS

(Agency)

0-NG-1928

DECISION AND ORDER ON NEGOTIABILITY ISSUES

March 31, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of four provisions of a collective bargaining agreement that were disapproved by the head of the Agency under section 7114(c) of the Statute.(1)

Provision 1 establishes a procedure for the rotational assignment of overtime. We find that Provision 1 is negotiable.

Provision 2 precludes management from changing employees' tours of duty to include a holiday within the regularly scheduled workweek of those employees solely to avoid payment of overtime. To the extent that Provision 2 applies to employees who are subject to 5 C.F.R. § 610.121, we find that the provision is nonnegotiable because it is inconsistent with 5 C.F.R. § 610.121. To the extent that the provision applies to employees who are not subject to 5 C.F.R. § 610.121, we find that the provision is negotiable as an appropriate arrangement under section 7106(b)(3).

Provision 3 pertains to the use of administrative leave in certain situations. We find that Sections (a) and (c) of Provision 3, concerning tardiness and voting, are negotiable. We conclude that Section (b) of the provision, concerning blood donations, is no longer in dispute and, therefore, we will dismiss the petition for review as to Section (b) of Provision 3.

The first two sentences of Provision 5 require the Agency to limit details to brief periods for specific purposes. We find that the first two sentences of Provision 5 are negotiable. The last sentence of Provision 5 prohibits the Agency from detailing employees when other personnel actions, such as recruitment, promotion, or transfer, could be used instead. We find that the last sentence of Provision 5 is nonnegotiable because it directly and excessively interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute.

II. Provision 1

(Article XII, Overtime, Section 3a.)

To establish an overtime roster, the first offering of overtime will be based on the seniority of the employees. The employee with the highest seniority will be offered the overtime first. In the event an employee refuses overtime when his/her name is reached on the roster, he/she will be credited with the amount that would have been worked. All subsequent offerings of overtime will be offered according to the number of overtime hours credited to the employee with the employee having the least amount of overtime hours being offered the overtime first. In the event two or more employees have received an equal amount of overtime, the employee with the highest seniority will be selected for overtime.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 1 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute by prohibiting management from making qualification determinations when assigning employees to overtime. The Agency asserts that under this provision, management would have to assign overtime to an employee based solely on seniority without being able to make determinations concerning an employee's qualifications to perform the overtime assignment.

The Agency notes that, in the letter disapproving this provision, the Agency suggested the addition of a few words which would protect management's ability to determine the qualifications of employees. The Agency stated that the provision would be negotiable if it were modified to include the words "and who is fully qualified" after the word "seniority." Agency Statement of Position at 2. According to the Agency, the Union did not adopt the Agency's modification. Accordingly, the Agency argues that the provision must be interpreted as not allowing management to determine employees' qualifications for overtime assignments.

2. Union

The Union states that the intent of Provision 1 is to establish a procedure that would ensure equitable distribution of overtime assignments as required in Section 2 of Article XII of the Agreement.(2) The Union asserts that Provision 1 does not directly interfere with management's right to assign work. The Union contends that when Provision 1 is read together with the remainder of Article XII, it allows management to determine which employees are qualified to perform the overtime work. Therefore, the Union concludes that Provision 1 does not interfere with management's right to assign work.

B. Analysis and Conclusions

Provision 1 establishes a procedure for the rotational assignment of overtime based on seniority. For the following reasons, we find that Provision 1 is negotiable.

As worded, Provision 1 does not preclude management from determining what qualifications are necessary to complete an overtime assignment and does not preclude management from determining which employees possess those qualifications. Section 2 of Article XII states that overtime will be equitably distributed to employees who have the "necessary qualifications . . . ." Petition for Review at 2. The Union states that it intends Provision 1, which was originally designated as Section 3.a of Article XII of the agreement, to be read in context with the remainder of Article XII and to establish a procedure that would ensure equitable distribution of overtime assignments as required in Section 2 of Article XII. The Union's explanation of the intent of Provision 1 is consistent with the terms of the provision and we will adopt that interpretation for purposes of this decision. Thus, it is clear that Provision 1 must be read in context with other parts of Article XII including, specifically, Section 2. See American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 41 FLRA 618, 624 (1991) (Health Care Financing) (subsection 2, which was not in dispute, was used to analyze subsequent subsections); American Federation of Government Employees, Local 1857 and Sacramento Air Logistics Center, McClellan Air Force Base, California, 34 FLRA 909, 911-13 (1990) (Authority found that three proposals were intended to operate together and must be analyzed together). Reading Provision 1 in the context of Article XII, as intended by the Union, we conclude that Provision 1 applies only after management has determined the qualifications needed to perform overtime work and determined which employees have those qualifications.

We note the Agency's concern that the provision does not specify that the employees be fully qualified to perform the work. Because Section 2 of Article XII states that the Agency determines the necessary qualifications to perform the work and because the Agency also determines which employees possess those necessary qualifications, we reject the Agency's interpretation that Provision 1 requires it to assign overtime to employees who are not "fully qualified." For the same reason, we reject the Agency's contention that the Union's failure to adopt the Agency's suggested modification means that the Union intends the provision to preclude management from determining employees' qualifications.

Proposals requiring the assignment of overtime based on seniority among employees whom management has determined are qualified to perform the work are negotiable. See Health Care Financing, 41 FLRA at 624-25; Fraternal Order of Police, Lodge 1F (R.I.) Federal and Veterans Administration, Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944, 946-47 (1988). Because Provision 1 requires the assignment of overtime based on seniority among employees whom management has determined are qualified, we find that Provision 1 is negotiable.

III. Provision 2

The Employer agrees that employees will not have their tour of duty changed to work on holidays to avoid paying overtime.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 2 interferes with management's right to assign work and, therefore, is nonnegotiable. The Agency asserts that: (1) the provision is similar to proposals that limit management's right to determine that work will be performed on holidays; and (2) the Authority has found that such proposals interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The Agency claims that under Provision 2, "if management determines that, to avoid overtime, or for any other reason, it wishe[s] to assign work on a holiday, it would be prevented from doing so." Agency Statement of Position at 3. The Agency argues that the provision prevents management from determining that, on holidays, certain work will be performed.

2. Union

According to the Union's Response, Provision 2 is intended to apply to non-appropriated fund (NAF) employees. Union Response at 2. The Union states that Provision 2 requires that tours of duty will not be changed because of holidays and that the provision does not prevent management from assigning employees to work overtime on holidays.

The Union contends that Provision 2 does not directly interfere with management's right to assign work and allows management to assign work on a holiday. According to the Union, the provision provides an appropriate arrangement for pay purposes for the NAF employees covered by the provision.

The Union explains that the provision represents an arrangement for employees who normally work four 10-hour days, Tuesday through Friday. According to the Union, the provision "would ensure that employees would maintain their holiday pay as well as receive overtime pay for work performed in excess of forty hours." Id. The Union states that, under the provision, if the employees were required to work on a Monday holiday, they would receive pay for the Monday at their overtime rate. Otherwise, the Union contends, if their tour was changed on the holiday week to Monday through Thursday, the employees not only would have to work on Monday (their normal day off and the holiday) but they would be working in a non-overtime status and receiving only holiday pay. The Union asserts that this is unfair to the employees. The Union argues that Provision 2 compensates the employees for having to work on their regular day off without interfering with management's right to assign work on the holiday.

B. Analysis and Conclusions

1. Provision 2 Directly Interferes with Management's Right to Assign Work under Section 7106(a)(2)(B) of the Statute

Provision 2 precludes management from changing employees' work schedules by assigning them work on a holiday that would otherwise not fall within their normal workweek, so as to avoid the payment of overtime. For example, as explained by the Union, where employees work a compressed work schedule consisting of four 10-hour days, Tuesday through Friday, and work on a Monday holiday would be overtime work, the provision would preclude management from changing the work schedule to a Monday through Thursday schedule solely to avoid paying overtime for any work that it needed performed on the Monday holiday.

Management's right to assign work under section 7106(a)(2)(B) encompasses the right to determine when work that has been assigned will be performed. See American Federation of Government Employees, AFL-CIO, Local 1815 and Army Aviation Center, Fort Rucker, Alabama, 28 FLRA 1172, 1175-76 (1987) (Fort Rucker). Provisions that prevent management from assigning overtime work on a Federal holiday if the purpose of the assignment is to avoid assigning overtime work that otherwise would be assigned on a day outside the basic workweek directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. Id. Provision 2 would preclude management from scheduling employees to work on a holiday in order to avoid overtime. Consequently, we find, consistent with Fort Rucker, that Provision 2 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

2. Applicable Government-wide Regulations

The Authority has also held that proposals that preclude management from changing work schedules to avoid the payment of overtime are inconsistent with 5 C.F.R. § 610.121, a Government-wide regulation and, therefore, are nonnegotiable under section 7117(a)(1) of the Statute.(3) See American Federation of Government Employees, Local 85 and Veterans Administration, Medical Center, Leavenworth, Kansas, 30 FLRA 400, 413-14 (1987) (Medical Center, Leavenworth); Tidewater Virginia Federal Employees Metal Trades Council and Department of the Navy, Navy Public Works Center, Norfolk, Virginia, 25 FLRA 3, 5-7 (1987) (Navy Public Works Center). The Authority held that the proposals in those cases would prevent management from changing work schedules to avoid the payment of overtime even where management determined, under 5 C.F.R. § 610.121, that the Agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased if it did not change work schedules to avoid the payment of overtime.

Provision 2 would preclude management from scheduling employees to work on a holiday in order to avoid the payment of overtime. Provision 2 is broadly worded and would preclude management from changing work schedules to avoid the payment of overtime even where management determines, under 5 C.F.R. § 610.121, that the Agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased if it did not change work schedules to avoid the payment of overtime. Consequently, we find, consistent with Medical Center, Leavenworth and Navy Public Works Center, that Provision 2 is inconsistent with 5 C.F.R. § 610.121.

We note in this connection the Union's statement that Provision 2 is intended to apply to NAF employees. Some, but not all, NAF employees are subject to 5 C.F.R. § 610.121. Specifically, NAF employees who are subject to subchapter IV of chapter 53 of title 5 of the United States Code are subject to 5 C.F.R. § 610.121. See 5 C.F.R. § 610.101; 5 U.S.C. § 5342(a)(2)(B). Although the Union claims that the provision applies to NAF employees, the Union does not indicate, and there is no basis in the record for determining, whether those employees are NAF employees who are subject to 5 C.F.R. § 610.121.

To the extent that Provision 2 applies to NAF employees who are subject to 5 C.F.R. § 610.121, it is nonnegotiable under section 7117(a)(1) of the Statute. Therefore, it is unnecessary for us to address the Union's contention that Provision 2 is an appropriate arrangement under section 7106(b)(3) of the Statute. We do not reach an appropriate arrangement issue when, as in this case, a proposal or a provision is nonnegotiable under section 7117(a)(1). See National Treasury Employees Union and U.S. Department of Energy, Washington, D.C., 38 FLRA 79, 88 (1990).

To the extent that Provision 2 applies to NAF employees who are not subject to 5 C.F.R. § 610.121, the negotiability of the provision depends upon resolution of the Union's claim that the provision is an appropriate arrangement under section 7106(b)(3) of the Statute.

3. Appropriate Arrangement

In determining whether a proposal is an appropriate arrangement, we determine whether the proposal is: (1) intended as an arrangement for employees adversely affected by the exercise of a management right; and (2) appropriate because it does not excessively interfere with the exercise of management's right. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (Kansas Army National Guard). We determine whether a proposal excessively interferes with a management right by weighing the benefits of the proposal to unit employees against the burden on management's rights imposed by the proposal. Id. We conclude that Provision 2 does not excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The Union claims that Provision 2 is an arrangement for employees who are adversely affected by the exercise of management's right to assign work. Specifically, the Union argues that employees whose workweek is changed so as to include a holiday in their normal workweek and to require them to work on that holiday are adversely affected by the loss of their usual day off work as well as the loss of overtime pay that they would otherwise receive. Provision 2 is intended to alleviate the adverse effects on employees of such changes in work schedules by restricting management's right to schedule work on holidays so as to avoid the payment of overtime. We conclude that Provision 2 is an arrangement for employees adversely affected by the exercise of management's right to assign work within the meaning of section 7106(b)(3) of the Statute.

Provision 2 would benefit employees by ensuring that they will not have their tour of duty changed by being scheduled to work on a holiday in order to avoid the payment of overtime. Provision 2 would not preclude management from changing work schedules to assign work to employees on a holiday so long as management's decision to change the workweek was not based solely on the avoidance of overtime. Management retains the right to assign work, specifically to assign work on a holiday. In short, the burden imposed on the Agency by the provision is that it will not be able to schedule work solely to avoid the payment of overtime for work on a holiday.

Under Provision 2, employees have the benefits of: (1) knowing that they will not have their tour of duty changed to work on a scheduled holiday in order to avoid the payment of overtime; and (2) receiving overtime pay for working on a holiday outside their normal workweek. Management still retains the right to assign employees work on the holiday. The only restriction on the exercise of that right is the requirement that management not change the employees' tour of duty to avoid paying overtime for work on the holiday. When the benefits to employees set forth above are balanced against the restriction on management's ability to change employees' schedules to avoid paying overtime for work on a holiday, we find that the benefits to employees outweigh the burden on management's right to assign work. Consequently, insofar as the provision applies to NAF employees who are not subject to 5 C.F.R. § 610.121, we find that the provision is an appropriate arrangement.

In sum, to the extent that Provision 2 applies to NAF employees who are subject to 5 C.F.R. § 610.121, we find that the proposal is nonnegotiable because it is inconsistent with 5 C.F.R. § 610.121. To the extent that the provision applies to NAF employees who are not covered by 5 C.F.R. § 610.121, we find that the provision is negotiable as an appropriate arrangement under section 7106(b)(3). See National Association of Government Employees, Local R4-26 and Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA 118, 142 (1991) (proposals relating to employee benefits negotiable, with the exception of Crafts and Trades employees covered by the Prevailing Rate Systems Act, for whom the proposal was nonnegotiable).

Finally, we note that the provision applies to "employees," not just "NAF employees." If the provision applies to non-NAF employees, however, the result would be the same: to the extent that the provision applies to non-NAF employees who are subject to 5 C.F.R. § 610.121, the provision is nonnegotiable because it is inconsistent with 5 C.F.R. § 610.121; to the extent that it applies to non-NAF employees who are not subject to 5 C.F.R. § 610.121, the provision is a negotiable appropriate arrangement.

IV. Provision 3

Administrative leave will be granted to all employees in connection with:

a. Tardiness. Employees are expected to report for work on time and to be present for the prescribed tour of duty. Reasons for tardiness shall be reported promptly to appropriated [sic] supervision. Infrequent tardiness of less than one (1) hour should be excused by the supervisor. Frequent instances of tardiness or lengthy periods of tardiness may be charged to annual leave or absence without leave as determined by the supervisor.

b. Blood Donation. Excused absence will be authorized up to four (4) hours, depending on the number of hours remaining in the tour of duty, for blood donation based upon a proper request and when the employee can be spared from duty. The Employer will make reasonable effort[s] to release employees to donate blood.

c. Voting. Voting in Government elections. Employees may be permitted to report for work two hours after the polls open or leave work two hours before the polls close, whichever requires the least amount of time off. Administrative leave will be granted for any part of the 2-hour period falling within the assigned tour of duty.

A. Positions of the Parties

1. Agency

The Agency contends that portions of the provision are inconsistent. According to the Agency, "[t]he [U]nion's statement of intent does not clarify whether this provision mandates the granting of administrative leave in the above identified situations or whether approval is at the discretion of the supervisor." Statement at 4. The Agency claims that it informed the Union in the declaration of nonnegotiability that the problems in the provision could be cured by substituting the word "may" wherever "will" is used. The Agency argues, based on the Union's failure to change the wording of the provision, that "the provision is not intended to allow the supervisor discretion in denying the administrative leave in the above identified situations." Id.

The Agency interprets Section (a) as mandating up to 1 hour of administrative leave for infrequent instances of tardiness that are less than 1 hour in duration. The Agency argues that Section (a) of the provision "gives employees carte blanche in determining when to arrive at work during the first hour of the established duty day, as long as arriving late is not done 'frequently.'" Id. at 5. The Agency asserts that, under the provision, the only basis for denying administrative leave is the frequency of the late arrival or its duration, that is, because the employee is more than 1 hour tardy. The Agency contends that although Section (a) of the provision requires that the employee provide a reason for the tardiness, the supervisor has "no discretion to deny administrative leave because of an irrelevant or ridiculous excuse." Id.

The Agency argues that Section (a) of the provision interferes with management's right to discipline employees in accordance with section 7106(a)(2)(A) of the Statute. The Agency asserts that tardiness that is not justified may become the basis for disciplinary action. The Agency asserts that because Section (a) does not make the granting of administrative leave contingent upon an acceptable justification for the tardiness, management is prohibited from disciplining employees for unreasonable infrequent tardiness. In particular, the Agency contends that under Section (a), management would be precluded from charging employees with absence without leave and would, therefore, be precluded from disciplining employees for absences that warrant discipline.

The Agency also contends that Section (a) of the provision interferes with management's right to assign work under section 7106(a)(2)(b) of the Statute because it mandates the granting of administrative leave in particular situations. The Agency argues that, under Section (a), management would be unable to assign work when the employees choose to arrive late to work.

As to Section (b) of the provision, the Agency notes that, notwithstanding the opening sentence of Article 3, Section (b) "clearly provides that the granting of administrative leave for blood donations is tempered by management's determination that the employee can be spared" from work. Id. at 7. The Agency states that "[i]f this is the interpretation agreed to by the [U]nion and the Authority, the [A]gency withdraws its allegation of nonnegotiability." Id. However, the Agency contends that if the provision is intended as a requirement for the automatic granting of administrative leave whenever an employee decides to give blood, then it interferes with management's right to assign work. The Agency claims that Section (b) would deprive management of its discretion to deny an employee's leave request and would nullify management's ability to determine when work will be performed.

The Agency interprets Section (c) of the provision as mandating the granting of administrative leave if the polls are not open for at least two hours before or after the beginning or end of the business day. The Agency contends that the provision does not restrict the granting of administrative leave only to those employees who are going to vote. The Agency asserts that, by mandating the granting of administrative leave, Section (c) of the provision would not permit management to deny the leave, even if the employees' absence would seriously interfere with Agency operations and, therefore, Section (c) interferes with management's right to assign work.

2. Union

The Union states that the intent of the three sections of the provision "is to provide administrative leave under particular circumstances to employees for tardiness, blood donation and voting. The [sections] do not prevent management from assigning work." Petition for Review at 2-3.

The Union contends that Section (a) of the provision does not interfere with management's rights to assign work or to discipline employees. Rather, according to the Union, the provision addresses the manner in which management should deal with tardiness. The Union states that "[c]ommon sense dictates that no one is perfect and events do occur that [cause] an employee to be late for work." Response at 3. The Union emphasizes that "the term 'should' does not mandate that excusal will be granted under all circumstances." Id. (emphasis in original). The Union maintains that, because Section (a) permits the supervisor to excuse tardiness, the provision encourages employees to come in later rather than not at all. The Union argues that because the provision requires that the reason for the tardiness must be reported, it follows that the reason must be valid and that, if the reason is not valid, the employee's tardiness would not be excused and administrative leave would not be granted. Moreover, the Union claims that Section (a) does not directly interfere with management's right to assign work because management cannot assign work to an employee who is not present.

The Union states that "the blood donation provision [section (b)] provides for administrative leave when the employee can be spared from duty." Petition for Review at 3. According to the Union, "[t]he Agency withdrew its allegation of nonnegotiability." Response at 4.

The Union notes that Section (c) of the provision "mirrors the Agency regulation as to when an employee may be permitted to report for work after the polls are open or leave before the polls close to vote." Id. The Union claims that Section (c) does not give every employee time off without restriction. The Union maintains that the Agency's argument regarding employee use of this leave is based on the view that employees are not trustworthy. The Union notes that poll sites usually open early or stay open late enough so that employees need not use leave to go to the polls to vote. According to the Union, Section (c) of the provision constitutes an appropriate arrangement for employees working 10-hour tours of duty. Thus, the Union concludes, the provision does not excessively interfere with management's rights but allows management to establish tours of duty while permitting employees to exercise their right to vote.

B. Analysis and Conclusions

Provision 3 pertains to the use of administrative leave for tardiness, blood donations, and voting. The introductory phrase of Provision 3 provides that administrative leave will be granted to all employees in connection with: (a) tardiness; (b) blood donation; and (c) voting. The introductory phrase of Provision 3 does not describe the conditions under which administrative leave will be granted. Rather, the conditions governing the granting of requests for administrative leave are stated in the three sections of the proposal. Accordingly, we find that, reading the proposal as a whole, the introductory phrase merely sets forth the purposes for which administrative leave will be granted and the three sections prescribe the conditions governing the granting of requests for administrative leave for those purposes.

We find that Sections (a) and (c) of Provision 3, concerning tardiness and voting, are negotiable. We conclude that Section (b) of the provision is no longer in dispute and, therefore, we will dismiss the petition for review as to Section (b) of Provision 3.

1. Section (a)

Section (a) of Provision 3 provides that employees should be granted administrative leave for infrequent tardiness of less than 1 hour and that frequent tardiness may be charged to annual leave or to absence without leave.

Proposals requiring management to grant requests for administrative 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, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 380-81 (1991) (proposal requiring the agency to authorize administrative leave to attend scouting functions held to directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute). Specifically, we have held that proposals requiring the granting of administrative leave eliminate management's discretion to determine whether an employee is to remain on duty to perform necessary work and that such proposals are nonnegotiable because they directly interfere with the right to assign work under section 7106(a)(2)(B) of the Statute. See National Treasury Employees Union and U.S. Department of the Treasury, Office of Chief Counsel, Internal Revenue Service, 39 FLRA at 43.

As worded and explained by the Union, Section (a) provides that administrative leave should be granted to employees for infrequent instances of tardiness of less than 1 hour. As noted above, the Union states that "the term 'should' does not mandate that excusal will be granted under all circumstances." Response at 3 (emphasis in original). Accordingly, we find that Section (a) does not mandate that the tardiness be excused, but rather preserves management's discretion to decide whether to grant administrative leave for occasional tardiness of less than 1 hour. Because Section (a) of Provision 3 preserves management's discretion to determine whether to grant administrative leave, we conclude that Section (a) does not interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The Agency also contends that Section (a) of Provision 3 interferes with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. The Agency relies on the Authority's decision in National Federation of Federal Employees and U.S. Army Armament Munitions and Chemical Command, Rock Island Arsenal, Illinois, 19 FLRA 48, 50-51 (1985) (Rock Island Arsenal). For the following reasons, we find that the Agency's reliance on that case is misplaced.

In Rock Island Arsenal, the proposal at issue required the agency to approve employee absences and thereby precluded the agency from taking disciplinary action against employees because of those absences. The Authority found that Proposal 2 in Rock Island Arsenal directly interfered with management's right to discipline employees under section 7106(a)(2)(A) of the Statute. However, as we found above, Section (a) preserves management's discretion to grant or not grant administrative leave for infrequent tardiness that does not exceed 1 hour. We conclude, therefore, that Section (a) would not require management to grant administrative leave for that purpose where management decides that discipline is warranted for such tardiness.

Moreover, because the last sentence of Section (a) provides that supervisors may charge annual leave or leave without pay for frequent or lengthy periods of tardiness, we conclude that the last sentence of Section (a) would not preclude management from disciplining an employee for frequent or lengthy periods of tardiness. Therefore, under Section (a) of Provision 3, management's discretion to take discipline is preserved. Consequently, we conclude that Section (a) of Provision 3 does not directly interfere with management's right to discipline employees under section 7106(a)(2)(A) of the Statute.

Accordingly, we conclude that Section (a) of Provision 3 is negotiable.

2. Section (b)

Section (b) of Provision 3 provides for the granting of administrative leave for blood donations if management determines that the employee can be spared from work. Noting that Section (b) "clearly provides that the granting of administrative leave for blood donations is tempered by management's determination that the employee can be spared" from work, the Agency stated that "[i]f this is the interpretation agreed to by the [U]nion and the Authority, the [A]gency withdraws its allegation of nonnegotiability." Statement of Position at 7. In both its petition for review and its response, the Union stated that section (b) provides for administrative leave when the employee can be spared from duty. In these circumstances, we find that Section (b) would require management to grant administrative leave to an employee for the purpose of donating blood only if management determines that the employee can be spared from work. Accordingly, we conclude that the Agency has withdrawn its allegation of nonnegotiability as to Section (b) and we will dismiss the Union's appeal as to Section (b). See American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and Department of Education, 42 FLRA 1351, 1362 (1991).

3. Section (c)

Under Section (c) of Provision 3, the Agency may allow employees to report for work 2 hours after the polls open or to leave work 2 hours before the polls close, whichever requires the least amount of time away from work. In these circumstances, Section (c) provides that "[a]dministrative leave will be granted for any part of the 2-hour period falling within the assigned tour of duty."

Based on its literal wording, we find that Section (c) provides that: (1) management may allow employees either to report for work up to 2 hours after the polls open or to leave work up to 2 hours before the polls close for purposes of voting; and (2) if management does allow employees to report late or leave early to vote, the time that they are absent from work will be charged to administrative leave. The Union's explanation that Section (c) does not give every employee time off to vote without restriction is consistent with the wording of the provision. We note the Union's statement that in certain circumstances "the employee would be excused to go vote." Response at 4. However, to the extent that this statement can be construed to mean that in those circumstances management is required to allow employees to come in late or leave early for purposes of voting, the statement is inconsistent with the plain wording of the proposal and, therefore, we will not construe the proposal in that manner. Consequently, we conclude that Section (c) does not require management to allow employees to come in late or leave early for purposes of voting. Rather, under Section (c), management has discretion to allow employees to be absent from work for purposes of voting and management will only be required to grant administrative leave where it has already decided to allow employees to be absent for that purpose.

Because we find that Section (c) of Provision 3 preserves management's discretion to allow or not allow employees to be absent from work for purposes of voting, we find that Section (c) does not directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See our discussion of Section a of Provision 3 above. Consequently, we conclude that Section (c) of Provision 3 is negotiable.

In sum, we find that Sections (a) and (c) of Provision 3 are negotiable. Because we find that the Agency has withdrawn its allegation of nonnegotiability as to Section (b) of Provision 3, we will dismiss the Union's petition for review as to that provision.

V. Provision 5

Details will be made for brief periods to meet the particular needs of the situation requiring the temporary service of an employee. The duration of details will conform to the time limits established by regulations. Details will not be used in lieu of other appropriate personnel actions such as recruitment, promotion, or transfer.

A. Positions of the Parties

1. Agency

The Agency contends that Provision 5 interferes with management's right under section 7106(a)(2)(A) of the Statute to assign employees and its right under section 7106(a)(2)(C) to select from among properly ranked and certified candidates for promotion or from any other appropriate source. According to the Agency, the provision mandates that details be for short periods of time and only to meet the particular needs of a situation. The Agency also claims that Provision 5 prohibits management from detailing employees if any other appropriate personnel action could be used. The Agency concludes that the provision interferes with management's right to select and assign employees because it proscribes the use of details for extended periods of time or if another personnel action could be used in its place.

2. Union

The Union states that Provision 5 "sets forth the statutory and regulatory intent of details to be made for brief periods to meet temporary needs." Response at 5. The Union contends that the provision does not specify or limit details to any period of time except as established by regulations. According to the Union, while on detail, the employee is away from the duties of the position for which the employee is paid and evaluated. The Union contends that this situation could result in an adverse effect on the employee's performance evaluation and a loss of cash performance awards and retention points in the event of a reduction in force (RIF). The Union claims that the provision affords employees limited protection from extended details. The Union concludes that Provision 5 is an appropriate arrangement to limit details to brief periods as required by regulation and to require the use instead of other appropriate personnel actions.

B. Analysis and Conclusions

The Union explains that the objective of Provision 5 is to prevent management from detailing employees to positions for overly long periods and from detailing employees when other personnel actions, such as recruitment, promotion, or transfer, could be used instead to fill a vacant position. Specifically, the provision limits management's use of details to brief periods of time in accordance with applicable regulations and precludes management's use of extended details.

The first two sentences of Provision 5 require the Agency to limit details to brief periods for specific purposes. We find that the first two sentences of Provision 5 are negotiable. The last sentence of Provision 5 prohibits the Agency from detailing employees when other personnel actions, such as recruitment, promotion, or transfer, could be used instead. We find that the last sentence of Provision 5 is nonnegotiable because it directly and excessively interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute.

1. Duration of Details

As to the limits on the duration of details, we note that, as worded and explained by the Union, the provision requires that details be kept to brief periods consistent with applicable regulations. The Union, however, does not specify the regulations which would limit the duration of details.

In American Federation of Government Employees, AFL-CIO, Local 53 and U.S. Department of the Navy, Navy Material Transportation Office, Norfolk, Virginia, 42 FLRA 938, 953 (1991) (Provision 4) (Navy Material Transportation, Norfolk), petition for review filed sub nom. Department of the Navy v. FLRA, No. 91-1265 (4th Cir. Dec. 19, 1991), we considered the negotiability of a provision, which required management to keep details to the shortest practicable time limits consistent with unspecified Office of Personnel Management instructions and other unspecified regulations. Because that provision concerned the contractual recognition of external limitations on management's right to assign employees under section 7106(a)(2)(A) of the Statute, we found that the Supreme Court's decision in IRS v. FLRA, 110 S. Ct. 1623 (1990) (IRS v. FLRA) and the Authority's decision in National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377 (1991), petition for review filed sub nom. Department of the Treasury, Internal Revenue Service v. FLRA, No. 91-1573 (D.C. Cir. Nov. 25, 1991) (IRS) were applicable.

Applying IRS v. FLRA and IRS to the provision in that case, we noted that, in the absence of any information as to the regulations specified in the provision, we were unable to determine whether, consistent with IRS, those regulations had the force and effect of law and, thus, whether the provision was negotiable because it required management to exercise its right under section 7106(a)(2)(A) in accordance with applicable law. However, we found that, to the extent the regulations referred to in the provision had the force and effect of law within the meaning of IRS, the provision was negotiable because it would only require management to comply with enforceable external limitations. Navy Material Transportation, Norfolk, 42 FLRA at 954.

We also found, consistent with National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657 (1991) and American Federation of Government Employees, AFL-CIO, Department of Education Council of AFGE Locals and U.S. Department of Education, 38 FLRA 1068, 1075-76 (1990), request for reconsideration denied, 39 FLRA 1241 (1991), petition for review filed sub nom. United States Department of Education v. FLRA, No. 91-1219 (D.C. Cir. May 10, 1991), that to the extent the regulations referenced in the provision did not have the force and effect of law so as to constitute enforceable external limitations within the meaning of IRS, the provision was a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

The portion of Provision 5 requiring that the duration of details be limited consistent with applicable regulations has the same effect as Provision 4 in Navy Material Transportation, Norfolk. Consequently, to the extent that the regulations referenced in Provision 5 are regulations having the force and effect of law within the meaning of IRS, we find, consistent with Navy Material Transportation, Norfolk, that the portion of Provision 5 limiting the duration of details is negotiable because it would only require management to comply with enforceable external limitations on management's right to assign employees.

Moreover, to the extent that the regulations referenced in Provision 5 do not have the force and effect of law, we find, consistent with Navy Material Transportation, Norfolk, that that portion of Provision 5 is negotiable as an appropriate arrangement under section 7106(b)(3) of the Statute. Specifically, we find, for the reasons stated in Navy Material Transportation, Norfolk, that that portion of Provision 5 is an arrangement for employees adversely affected by the exercise of management's right to assign employees and that that portion of the provision does not excessively interfere with management's right under section 7106(a)(2)(A) of the Statute.

Consequently, we find that the portion of Provision 5 establishing limits on the duration of details is negotiable.

2. Use of Details

By its terms, the last sentence of Provision 5 would preclude management from detailing an employee to perform the work of a vacant position where management could, among other things, fill that position by hiring or by promoting or permanently reassigning an employee. Provisions that limit management's ability to use details to assign employees to positions directly interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute. See Federal Employees Metal Trades Council and U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California, 38 FLRA 1410, 1415-16 (1991) (Mare Island). Because the last sentence of Provision 5 would prevent management from detailing an employee to a vacant position where management could fill that position from some other source, we find, consistent with Mare Island, that the last sentence of Provision 5 directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute.

We turn, then, to consideration of whether the last sentence of Provision 5 is an appropriate arrangement for employees adversely affected by management's right to detail employees under section 7106(a)(2)(A) of the Statute. Applying the analytical framework established in Kansas Army National Guard, we find that the last sentence of Provision 5 is not an appropriate arrangement.

The Union explains that the intent of the last sentence of the provision is to limit the adverse effects on employees of being detailed to another position. According to the Union, when employees are detailed from their regular positions, their performance evaluations suffer and they lose performance awards and retention points in the event of a RIF. By limiting management's use of details, therefore, the last sentence of Provision 5 benefits employees by minimizing the effects of details on their performance evaluations. Based on the Union's explanation of the last sentence of the provision, we find that that portion of the provision is intended as an arrangement, within the meaning of section 7106(b)(3), for employees who are adversely affected by the exercise of management's right to assign employees under section 7106(a)(2)(A) of the Statute.

The burden imposed on management by the last sentence of the provision is that the Agency must use other personnel actions such as recruitment, promotion, or transfer, even if the Agency decided that it would be preferable to detail an employee to a vacant position. We find that the burden imposed on management by the last sentence of Provision 5 is disproportionate to the benefit afforded employees by that portion of the provision. Under the proposal, detailed employees would be away from their regular duties for only a short time. However, the Agency would be required to use other personnel actions, such as recruitment, promotion, or transfer, before using details, even when the Agency needed work performed quickly. We find, therefore, that the last sentence of Provision 5 excessively interferes with management's right to assign employees to positions under section 7106(a)(2)(A). Consequently, we conclude that the last sentence of Provision 5 is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute.

Accordingly, we find that the last sentence of Provision 5 is nonnegotiable.

VI. Order

The petition for review as to Section (b) of Provision 3 and the last sentence of Provision 5 is dismissed. To the extent that Provision 2 applies to employees who are subject to 5 C.F.R. § 610.121, the petition for review as to Provision 2 is dismissed. To the extent that Provision 2 applies to employees who are not subject to 5 C.F.R. § 610.121, the Agency must rescind its disapproval of Provision 2. The Agency must also rescind its disapproval of Provision 1, Sections (a) and (c) of Provision 3, and the first two sentences of Provision 5.(4)

APPENDIX

5 C.F.R. § 610.121 Establishment of work schedules

(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--

(1) Assignments to tours of duty are scheduled in advance of the administrative workweek over periods of not less than 1 week;

(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;

(3) The working hours in each day in the basic workweek are the same;

(4) The basic nonovertime workday may not exceed 8 hours;

(5) The occurrence of holidays may not affect the designation of the basic workweek; and

(6) Breaks in working hours of more than 1 hour may not be scheduled in a basic workday.

(b)(1) The head of an agency shall schedule the work of his or her employees to accomplish the mission of the agency. The head of an agency shall schedule an employee's regularly scheduled administrative workweek so that it corresponds with the employee's actual work requirements.

(2) When the head of an agency knows in advance of an administrative workweek that the specific days and/or hours of a day actually required of an employee in that administrative workweek will differ from those required in the current administrative workweek, he or she shall reschedule the employee's regularly scheduled administrative workweek to correspond with those specific days and hours. The head of the agency shall inform the employee of the change, and he or she shall record the change on the employee's time card or other agency document for recording work.

(3) If it is determined that the head of an agency should have scheduled a period of work as part of the employee's regularly scheduled administrative workweek and failed to do so in accordance with paragraphs (b)(1) and (2) of this section, the employee shall be entitled to the payment of premium pay for that period of work as regularly scheduled work under Subpart A of Part 550 of this chapter. In this regard, it must be determined that the head of the agency: (i) had knowledge of the specific days and hours of the work requirement in advance of the administrative workweek, and (ii) had the opportunity to determine which employee had to be scheduled, or rescheduled, to meet the specific days and hours of that work requirement.




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

1. The Agency withdrew its allegation that Provisions 4 and 6 were nonnegotiable. Therefore, we will not consider those provisions.

2. According to the Union, Section 2 of Article XII states:

Overtime assignments will be equitably distributed on a rotational basis among the employees who are assigned to the same job number and have the necessary qualifications within the immediate organizational element. The immediate organizational element is defined as a group of employees headed by a first level supervisor.

Petition for Review at 1-2.

3. 5 C.F.R. § 610.121 is found in the Appendix.

4. In finding the