44:1570(122)NG - - AFGE Local 3157 and Agriculture, Federal Grain Inspection Service - - 1992 FLRAdec NG - - v44 p1570



[ v44 p1570 ]
44:1570(122)NG
The decision of the Authority follows:


44 FLRA No. 122

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3157

(Union)

and

U.S. DEPARTMENT OF AGRICULTURE

FEDERAL GRAIN INSPECTION SERVICE

(Agency)

0-NG-1946

DECISION AND ORDER ON NEGOTIABILITY ISSUES

May 29, 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 six proposals.(1)

Proposal 1 provides that, under normal circumstances, employees will work 5 consecutive days, Monday through Friday, at least 8 hours a day. We find that Proposal 1 is consistent with 5 C.F.R. § 610.121. We also find that Proposal 1 is 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) of the Statute. Consequently, we find that Proposal 1 is negotiable.

The first sentence of Proposal 2 requires that, under normal circumstances, management will schedule each employee's starting and quitting times for a workweek not later than 2:00 p.m. on the Thursday preceding the workweek. The second sentence of Proposal 2 provides that, in all other circumstances, management will notify an employee of an altered starting time not less than 24 hours before that starting time and, in the absence of that notice, employees may report at their previous starting times. We find that the first sentence of Proposal 2 is consistent with 5 C.F.R. § 610.121 and that the second sentence of the proposal is inconsistent with 5 C.F.R. § 610.121. Consequently, we find that the first sentence of Proposal 2 is negotiable and the second sentence is nonnegotiable.

Proposal 3 establishes three 8-hour tours of duty and two 12-hour tours of duty. We find that Proposal 3 is 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) of the Statute and, therefore, that the proposal is negotiable.

Proposal 4 provides that any employee who reports to perform overtime work at the request of management will be paid for not less than 4 hours of work at the applicable non-straight time rate. We find that Proposal 4 is inconsistent with 5 U.S.C. § 5542(b)(1) and, therefore, that the proposal is nonnegotiable under section 7117(a)(1) of the Statute.

Proposal 5 provides that, under normal circumstances, no employee will be required to work more than 8 hours a day for more than 3 consecutive workdays. We find that Proposal 5 does not excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute and, therefore, that the proposal is negotiable.

Proposal 6 provides that basic workweek assignments will be scheduled not less than 10 days in advance of the start date, that those assignments will cover periods of not less than 28 days, and that the assignments will include the location and assigned duty point. The proposal also provides that management may alter the basic workweek assignment in other than normal circumstances. We find that Proposal 6 is 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) of the Statute and, therefore, that the proposal is negotiable.

II. Proposal 1

Under [n]ormal [c]ircumstances, management intends to work employees five (5) consecutive days, Monday through Friday, at least eight (8) hours a day.

A. Positions of the Parties

1. Agency

The Agency notes that on March 21, 1991, it informed the Union that, effective April 21, 1991, the Agency would discontinue the use of a "First 40 Hour" tour of duty and would begin using a "First 8 Hour Indefinite" ("first 8-hour") tour of duty.(2) According to the Agency, the parties entered into impact and implementation bargaining over the change but did not reach agreement on six proposals.

The Agency explains that the mission of the Federal Grain Inspection Service (FGIS) is to weigh, inspect and grade American grain to be exported. The Agency states that FGIS is required to provide its services whenever and wherever needs of the grain industry can best be met. According to the Agency, it is difficult to predict workloads and to schedule employees' work efficiently. To better meet industry needs, the Agency decided to use a first 8-hour tour of duty at locations covered by the bargaining unit in this case.

The Agency explains that FGIS provides services to private industry and that private grain companies operate on schedules other than a Monday through Friday basic workweek. The Agency states that depending on the needs of FGIS, some Agency employees are assigned workweeks of Sunday through Thursday, or Tuesday through Saturday, as well as Monday through Friday. The Agency states that, by establishing different work schedules, "FGIS can better utilize its employees and save a large portion of overtime expenses." Id.

The Agency asserts that "a workweek of other than Monday through Friday is not abnormal, unusual, or unforeseen" at FGIS locations, but is the "normal circumstance." Id. The Agency contends that, by restricting the workweek to Monday through Friday, the proposal prevents management from establishing a workweek of other than Monday through Friday except in abnormal, unusual, or unforeseen circumstances.

The Agency cites 5 C.F.R. § 610.121(b)(1), which states:

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.

The Agency contends that if the administrative workweek for all employees must be Monday through Friday, but the actual work to be performed routinely encompasses all 7 days of the week, all work on Saturdays and Sundays would have to be performed on an overtime basis. According to the Agency, "[t]his would seriously handicap the FGIS in carrying out its functions and substantially increase costs in violation of 5 U.S.C. § 6101(a)(3) and 5 [C.F.R.] § 610.121(a)." Id. at 3. The Agency relies on Tidewater Virginia Federal Employees Metal Trades Council and Department of the Navy, Navy Public Works Center, 25 FLRA 3, 4-6 (1987) (Tidewater).

The Agency also contends that Proposal 1 would infringe on management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency concludes that because Proposal 1 is inconsistent with law and Government-wide regulation, and also conflicts with management's right to assign work, it is nonnegotiable.

2. Union

The Union contends that the Agency's proposed work schedule is not a tour of duty within the meaning of 5 C.F.R. § 610.102(h). The Union states that it has been "unable to locate or identify any specific statutory or regulatory authority or case law for such a tour of duty." Response at 4. The Union contends that, "although the Agency is statutorily entitled to modify tour of duty assignments under the limited circumstances specified in 5 U.S.C. § 6101(a)(3) and 5 C.F.R. § 610.121(a), the Agency must bargain with the Union over any elements of a work assignment that do not satisfy the [G]overnment-wide regulations pertaining to 'regular' work schedules." Id. (emphasis in original).

The Union states that the Agency correctly identifies the issue as whether bargaining on the proposal directly interferes with management's right to determine the numbers, types, and grades of employees assigned to a tour of duty under section 7106(b)(1) of the Statute. According to the Union, however, because the Agency's first 8-hour work schedule is not a tour of duty within the meaning of section 7106(b)(1) and applicable regulations, the Statute does not apply and the Agency must bargain. Moreover, the Union argues that the first 8-hour work schedule is not a "regular schedule" within the meaning of the definition of tour of duty in 5 C.F.R. § 610.102(h). Id. at 5. Rather, the Union asserts, that work schedule "is merely an irregular work schedule that might be legitimately imposed by the Agency, but, in any event, is a work schedule that must be bargained over with the Union." Id. (emphasis in original).

The Union asserts that Proposal 1 is an appropriate arrangement under section 7106(b)(3) of the Statute. According to the Union, Proposal 1 is an arrangement because it provides predictability and regularity in employees' lives by providing Monday through Friday work assignments of at least 8 hours each day and addresses the adverse effect of Tuesday through Saturday and Sunday through Thursday assignments.

The Union contends that the proposal does not excessively interfere with any Agency right. According to the Union, the "normal circumstances" qualifier permits the Agency to exercise its rights as needed in abnormal situations. Id. at 7. The Union claims that the Agency would retain substantial flexibility to assign work. The Union asserts that when balanced against the adverse impact that irregular scheduling has on the lives of employees, the benefits of the proposal clearly outweigh the minimal limitation on the right of management to assign work.

The Union argues that law and regulation permit deviations from the standard tours of duty only when the Agency can show that it would be seriously handicapped in carrying out its functions or that costs would be substantially increased. The Union contends that Proposal 1 does not seriously handicap the Agency in carrying out its functions or substantially increase its costs. The Union asserts that nothing in the demands or needs of the grain industry has changed within the past 5 years that warrants a corresponding change in the services provided by FGIS. According to the Union, "[t]he Agency has not offered the slightest suggestion or furnished any evidence that any of the Union's proposals would cause the Agency's costs to be increased at all, much less substantially." Id. at 9 (emphasis in original, footnote omitted). The Union concludes that "the Agency's argument that this proposal will substantially increase its costs is patently incorrect and inadequate and should be rejected." Id. at 10.

The Union claims that inclusion in the proposal of the phrase "under normal circumstances" permits the Agency to comply with applicable law and regulation. The Union defines the phrase "normal circumstances" used in Proposal 1 and other proposals to mean any circumstances that are not "abnormal, unusual or unforeseen." Id. at 2. The Union asserts that if a situation is either abnormal, unusual, or unforeseen, the Agency can deviate from the proposed terms. The Union contends that Proposal 1 does not adversely affect the mission of the Agency. According to the Union, the proposal contains the term "'normal circumstances' to avoid any such impact on the Agency['s mission]." Id.

The Union further asserts that the Agency is incorrect in characterizing weekend work to be as normal as work during the week. According to the Union, "[t]he Monday [through] Friday workweek is now and, for many years, has been the 'normal circumstances' of work demands by the industry served by the Agency." Id. (footnote omitted). The Union notes that the Agency only objects to the requirement of a Monday through Friday workweek. The Union also notes the Agency's statement that grain exporters may work on other than a Monday through Friday basic workweek. The Union interprets the Agency's statement as an acknowledgement that Monday through Friday is the normal workweek in the industry. The Union contends, therefore, that Proposal 1 does not affect the Agency's ability to carry out its mission.

B. Analysis and Conclusions

For the following reasons, we find that Proposal 1 is consistent with 5 C.F.R. § 610.121(a). We also find that the proposal is 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) of the Statute. We conclude, therefore, that Proposal 1 is negotiable.

1. Applicable Government-wide Regulations

The Agency claims that Proposal 1 is inconsistent with 5 C.F.R. § 610.121. The Authority has determined that 5 C.F.R. § 610.121 is a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute. See National Association of Government Employees, SEIU, AFL-CIO and Veterans Administration, Veterans Administration Medical Center, Department of Memorial Affairs, 40 FLRA 657, 661 (1991) (Department of Memorial Affairs).

Section 610.121(a) implements 5 U.S.C. § 6101(a)(3)(A), which requires an agency to schedule employees' tours of duty not less than 7 days in advance, except when the head of the agency determines that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased. See id. at 660-61. The Authority has noted that 5 C.F.R. § 610.121(b)(1) requires that agencies: (1) schedule employees' work so as to accomplish the agency's mission; and (2) schedule administrative workweeks to correspond with actual work requirements. The Authority has also held that 5 C.F.R. § 610.121(b) is qualified by 5 C.F.R. § 610.121(a), which directs agency heads to establish Monday through Friday work schedules except upon a determination that the agency would be seriously handicapped in carrying out its functions or that costs would be substantially increased. See, for example, U.S. Department of the Navy, Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 39 FLRA 590, 604 (1991).

The threshold issue as to Proposal 1 is whether the proposal is inconsistent with 5 C.F.R. § 610.121(a) because it would preclude management from changing the prescribed Monday through Friday workweek when the Agency has determined that it would be seriously handicapped in carrying out its functions or that costs would be substantially increased.(3) A proposal is inconsistent with 5 C.F.R. § 610.121(a) if it establishes an exception to the requirement for a Monday through Friday workweek that is narrower or more restrictive than the regulatory exception. See Service and Hospital Employees International Union, Local 150 and Veterans Administration Medical Center, Milwaukee, Wisconsin, 35 FLRA 521, 530-31 (1990). See also Fraternal Order of Police, Lodge 1F (R.I.) Federal and Veterans Administration, Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944, 950 (1988). We find that the proposal is consistent with the regulation.

As noted above, the Union defines the phrase "normal circumstances" used in Proposal 1 and other proposals to mean any circumstances that are not "abnormal, unusual or unforeseen." Response at 2. The Union states that, under Proposal 1 and the other proposals, "if a situation is either abnormal, unusual or unforeseen, it is not normal, and the Agency can deviate from the proposed terms." Id. at 3 (emphasis in original). The Union explains that "in every case in which the 'normal circumstances' qualifier is used, it is intended to permit the Agency to abide by applicable law and [G]overnment-wide regulations." Id. We find that the Union's explanation is consistent with the wording of the proposal and we will adopt that interpretation for purposes of this decision.

Interpreted in this manner, the terms of the proposal are sufficiently broad to include the exception in 5 C.F.R. § 610.121(a). By permitting management to change the Monday through Friday workweek in abnormal, unusual or unforeseen circumstances, the proposal would allow management to alter its regular workweek when it determines that it would be seriously handicapped in carrying out its functions or where costs would be substantially increased by adhering to the established schedule. In other words, circumstances in which an agency determines that it must change work schedules because it will be seriously handicapped in carrying out its functions or because costs will be substantially increased are abnormal, unusual or unforeseen circumstances. See American Federation of Government Employees, Local 1799, AFL-CIO and U.S. Army, Aberdeen Proving Ground, Maryland, 26 FLRA 926, 928 (1987) (Aberdeen Proving Ground).

The Agency does not dispute the Union's claim that the Monday through Friday workweek has been the regularly scheduled workweek of FGIS and the industry served by FGIS. Moreover, as the Union points out, the Agency has offered no evidence that the use of a Monday through Friday workweek, under normal circumstances, would result in substantially increased costs. Specifically, there is no evidence that the use of a Monday through Friday workweek would result in substantially increased costs compared either to previous use of such a schedule or to the use of the first 8-hour work schedule. The Agency merely claims that unless it is able to schedule workweeks other than a Monday through Friday workweek, it will be required to pay overtime. The Agency has also provided no evidence that it would be seriously handicapped in carrying out its functions if it were required, in normal circumstances, to adhere to a Monday through Friday workweek.

We conclude, therefore, that by prescribing a Monday through Friday workweek and allowing management to change that workweek in abnormal, unusual or unforeseen circumstances, Proposal 1 is consistent with 5 C.F.R. § 610.121(a). Compare National Association of Government Employees, Local R14-52 and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 44 FLRA No. 61 (1992), slip op. at 7 (Red River Army Depot) (proposal precluding management from changing work schedules to avoid the payment of overtime was inconsistent with 5 C.F.R. § 610.121(a) because the proposal did not allow management to change work schedules where management determined that it would be seriously handicapped in carrying out its functions or costs would be substantially increased).

2. Right to Assign Work

Proposal 1 prescribes a normal Monday through Friday workweek of at least 8 hours each day and establishes a criterion governing management's decision to implement workweeks that include the assignment of work on Saturday or Sunday.

Management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what position the duties will be assigned. See American Federation of Government Employees, Local 85 and Veterans Administration Medical Center, Leavenworth, Kansas, 32 FLRA 210, 215-16 (1988) (Leavenworth). See also 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).

The right to assign work under section 7106(a)(2)(B) of the Statute includes the right to determine when work assignments will be done. Because the determination of employees' daily work schedules, that is, the employees' daily starting and quitting times, constitutes a determination of the length of the workday and when during the day assigned work will be performed, the decision as to when employees will begin and end the workday constitutes an exercise of management's right to assign work under section 7106(a)(2)(B). See National Weather Service, 37 FLRA at 399-400. Similarly, because the determination of employees' basic workweeks constitutes a determination of when during the week assigned work will be performed, the decision as to when employees will begin and end the workweek, for example, Tuesday through Saturday, also constitutes an exercise of management's right to assign work under section 7106(a)(2)(B). Consequently, we find that management's right to assign work includes the right to determine that employees will have, for example, a Monday through Friday or a Tuesday through Saturday workweek of at least 8 hours each day.

Moreover, proposals that prescribe substantive criteria governing the exercise of management's right to assign work under section 7106(a)(2)(B) directly interfere with that right. See, for example, Department of Memorial Affairs, 40 FLRA at 671 (1991). Proposal 1 requires that management will, under normal circumstances, establish a Monday through Friday workweek of at least 8 hours each day, and limits to abnormal, unusual or unforeseen circumstances management's decision to change that workweek. Accordingly, consistent with National Weather Service and Department of Memorial Affairs, we find that Proposal 1 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

2. Appropriate Arrangement

The Union claims that Proposal 1 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. In National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-35 (1986) (Kansas Army National Guard), the Authority established an analytical framework for evaluating proposals intended to constitute appropriate arrangements. Specifically, to determine whether a proposal constitutes an appropriate arrangement, we will examine whether the proposal is: (1) intended by the Union 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 rights. In assessing whether a proposal excessively interferes with a management right, we balance the competing needs of managers and employees.

Applying that analytical framework to this proposal, we find that Proposal 1 is intended as an arrangement for employees adversely affected by the Agency's exercise of its right to assign work. According to the Union, Proposal 1 is intended to provide predictability and certainty in employees' nonduty time by establishing a normal Monday through Friday workweek of at least 8 hours each day. The Union claims that because the proposal would address the adverse effects that the Tuesday through Saturday and Sunday through Thursday workweeks would have on the nonduty time of employees, the proposal is an arrangement under the Statute. We also note that the proposed work schedule would benefit employees by limiting the circumstances under which they could be required to work on weekends. We find that Proposal 1 is intended as an arrangement for employees adversely affected by management's right, under section 7106(a)(2)(B), to assign work.

Proposal 1 would benefit employees by ensuring that, except in abnormal, unusual or unforeseen circumstances, they would work a Monday through Friday workweek of at least 8 hours each day, thus allowing them, with some certainty and predictability, to plan and schedule their nonduty time. As to the burden imposed by the proposal on management's right to assign work, it is undisputed that the needs of the grain exporting industry determine when employees work. The Agency contends that management needs flexibility in scheduling employees' workweeks so as to be able to fulfill its mission. According to the Agency, employees must be available when they are needed and Proposal 1 restricts management's ability normally to schedule employees to work on Saturday and Sunday.

However, the Union claims that Proposal 1 reflects the Agency's previous work scheduling practices and that the Agency's primary purpose for changing those practices and establishing a first 8-hour work schedule is to avoid the payment of overtime. The Agency does not dispute the Union's claims. We interpret the Union's claims as meaning that the burden imposed on management by Proposal 1 is that management is limited normally to assigning work on Saturday and Sunday only on an overtime basis. By establishing a normal Monday through Friday workweek of at least 8 hours each day, the proposal does not preclude management, in normal circumstances, from assigning work to employees on Saturday and Sunday to provide their services to the grain exporting industry or, in abnormal, unforeseen, or unusual circumstances, from changing the basic workweek. Rather, the effect of the proposal is to require the Agency, in normal circumstances, to assign work on Saturday and Sunday only on an overtime basis.

We conclude that the benefit to employees of the certainty and predictability of a normal Monday through Friday workweek of at least 8 hours each day outweighs the burden imposed by the proposal on management's right to assign work. Under Proposal 1, management is not precluded from assigning work on Saturday and Sunday even in normal circumstances; the proposal merely requires the Agency to assign that work on an overtime basis. Moreover, management is not precluded by the proposal from establishing other than a Monday through Friday workweek of at least 8 hours each day in abnormal, unusual or unforeseen circumstances. Consequently, while management's ability to assign work in normal circumstances is limited, management retains the ability, in normal and other than normal circumstances, to require employees to work as needed by the grain exporting industry. We find, therefore, that Proposal 1 does not excessively interfere with management's right to assign work. Consequently, we conclude that Proposal 1 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. See Red River Army Depot, 44 FLRA No. 61, slip op. at 8-10.

Accordingly, because Proposal 1 is consistent with an applicable Government-wide regulation within the meaning of section 7117(a)(1) and is an appropriate arrangement within the meaning of section 7106(b)(3), we conclude that Proposal 1 is negotiable.

II. Proposal 2

Under [n]ormal [c]ircumstances, each employee's starting and quitting times for a workweek will be scheduled in advance of the workweek not later than 1400 hours on the Thursday preceding the workweek. In all other circumstances, management will notify an employee of an altered starting time not less than twenty-four (24) hours before such starting time, without which notice the employee may report and work his pre-scheduled shift.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 2 is inconsistent with law and Government-wide regulation and is nonnegotiable under section 7117 of the Statute. The Agency notes that it has established a first 8-hour tour of duty, under which the first 8 hours of an employee's workday is paid at a straight time rate and any additional hours of work during that day are paid at overtime rates. The Agency states that under that tour of duty, the starting time each day may vary, depending upon the needs of the Agency, which are in turn dependent upon industry requirements. The Agency claims that due to the nature of the work, daily starting times normally are not known until late in the afternoon the day before. Therefore, the Agency concludes that it would be impossible for management to notify an employee 24 hours in advance of a change in his or her starting time for the following day.

The Agency asserts that Proposal 2 "effectively negates the 'First 8 Hour Indefinite' tour of duty in this situation because it requires an established beginning time for work each day unless the employee is provided 24 hours' advance notice of the change in starting time." Statement at 5. The Agency relies on the provisions of 5 U.S.C. § 6101(a)(3) and 5 C.F.R. § 610.121. The Agency states that "[c]onsistent with the foregoing law and regulations, FGIS has established the 'First 8 Hour Indefinite' as the appropriate tour of duty for employees. That tour of duty is an appropriate tour as determined by the Office of Personnel Management (OPM) in a letter dated March 5, 1984." Statement at 6, Exhibit 1. The Agency contends that proposals that prevent the Agency from changing work schedules to avoid the payment of overtime in circumstances when the Agency determines that the requirements of law and regulation are met are nonnegotiable.

2. Union

The Union asserts that Proposal 2 pertains only to the issue of how much advance notice the Agency must provide to each employee as to the employee's starting and quitting times during the subsequent workweek. According to the Union, a requirement of advance notice is negotiable in the absence of a demonstration by the Agency that it would have insufficient advance knowledge to provide the notice to the employees.

The Union disputes the Agency's claim that it is impossible to notify an employee 24 hours in advance of a change in starting time for the following day. The Union again asserts that nothing in the workplace has changed during the past 5 years. The Union contends that "[t]he reason, purely and simply, is a desire of the Agency to reduce its overtime costs by gaining the maximum flexibility over scheduling." Response at 14-15 (emphasis in original).

The Union claims that the proposal does not affect the Agency's right to assign work under section 7106(a)(2)(B) of the Statute, but instead establishes a negotiable procedure under section 7106(b)(2) of the Statute. The Union asserts that the proposal would cause no serious handicap to the Agency and would result in no increase in costs above the current level. Moreover, the Union states that if an unusual situation should arise, that situation would constitute a deviation from normal circumstances and the Agency could modify an employee's work schedule without the advance notice.

The Union contends that the Authority has misinterpreted the law regarding the advance notice requirement. The Union cites the Authority's decisions in Tidewater Virginia Federal Employees Metal Trades Council and Department of the Navy, Navy Public Works Center, Norfolk, Virginia, 25 FLRA 3, 6 (1987) (Navy Public Works Center), and in National Association of Government Employees, Local R7-23 and Department of the Air Force, Scott Air Force Base, Illinois, 23 FLRA 753 (1986). According to the Union, the Authority interprets governing law to mean that an agency shall schedule employees' tours of duty not less than 7 days in advance. The Union asserts that governing law provides that "the agency shall schedule employees' tours of duty in advance, and that the tours of duty shall be for periods of not less than one week." Response at 16.

The Union quotes 5 U.S.C. § 6101(a)(3)(A), which provides, in relevant part, as follows:

Except when the head of an Executive agency . . . determines that his organization would be seriously handicapped in carrying out its functions or that costs would be substantially increased, he shall provide, with respect to each employee in his organization, that--

(A) assignments to tours of duty are scheduled in advance over periods of not less than 1 week . . . .

The Union argues that "[t]he Authority interprets the clause 'not less than 1 week' to apply to the phrase 'scheduled in advance.' The Union contends, instead, that Congress intended the clause to apply to the phrase 'over periods of.'" Response at 16-17.

The Union contends that its interpretation of 5 U.S.C. § 6101(a)(3)(A) is correct and, as a result, the law does not require the Agency to give any specific amount of notice in advance of a workweek. Therefore, the Union claims that the Agency can bargain over the amount of advance notice without any concern over violating applicable law or Government-wide regulation.

The Union contends that the Agency's reliance on a letter from OPM regarding its proposed schedules is misplaced because the guidance and opinion of the letter have not been promulgated under the Administrative Procedure Act and do not constitute Government-wide regulations. According to the Union, the letter is nothing more than an unofficial opinion of OPM.

The Union argues that, in any event, Proposal 2 is an appropriate arrangement because it avoids or minimizes the adverse effect that the Agency's proposed schedule change will have on employees' lives. The Union states that under the Agency's proposed plan, employees will not be sure of their starting times and, therefore, will not be able to arrange for child-care, personal appointments, and transportation to the duty site. The Union claims that the arrangement is appropriate because it does not excessively interfere with the Agency's right to assign work. According to the Union, the exception for normal circumstances provides substantial flexibility to the Agency to deviate from the terms of the proposal. The Union states that the benefit to the employees of greater stability and predictability in their lives clearly outweighs the minimal effect of the proposal on the Agency's right to assign work.

The Union also contends that even in other than normal circumstances, employees should be entitled to at least 24 hours' notice of a change in starting and quitting times. According to the Union, the adverse effect on the employees of less notice is substantially greater than the effect on the Agency. For the above-stated reasons, the Union asserts that Proposal 2 is a negotiable appropriate arrangement.

B. Analysis and Conclusions

For the following reasons, we find that the first sentence of Proposal 2 is negotiable and the second sentence of the proposal is nonnegotiable.

1. The First Sentence of Proposal 2

The Agency claims that Proposal 2 is nonnegotiable under section 7117(a)(1) of the Statute because the proposal is inconsistent with 5 C.F.R. § 610.121(a). Specifically, the Agency claims that because management would be required to establish work schedules in advance and would be precluded, under normal circumstances, from changing those schedules, the proposal would preclude management from establishing the first 8-hour work schedule. However, as we noted in connection with Proposal 1, the question of whether the first 8-hour schedule is consistent with applicable regulations is not at issue. The only question is whether, by requiring management to schedule each employee's starting and quitting times for the upcoming workweek not later than 2:00 p.m. on the Thursday before that workweek, except where abnormal, unusual or unforeseen circumstances exist, the first sentence of Proposal 2 is inconsistent with 5 C.F.R. § 610.121(a).

In our disposition of Proposal 1, we found that, by prescribing a Monday through Friday workweek of at least 8 hours each day, except where abnormal, unusual or unforeseen circumstances exist, the proposal was consistent with 5 C.F.R. § 610.121(a) because the proposal's exception for abnormal, unusual or unforeseen circumstances was sufficiently broad to include the regulatory exception. Specifically, we found that, because the proposal would allow management to use a work schedule other than a Monday through Friday work schedule of at least 8 hours each day in abnormal, unusual or unforeseen circumstances, the proposal would allow management to change employee work schedules, consistent with 5 C.F.R. § 610.121(a), where management determined that to maintain existing schedules would seriously handicap the Agency in carrying out its functions or would impose substantially increased costs.

Proposal 2 requires management to schedule each employee's starting and quitting times for the upcoming workweek not later than 2:00 p.m. on the Thursday before that workweek, except where abnormal, unusual or unforeseen circumstances exist. The proposal precludes management from giving employees less notice of their schedules for the upcoming week than is prescribed by the proposal and from revising work schedules once employees have been notified of those schedules, unless abnormal, unusual or unforeseen circumstances exist. We find that the exception to the requirement for the establishment of work schedules during the preceding workweek established by the first sentence of Proposal 2--namely, that those schedules may be changed when abnormal, unusual or unforeseen circumstances exist--is, like the exception to Proposal 1, sufficiently broad to include circumstances that would seriously handicap the Agency in carrying out its functions or that would impose substantially increased costs.

Moreover, as we noted in our disposition of Proposal 1, the Agency has produced no evidence that requiring management, under normal circumstances, to establish work schedules during the preceding workweek would seriously handicap the Agency in carrying out its functions or would impose substantially increased costs. The proposal would not preclude the Agency from requiring employees to report before the start, or to stay after the close, of the previously scheduled workday in order to meet the needs of the Agency in providing service to the grain exporting industry. There is no evidence in the record demonstrating that the overtime costs that would result from requiring employees to report for work before the start, or stay after the close, of the previously scheduled workday would impose substantially increased costs on the Agency. There is also no evidence in the record demonstrating that requiring employees to report before the start, or stay after the close, of the previously scheduled workday to perform work would seriously handicap the Agency in carrying out its functions.

By allowing management to give employees less notice of their schedules for the upcoming week than is prescribed by the proposal, and to revise work schedules once employees have been notified of those schedules, where abnormal, unusual or unforeseen circumstances exist, we find that the first sentence of Proposal 2 would permit management to change employee work schedules, without advance notice, where previously established schedules would seriously handicap the Agency in carrying out its functions or would substantially increase costs. Consequently, we conclude that the first sentence of Proposal 2 is consistent with 5 C.F.R. § 610.121(a). Because the first sentence of Proposal 2 would permit management to change work schedules as provided in the exception to 5 C.F.R. § 610.121(a), we do not need to address the Union's claim that 5 C.F.R. § 610.121(a) does not provide for 7 days' advance notice of changes in employees' work schedules.

2. The Second Sentence of Proposal 2

The second sentence of Proposal 2 would require management to give employees 24 hours' advance notice of a change in previously established work schedules when abnormal, unusual or unforeseen circumstances exist. We have interpreted the exception for abnormal, unusual or unforeseen circumstances as including the regulatory exception for circumstances that would seriously handicap the Agency in carrying out its functions or that would substantially increase costs. Therefore, we interpret the second sentence of the proposal as requiring management to give employees 24 hours' advance notice of a change in an established work schedule even where management determines that it must change that schedule because the maintenance of the schedule would seriously handicap the Agency in carrying out its functions or would substantially increase costs.

Regardless of whether the Union is correct about the absence of a requirement for advance notice in 5 C.F.R. § 610.121(a), it is clear that the regulation permits an agency to change employees' work schedules without notice where it is determined that such a change is necessary so that the agency will not be seriously handicapped in carrying out its functions or will not be forced to incur substantially increased costs. Consequently, because the second sentence of Proposal 2 would require management to notify employees 24 hours in advance of any change in an established work schedule, even where management has determined that the change in schedule is required so that the Agency would not be seriously handicapped in carrying out its functions or would not incur substantially increased costs, we find that the second sentence of Proposal 2 is inconsistent with 5 C.F.R. § 610.121(a). See International Brotherhood of Electrical Workers, Local 2080 and Department of the Army, U.S. Army Engineer District, Nashville, Tennessee, 32 FLRA 347, 353-54 (1988). Accordingly, we conclude that the second sentence of Proposal 2 is nonnegotiable under section 7117(a)(1) of the Statute because the sentence is inconsistent with a Government-wide regulation.

IV. Proposal 3

The daily shifts will be as follows:

8 hour shifts:

0700 - 1500

1500 - 2300

2300 - 0700

12 hour shifts:

0700 - 1900

1900 - 0700

These times are subject to change by management should the workload require it, and in abnormal, unusual or unforeseen circumstances.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 3 is nonnegotiable because it interferes with management's rights to assign work under section 7106(a)(2)(B) of the Statute and to determine the numbers, types, and grades of personnel assigned to a tour of duty under section 7106(b)(1) of the Statute. The Agency states that because Proposal 3 deals with the numbers, types, and grades of employees assigned to a tour of duty and the Agency elected not to negotiate over the proposal, the Agency is under no obligation to bargain. The Agency also contends that Proposal 3 is nonnegotiable because it interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

2. Union

The Union contends that starting and quitting times are legitimate issues for bargaining. The Union argues that the Agency's contention about the unpredictability of the nature of the work is not the real reason for claiming that the proposal is nonnegotiable, but the Agency's desire to reduce overtime pay to employees. The Union states that the Agency's cost-reduction "motive" does not relieve the Agency of its duty to bargain "over the impact and implementation of starting and quitting times." Response at 21.

The Union states that the Agency is free to change the times of the shifts in abnormal, unusual, or unforeseen circumstances. The Union asserts that under the proposal, the Agency also would be free to assign work to any employees it chooses and in any numbers, types, or grades. According to the Union, Proposal 3 has no effect whatsoever on management's rights to assign work or to determine the numbers, types, and grades of personnel assigned to a tour of duty. The Union claims that "[t]he Agency's arguments are clearly specious and framed merely to avoid bargaining on a proposal which affects only the starting and quitting times of shifts, not of particular employees." Id. at 22.

The Union asserts that even if Proposal 3 directly interferes with the Agency's right to assign work, it is negotiable because it is an appropriate arrangement. The Union contends that the proposal is an arrangement because it avoids or minimizes the adverse effect on employees of irregular work schedules. According to the Union, the arrangement is appropriate because the benefit of providing regularity and predictability to the employees significantly outweighs the minimal intrusion on any management right. The Union concludes that Proposal 3 does not excessively interfere with a management right and, therefore, it is an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

For the following reasons, we find that Proposal 3 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. We also find that Proposal 3 does not directly interfere with management's right, under section 7106(b)(1) of the Statute, at the election of the Agency, to determine the numbers, types, and grades of employees assigned to a tour of duty. We conclude, however, that Proposal 3 constitutes a negotiable appropriate arrangement within the meaning of section 7106(b)(3) of the Statute because it does not excessively interfere with management's rights under section 7106(a)(2)(B) of the Statute.

1. Right to Assign Work

By its terms, Proposal 3 prescribes the starting and quitting times of various 8-hour and 12-hour shifts and permits management to change those times where a change is required by the demands of the Agency's workload and in abnormal, unusual or unforeseen circumstances. Proposal 3, therefore, prescribes employees' tours of duty and establishes a criterion governing changes in those tours of duty. Proposals that determine the starting and quitting times of employees' workdays directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See National Weather Service, 37 FLRA at 399-400. See also Leavenworth, 32 FLRA at 215-16. Moreover, proposals or provisions that establish substantive criteria governing the exercise of management's right to assign work directly interfere with the exercise of that right. See Department of Memorial Affairs, 40 FLRA at 671. Consequently, because Proposal 3 prescribes the starting and quitting times of employees' tours of duty and establishes a substantive criterion governing changes in those tours of duty, we find, consistent with National Weather Service and Department of Memorial Affairs, that Proposal 3 directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

2. Numbers, Types, and Grades of Employees Assigned to a Tour of Duty

Section 7106(b)(1) of the Statute provides that an agency may elect, but is not required, to negotiate "on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty[.]" Proposal 3 prescribes the starting and quitting times for five different tours of duty. The proposal does not, however, prescribe the numbers, the types, or the grade levels of the employees to be assigned to any of those tours of duty. Moreover, there is no evidence in the record that the proposal would affect management's determination of the numbers, types, or grades of employees assigned to those tours of duty. Compare National Weather Service, 37 FLRA at 400 (Authority determined that the union's proposed starting and quitting times would create an overlap between shifts that would, in turn, affect the numbers of employees on duty at that time).

Because the proposal would not determine, or otherwise affect management's determination of, the numbers, types, and grades of employees assigned to the prescribed tours of duty, we find that, in this respect, the proposal does not directly interfere with management's right under section 7106(b)(1) of the Statute. We also find that the proposal is distinguishable from Department of the Air Force, Scott Air Force Base, 33 FLRA 532, 542 (1988), aff'd on other grounds sub nom. National Association of Government Employees, Local R7-23 v. FLRA, 893 F.2d 380 (D.C. Cir. 1990). In that case, the Authority concluded that management's decision to eliminate the shift of an employee and to assign that employee to a different shift constituted an exercise of management's right, under section 7106(b)(1) of the Statute, to determine the numbers of employees assigned to a tour of duty because it increased the numbers of employees on the shift to which the employee was reassigned. As noted above, Proposal 3 prescribes the tours of duty for employees. The proposal would not result in the addition of employees to, or the subtraction of employees from, any other shifts.

3. Appropriate Arrangement

Applying the analytical framework established by Kansas Army National Guard, we find that Proposal 3 is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute. The Union contends that the proposal is intended to mitigate the adverse effects of management's right to establish work schedules by providing certainty and predictability in employees' starting and quitting times. We find that the proposal is an arrangement, within the meaning of section 7106(b)(3), for employees adversely affected by the exercise of management's right to assign work.

As to whether the proposal is an appropriate arrangement, we note that the proposal would require management normally to assign work to employees during the hours prescribed by the specified tours of duty and normally to assign work outside those hours only on an overtime basis. The proposal does not preclude management from requiring employees to report to work before the start, or to stay after the close, of the tours of duty prescribed by the proposal. Moreover, by its terms, the proposal permits management to change the prescribed tours of duty for reasons of workload and in abnormal, unusual or unforeseen circumstances. Consequently, while the proposal would limit management's ability in normal circumstances to assign work, the proposal would not prevent management from assigning employees to report early or stay late in order to meet the needs of the grain exporting industry or from changing employees' tours of duty for reasons of workload or in abnormal, unusual or unforeseen circumstances in order to provides services to that industry. The burden imposed on management by the proposal, therefore, is the requirement that management normally assign work during the specified hours and the requirement that management assign work before and after those hours only on an overtime basis.

We find that Proposal 3 benefits employees by affording them certainty and predictability resulting from established starting and quitting times, so that they can, for example, more easily arrange transportation to and from work. We find that the benefits to employees of established starting and quitting times that are afforded by Proposal 3 outweigh the burden imposed by the proposal on management's right to assign work. Consequently, we conclude that Proposal 3 does not excessively interfere with management's right to assign work. Consequently, we conclude that Proposal 3 constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

V. Proposal 4

Any employee who reports to perform overtime work at the request of management will be paid for not less than four (4) hours of work at the applicable non-straight time rate.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 4 is inconsistent with 5 U.S.C. § 5542(b) and 5 C.F.R. § 532.503(c), which address callback overtime work and provide that the duration of callback overtime work shall be considered at least 2 hours, for overtime pay purposes, when an employee has been required to return to work. The Agency states that the Authority has found that 5 C.F.R. § 532.503(c) is a Government-wide regulation within the meaning of section 7117 of the Statute. The Agency asserts that the Authority has consistently held that proposals that would increase the guaranteed overtime pay in callback situations from 2 hours to a greater number of hours are inconsistent with the above-cited law and regulation.

2. Union

The Union asserts that Proposal 4 is intended to provide reasonable compensation for overtime scheduled on an employee's off-day when the overtime work is cancelled before at least 4 hours are worked. The Union states that 4 hours' overtime pay "is not unreasonable" compensation for the inconvenience that being called back to work causes employees on their day off. Response at 24.

The Union asserts that Congress intended 5 U.S.C. § 5542(b) as a statutory minimum number of hours of overtime pay, and that parties may negotiate a different contractual minimum.

B. Analysis and Conclusions

For the following reasons, we conclude that Proposal 4 is inconsistent with 5 U.S.C. § 5542(b) and, therefore, is nonnegotiable under section 7117(a)(1) of the Statute.

Proposal 4 provides that employees who are called back to perform overtime work will receive a minimum of 4 hours of overtime pay, regardless of the amount of work actually performed. The Union explains that the proposal is intended to provide employees with a minimum of 4 hours of overtime pay when they are called back to work on their days off. The Union's explanation is consistent with the wording of the proposal and we will adopt that interpretation for purposes of this decision. Thus, in certain circumstances, Proposal 4 requires the Agency to guarantee 4 hours of overtime pay to employees who are called back to work outside of their usual tour of duty, even though they may not be required to perform work for 4 hours.

Based on the record in this case, we find that the employees to whom Proposal 4 applies are General Schedule employees. See Exhibit 1 attached to the Agency's Statement of Position and 5 U.S.C. § 5542(a). General Schedule employees are subject to 5 U.S.C. § 5542(b)(1). Consequently, we will decide the negotiability of Proposal 4 under 5 U.S.C. § 5542(b)(1). Because we find the proposal nonnegotiable under 5 U.S.C. § 5542(b)(1), we do not need to address the parties' contentions as to 5 C.F.R. § 532.503(c).

5 U.S.C. § 5542(b)(1) provides that irregular or occasional overtime work performed on a day when work was not scheduled for an employee is deemed at least 2 hours in duration for the purpose of overtime pay. The Authority has consistently interpreted 5 U.S.C. § 5542(b)(1) as prescribing the maximum amount of overtime pay that an employee can receive when the employee works 2 hours or less of call-back overtime. See, for example, International Brotherhood of Electrical Workers, Local 2080, AFL-CIO-CLC and Department of the Army, U.S. Corps of Engineers, Nashville, Tennessee, 10 FLRA 222, 228-29 (1982) (Corps of Engineers, Nashville). See also Fraternal Order of Police, Lodge 1F (R.I.) Federal and Veterans Administration, Veterans Administration Medical Center, Providence, Rhode Island, 32 FLRA 944, 948-49 (1988) (Medical Center, Providence).

By prescribing 4 hours as the minimum number of hours that an employee is deemed to have worked when required to perform unscheduled call-back overtime, Proposal 4 is inconsistent with 5 U.S.C. § 5542(b)(1) because the requirement for 4 hours of overtime pay exceeds the statutory maximum of 2 hours of overtime pay. Therefore, Proposal 4 is nonnegotiable under section 7117(a)(1) of the Statute. See id. at 948-49 (proposal requiring a minimum of 4 hours of overtime for officers called back for court appearances found nonnegotiable under section 7117(a)(1) of the Statute).

We reject the Union's argument that 5 U.S.C. § 5542(b)(1) establishes a statutory minimum that can be exceeded by contract. 5 U.S.C. § 5542(b)(1) provides that "unscheduled overtime work performed by an employee on a day when work was not scheduled for him, or for which he is required to return to his place of employment, is deemed at least 2 hours in duration[.]" As worded, the provision guarantees employees 2 hours of pay at overtime rates when they are called back to duty. In the absence of that statutory authority, employees can only be paid for the time actually worked. Consequently, the provision must be regarded as prescribing the maximum time that may be paid in the absence of the performance of work beyond the 2 hour period. Accord Comp. Gen. No. B-175452 (May 1, 1972) (unpublished). See also Corps of Engineers, Nashville, 10 FLRA at 229.

VI. Proposal 5

Under [n]ormal [c]ircumstances, no employee will be required to work more than eight (8) hours per day for more than three (3) consecutive workdays.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 5 prevents management from assigning overtime work to an employee for more than 3 consecutive days under normal circumstances. The Agency asserts that because the proposal would preclude management from assigning overtime to an employee for more than 3 consecutive days, it excessively interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute. The Agency claims that Proposal 5 is nonnegotiable.

2. Union

The Union states that the purpose of Proposal 5 is to prevent excessive fatigue on the part of employees who may be assigned to work overtime for more than 3 consecutive days. The Union claims that the proposal would "avoid the danger of injury on the job caused by employee exhaustion and fatigue." Response at 25.

According to the Union, the proposal does not limit the amount of overtime that can be assigned; instead, it limits the number of consecutive days than an employee can be required to work overtime. The Union contends that Proposal 5 does not affect the Agency's substantive right to assign work, but merely relates to the procedures to be used by the Agency in determining which employee will be assigned the overtime work. The Union asserts that procedures are negotiable under section 7106(b)(2) of the Statute. The Union maintains that the Agency would retain substantial flexibility to assign required overtime work to employees who have not worked overtime for 3 consecutive days. The Union states that the procedures would relate to which employees will work overtime. The Union contends that the Agency would never be prevented from assigning overtime because other qualified employees could always be found and, if no other employees were available, "a non-normal circumstance would exist and the provision could be waived." Id. at 26.

The Union also asserts that Proposal 5 constitutes an appropriate arrangement because it avoids or minimizes the adverse effects that continuous overtime work can have on employees, while still affording the Agency the flexibility to order the overtime in other than normal circumstances. The Union contends that the Agency is limited in ordering overtime only after the third consecutive day of overtime for the same employee and only under normal circumstances.

B. Analysis and Conclusions

Proposal 5 prevents the Agency, under normal circumstances, from assigning an employee overtime in excess of 8 hours a day for 3 consecutive days. We find that Proposal 5 is negotiable as an appropriate arrangement because it does not excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute.

1. Right to Assign Work

The effect of Proposal 5 is to preclude management, under normal circumstances, ployees for 4 or more days in a row. Management's right to assign work under section 7106(a)(2)(B) of the Statute includes the right to assign overtime. The right to assign overtime includes the right to determine when the overtime will be performed. See Veterans Administration, 40 FLRA at 670-71. Proposals or provisions that limit the duration of overtime assignments directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See 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, Concord), reversed as to other matters sub nom. Department of the Navy, Naval Weapons Station, Concord, California v. FLRA, No. 88-7408 (9th Cir. Feb. 7, 1989); Bremerton Metal Trades Council and Naval Supply Center, Puget Sound, 32 FLRA 643, 645-46 (1988) (Provision 1) (Naval Supply Center, Puget Sound). Because the proposal limits management's right, under normal circumstances, to require overtime for 4 or more consecutive days, we find, consistent with Naval Weapons Station, Concord and Naval Supply Center, Puget Sound, that the proposal directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

2. Appropriate Arrangement

According to the Union, Proposal 5 is intended as an appropriate arrangement for employees who work overtime. Applying the analytical framework set forth in Kansas Army National Guard to Proposal 5, we find that the proposal is intended as an arrangement for employees adversely affected by the Agency's exercise of its right to assign work. The Union claims that the proposal is intended to lessen the fatigue that results when employees are required to work overtime on successive days and "to avoid the danger of injury on the job caused by employee exhaustion and fatigue." Response at 25. The Union also claims that the proposal does not preclude management from assigning other qualified employees to perform the work that it intended to assign to the employee who has already worked 3 straight days of overtime. The Union states that, if no other qualified employees are available, an abnormal situation would exist and management would be able to require the employee to work more than 3 straight days of overtime.

Because the Union's explanation of the proposal is consistent with the wording of the proposal, we will adopt that interpretation for purposes of this decision. Consequently, we find that Proposal 5 is an arrangement for employees adversely affected by the exercise of management's right to assign work under section 7106(a)(2)(B) of the Statute.

As interpreted above, Proposal 5 benefits employees by providing relief from the fatigue that would result when employees work more than 3 straight days of overtime and from the risk of injury caused by that fatigue. We find, moreover, that Proposal 5 does not impose a significant burden on management's right to assign work. Because the proposal does not preclude management from assigning the overtime work to qualified employees other than an employee who has already worked 3 straight days of overtime, and does not preclude the assignment of a fourth day of overtime when no other qualified employees are available, the proposal does not prevent management from assigning someone who is qualified to perform the work that needs to be done on overtime.

Balancing the benefit afforded employees by Proposal 5 against the limited burden imposed on management's right to assign work, we find that Proposal 5 does not excessively interfere with management's right to assign work. Consequently, we find that Proposal 5 is an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. Accordingly, we find that Proposal 5 is negotiable. Compare Naval Weapons Station, Concord, 32 FLRA at 1040-43 (burden imposed on management's right to assign overtime by provision that prevented management from assigning an employee overtime in excess of 4 hours per day, even where the particular skills of that employee are needed, held to outweigh benefit to employees of lessened fatigue).

VII. Proposal 6

Basic workweek assignments will be scheduled not less than ten (10) days in advance of the start date, will cover periods of not less than twenty-eight (28) days, and will include the location and assigned duty point. Management may alter the basic workweek assignment in other than [n]ormal [c]ircumstances.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 6 is inconsistent with 5 U.S.C. § 6101 and 5 C.F.R. § 610.121 and, therefore, is nonnegotiable.

The Agency states that the term "basic workweek" as defined by the Union for its use in the proposal has the same meaning as that contained in 5 C.F.R. § 610.102(c), which states:

"Basic workweek," for full-time employees, means the 40-hour workweek established in accordance with Section 610.111.

The Agency refers to a letter from OPM, dated March 5, 1984, in which OPM indicates that the "First 8 Hour Indefinite" tour of duty is a "legitimate tour of duty 'basic workweek'" for General Schedule employees. Statement at 12. See also Exhibit 1 attached to the Agency's Statement. The Agency states that insofar as defining the basic workweek is concerned, the Union's proposal is consistent with applicable regulations.

However, the Agency asserts that the Union's proposal specifically requires that basic workweek assignments be scheduled not less than 10 days in advance and cover periods of not less than 28 days. The Agency contends that regardless of normal or other than normal circumstances, the proposal is inconsistent with 5 U.S.C. § 6101 and 5 C.F.R. § 610.121. The Agency asserts that, for the reasons stated in its position on Proposals 1 and 2, Proposal 6 is nonnegotiable.

2. Union

The Union contends that Proposal 6 is consistent with past and present scheduling practices at the field offices covered by the proposal. The Union asserts that the Agency has a longstanding practice of providing 10 days' advance notice of starting times, shifts and locations of work over a 42-day period. The Union claims that because the Agency is continuing the practice, the proposal cannot interfere with any management right. The Union states that the term "basic workweek" in the proposal has the same meaning as in 5 C.F.R. § 610.102(c).

The Union contends that, for the reasons stated in its position on Proposal 2, the Agency must schedule the workweek assignment in advance so long as the Agency is not seriously handicapped or subject to a substantial increase in costs. The Union asserts that the Authority misinterpreted 5 U.S.C. § 6101(a)(3)(A) and 5 C.F.R. § 6101.121(a)(1) in its decision in Tidewater. According to the Union, the proposed 10-day advance notification of a workweek schedule does not violate law or regulation. The Union also claims that both the law and the regulation provide a minimum, but not a maximum, tour of duty assignment.

The Union also contends that Proposal 6 is an appropriate arrangement because the proposal avoids or minimizes the adverse effects of management's right to assign work with little or no advance notice to the employees. The Union asserts that the proposal addresses the resultant unpredictability and serious detrimental effect on employees' personal lives that changes with little or no advance notice create. The Union argues that because the Agency's current practice is to post work schedules 10 days in advance covering a period of 42 days, the benefits of the proposal to the employees must outweigh the questionable negative impact on the Agency. The Union notes that under abnormal circumstances, the proposal permits the Agency to deviate from the proposal. Accordingly, the Union asserts that the proposal does not excessively interfere with the Agency's right to assign work. Therefore, the Union contends that the proposal constitutes a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

Proposal 6 provides employees 10 days' advance notice of basic workweek assignments, including the starting times, shifts, location and assigned duty point, for periods of not less than 28 days. The proposal also provides that management may change the basic workweek assignment under other than normal circumstances. We find that Proposal 6 is consistent with 5 C.F.R. § 610.121(a). We also find that Proposal 6 is an appropriate arrangement because it does not excessively interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. Consequently, we find that Proposal 6 is negotiable.

1. Applicable Government-wide Regulations

Proposal 6 requires management to establish employee work schedules 10 days before those schedules are to start and precludes management from changing those schedules unless there are abnormal, unusual or unforeseen circumstances. Because the proposal requires 10 days' advance notice, we do not need to reach the issue of whether 5 C.F.R. § 610.121 contains a minimum 7-day advance notice requirement. Under either the Union's or the Authority's interpretation of that regulation, the 10-day advance notice requirement established by the proposal is consistent with the regulation, apart from any consideration of whether the proposal permits the Agency to change employee work schedules without notice where maintenance of the existing schedule would seriously handicap the Agency in carrying out its functions or would substantially increase costs. See Aberdeen Proving Ground, 26 FLRA at 928.

Moreover, because Proposal 6 provides that management may change established work schedules when abnormal, unusual or unforeseen circumstances exist, we find, for the reasons stated in our disposition of Proposals 1 and 2, that the proposal is consistent with 5 C.F.R. § 610.121(a).

2. Right to Assign Work

Proposal 6 requires that: (1) management establish work schedules 10 days in advance of the start date; (2) the work schedules cover at least 28 days; and (3) the schedules be changed only when abnormal, unusual, or unforeseen circumstances exist. Proposal 6, therefore, provides criteria governing management's decision to change established work schedules. Proposals that provide criteria governing the decision to change work schedules directly interfere with management's right to assign work. See our discussions of Proposals 1 and 3 above. Because Proposal 6 would limit management's ability to change established work schedules in other than normal circumstances, we find, consistent with our dispositions of Proposals 1 and 3, that Proposal 6 directly interferes with management's right to assign work.

3. Appropriate Arrangement

The Union claims that Propo