28:0493(66)NG - AFGE, LOCAL 1770 VS ARMY, FORT BRAGG DEPENDENT SCH



[ v28 p493 ]
28:0493(66)NG
The decision of the Authority follows:


28 FLRA NO. 66


AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1770

                      Union

            and

DEPARTMENT OF THE ARMY
FORT BRAGG DEPENDENT SCHOOLS
FORT BRAGG, NORTH CAROLINA

                      Agency

Case No. 0-NG-1030

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed under section 7105 (a) (2) (D) and (E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of the following provisions of a locally negotiated agreement disapproved by the Agency head under section 7114(c) of the Statute. 1

II. Provision 1

Article Seven - Equal Employment Opportunity

Section 4.

The Employer will carefully consider and adjudicate complaints of discrimination filed through the Agency EEO (Equal Employment Opportunity) procedure or the Negotiated Grievance procedure.

Section 7.

Both Union and Management retain all rights existing under applicable statutory appeals procedures concerning an EEO complaint. 

Section 8.

The Union will have the right to have reasonable representation, which will normally not exceed the number of Employer representatives, present at all formal discussions between the Employer and an Employee concerning an EEO complaint.

A. Positions of the Parties

The Agency states as to Provision 1 and certain other provisions at issue in this case, that it may or may not be negotiable depending upon the intent of the parties. Agency Statement of Position at 7. In particular, the Agency indicates that it would approve Sections 4, 7, and 8 if the Union accepts its explanation of their meaning. According to the Agency, these sorts of disputes are better handled by the local parties than in the contract disapproval process.

The Agency contends that, to the extent that Section 4 would allow an employee to file an EEO complaint through the negotiated grievance procedure over a dispute arising out of an employee's personal services contract, that section is nonnegotiable because it conflicts with the Contract Disputes Act of 1978, 41 U.S.C. 601-13. The Agency takes the position that in enacting the Contract Disputes Act, Congress intended that the procedures contained in that Act be the exclusive method for resolving disputes arising out of Government contracts.

The Agency claims that, as to Section 7, individuals employed under 20 U.S.C. 241 have no statutory right to appeal matters concerning an EEO complaint to the Merit Systems Protection Board (MSPB), and that the only applicable statutory appeal procedure available to these individuals is through the Agency EEO complaint procedure to the Equal Employment Opportunity Commission (EEOC).

The Agency cites Internal Revenue Service, Fresno Service Center, Fresno, California v. FLRA, 706 F.2d 1019 (9th Cir. 1983), which held that a union has no right under section 7114(a)(2)(A), pertaining to formal discussion, to be present at EEO precomplaint conciliation conferences. The Agency also refers to applicable regulations pertaining to such precomplaint conferences. 29 C.F.R. 1613.213(a). The Agency claims that Section 8, to the extent that it purports to provide the Union with a right to representation at an EEO precomplaint conciliation conference, conflicts with the above-cited authorities and therefore is nonnegotiable.

The Union claims that section 7114(c) of the Statute does not authorize conditional disapprovals by an agency head of provisions of a local agreement. Union Response at 4 and 37. The Union also states generally that conditional disapprovals frustrate the will of Congress and unnecessarily burden the labor relations process.

The Union essentially contends that Section 4 is proper under section 7121 of the Statute because it concerns conditions of employment of unit employees as defined under section 7103 of the Statute, rather than matters which are covered by 41 U.S.C. 601-13.

The Union does not dispute the Agency's contention that employees have no statutory right to appeal EEO matters to MSPB but contends that the Agency has not demonstrated that Section 7 violates any law, rule, or regulation.

The Union claims that Section 8, which is applicable to all formal discussions, is not inconsistent with any law, rule, or regulation.

B. Analysis and Conclusion

Section 4

Section 4 would permit an employee to file an EEO complaint through the negotiated grievance procedure. The Agency's contention as to this section is based on its view that because personal services contracts are utilized to employ the employees in this case, any dispute over the terms and conditions of employment set out in those contracts must be resolved exclusively under the Contract Disputes Act.

The employees in this case are employed by the Agency pursuant to 20 U.S.C. 241. In Fort Knox Teachers Association and Board of Education of the Fort Knox Dependents Schools, 27 FLRA No. 34 (1987) (Provision 2), which involved a similar issue, we found that the Contract Disputes Act did not bar the agency from negotiating over a provision which subjected employee complaints to the negotiated grievance procedure. In so finding, we determined that individuals employed under 20 U.S.C. 241 are employees of the Government subject to all statutes pertaining to Government employment unless specifically exempted; that there was nothing in the Statute or its legislative history to indicate that Congress sought to exclude individuals employed under 20 U.S.C. 241 from its coverage; and that there was no provision in the Contract Disputes Act indicating that Congress intended to include the Statute among the provisions of law which were either amended or repealed by that Act. We therefore concluded that the employees in that case, who were employed under 20 U.S.C. 241, could negotiate a grievance procedure under section 7121 of the Statute which, according to section 7103(a)(9), may encompass any "matter relating to the employment of the employee" or "any claimed violation, misinterpretation, or misapplication of any law, rule, or regulation affecting conditions of employment."

As previously noted, Section 4 would subject a employee's EEO complaint, a matter affecting conditions of employment, to the negotiated grievance procedure. For the reasons expressed in Fort Knox Dependents Schools, we find that Section 4 is within the duty to bargain.

Section 7

Section 7 would permit the Union and management to retain all rights existing under applicable statutory appeals procedures concerning an EEO complaint. The Agency does not specifically contend that Section 7 would conflict with any law, rule, or regulation.

As mentioned in Section I of this decision, the Agency head disapproved the provisions in this case, including Section 7, under section 7114(c) of the Statute. Section 7114(c) requires that the agreement be approved if it is in accordance with the Statute and any other applicable law, rule, or regulation. The Agency head did not disapprove Section 7 on the grounds that it was inconsistent with law, rule, or regulation, nor does it make those contentions in this proceeding. Therefore, under section 7114(c), the Agency head's disapproval was improper. See National Association of Government Employees, Local R4-75 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, 24 FLRA No. 7 (1986) (Provision 4).

Section 8

Section 8 would permit the Union to have reasonable representation at all formal discussions between the employer and an employee concerning an EEO complaint. Section 8 on its face expressly limits Union representation only to formal discussions involving complaints of discrimination. We interpret the phrase "formal discussions" to have the same meaning as in section 7114 (a)(2)(A) of the Statute. Section 8 does not permit Union representation at informal precomplaint conciliation conferences. 

The Agency relies on IRS, Fresno Service Center v. FLRA as a basis for its disapproval of section 8. That case concerned whether a union had a right under section 7114(a)(2)(A) of the Statute to be represented at an EEO precomplaint conciliation conference. Apart from other considerations, IRS, Fresno Service Center would not apply to Section 8 since that section odes not pertain to an EEO precomplaint conciliation conference but rather only deals with formal discussions concerning an EEO complaint. The Agency has not cited any other grounds for finding this section to be nonnegotiable, and no others are apparent. We therefore find section 8 to be within the duty to bargain.

Finally, turning to the issue of the Agency's conditional disapproval of Sections 4, 7, and 8, as well as other provisions at issue in this case, section 7114(c) of the Statute does not require the agency to disapprove provisions of a locally negotiated agreement only where it is certain of the meaning of those provisions. However, as the Authority emphasized in American Federation of Government Employees, AFL - CIO, Council of Prison Locals, Local 171 and Department of Justice, Federal Prison System, Federal Correctional Institution, El Reno, Oklahoma, 23 FLRA No. 29 (1986), where the wording of a provision is clear and the union's statements of its intent are clear and unequivocal, the agency should not disapprove the provision on the grounds the provision may have some other meaning. These clear indications of the meaning of the provision should be sufficient to remove the basis of the Agency's objections. we reemphasize here the points made by the Authority in Federal Correctional Institution.

III. Provision 2

Article Ten - Hours of Work and Overtime

Section 3. The Employer agrees that officially approved overtime work shall be compensated at the appropriate overtime rate to include any shift differential or additional pay to which the Employee is entitled, or compensatory time given off at the election of the Employee.

Section 4. The Employer agrees that the opportunity to work overtime will be equitably offered to all qualified employees within the trade or occupation within an organizational element. section 6. Normally, Employees called in to work outside their regularly scheduled hours shall be compensated for a minimum of two (2) hours in accordance with appropriate regulations regardless of whether the Employees are required to work or not. In addition thereto, any Employee called in to work outside his regularly scheduled hours shall be promptly excused at the completion of the mission which he was called in to perform. It is understood that any Employee who is called in before his scheduled starting time, and works straight on to his scheduled quitting time, is entitled only to that amount which will be compensated by the compensatory time off or payable at the overtime pay.

Section 7. Employees in the Unit shall not be required to perform any work or duty before or after scheduled work hours without compensating the Employee by overtime pay or compensatory time in accordance with appropriate regulations for such work or duty. It is further understood that, if any Employee is directed by the Employer to report at a designated location at a specified time prior to or subsequent to his scheduled shift hours, such time shall be considered compensable at the existing overtime rate or compensatory time rate in accordance with appropriate regulations.

A. Positions of the Parties

The Agency contends that these sections do not concern conditions of employment to be negotiated under section 7114 of the Statute because they deal with overtime, which is a type of wages. The Agency maintains that all pay related matters are not negotiable conditions of employment. The Agency maintains that Sections 3, 6, and 7 conflict with the Agency's right to determine its budget in accord with section 7106(a)(1) of the Statute. Further, the Agency contends that these sections are inconsistent with law, 10 U.S.C. 2304, and Department of Defense Acquisition Regulations regarding the procurement of staff for dependent schools through personal service contract negotiations.

The Agency also claims that Sections 3, 6, and 7 conflict with Department of the Army Regulation No. 352-3, Education of Dependents in the United States, Puerto Rico, Wake Island, Guam, American Samoa, and the Virgin Islands (AR 352-3), because they do not take into account that aspect of its regulation which details the policies and responsibilities for providing education to dependent children. The Agency asserts that a compelling need exists for this regulation to bar negotiations on this provision. 

The Agency contends that Section 4 is nonnegotiable to the extent that it would: (1) preclude management from assigning work normally performed by unit employees to supervisors; (2) require management to assign employees to overtime work in circumstances where the work to be performed is different from that to which the employees are normally assigned; or (3) limit management's right to assign work to particular employees by requiring them to be within the organizational element where the overtime work is to be performed.

The Agency contends that the second sentence of Section 6 violates its right to assign work under section 7106(a)(2)(B) of the Statute because the Agency could only require employees to perform the tasks for which they were called back to work.

The Union asserts that only those matters specifically provided for by statute are proscribed from negotiation. The Union contends that these sections are not specifically provided for by statute and thus they are conditions of employment on which the Agency must negotiate under section 7114 of the Statute. The Union argues that the Agency has not established a compelling need for its regulation claimed to bar negotiations. The Union asserts that the Agency has submitted no data necessary to substantiate a compelling need claim. The Union also points out that Section 6 mirrors Agency regulations.

The Union contends that Section 4 reflects a general, nonquantitative standard and negotiable procedure for the assignment of overtime among qualified employees. The Union maintains that the provision n ow here mentions or pertains to supervisors or other nonbargaining unit employees.

The Union argues that the second sentence of Section 6 constitutes an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute for employees adversely affected by the Agency's decision to call them to work outside their regularly scheduled hours.

B. Analysis and Conclusions

Section 3, the first and third sentences of Section 6, and Section 7 concern overtime and will be considered jointly. Section 4 and the second sentence of Section 6 address other matters and will then be addressed separately. 

Section 3, the First and Third Sentences of Section 6, and Section 7

Section 3 would require overtime compensation for any work at the appropriate overtime rate or compensatory time.

The first and third sentences of Section 6 would require compensation on an overtime basis for a minimum of two hours when an employee is called back to work outside of regular duty hours, even though the employee may not be required to work for the entire time. The provision also states that an employee called in to work before regular duty hours who works straight through to quitting time will be compensated by compensatory time off or by overtime pay.

Section 7 would require overtime compensation for any work performed before or after scheduled work hours and also would require that any employee directed to report to a designated location outside of duty hours must be compensated at the appropriate overtime or compensatory time rate.

For the reasons which follow, we find that these sections of Provision 2 are within the duty to bargain.

1. The Provision Incorporates Overtime Rates Established by Applicable Regulation

Because employees in this case are employed pursuant to 20 U.S.C. 241 they are not subject to provisions of title 5 of the United States Code, and implementing Government-wide regulations, which establish overtime rates for Federal employees. However, the Agency does not dispute the fact that there are regulations, as referenced in the provision, prescribing appropriate overtime rates which are applicable to these employees. For purposes of this decision, therefore, we assume that Sections 3, 6, and 7 would require the Agency to pay employees that amount of overtime which is appropriate under applicable regulations.

Interpreted in this manner, Sections 3, 6, and 7 are to the same effect as Proposals 8 and 9 in National Union of Hospital and Health Care Employees, AFL - CIO, District 1199 and Veterans Administration Medical Center, Dayton, Ohio, 28 FLRA No. 65 (1987). In that case, we held that because the proposals incorporated the agency's regulations on accrual of annual and sick leave and subjected the accrual rates to any modifications required by law or changes in agency policy they were within the agency's duty to bargain. Specifically, we found that under those proposals the terms for accrual of leave would be those established by the agency as provided by law. The agency in that case would not have been bound to different terms if it decided to change its leave accrual policy.

Under section 3, the first and third sentences of Section 6, and Section 7 in this case, the overtime rates for unit employees likewise would only be those established by applicable regulations. Therefore, for the reasons set forth in VA Medical Center, Dayton, we find that Section 3, the first and third sentences of Section 6, and Section 7, if otherwise negotiable, are within the Agency's duty to bargain.

2. The Provision Does Not Conflict with Law

The Agency objects to Provision 2 because it conflicts with 10 U.S.C. 2304 which establishes the requirements governing procurement by the Department of Defense. In Fort Knox Dependents Schools, 27 FLRA No. 34, we held that personnel employed under 20 U.S.C. 241 are employees of the Federal Government and not independent contractors. Moreover, we held that the agency had not established that the procurement regulations on which it relied in any manner applied to the personnel in that case, That is, the agency had not established that it was required by those regulations to use personal services contracts to employ personnel under 20 U.S.C. 241. Rather, we found that the personal services contracts were nothing more than written statements of the conditions of employment under which employees would be hired.

The fact that the Agency uses personal services contracts to employ personnel for dependents schools does not demonstrate that it must do so either under 20 U.S.C. 241 or under 10 U.S.C. 2304. In our view, 20 U.S.C. 241 establishes a separate employment authority for the schools covered by that provision. The Agency has not shown that Congress intended that authority to be exercised pursuant to 10 U.S.C. 2304 or any other law governing procurement. We find, therefore, that Provision 2 is not inconsistent with 10 U.S.C. 2304.

Similarly, for the reasons set forth in Fort Knox Dependent Schools, 27 FLRA No. 34, we find that Provision 2 is not inconsistent with Department of Defense procurement regulations. 

3. The Provision Does Not Interfere with the Agency's Right to Determine its Budget

In American Federation of Government Employees, AFL - CIO and Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced as to other matters sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C. Cir. 1981), the Authority held that in order to demonstrate that a union proposal directly interferes with management's right to determine its budget under section 7106(a)(1) it is necessary for the agency either to show that the proposal prescribes the programs and operations to be included in the agency's budget or the amount to be allocated for them or to make a substantial demonstration that the anticipated increase in costs is significant and unavoidable and is not offset by compensating benefits.

The sections concern a program or operation which already exists, that is, wages for employees called back to work, and one which is currently funded by the Agency's budget. Moreover, the sections do not prescribe the amount to be allocated to this program or operation. Thus, the sections do not directly interfere with the Agency's right to determine its budget. Furthermore, the Agency has not made a substantial demonstration that the implementation of the provision will result in a significant, unavoidable increase in costs. Specifically, the Agency makes no argument regarding any specific increase in costs which would result from implementation of Sections 3, 6 and 7. Therefore, it is not necessary to consider whether any increase in costs is outweighed by compensating benefits. Consequently, in this respect also the provision at issue does not directly interfere with the right of the Agency to determine its budget under section 7106(a)(1).

4. Compelling Need

The Agency asserts that these sections conflict with Department of the Army Regulation No. AR 352-3 for which there is a compelling need. The regulation states:

1-7. Comparison factors. Education provided will be considered comparable to free public education offered by selected communities in the State when the following factors are, to the maximum extent practicable, equal:

h. Salary schedules 

The Agency contends that this provision implements in a nondiscretionary manner a mandate of Congress to pattern personnel practices for the nonteaching school personnel involved here after those generally found in state school systems as opposed to those found in the Federal service.

In American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986), the Authority stated that in order to show a compelling need for an agency regulation, an agency must: (1) identify a specific agency-wide regulation; (2) show that there is a conflict between its regulation and the proposal; and (3) demonstrate that its regulation is supported by a compelling need with reference to the standards in section 2424.11 of our Regulations. However, in this case, the Agency has not demonstrated that the disputed sections of Provision 2 conflict with the cited regulation. In particular, the Agency has not shown that providing for employees to be paid overtime in accordance with applicable regulations is in any manner inconsistent with the requirement of the regulation that wage matters be, to the maximum extent practicable, equal to comparable free public education in the State in which the schools are located. In the absence of any evidence that the disputed portions of Provision 2 conflict with the cited regulation, therefore, we do not reach the issue of whether a compelling need exists for that regulation under section 7117(a)(2) of the Statute and section 2424.11 of our Regulations as was done in Fort Knox Teachers Association and Fort Knox Dependent Schools, 25 FLRA No. 95 (1987) (Chairman Calhoun dissenting), petition for review filed sub. nom. Fort Knox Dependent School v. FLRA, No. 87-3395 (6th Cir. Apr. 27, 1987).

Section 4

We agree with the Union that Section 4 is within the duty to bargain. The effect of the provision is that overtime will be offered equitably to those employees determined by the Agency to be qualified within a particular trade or occupation within an organizational element. Contrary to the Agency's contentions, we find no indication that the provision is intended to preclude the assignment of overtime work to supervisors or that it would require the assignment of work which is different from that normally assigned or outside organizational elements. The provision is to the same effect as Proposal 2 which was found to be negotiable in American Federation of Government Employees, AFL - CIO, Meat Grading Council of Locals and Department of Agriculture, Meat Grading and Certification Branch, 22 FLRA No. 52 (1986). In that case, the Authority held, on the basis of its decision in American Federation of Government Employees, AFL - CIO, National Joint Council of Food Inspection Locals and Department of Agriculture, Food Safety and Quality Service, Washington, D.C., 9 FLRA 663 (1980), that the proposal concerned only which employee among those in the bargaining unit already assigned certain work would be selected to perform that work in an overtime status when overtime was required. Therefore, for the reasons set forth in Meat Grading and Certification Branch and in Food Safety and Quality Service, we conclude that Article 10, Section 4 does not interfere with the Agency's right to assign work and is within the duty to bargain.

The Second Sentence of Section 6

The second sentence of Section 6 provides that employees called back to work outside of their regularly scheduled hours of duty will be excused upon completion of the task which they were called in to perform. The Union explains that the intent of this provision is to ensure that employees who complete the assigned task will not then be given "busy work" to perform until the minimum amount of time has elapsed. The second sentence of Section 6 is to the same effect as the second portion of the proposal in National Federation of Federal Employees, Local 1380 and Department of the Navy, Naval Coastal Systems Center, Panama City, Florida, 11 FLRA 129 (1983), which the Authority found to be outside the duty to bargain. The proposal in Naval Coastal Systems Center provided that employees called back to work would only be required to work on the emergency for which they were called back. The Authority found that the proposal expressly limited management's right to assign particular duties during callback overtime to duties related to the emergency situation necessitating the overtime and thus, that it directly interfered with the agency's right to assign work under section 7106(a)(2)(B) of the Statute. Likewise, the second sentence of Section 6 directly interferes with the Agency's right to assign work under section 7106(a)(2)(B).

The Union contends that the second sentence of Section 6 constitutes an appropriate arrangement for employees adversely affected by the exercise of management's rights to call employees back to work outside of their regular duty hours. We find, however, that under the test articulated in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), the second sentence of Section 6 does not constitute an appropriate arrangement within the meaning of section 7106(b)(3). Even assuming that the provision constitutes an "arrangement" for adversely affected employees, it is not "appropriate." 

Although the provision would make it possible for employees called back to work to return home upon the completion of the task for which they were summoned to work, regardless of the amount of time which had elapsed, it would do so by eliminating management's discretion, under section 71O6(a)(2)(B), to assign work. Under the provision, the Agency would not be able to assign work to the employee different from that mentioned when summoning the employee to return to duty. Work of an equal or even more important nature could develop which the Agency would need to be performed immediately, but the Agency would be prohibited from assigning it to the employee on callback overtime.

We have consistently held that proposals which in this manner excessively interfere with management's rights are not "appropriate arrangements" within the meaning of section 7106(b)(3) of the Statute. See International Plate Printers, Die Stampers and Engravers Union of North America, AFL - CIO, Local 2 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA No. 9 (1987) (Provisions 6, 7, and 8). Accordingly, we find that the second sentence of Section 6 is not an appropriate arrangement under section 7106(b)(3).

For the reasons stated above, the second sentence of Article 10, Section 6 is outside the duty to bargain.

IV. Provision 3

Article Eleven - Occupational Health and Safety

Section 2.

Problems concerning occupational health and safety should first be brought to the attention of the immediate supervisor who will, in consultation with the Steward, if available, determine what action should be taken in order to alleviate a hazard to the health and safety of the affected Employees. If the matter is not resolved at that level, the supervisor will recommend remedial action to the Assistant Superintendent for Business. The Assistant Superintendent will take immediate necessary action to alleviate the hazardous condition, If the matter is not resolved at that level the Assistant Superintendent will notify the Installation Safety Manager and request assistance on the problem. 

In serious emergency situations where an employee feels that his life or health is immediately endangered, the specific work operation in question will cease until the processes outlined above have been observed. (Only the underlined portion is in dispute.)

Section 4.

The Employer agrees to participate in the Installation's industrial health and emergency aid program. In case of a job-related injury or sickness, an Employee shall not be required to perform work until an Employer medical officer or doctor determines that the Employee is physically fit for duty. An employee may be assigned to light duty or to another job temporarily if his injury is of a nature that incapacitates him from his regular job and if available. An Employee sent home or to a hospital shall be furnished transportation by the Employer if his condition precludes travel by private transportation. (Only the underlined portion is in dispute.)

A. Positions of the Parties

The Agency contends that the express wording of the disputed portion of Section 2 would absolutely prohibit management from assigning certain duties to an employee during a specified period of time, that is, until "the processes outlined above have been observed," whenever an employee feels that his life or health is immediately endangered. The Agency argues that this interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

The Agency contends that the disputed portion of Section 4 absolutely prohibits management from assigning employees to perform work until a physician determines that the employee is fit for duty. Thus, the Agency argues, it would be completely prevented from assigning work unless that precondition has been met. The Agency contends that this portion of Section 4 is inconsistent with section 7106(a)(2)(B) of the Statute.

The Union argues that the disputed portion of Section 2 concerns serious and immediate matters--"imminent danger" situations--which, the Union alleges, have been recognized as a sound basis for refusing to work without penalty. The  Union cites Whirlpool Corporation v. Marshall, 445 U.S. 884 (1980) as authority for its position. The Union further argues that Federal employees enjoy similar protections against working in conditions imposing threat of immediate, serious harm under Executive Order 12196 and Occupational Safety and Health Administration (OSHA) regulations found at 29 C.F.R. 1960.46(a). The Union contends that the disputed portion of the provision constitutes an appropriate arrangement under section 7106(b)(3) of the Statute and does not interfere with the Agency's right to assign work.

The Union argues that the disputed portion of Section 4 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

Section 2

We find Section 2 to be nonnegotiable for reasons not addressed by the parties. Since this portion of the provision is inconsistent with a Government-wide regulation, it is outside the duty to bargain under section 7117(a)(1) of the Statute. Specifically, OSHA regulations provide that when employees have a "reasonable belief" that they are in "imminent risk of death or serious bodily harm" from a work assignment, and do not have sufficient time to seek redress through normal abatement procedures, they may decline to perform the assignment. 29 C.F.R. 1960.46(a). Section 2, however, provides that where an employee "feels" that his or her life and health are "immediately endangered," work operations will cease. Employee refusals to work are only protected under OSHA regulations where they are based on a "reasonable belief" on the part of employees that they are subject to "imminent risk of death or serious bodily harm." The standard set forth by Section 2 therefore is broader than, and exceeds the limitations set forth in, 29 C.F.R. 1960.46(a). Section 2 would replace the objective standard which is set forth in the regulation with a standard which is essentially subjective. Section 2 is therefore inconsistent with the regulation. Compare Federal Union of Scientists and Engineers, Local R1-144 and Department of the Navy, Naval Underwater Systems Center, 26 FLRA No. 67 (1987) (proposal establishing standard for granting compensatory time off for religious reasons held inconsistent with standard prescribed in the applicable Government-wide regulation).

The question then becomes whether 29 C.F.R. 1960.46(a) constitutes a Government-wide regulation within the meaning of section 7117(a)(1) of the Statute, which bars negotiation  on proposals that are inconsistent with Government-wide regulations. The regulations at issue are codified at part 1960 of title 29 of the Code of Federal Regulations as occupational safety and health regulations for the Federal Government published by the Department of Labor's Occupational Safety and Health Administration. By their terms, these regulations are binding on agencies, as defined in 5 U.S.C. 101, or any employing unit or authority of the Executive Branch of the Government, and apply to any person, other than members of the Armed Forces, employed by an agency. 29 C.F.R. 1960.2. These regulations are therefore generally applicable throughout the Federal Government. We find, therefore, that these regulations are "Government-wide regulations" within the meaning of section 7117(a). See National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748 (1980).

Consequently, because we conclude that Section 2 is inconsistent with 29 C.F.R. 1960.46(a), which is a Government-wide regulation, we find that Section 2 is outside the duty to bargain. Since Section 2 has been found to be outside the duty to bargain on other grounds, we need not address the additional negotiability contentions raised by the Union and the Agency.

Section 4

The disputed portion of Section 4 deals with employees who suffer job-related injury or sickness, and provides that these employees are not to return to duty until an employer medical officer or doctor determines that they are fit for duty. The provision is all-inclusive, extending its coverage not only to serious injury or contagious illness, but also to minor injury or discomfort. Because the disputed portion of Section 4 precludes the Agency from assigning work to employees who have suffered any job-related injury or sickness when a medical officer or doctor fails to find them fit for duty, it directly interferes with management's right to assign work. We have held that provisions which similarly condition management's ability to assign work conflict with the right to assign work under section 7106(a)(2)(B). See American Federation of Government Employees, AFL - CIO, Local 1858 and U.S. Army Missile Command, The U.S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command - Redstone Arsenal Commissary, 27 FLRA No. 14 (1987) (Provision 11), petition for review as to other matters filed sub nom. U.S. Army Missile Command, The U. S. Army Test, Measurement, and Diagnostic Equipment Support Group, The U.S. Army Information Systems Command -Redstone Arsenal Commissary v. FLRA, No. 87-7445 (11th Cir. 

July 17, 1987) ; American Federation of Government Employees, Local 2182, AFL - CIO and Propulsion Laboratory, U.S. Army Research and Technology Laboratories, 26 FLRA No. 74 (1987) (Provision 4).

The Union asserts and we find that section 4 is intended to be an "arrangement" within the meaning of section 7106(b)(3) for employees who would be adversely affected by being required to work after having suffered a job-related injury or illness. As to whether Section 4 constitutes an "appropriate" arrangement, we note that it is not limited to serious injury or contagious illness, or to conditions which would greatly interfere with employees' ability to perform their duties, but would pertain to employees suffering very minor injuries while on duty. In balancing the protection afforded employees by the provision against its effect on management's conduct of the Agency's operation under the Authority's decision in Kansas Army National Guard, 21 FLRA No. 4, we find that the disputed portion of Section 4 excessively interferes with management's right to assign work. Because Section 4 contains no limit on the extent of injury or illness requiring medical certification before an employee's continuation of duty, it would restrict management's ability to accomplish work in circumstances where medical certification would not be necessary for employee protection. For this reason, we find that the disputed portion of Section 4 is outside the duty to bargain. See U.S. Army Missile Command, 27 FLRA No. 14 (Provision 11). See also American Federation of Government Employees, AFL - CIO, Local 1409 and Department of the Army, U.S. Army Adjutant General Publications Center, Baltimore, Maryland, 28 FLRA No. 22 (1987).

V. Provision 4

Article Twelve - Promotions and Placement

Section 7.

The Employer agrees to give Bargaining Unit Employees who are qualified for positions/promotions first and bona fide consideration in filling vacancies.

A. Positions of the Parties

The Agency contends that if it must only consider and is not required to select a bargaining unit employee, the provision is negotiable. The Agency further contends that if the intent of the provision is that the employee be selected it directly interferes with management's right to select from any appropriate source under section 7106(a)(2)(C).

The Union takes the position that the provision is lawful on its face and should not be subjected to speculative or conditional approvals.

B. Analysis and Conclusion

Section 7 merely requires that qualified unit employees be given first consideration in filling vacancies. It does not require that the unit employee be selected. The Agency's conditional disapproval of Section 7 is unfounded. It is based on an interpretation of this section which is inconsistent with its plain wording. Section 7 is similar to the first paragraph of Proposal 2 in National Treasury Employees Union and Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms, 26 FLRA No. 60 (1987), petition for review filed sub nom. Department of the Treasury, Bureau of Alcohol, Tobacco and Firearms v. FLRA, No. 87-1234 (D.C. Cir. May 29, 1987), which provided that unit employees would be given priority consideration in filling vacancies. We found that it did not interfere with management's right to select under section 7106(a)(2)(C) and was a negotiable procedure under section 7106(b)(2) of the Statute. Based on the reasoning in that case, we find that Section 7 is negotiable.

VI. Provision 5

Article Thirteen - Details and Employee Contract Modification

Section 2.

The Employer may noncompetitively detail any Employee to the same or lower grade position for up to 240 calendar days, in 120 calendar day increments, for any detail.

Section 3.

The Employer may detail an Employee to a higher grade position for up to 240 calendar days, in 120 calendar day increments. Competition will be required for a second 12 day detail. 

Section 4.

Details of Employees will be kept within the shortest practical time limits and in accordance with this Agreement.

Section 6.

The Employer agrees not to detail any Employee to any unestablished position in excess of 120 total calendar days.

Section 7.

The Employer agrees that it will make efforts to assure that details are not used for the purpose of compromising the open-competitive principle of promoting Employees.

A. Positions of the Parties

The Agency's position regarding the first two sections is the same. To the extent that these provisions restrict the duration of a detail to either the same or lower graded position (Section 2) or to a higher graded position (Section 3), the Agency contends that they interfere with management's right to assign employees. The Agency contends that Section 4, when read in conjunction with Sections 2 and 3, also limits the duration of details and thereby interferes with its right to assign employees. The Agency contends that Section 6 interferes with management's right under section 7106(a)(2)(A) of the Statute because it would not permit certain details to last more than 120 days. The Agency con-tends that to the extent that Section 7 proscribes the use of details, it is nonnegotiable under section 7106(a)(2)(A) and (B) of the Statute. In this connection, the Agency claims that circumstances, such as a budgetary crisis, might dictate the use of details rather than promotions.

The Union contends that Sections 2 and 3 constitute appropriate arrangements for employees adversely affected by the fact that the limitations on the use of details set forth in the Federal Personnel Manual (FPM) do not apply to the employees in this case. The Union contends that the limitations set forth in the FPM are safeguards against management abuse.

The Union contends that Section 4 is procedural in nature and does not prohibit management from assigning details of any length. The Union also argues that Section 4  was intended to deal with the adverse impact of "overly long" details and therefore is an appropriate arrangement under section 7106(b)(3) of the Statute.

The Union argues that section 6 does not totally preclude the employer's assignment of employees to details beyond 120 days. The Union asserts that the limitation applies only to "unestablished positions." The Union contends that Section 6 merely establishes an appropriate arrangement for employees detailed to unestablished positions.

The Union contends that section 7 prohibits management from using details only where the primary purpose is to avoid a promotion and no other legitimate management need exists. The Union argues therefore that Section 7 is both a negotiable procedure under section 7106(b)(2) and an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis

Sections 2, 3, 4, and 6

We find that sections 2, 3, 4, and 6 interfere with the Agency's right to assign employees under section 7106(a)(2)(A) of the Statute by placing specific limitations on the duration of details. Sections 2, 3, and 6 limit details respectively to the same or lower grade positions, to higher grade positions, and to unestablished positions for a specific number of days. Section 4 requires that all details be in accordance with the Agreement, thereby restricting details to the limitations contained in Sections 2, 3, and 6. Provisions which restrict the length of an assignment directly interfere with management's right to assign employees under section 7106(a)(2)(A) of the Statute. See American Federation of Government Employees, AFL - CIO, Local 3804 and Federal Deposit Insurance Corporation, Madison Region, 21 FLRA No. 104 (1986) (Proposal 13). Therefore, these sections are outside the duty to bargain, unless a determination is made that they constitute appropriate arrangements for employees adversely affected by the exercise of a management right. Kansas Army National Guard, 21 FLRA No. 4. For the reasons which follow, we find that Sections 2, 3, 4 and 6 are outside the duty to bargain because they do not constitute arrangements for employees adversely affected by management's exercise of its right to assign employees within the meaning of section 7106(b)(3) of the Statute.

In this case, the Union alleges that the disputed sections of Provision 6, which prescribe specific time limits for details, are intended to mitigate the adverse effects of those details. However, the Union has not identified particular adverse effects to employees which result from lengthy details, nor are there any such effects which could reasonably be inferred based on the record in this case. The Union appears to assume that lengthy details in and of themselves adversely affect employees and that those effects can be ameliorated by limiting the duration of details. We decline to reach that broad conclusion.

However, that does not mean that there can be no adverse effects on employees which may result from details. We have addressed in two recent cases specific examples of adverse effects of details related to the particular circumstances present in those cases, and we found negotiable as appropriate arrangements proposals that dealt directly with those adverse effects. In Department of the Air Force, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio, 22 FLRA No. 4 (1986) (Proposal 6), the Authority found that a proposal which would require that employee's performance on a detail be given equitable and proportionate weight in his evaluation, was an appropriate arrangement because it prescribed an arrangement for employees to be rated while on a detail. This proposal dealt specifically with the adverse effect of not being rated for time spent on a detail. Furthermore, it did not preclude management from detailing employees in any manner, nor did it preclude management from evaluating the employees' work while on details.

In National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 23 FLRA No. 36 (1986), the Authority found a provision that provided a reasonable amount of administrative time for employees returning to their regular position from a detail to familiarize themselves with changes in policy or procedure to be within the duty to bargain as an appropriate arrangement. The Authority reached that conclusion because in the circumstances of that case the provision dealt with the adverse effect of the inability of the employees to remain familiar, as required, with those changes in policy or procedure while assigned away from their regular positions. Furthermore, the provision neither prevented management from assigning work nor required it to assign tasks which were not already part of an employee's job responsibilities. 

Unlike the circumstances in this case, in each of those cases the union identified a specific adverse effect that would result from a detail and formulated specific wording to deal with that adverse effect. We can find no adverse effect which is traceable to, and dependent on, the length of a detail. Therefore, we conclude that the Union has not satisfied the threshold requirements of section 7106(b)(3). It has not identified the adverse effects on employees resulting from the exercise of a management right which the proposal is supposedly designed to address.

Finally, we note in connection with Section 3 that the Authority has consistently held that proposals requiring a temporary promotion for employees detailed to a higher-graded position are negotiable. See, for example, American Federation of Government Employees, AFL - CIO, International Council of U.S. Marshals Locals and Department of Justice, U.S. Marshals Service, 4 FLRA 384, 387-88 (1980) (Proposal II).

Section 7

Section 7, as explained by the Union, provides that management will not detail an employee to a position to avoid filling that position by promotion, unless it has a legitimate reason for such a detail. The effect of the section is to impose a substantive condition on management's right to assign employees. In reviewing management action under this section an arbitrator would determine whether the reasons management gave for detailing an employee were "legitimate." In applying that criterion, an arbitrator would be authorized to review management's judgment in deciding to detail an employee. If the arbitrator were not satisfied that the reasons given by management were "legitimate," he or she could overturn that decision. By thus restricting management's ability to detail employees, Section 7 directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. See Patent Office Professional Association and Patent and Trademark Office, Department of Commerce, 25 FLRA No. 29 (1987) (Sections 3.E and 3.F), petition for review filed sub nom. Patent Office Professional Association v. FLRA, No. 87-1135 (D.C. Cir. Mar. 26, 1987).

As to whether Section 7 is an appropriate arrangement under section 7106(b)(3), we find that the adverse effects on employees against which that portion of the provision is intended to mitigate are, at best, speculative and that the benefits to be derived from the provision therefore do not outweigh the detrimental consequences of the limitation imposed on management's rights. In particular, the assumption behind Section 7 appears to be that where management, with no "legitimate" reason, details an employee to avoid promoting that employee or some other employee, those employees are adversely affected by the loss of that opportunity for promotion. Whether the alleged adverse effects are claimed to result from the decision to detail or from the decision not to fill the position from candidates for promotion, in either event the alleged adverse effects are speculative. There can be no loss of a promotion opportunity to the position which is being filled by the detail because management could, if it chose to fill the position permanently, fill it from another appropriate source.

Correlatively, there is no certain benefit which would result for employees from limiting management's right to detail, since the vacancy might be filled from another appropriate source rather than by promotion. We do not believe that providing a benefit to employees which is at most a remote possibility is sufficient to outweigh the restrictions placed by the provision on management's right to detail employees. Consequently, we conclude that Section 7 excessively interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute and does not constitute an appropriate arrangement within the meaning of section 7106(b)(3). We find, therefore, that Section 7 is outside the duty to bargain.

VII. Provision 6

Article Fourteen - Grievance Procedure

Section 2.

"Grievance" means any complaint --

(A) by any employee concerning any matter relating to the employment of the employee.

A. Positions of the Parties

The Agency contends that this provision is nonnegotiable to the extent that it would allow employees to resolve disputes arising out of their personal services contracts through the negotiated grievance procedure because it conflicts with the Contract Disputes Act of 1978, 41 U.S.C. 601-13. The Agency takes the position that in enacting the Contract Disputes Act, Congress intended the procedures contained in that Act to be the exclusive method for resolving disputes arising out of Government contracts. 

The Union argues that the specific intent of the Statute, as reflected by its wording and its legislative history, is to entitle employees to appeal management actions in negotiated grievance procedures and nothing in the Statute creates an exception for the Contract Disputes Act.

B. Analysis and Conclusion

Section 2 defines the term "grievance," consistent with section 7103(a)(9) of the Statute, to mean any complaint by any employee concerning any matter relating to the employment of the employee. Section 2, therefore, has the same effect as Provision 2 in Fort Knox Dependents Schools, 27 FLRA No. 34. In that case, we held that the Contract Disputes Act did not preclude negotiation of a grievance procedure which would encompass any matter relating to the employment of an employee. For the reasons stated in Fort Knox Dependents Schools, therefore, we find that Section 2 in this case, which similarly provides for a grievance procedure which extends to any matter relating to the employment of an employee, does not conflict with the Contract Disputes Act and is within the Agency's duty to bargain.

VIII. Provision 7

Article Sixteen - Reduction in Force

Section 1.

For purposes of this Article, a reduction in force (RIF) occurs when an employee is released from his position of employment by separation, demotion, or reassignment because of lack of work or funds, reorganization, reclassification due to changes in duties or the exercising of re-employment rights.

Section 4.

In the event of a reduction-in-force, existing vacancies will be utilized to the maximum extent possible to place employees in continuing positions who otherwise would be separated from employment.

Section 5.

Bargaining unit positions within all schools included in the Fort Bragg School System shall be considered for purposes of implementing a reduction-in-force of bargaining unit members.

Section 6.

The Employer agrees to compose and maintain list(s) of personnel whose employment is affected by a RIF. The Employer agrees to maintain such list(s) for a period of at least 12 months after the RIF action and agrees to fill the position affected by the RIF only from the list, provided a qualified individual remains on the list. (Only the underlined portion is in dispute.)

Section 9.

If possible, the Employer shall offer the employees affected by the reduction-in-force available employment for which they are qualified which is as close as possible to their current salary level.

A. Positions of the Parties

The Agency contends that Section 1 interferes with management's rights under section 7106(a)(2)(A) of the Statute because it concerns reduction-in-force (RIF) procedures and negotiation of RIF procedures would have the effect of determining who the Agency lays off or reduces in grade or pay.

The Agency asserts that it is unclear whether Section 4 would require management to utilize a vacancy or not. The Agency argues that if Section 4 requires the filling of vacancies, it is nonnegotiable since it conflicts with management's rights to choose among candidates under section 7106(a)(2)(C) of the Statute.

The Agency maintains that the meaning of Section 5 is unclear. It asserts that if Section 5 would require the filling of a position in any RIF throughout the school system, it is nonnegotiable.

The Agency contends that Section 6 interferes with management's right to select from any source under section 7106(a)(2)(C). Moreover, the Agency contends that it conflicts with applicable procurement law, 10 U.S.C. 2304(a), which requires that all personal service contracts be "let" through maximum competition.

The Agency asserts that (1) to the extent that Section 9 would require filling of a vacancy it is nonnegotiable; and (2) if it is designed to accord bumping or retreat rights to an employee, it is nonnegotiable since it would determine who is to be laid off in derogation of management's rights under section 7106(a)(2)(A) of the Statute.

The Union states that Section 1, on its face, is a definition which only requires the parties to abide by its meaning when referring to a reduction-in-force or to identify the named actions as a "reduction-in-force."

The Union states that Section 4 does not require the Agency to fill a vacancy which it chooses not to fill. It also states, however, that Section 4 does require the Agency to place RIFed employees in vacant positions when such vacancies are to be filled. The Union contends that Section 4 constitutes an appropriate arrangement under section 7106(b)(3) of the Statute.

The Union contends that the language of Section 5 clearly states that bargaining unit positions within all schools included in the Fort Bragg School System shall be "considered" by the Agency in the event of a RIF. The Union also argues that the Agency's "self-professed confusion" is not a basis for disapproving a negotiated provision or rendering the provision unlawful.

The Union argues that Section 6 does not interfere with management rights and is an appropriate arrangement negotiable under section 7106(b)(3). The Union disputes the Agency's contention that "personal services contracts" supersede or preclude provisions of the collective bargaining agreement, citing J.I. Case Co. v. NLRB, 321 U.S. 332 (1944).

The Union argues that Section 9 is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

Section 1

The plain wording of Section 1 provides a definition of reduction-in-force which will be used by the parties when referring to RIF actions. Section 1 characterizes the types of personnel actions which qualify under the terms of the parties' agreement as a reduction-in-force. Section 1 does not prescribe procedures relating to the implementation of a RIF nor does it determine who the Agency will lay off or reduce in grade or pay pursuant to its rights under section 7106(a)(2)(A) of the Statute. Further, we reject the Agency's argument that any negotiation of RIF procedures would interfere with management's rights. Section 7l06(b)(2) of the Statute specifically requires the Agency to negotiate over "procedures" governing the exercise of a management right, including rights associated with the implementation of a RIF. See, for example, Congressional Research Employees Association and Library of Congress, Congressional Research Service, 25 FLRA No. 21 (1987) (Proposals 1-9). Section does not interfere with management's rights under section 7106(a)(2)(A) of the Statute and, therefore, is negotiable.

Section 4

Given the Union's explanation of Section 4, Provision 7, we find that it does not require the filling of a vacancy. See Union Response at 42. Section 4, that is, would require the Agency to select employees who would otherwise be separated in a RIF to fill vacant positions which the Agency decides to fill. Moreover, consistent with other portions of Provision 7, specifically, sections 6 and 9, we interpret section 4 as requiring management to select only employees who are qualified for the positions which it decides to fill. Interpreted in this manner, Section 4 is essentially the same as a proposal found to be an appropriate arrangement in National Association of Government Employees, Local R14-87 and Department of the Army, Kansas Army National Guard, Topeka, Kansas, 21 FLRA No. 48 (1986). That proposal required the Agency to select employees who were involuntarily reassigned to a position of equal grade without personal cause for return to their former positions at their former duty stations, if and when such positions become vacant and the agency decides to fill them. The Authority held in that case that the proposal did not "excessively interfere" with management's rights to assign employees and to fill vacant positions from any appropriate source because it did not require management to fill a vacant position and because it reserved management's discretion to determine whether an employee was qualified for the position. Therefore, the Authority found that the proposal was an appropriate arrangement under the test enunciated in Kansas Army National Guard, 21 FLRA No. 4.

Section 4 would mitigate against the involuntary separation of employees subject to a RIF, where there are vacant positions for which the RIFed employees are qualified  and the Agency decides to fill those positions. Section 4 does not excessively interfere with management's rights since the Agency retains the discretion to determine whether to use vacancies in order to retain qualified employees affected by a RIF. Compare Congressional Research Service, 25 FLRA No. 21 (Proposal 5) (proposal held to excessively interfere with management's right to select from among candidates to fill positions under section 7106(a)(2)(C) because it required the filling of a vacant position). Therefore, like the proposals in Kansas Army National Guard, Topeka, Kansas, 21 FLRA No. 48, Section 4 is a negotiable appropriate arrangement under section 7106(b)(3) for employees adversely affected by the exercise of management's rights. We note in this connection that, pursuant to 20 U.S.C. 241, Requirement 4, subchapter 1-4, chapter 335 of the Federal Personnel Manual does not apply to the employees in this case.

Section 5

Section 5 requires the Agency to consider all bargaining unit positions within the Fort Bragg School System when the Agency decides to implement a reduction-in-force of bargaining unit members. The Agency head's conditional disapproval of Section 5 is unfounded. It is based on an interpretation of this section which is inconsistent with its plain wording and contrary to the Union's explanation. The clear wording of Section 5 does not require the filling of a position in a reduction-in-force. Section 5 requires the Agency to consider all positions in the bargaining unit when it decides which positions are to be reduced in grade or abolished as a result of a reduction-in-force. Section 5 does not require the elimination or abolition of any particular position. Section 5, therefore, is negotiable. See National Association of Government Employees, Local R7-23 and Department of the Air Force, Headquarters 375th Air Base Group (MAC), Scott Air Force Base, Illinois, 26 FLRA No. 106 (1987) (Proposal 2).

Section 6

The Agency asserts that Section 6 conflicts with 10 U.S.C. 2304. For the reasons set forth in our discussion of Provision 2 above, we find that Section 6 does not conflict with the cited statute.

Section 6 requires that when management decides to fill positions which have been affected by a RIF, it will do so from a list of employees whose employment had been affected by the RIF. Section 6 is therefore to the same effect as  Proposal 1 in National Association of Government Employees, Local R14-87 and The Adjutant General of Kansas, 21 FLRA No. 42 (1986). The proposal in that case required management to reemploy or repromote employees to positions which management decided to fill and for which the employees were qualified. The Authority held that the proposal was a negotiable appropriate arrangement under section 7106(b)(3). Section 6 similarly provides for management to select qualified employees to fill positions affected by a RIF, when it decides to fill those positions, from among employees who had been affected by that RIF. For the reasons set forth in Adjutant General of Kansas, therefore, we find that Section 6 is a negotiable appropriate arrangement under section 7106(b)(3) of the Statute.

Section 9

Section 9 of Provision 7 requires the Agency, where possible, to offer employees affected by a reduction-in-force positions which become available at a salary level which is close to the salary level of those employees prior to the RIF and for which they are qualified. Consistent with the Union's intent as to other, similar portions of Provision 7, in particular, Sections 4 and 6, we find that Section 9 is not intended to require management to fill a vacant position. Thus, under Section 9 if a position were to become vacant at a salary level which is close to or the same as the salary level of an affected employee prior to the RIF, management would not be required by this section to offer the position to the RIFed employee if it decided not to fill the vacancy.

Section 9, therefore, is similar to Proposal 2 in Kansas Army National Guard, 21 FLRA No. 4 and Provision 2 in Adjutant General of Kansas, 21 FLRA No. 42. Those proposals required the reemployment or repromotion of employees who were qualified for and previously performed successfully in the positions being filled. The Authority held that the proposals constituted appropriate arrangements within the meaning of section 7106(b)(3) for employees adversely affected by management's decision to conduct a RIF. The Authority concluded that because the proposals only required management to fill those positions it decided to fill with employees who were qualified for the positions, the proposals did not excessively interfere with management's right to select from any appropriate source under section 7106(a)(2)(C) of the Statute. Similarly, Section 9 only requires management to offer employees affected by a RIF positions at or near their salary levels which become available before a RIF. Management must offer those positions only if it decides to fill the position and only if the employees are qualified for the positions. For the reasons set forth in Kansas Army National Guard and Adjutant General of Kansas, therefore, we find that Section 9 of Provision 7 does not directly interfere with management's right under section 7106(a)(2)(C) to select from any appropriate source to fill positions.

IX. Provision 8

Article Twenty - Rest Periods

Section 1.

Where Employees are working under conditions which preclude the taking of short breaks as needed, they will normally be authorized a fifteen (15) minute break during each four (4) hours of continuous duty. The fifteen minute rest period will be at the midpoint of the four hours duty period and will be free of work.

A. Positions of the Parties

The Agency contends that to the extent Section 1 precludes management from assigning work during the rest period, it conflicts with section 7106(a)(2)(B) of the Statute.

The Union did not present a position on Section 1, Article Twenty.

B. Analysis and Conclusions

Section 1 directly interferes with the Agency's right under section 7106(a)(2)(B) to assign work. Section 1 provides that rest periods shall be free of work and thus would preclude the Agency from assigning work during those periods. Section 1 differs from Proposal 1 in American Federation of Government Employees, AFL - CIO, National Council of Social Security Field Office Locals and Department of Health and Human Services, Social Security Administration, 24 FLRA No. 81 (1986), where we found that the proposal did not preclude the agency from assigning work during rest periods. The determinative factor as to whether granting rest periods is negotiable is whether or not the proposal prohibits management from assigning work to employees during such periods. Because Section 1 precludes the assignment of work during rest periods, we find that it directly interferes with management's right to assign work and is outside the duty to bargain. Compare National Union of Hospital and Health Care Employees, AFL - CIO, District 1199 and Veterans Administration Medical Center, Dayton, Ohio, 28 FLRA No. 65  (1987) (Proposal 11) (proposal which provides for breaks while employees are in a duty status and available for work held negotiable).

X. Provision 9

The Members of the Authority disagree over the negotiability of this provision. The Decision and Order and Chairman Calhoun's dissent with respect to this provision follow this decision.

XI. Provision 10

This provision deals with Article Twenty-two, Part C. Only subsections (e), (f), and (g) of Section 8 are in dispute.

The Members of the Authority disagree over the negotiability of Section 8(f) of Provision 10. The Decision and Order and Chairman Calhoun's dissenting opinion with respect to Section 8(f) follow this decision.

The Members are in agreement with respect to the negotiability of Section 8(e) and (g) of Provision 1O, which state:

Article Twenty - Two - Leave Provisions for Less-Than-Annual Employees

Part C - Other Leaves and Absences

Section 8 (Family Leave)

(e) Reinstatement to one's former position and duty station will be made upon the Employee's return to work, except when the period of temporary disability exceeds thirty (30) days, the Employer shall determine when the unit member shall be reinstated, in consultation with the Employee(.)

(g) Hospitalization and life insurance premiums will continue in effect during a family leave period in accordance with Federal regulations.

A. Positions of the Parties

The Agency argues that to the extent Section 8(e) and (g) require management to guarantee continued employment past the end of the period of employment covered by the employees' personal services contracts, it is inconsistent with law, 10 U.S.C. 2304(a) and Department of Defense Acquisition Regulations regarding the procurement of staff for dependents schools. 

The Union argues that, after the expiration of personal service contracts, employees are covered by the parties' negotiated agreement and the provisions are negotiable.

B. Analysis and Conclusions

Section 8(e)

We find Section 8(e) to be nonnegotiable for reasons other than those alleged by the Agency. Section 8(e) would require the Agency to reassign employees to their former positions and duty stations when they return from family leave. Section 8(e) therefore has the same effect as the second portion of a proposal found nonnegotiable in Fort Knox Teachers Association and Fort Knox Dependent Schools, 26 FLRA No. 108 (1987), petition for review filed sub nom. For Knox Dependent Schools v. FLRA, No. 87-3393 (6th Cir. June 25, 1987). The proposal in that case would have required the agency to assign a teacher to his or her original position when that teacher returned from sabbatical leave. We held that such a requirement conflicts with management's right to assign employees under section 7106(a)(2)(A) of the Statute because it would prevent management from assigning the returning employee to any other available position or from permanently assigning any other employee to the position left for reasons of sabbatical leave. Section 8(e) of Provision 10 likewise would require the Agency to assign a returning employee to the particular position that employee had filled before taking family leave. Thus, for the reasons stated in Fort Knox Dependent Schools, we find that Section 8(e) of Provision 10 directly interferes with management's right to assign employees to positions in the Agency and is outside the duty to bargain. Because we find the proposal interferes with management's rights, we do not reach the other grounds for nonnegotiability raised by the Agency.

In our view, it is not clear that Section 8(e) is designed to mitigate against the adverse effects on employees of the exercise of a management right. Even assuming, however, that Section 8(e) constitutes an arrangement for employees adversely affected by the exercise of a management right within the meaning of section 7106(b)(3), we conclude that it is not an "appropriate" arrangement. Section 8(e) requires management to assign an employee returning from family leave to his or her previous position and duty station. While this provision provides employees the advantage of resuming the positions they previously occupied, it does so by depriving management of any other option for the placement of the employee. It does not, for example, permit  management to take into account any change in the circumstances affecting the position the employee left or other positions for which the employee is qualified and in which management may have a greater need for the employee's services. We find that the benefit to the employee afforded by the proposal is outweighed by the detrimental consequences of the limitations contained in the provision on the exercise of management's right to assign employees to positions. Section 8(e) excessively interferes with management's rights under section 7106(a)(2)(A) and is not an appropriate arrangement under section 7106(b)(3) of the Statute. Section 8(e), therefore, is outside the duty to bargain.

Section 8(g)

For the reasons set forth in our discussion of Provision 2 of this decision, we find that Section 8(g) is not inconsistent with 10 U.S.C. 2304.

Section 8(g) would require the Agency to continue hospitalization and life insurance premiums during the time an employee is on family leave, in accordance with Federal regulations. As to both hospitalization and life insurance we note that, while they are matters of discretion with the Agency, the Agency has elected to follow the Federal Personnel Manual in these matters. AR 352-3, Chapter 3-2.c. it is not alleged or shown that the provisions of Section 8(g) conflict with the FPM. We therefore find that Section 8(g) is within the duty to bargain. see VA Medical Center, Dayton, 28 FLRA No. 65 (1987) (Proposals 8 and 9). See also Provision 2 in this case.

XII. Provision 11

Article Twenty - Three - Adverse Weather Conditions

Section 3.

When weather conditions develop during duty hours which necessitate the closing of schools for any part of a day:

(a) Employees will be excused as soon as possible after the students have been dismissed.

Section 4.

The Employer agrees to refrain from requiring Employees to work under extreme cold or hot weather conditions when the request would result in a health hazard to the Employees. Employees may request and will be granted relief from extreme temperature conditions on an individual or group basis as circumstances warrant.

A. Positions of the Parties

The Agency contends that Section 3(a) conflicts with its right to assign work under section 7106(a)(2)(B) of the Statute because it would prevent management from assigning any work to employees for the rest of a duty day following the release of students and would further require that employees be released from duty.

The Agency contends that Section 4 places an absolute limit on management's ability to assign work during duty hours so as to violate management's right to assign work under section 7106(a)(2)(B).

The Union asserts that Section 3 merely requires the Agency to excuse unit employees when little or no work can be accomplished. Further, the Union contends that in certain circumstances this provision could be an appropriate arrangement under section 7106(b)(3) of the Statute, that is, when the event necessitating the release of students also would mandate the early release of employees in order that they will not suffer injury or death.

The Union contends that Section 4 is an appropriate arrangement under section 7106(b)(3) of the Statute.

B. Analysis and Conclusions

Section 3(a)

Section 3(a) would prevent management from assigning any duties to employees after the condition stated in the provision arises. That is, if management elects to close schools based on weather conditions which would necessitate excusing students, management would be required to excuse unit employees employees as well. Proposals which seek to prohibit or limit the assignment of duties to bargaining unit employees are inconsistent with management's right to assign work under section 7106(a)(2)(B). See, for example, Association of Civilian Technicians and State of Georgia National Guard, 2 FLRA 581 (1980) ; New York State Nurses Association and Veterans Administration Medical Center, Bronx, New York, 11 FLRA 578 (1983). Section 3(a) would limit the ability of management to require employees to perform any duties once the decision to close schools has been made. Therefore, it directly interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute.

Since Section 3(a) interferes with management's right to assign work under section 7106(a)(2)(B), it is nonnegotiable unless it can be found to be an appropriate arrangement under section 7106(b)(3) of the Statute. Kansas Army National Guard, 21 FLRA No. 4. As explained in Kansas Army National Guard, in order to determine whether a proposal constitutes a negotiable appropriate arrangement, we must first determine whether it is intended to be an arrangement for employees who may be adversely affected by the exercise of management's rights.

It appears that the Union intends Section 3(a) to be, at least in part, an arrangement under section 7106(b)(3) for employees adversely affected by the exercise of management's right to assign work. The Union's statements indicate that it intends Section 3(a) to have an effect broader than that of mitigating the alleged adverse consequences of requiring employees to work when weather conditions arise which necessitate the closing of schools. The Union states that the intent of Section 3(a) is to require management to excuse employees when little or no work can be accomplished. Moreover, the Union asserts that in some circumstances, presumably when the employees are trying to return to their homes, excusing the employees as early as possible would also prevent injury due to weather conditions. In our view, however, to require management to excuse employees every time students are released due to weather conditions, so as to protect employees in some circumstances, excessively interferes with management's right to assign work. Section 3(a), therefore, does not constitute an appropriate arrangement under section 7106(b)(3) and is outside the duty to bargain.

Section 4

Section 4 would prevent the Agency from assigning work to unit employees if the conditions established in the provision occur, namely, extreme weather conditions which would result in a health hazard to the employees. Moreover, Section 4 would require the Agency to release employees "on an individual or group basis as circumstances warrant."

Section 4, like Section 3(a), would limit management's ability to assign work to bargaining unit employees. For the reasons and cases cited with regard to Section 3(a), we find that Section 4 likewise interferes with the Agency's right to assign work under section 7106(a)(2)(B) of the Statute.

As to whether Section 4 is an appropriate arrangement, the threshold question is whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. Here, we find that Section 4 is intended to be an arrangement for employees adversely affected as a result of being required to work in extreme temperatures. Section 4 attempts to ameliorate possible detrimental consequences to the health of employees working in extreme temperatures by requiring management to grant employees' requests to stop working when such conditions arise.

The provision mitigates against the effects of extreme weather conditions, however, by requiring management to stop work regardless of the necessity of the work to be done, and regardless of the nature and extent of the potential hazard to employees' health. The effect of the provision, therefore, would be to restrict management's ability to accomplish its work even where the benefit to employees of being allowed to cease their duties would be minimal. In our view, such a proposed amelioration excessively interferes with management's exercise of its right to assign work.

Consequently, the provision does not constitute a negotiable "appropriate arrangement" within the meaning of section 7106(b)(3) of the Statute and it outside the duty to bargain.

XIII. Provisions 12 and 13

Provision 12

Article Twenty - Four - Position and Pay Management

Section 3.

Employees will be classified in two categories: (1) probationary and (2) career. Employees who are currently employed who have not attained career status by the effective date of this agreement and new employees shall be probationary employees until such time as they complete a full contract year. (For purposes of this provision, a period running consecutively from 1 July until 30 June of the following year is a full contract year). Upon the first day of commencement of his second consecutive full contract year of employment an employee will attain career status. Once an employee attains career status, he shall not be dismissed except for just cause.

Provision 13

Article Thirty-One.- Disciplinary Actions

Section 2.

The Employer shall administer disciplinary procedures and appropriate penalties to all employees in a fair and equitable manner and for just cause.

A. Positions of the Parties

The Agency claims that these provisions, to the extent that they would limit its right to terminate a unit employee at will, are nonnegotiable because "(they) conflict ( ) with applicable procurement law." Agency Statement of Position at 6-7. Specifically, the Agency contends that these provisions conflict with the Defense Acquisition Regulations (DAR) termination clause found in each unit employee's personal services contract, under which clause the Agency has the right to terminate an employee for any reason. The Agency claims that because the DAR clause was promulgated pursuant to the Armed Services Procurement Act, it has the force and effect of law.

The Union asserts that the Agency has not claimed or demonstrated that the DARs are Government-wide regulations within the meaning of section 7117 of the Statute or that the regulations meet the compelling need criteria of the Statute. Therefore, according to the Union, the DARs may not bar the negotiation of the disputed provisions. The Union further states that the subject matter of these provisions--the discipline and termination of unit employees--is not excluded from the statutorily-required grievance procedure under section 7121 of the Statute. The Union maintains that the status of employees as personal services contract personnel is merely another personnel system as envisioned by section 7121(f) of the Statute and that this section indicates Congressional intent that the negotiated grievance and arbitration procedure would cover adverse actions for employees not subject to the provisions of 5 U.S.C. is 4303 and 7512. The Union also asserts that the cases relied upon by the Agency to support its position that the DAR's have the force and effect of law are not persuasive because those cases were decided prior to the enactment of the Statute and further were  considered and decided on other grounds. The Union states that the Agency's arguments regarding the exclusivity of the appeals procedures in the Procurement Act have been eroded by the Court's decision in EEOC v. FLRA, 744 F.2d 842 (D.C. Cir. 1984), cert. dismissed, 106 S.Ct. 1687 (1986) (per curiam).

B. Analysis and Conclusions

These provisions would subject the discipline and termination of career status employees to the negotiated grievance and arbitration procedures.

With respect to Provision 12 in particular, the wording of the provision indicates that on the commencement of an employee's second full contract year, the employee could be dismissed only for just cause. We construe this part of the provision to mean that probationary employees, that is, employees who are in their first full contract year, could be summarily dismissed and that this dismissal would not be subject to the parties' negotiated grievance procedure. Provision 12 is therefore distinguishable from the provision in Service Employees' International Union, Local 556, AFL - CIO and Department of the Navy, Marine Corps Exchange, Kaneohe Bay, Hawaii, 26 FLRA No. 95 (1987). That case, like this one, involved employees who are not subject to probationary periods established by law and Government-wide regulation. We held in that case that by providing for employees to grieve their termination during the probationary period established by agency regulation the provision directly interfered with management's right to hire under section 7106(a)(2)(A). Neither the wording of Provision 12 nor the record in this case would subject the termination of probationary employees to the negotiated grievance procedure.

The Agency claims that Provisions 12 and 13 conflict with the DAR termination clause found in each unit employee's personal services contract. The Agency did not submit a copy of any personal services contract or provide a copy of the termination clause referenced in its Statement of Position. Further, the Agency did not cite any particular section of the DARs or the Armed Services Procurement Act which support its position. In this connection, the DARs referred to by the Agency in its Statement of Position, published at 32 C.F.R. Chapter 1, Parts 1 to 39, were replaced by the Federal Acquisition Regulation (FAR) system as of April 1, 1984. The general PAR published in September 1983 is codified at Chapter 1 of Title 48. Chapters 2 through 49 of Title 48 were reserved and established for individual agency implementations of the FAR. The FAR in Chapter 1 together with the agency regulations in Chapters 2 to 49 comprise the Federal Acquisition Regulation System. See subchapter A, parts 1-39, title 32 of the code of Federal Regulations (1986).

With respect to this case, the regulations replacing the DARs are published in Chapter 2, of Title 48 of the Code of Federal Regulations and are referred to as the Department of Defense Federal Acquisition Regulation Supplement or the DOD FAR Supplement. These regulations apply to contracts effective on April 1, 1984. Subpart 237.1 of the DOD FAR Supplement deals with service contracts generally. This subpart only deals with personal services contracts for experts and consultants and not with the type of employees comprising the bargaining unit in this case. See 48 C.F.R. 237.104(a) and (c). Considering this section and noting that none of the subparts under part 237, dealing with service contracting under the DOD FAR Supplement, are applicable to the employees in this case, it is our view that these regulations do not apply to the employees here.

Consequently, since the Agency does not support its contention that these provisions are nonnegotiable and because it is not otherwise apparent that the provisions are contrary to any law, rule, or regulation, we conclude that Provisions 12 and 13 are within the duty to bargain under the Statute. See, for example, National Association of Government Employees, Security Guard Local R4-19, Portsmouth, Virginia and Norfolk Naval Shipyard, 26 FLRA No. 22 (1987).

XIV. Order

The Agency must rescind its disapproval of Provision 1; Provision 2, Section 3, Section 4, the first and third sentences of Section 6, and Section 7; Provision 4; Provision 6; Provision 10, Section 8(g); and Provisions 12 and 13. 2

The Union's petition for review as to Provision 2, the second sentence of Section 6; Provision 3; Provision 5; Provision 7; Provision 8; Provision 10, Section 8(e); and Provision 11 is dismissed.

Issued, Washington, D.C., July 31, 1987

Jerry L. Calhoun, Chairman

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

DECISION AND ORDER ON PROVISION 9, AND PORTIONS OF PROVISION 10

I. Provision 9

Article Twenty - One, Parts A and B; Article Twenty - Two, Parts A and B

Articles Twenty-one and Twenty-two are concerned with leave administration. The text of the proposals is set forth in an Appendix to this decision. Article Twenty-one is entitled "Leave Provisions For Annual Employees." It provides that annual and sick leave shall be earned in accordance with applicable law and regulation, and sets forth the purposes for which leave may be requested and the manner in which requests will be made and granted. Article Twenty-two is entitled "Leave Provisions For Less-Than-Annual Employees." Part A provides for earned leave and leave credit. Part B sets forth the manner in which sick leave may be earned and credited, the purposes for which sick leave may be requested and the manner in which requests will be made and granted.

A. Positions of the Parties

The Agency in its disapproval of the locally executed agreement contends that Articles Twenty-one and Twenty-two can be read so as to bind the Agency to pay for leave in the fiscal year succeeding that in which it is earned, from the succeeding fiscal year's appropriations. The Agency argues that, to that extent, the Articles violate both Comptroller General decisions and 31 U.S.C. 1341 (formerly 31 U.S.C. 665(a)), also known as the Antideficiency Act (the Act), because the Act prohibits the obligation of funds in advance of appropriations. The Agency cites, without more, 42 Comp. Gen. 272 and the Federal Acquisition Regulations, 48 C.F.R 32.705-1 and 53.232-18, 19. The Agency indicates, however, that the provisions of these Articles would be acceptable if modified to ensure that payment for annual and sick leave shall be in accordance with 31 U.S.C. 1341.

The Union contends generally that none of the provisions of the parties' locally negotiated agreement are intended to interfere with management's rights. Specifically, as to Articles Twenty-one and Twenty-two, the Union argues that they provide only that the Agency is bound to pay for leave earned as prescribed by the negotiated agreement and by Agency regulations. The Union states that  the Articles do not dictate how the Agency will meet its obligation, but require only that the Agency apply funds in a legal manner.

B. Analysis and Conclusions

1. Statutory Considerations

In American Federation of Government Employees, AFL - CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1986), we held that substantive proposals regarding pay and fringe benefits which are not specifically provided for by Federal statute and, thus, are within the agency's discretion, concern conditions of employment and are negotiable to the extent that they are not inconsistent with applicable laws, rules, or regulations. Id., slip op. at 6-7.

As we found above, the employees in this case are employed with the Agency pursuant to 20 U.S.C. 241 (see Provision 1) and, pursuant to the authority granted it by 20 U.S.C. 241, the Agency has promulgated regulations (AR 352-3) governing the employees' conditions of employment (see Provision 2). Matters of leave administration are not otherwise specifically provided for by 20 U.S.C. 241, and may be determined by the Agency without regard to the provisions of title 5 of the United States Code. AR 352-3, Chapter 1-5.d(6). Under Eglin AFB, therefore, Provision 9 concerns a matter within the discretion of the Agency and, unless otherwise nonnegotiable, is within the duty to bargain. See Fort Knox Teachers Association and Board of Education of the Fort Knox Dependents Schools, 27 FLRA No. 34 (1987) Provision 4).

2. The Provision Does Not Violate Law

Contrary to the Agency's view, we find that Provision 9 does not violate the Antideficiency Act. The Agency's concern is that the provision may be read as obligating funds not yet appropriated, or funds appropriated for a succeeding fiscal year. We find that the provision does not create or impose such an obligation. Obligations such as salaries and paid leave are obligations of the Government at the time they are earned, that is, when the services that must be provided to earn the leave have been rendered. See, for example, 38 Comp. Gen. 316 (1958). Further, the use of earned leave obligates only appropriations which are current at the time the leave is used. Provision 9 does not obligate funds for future services, that is, for services not anticipated by the appropriation of funds for any given fiscal year. Thus, we find that the provision would not obligate the Government to expend funds in a succeeding year in violation of the Antideficiency Act. See Fort Knox Teachers Association and Fort Knox Dependent Schools, 26 FLRA No. 108 (1987), petition for review filed sub nom. Fort Knox Dependent Schools v. FLRA, No. 87-3393 (6th Cir. June 25, 1987).

II. Provision 10

Article Twenty - Two, Part C, Section 8(f)

An Employee may be granted a leave of absence without pay up to one (1) calendar year upon the birth or adoption of a child.

A. Positions of the Parties

The Agency argues that Section 8(f) is outside the duty to bargain, to the extent that it would require management to guarantee continued employment past the end of the period of employment covered by the employees' personal services contracts. The Agency argues that Section 8(f) thus is inconsistent with statute, 10 U.S.C. 2304 and Department of Defense Acquisition Regulations regarding the procurement of staff for dependent schools. The Union argues that, after the expiration of personal services contracts, employees are covered by the parties' negotiated agreement and Section 8(f) is negotiable.

B. Analysis and Conclusions

1. Whether Section 8(f) is Inconsistent with 10 U.S.C. 2304

The Agency asserts that Section 8(f) conflicts with 10 U.S.C. 2304. For the reasons set forth in connection with our discussion of Provision 2 above, we find that Section 8(f) does not conflict with the cited statute.

2. Whether Section 8(f) is Otherwise Nonnegotiable

Section 8(f) would require the Agency to grant a leave of absence without pay up to one calendar year upon the birth or adoption of a child. As we found above with regard to Provision 9, matters of leave administration are within the discretion of the Agency and it is not alleged or shown that the provisions of Section 8(f) otherwise conflict with applicable law or regulation. Section 8(f) is therefore within the duty to bargain. See Fort Knox Dependent Schools, 26 FLRA No. 108.

III. Order

The Agency must rescind its disapproval of Provision 9 and Section 8(f) of Provision 10.

Issued, Washington, D.C.,

Henry B. Frazier III, Member

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY 

DISSENTING OPINION OF CHAIRMAN CALHOUN

I. Provision 9

Provision 9 concerns the accrual and use of annual and sick leave. In National Union of Hospital and Health Care Employees, AFL - CIO, District 1199 and Veterans Administration Medical Center, Dayton, Ohio, 28 FLRA No. 65 (1987) (Proposals 8 and 9), we found that proposals dealing with the accrual of leave were negotiable because they incorporated the agency's regulations and specifically stated that the accrual of leave set forth in the proposals was subject to any modifications required by law or changes in the agency's governing policy. Such is not the case here. Article Twenty-one, Part A, Section 1 provides that leave shall be earned "in accordance with applicable statute and provisions of the Federal Personnel Manual." Under 20 U.S.C. 241, the bargaining unit in this case is not subject to Office of Personnel Management regulations governing leave. AR 352-3, Chapter 1-5.d(6). Moreover, unlike Section 8(g) of Provision 10 in this case concerning health and life insurance, the Agency has not by regulation adopted the leave provisions of FPM, chapter 630. Article Twenty-one, Part A, Section I is therefore distinguishable from VA Medical Center, Dayton and Section 8(g) of Provision 10. That is, that portion of Provision 9 does not require the Agency to abide by a rate of accrual of annual leave as set forth in applicable regulations; rather, it would require the Agency to adopt a rate of leave accrual through negotiation.

Article Twenty-one, Part A, Section 1, therefore, is to the same effect as Proposals 1-6 in Service Employees International Union, Local 556, AFL - CIO and Department of the Navy, Marine Corps Exchange 0911, Marine Corps Air Station, Kaneohe Bay, Hawaii, et al., 26 FLRA No. 47 (1987), petition for review filed sub nom. Department of the Navy, Marine Corps Exchange, Pearl Harbor v. FLRA, No. 87-7220 (9th Cir. May 21, 1987), which prescribed the particular terms under which employees would earn leave. In that case I stated that, for the reasons given in my dissent in American Federation of Government Employees, AFL - CIO, Local 1987 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1987), I would find that proposals prescribing the rate at which employees accrue annual leave concern a money-related fringe benefit and, in the absence of a clear expression of Congressional intent that such matters be negotiable, I would find that they are outside the duty to bargain. Since Article Twenty-one, Part A, Section 1 would bind the Agency to particular rates of accruing annual leave which are not those established in applicable regulations, I find, for the reasons stated in my dissent in Marine Corps Exchange, Kaneohe Bay, that it is outside the duty to bargain.

In the absence of any indication to the contrary in the record in this case and because of its similarity to Article Twenty-one, Part A, Section 1, I interpret Article Twenty-one, Part B, section 2 concerning sick leave likewise to bind the Agency to the provisions of the Federal Personnel Manual. For the reasons stated above, therefore, I would also find that portion of Provision 9 to be outside the duty to bargain. If, however, the regulations referred to in Article Twenty-one, Part B, Section 2 are applicable regulations other than the FPM, this portion of Provision 9 would be negotiable for the reasons discussed in connection with Provision 2. As to Article Twenty-two, which concerns the earning of annual and sick leave by less-than-annual employees, because it also prescribes substantive terms pertaining to leave which are not provided in Agency regulations, I would find it to be outside the duty to bargain.

II. Provision 10

For the reasons set forth in my dissent in Fort Knox Dependent Schools, 26 FLRA No. 108, I would find Section 8(f) of Provision 10 to be nonnegotiable.

Issued, Washington, D.C.

Jerry L. Calhoun, Chairman

FEDERAL LABOR RELATIONS AUTHORITY 

APPENDIX

ARTICLE TWENTY-ONE

LEAVE PROVISIONS FOR ANNUAL EMPLOYEES

A. ANNUAL LEAVE:

Section 1 Annual Employees shall earn leave in accordance with applicable statute and provisions of the Federal Personnel Manual.

Section 2 All requests for annual leave will be made by the Employee to the supervisor or an individual designated by the supervisor.

Section 3 Approval of an annual Employee's request for accrued annual leave for vacation purposes (forty (40) hours or more) may be granted, subject to work load requirements and available manpower, provided the Employee gives the appropriate supervisor advance notice of not less than four (4) weeks. Accrued Annual leave for vacation purposes once approved, will not be cancelled except in cases of operational requirements which require additional Employees to be available for work. When the Employer finds it necessary to cancel previously approved leave, the reasons for such action will be explained to the affected Employee(s).

Section 4 Accrued annual leave for short periods eight (8) hours or less will be granted upon request of the annual Employee subject to work load and manpower requirements.

Section 5 Request for accrued annual leave to cover emergency situations or unforeseen circumstances should be made in advance to the maximum extent possible and will be granted on an individual basis.

Section 6 Any annual Employee having accrued annual leave may apply in advance for leave and such leave with pay may be approved for any workday which occurs on the annual Employee's birthday or a religious holiday associated with the religious faith of the annual Employees, unless the granting of such leave would adversely affect the operation of the Employer.

Section 7 The Employer will provide annual Employees the opportunity to use accrued annual leave during the leave year to avoid forfeiture. All eligible Employees will be encouraged to take annual leave during school vacation periods. The leave year is defined as the period beginning with the first complete pay period in a calendar year and ending with the day immediately before the first day of the first complete pay period in the following calendar year.

Section 8 The Employer and the Employee have the mutual responsibility to plan and schedule the use of accrued annual leave for vacation purposes throughout the leave year. If voluntary arrangements cannot be agreed upon, the Employer will schedule annual leave with due consideration for workload, manpower requirements and Employee desires. When two (2) or more Employees have conflicting desires, leave will be granted on a first come, first served basis.

B. SICK LEAVE:

Section 1 The Union joins Management in recognizing the insurance value of sick leave and agrees to encourage Employees to conserve such leave so it will be available to them in case of extended illness or for annuity computation upon retirement. The Union will cooperate with the Employer to encourage Employees to give advance notice of incapacitation for duty.

Section 2 Employees shall earn and be granted sick leave in accordance with applicable statutes and regulations. Sick leave, if available, shall be granted to Employees when they are incapacitated for the performance of their duties by sickness, injury, pregnancy, or medical confinement, or for medical, dental, or optical examination or treatment. Sick leave may also be granted when a member of the immediate family of the Employee is afflicted with a contagious disease requiring attendance of the Employee as determined by a registered practicing physician.

Section 3 Each Employee will personally notify his supervisor or an individual designated by his supervisor as soon as practicable, normally by telephone, if he is prevented from reporting to work because of an incapacitating illness or injury. In the event the supervisor or designated individual is not readily available, the Employee will have fulfilled his responsibility by contacting his supervisor's office and providing notification. Employees will be given such notice prior to the start of their duty day. Employees sent home from work because of illness shall be subject to the foregoing reporting requirement on the following workday if still incapacitated. When any absence due to illness extends from one workweek into another, the Employee shall notify his supervisor on the first day of the second week and on the first day of each week thereafter until his return to duty. 

Section 4 Employees will be required to furnish an acceptable medical certificate to substantiate all periods of absence due to sickness which exceed three (3) consecutive workdays. The medical certificate must be furnished within three (3) workdays after return to duty. In individual cases where an Employee has been given a letter of requirement or has been granted sick leave because a member of the immediate family is afflicted with a contagious disease requiring attendance of the Employee, as determined by appropriate medical authority, an acceptable medical certificate will be furnished to substantiate any absence due to sickness regardless of duration. An acceptable medical certificate is defined as a written statement signed by a registered practicing physician, or other licensed practitioner, certifying to the incapacitation examination, treatment or the period of disability of any Employee while he was undergoing professional treatment.

Section 5 Sick leave requests for medical, dental, or optical examinations or treatment will be submitted for approval in advance, with minimum amounts of leave requested consistent with mission requirements. Normally, no more than four (4) hours of sick leave will be granted for medical examination or treatment.

Section 6 An acceptable medical certificate is required for every sick leave absence requiring attendance of an Employee at home because a member of the immediate family is afflicted with a contagious disease. The certificate will show the Employee's name, the name of the afflicted family member, the name of the disease, and the period of time that the Employee must attend the afflicted family member, The certificate must be signed by a registered practicing physician.

Section 7 Letters of requirement may be issued to Employee(s) by the Employer where there is reason to suspect the Employee is abusing sick leave privileges. Normally, prior to the issuance of the letter the Employee will be counselled as to his supervisor's concern and informed that he may be issued the letter if continuing his suspicious leave habits. In such cases, the Employee will be advised in writing that, because of this questionable sick leave record, an acceptable medical certificate will be required for each subsequent absence on sick leave, regardless of duration.

Section 8 Letters of Requirement will be reviewed by the issuing official six (6) months from the date of issue. If the conditions of the letter of requirement have been met, the letter will be withdrawn; otherwise, the requirement may be extended for an additional one (1) year period. 

Section 9 Unearned sick leave may be advanced to an Employee in cases of serious illness or disability upon his request in accordance with applicable statutes and regulations. Criteria for advancing sick leave are: (a) Absence would result in a nonpay status due to serious disability or ailment for which there is inadequate leave accrual; (b) the Employee's sick leave record clearly indicates a pattern fully consistent with the principles governing proper use of sick leave; (c) all compensatory time and accrued sick leave have been used; (d) medical prognosis and other evidence provide reasonable assurance that the Employee will be able to resume duty on a regular basis and accrue sufficient sick leave credit to liquidate the amount advanced; and (e) the application for advanced sick leave is supported by an acceptable medical certificate signed by a physician or medical practitioner. The amount of sick leave advanced to an Employee's account may never exceed thirty (30) days.

Section 10 It is agreed that actual time spent by Employees in obtaining examination or treatment as the result of a job-incurred illness, disease or injury, shall be in a duty status on the first day of such treatment and will not be charged to sick leave. Should the employee be sent home as a result of that illness, disease, or injury, administrative excused time will be charged beginning at the time the Employee was referred to the health care facility and for the balance of the duty day. Absences on subsequent days as the result of that illness, disease or injury will be handled in accordance with provisions covering continuation of pay. The Employee may request leave without pay (LWOP) to cover this period of absence.

ARTICLE TWENTY-TWO

LEAVE PROVISIONS FOR LESS-THAN-ANNUAL EMPLOYEES

A. EARNED LEAVE:.

Section 1 Less-than-Annual Employees will be granted leave with pay, if earned, on all regular school vacation periods. Less-than-Annual Employees shall be in a leave-without-pay status during summer months when services are not required and such time shall be creditable for Civil Service retirement to the extent provided for by appropriate Federal regulations.

B. SICK LEAVE:

Section 1 The union joins Management in recognizing the insurance value of sick leave and agrees to encourage  Employees to conserve such leave so it will be available to them in case of extended illness or for annuity computation upon requirement.

Section 2 All less-than-annual Employees will be granted sick leave with pay, if earned, not to exceed ten (10) days per term of employment, plus the number of sick leave days accrued, but not used, by the Employee in preceding periods of Federal employment.

Section 3 Sick leave, if available, shall be granted to Employees in hourly increments when they are incapacitated for the performance of their duties by sickness, injury, pregnancy or medical confinement, or for medical, dental, or optical examination or treatment. Sick leave will normally be granted in hourly increments when a member of the Employee's immediate family becomes ill or is involved in an accident requiring the Employee's attendance. During the first hour of granted sick leave, the Employee shall determine if and when he will be able to return to work in order that the Employer may make appropriate arrangements for a substitute. "Immediate family" in this instance is defined as spouse, dependent children and parents residing in the same household. Sick leave may also be granted when a member of the immediate family of the Employee is afflicted with a contagious disease requiring attendance of the Employee as determined by a registered practicing physician.

Section 4 Each Employee will personally notify his supervisor r an individual designated by his supervisor as soon as practicable, normally by telephone, if he is prevented from reporting to work because of an incapacitating illness or injury. In the event the supervisor or designated individual is not readily available, the Employee will have fulfilled his responsibility by contacting his supervisor's office and providing notification. Employees will give such notice prior to the start of their duty day. Employees sent home from work because of illness shall be subject to the foregoing reporting requirement on the following workday if still incapacitated. When any absence due to illness extends from one workweek into another the Employee shall notify his supervisor on the first day of the second week and on the first day of each week thereafter until his return to duty.

Section 5 Employees may be required to submit an acceptable medical certificate in substantiation of each absence due to claimed illness of any duration and will be required to furnish an acceptable medical certificate to substantiate all periods of absence due to sickness which exceeds three (3) consecutive workdays. The medical certificate must be furnished within three (3) workdays after return to duty. An acceptable medical certificate is defined as a written statement signed by a registered practicing physician, or other licensed practitioner, certifying to the incapacitation, examination, treatment, or the period of disability of an Employee while he was undergoing professional treatment.

Section 6 Sick leave requests for medical, dental or optical examination or treatment will be submitted for approval in advance, with minimum amounts of leave requested consistent with mission requirements. Normally, no more than four (4) hours of sick leave will be granted for medical examinations or treatment.

Section 7 An acceptable medical certificate is required for every sick leave absence requiring attendance of an Employee at home because a member of the immediate family is afflicted with a contagious disease. The certificate must be signed by a registered practicing physician.

Section 8 Letters of requirement may be issued to Employee(s) by the Employer where there is reason to suspect the Employee is abusing sick leave privileges. Normally, prior to issuance of the letter, the Employee will be counselled as to his supervisor's concern and informed that he may be issued the letter if continuing his suspicious leave habits. In such cases, the Employee will be advised in writing that, because of his questionable sick leave record, an acceptable medical certificate will be required for each subsequent absence on sick leave, regardless of duration.

Section 9 Letters of Requirement will be reviewed by the issuing official six (6) months from the date of issue. If the conditions of the letter of requirement have been met, the letter will be withdrawn; otherwise, the requirement may be extended for an additional one (1) year period.

Section 10 Unearned sick leave may be advanced to an Employee in cases of serious illness or disability upon his request in accordance with applicable statutes and regulations. Criteria for advancing sick leave are: (a) Absence would result in a nonpay status due to serious disability or ailment for which there is inadequate leave accrual; (b) the Employee's sick leave record clearly indicates a pattern fully consistent with the principles governing proper use of sick leave; (c) all compensatory time and accrued sick leave subject to forfeiture have been used; (d) medical prognosis and other evidence provide reasonable assurance that the Employee will be able to resume duty on a regular basis and accrue sufficient sick leave credit to liquidate the amount advanced; and (e) the application for advanced sick leave is supported by an acceptable medical certificate signed by a physician or medical practitioner. The amount of sick leave advanced to an Employee's account may (n)ever exceed thirty (30) days.

Section 11 It is agreed that actual time spent by Employees in obtaining examination or treatment as the result of a job-incurred illness, disease or injury, shall be in a duty status on the first day of such treatment and will not be charged to sick leave. Should the employee be sent home as a result of that illness, disease, or injury administrative excused time will be charged beginning at the time the Employee was referred to the health care facility and for the balance of the duty day. Absence on subsequent days as the result of that illness, disease or injury will be handled in accordance with the provisions governing continuation of pay. The Employee may request leave without pay (LWOP) to cover this period of absence.

C. OTHER LEAVES AND ABSENCES:

Section 8 Family Leave.

(a) In accordance with the Equal Opportunity Act of 1972, female Employees shall not be penalized in their condition of employment because they require time away from work caused by or contributed to by pregnancy, miscarriage, abortion, childbirth, and/or recovery. The use of leave in this regard will be treated in the same manner as any other temporary disability, and female Employees will neither be penalized nor given preferential treatment for maternity reasons;

(b) Any absence for maternity reasons may be chargeable to sick leave, personal leave or leave without pay. An employee may use sick leave when she is disabled and unable to perform the duties of her job as a result of pregnancy;

(c) Family leave, normally not to exceed six (6) months, will be granted Employees;

(d) There will be no limitation of employment before childbirth. However, after consultation with her physician and the Employer, a decision will be made on an individual basis as to how far into pregnancy the Employee may continue to work and when she may return to work. Such information should be furnished to an individual's principal on a form furnished by the Employer and verified by the attending physician; 

(e) Reinstatement to one's former position and duty station will be made upon the Employee's return to work, except when the period of temporary disability exc