18:0326(43)NG - Maritime/Metal Trades Council and Panama Canal Commission -- 1985 FLRAdec NG
[ v18 p326 ]
18:0326(43)NG
The decision of the Authority follows:
18 FLRA No. 43 MARITIME/METAL TRADES COUNCIL Union and PANAMA CANAL COMMISSION Agency Case No. 0-NG-979 DECISION AND ORDER ON NEGOTIABILITY ISSUES The petition for review in this case comes before the Authority pursuant to section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and presents issues concerning the negotiability of five Union proposals. /1/ Upon careful consideration of the entire record, including the contentions of the parties, the Authority makes the following determinations. Union Proposal 1 The early retirement provisions of Pub. L. 96-70 are incorporated herein by reference and made a part of this agreement. Based on the record herein, it appears that Union Proposal 1 would incorporate in the parties' negotiated agreement the provisions of 5 U.S.C. 8336(i) and 8339(d)(2) relating to early retirement. /2/ The Union states that the inclusion of these provisions by reference within the agreement is intended "to open up title 7 avenues of redress." /3/ The Agency contends, without controversion, that the Union intends thereby to provide for unit employees to grieve the denial of claims for early retirement through the negotiated grievance procedure. /4/ As such, the Agency argues, the proposal is outside the duty to bargain under section 7117(a)(1) of the Statute /5/ because it is inconsistent with law, i.e., section 7121(c)(2) of the Statute, which excludes matters pertaining to retirement from the scope of the negotiated grievance procedure. /6/ The Authority agrees. Section 7121(c)(2) excludes from the grievance procedures required by section 7121(a) and (b) of the Statute any grievance concerning retirement. Thus, to the extent that Union Proposal 1 is intended to provide a basis for employee grievances as to denial of claims for early retirement benefits pursuant to 5 U.S.C. 8336(i) and 8339(d)(2), it is clearly inconsistent with section 7121(c)(2) and is outside the duty to bargain under section 7117(a)(1). The exclusion of such grievances as are contemplated by the proposal is clear on the face of section 7121(c)(2). The reason for the exclusion is evident from consideration of the provisions of law relating to retirement benefits for Federal employees. In particular, under 5 U.S.C. 8347(b) the Office of Personnel Management (OPM) is granted jurisdiction over the adjudication of all claims as to benefits under subchapter III of chapter 83 of title 5 of the United States Code. See also 5 CFR 831.101. Under 5 U.S.C. 8347(d)(1) an administrative action or order affecting the rights of individuals under subchapter III of chapter 83 of title 5 may be appealed to the Merit Systems Protection Board (MSPB). /7/ See also 5 CFR 1201.3(a)(6). Thus, it is evident that matters pertaining to retirement are excluded from the negotiated grievance procedure because they are subject to other procedures under law. /8/ Union Proposal 2 The Commission will eliminate all discriminatory provisions in its travel regulations. By its plain language, as well as the Union's stated intent, Union Proposal 2 would require the Agency to eliminate all provisions of its travel regulations which provide benefits to some employees that are denied to others. However, while the Union claims that the proposal is intended to eliminate provisions of the Agency's travel regulations which provide different benefits to employees based upon such distinctions as whether they were hired in Panama prior to the Panama Canal Treaty of 1977, it does not cite the provisions of the regulations having the alleged discriminatory effect to which it refers. Nor does the Union cite discriminatory effect, stating that "it is difficult for (it) to point out all various areas" in which discriminatory provisions based on date and place of employment, "or others, are extant or apply to employees in the bargaining unit." /9/ The Agency, citing the Authority's decision in Association of Civilian Technicians, Alabama ACT and State of Alabama National Guard, 2 FLRA 314 (1979), argues that the proposal is not sufficiently specific and delimited in form and content so as to enable it to determine whether or not the proposal is negotiable. In particular, the Agency claims that it is not possible to determine whether the proposal violates applicable law and Government-wide regulation by requiring the elimination of distinctions between employees required by such law and regulation. The Authority agrees. In this regard, since the Union has not specified which provisions of the Agency's travel regulations establish benefits based upon date and place of employment, it is not possible to determine whether the elimination of such provisions would conflict with law and regulation. See, for example, 22 U.S.C. 3647, which provides round-trip transportation for undergraduate college education for dependents of certain specified employees based upon the date of their employment. Moreover, while the Union implies that there are provisions of the Agency's travel regulations which may have other discriminatory effects, it admits that it is unable to identify any such provisions or specify any other distinctions among employees which would be affected by the proposal. In essence, the Union itself concedes that it cannot indicate what actions the Agency would need to take to comply with the proposal. The Authority has consistently held that, in order for a determination as to the negotiability of a proposal to be made, that proposal must be set forth with sufficient specificity the particular matter to be negotiated. Without such specificity it is impossible to measure the proposal against applicable law and regulation so as to determine whether it is inconsistent therewith. While the proposal here in dispute would require the elimination of discriminatory provisions, it does not specify, or provide a basis for determining, which provisions are discriminatory so as to permit a determination as to whether elimination thereof would be consistent with law and regulation. Thus, Union Proposal 2 is not sufficiently specific and delimited to permit a negotiability determination. Therefore, Union Proposal 2 does not meet the conditions for review set forth in section 7117(a)(1) of the Statute and section 2424.1 of the Authority's Rules and Regulations. See National Federation of Federal Employees, Local 1167 and Department of the Air Force, Headquarters, 31st Combat Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA 574, 584 (1981), affirmed as to other matters sub nom. National Federation of Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886 (1982); American Federation of Government Employees, AFL-CIO, Local 3525 and United States Department of Justice, Board of Immigration Appeals, 10 FLRA 61, 66-68 (1982); Fort Bragg Unit of North Carolina Association of Educators, National Education Association and Fort Bragg Dependents Schools, Fort Bragg, North Carolina, 12 FLRA 519, 527 (1983). Union Proposal 3 The Commission yacht 'Blue Runner' will be made available to professional employees on an equitable, negotiated basis once a month on a weekend. Based upon the language of the proposal and the record in the case, it appears that Union Proposal 3 is intended to provide unit employees with the use of the Agency's launch for recreational purposes on weekends. The Agency contends that the proposal is outside the duty to bargain under section 7103(a)(14) of the Statute because it does not concern the "conditions of employment" of unit employees. /10/ The Authority agrees. The Authority has consistently held, as a general rule, that matters concerning non-work activities of employees while in a non-duty status do not constitute "conditions of employment" within the meaning of section 7103(a)(14) of the Statute. See International Association of Fire Fighters, AFL-CIO, Local F-116 and Department of the Air Force, Vandenberg Air Force Base, California, 7 FLRA 123 (1981) (proposal providing off-duty employees and dependents use of agency property for recreational purposes, e.g., hunting and fishing, does not concern "conditions of employment"); American Federation of Government Employees, Local 225 and U.S. Army Armament Research and Development Command, Dover, New Jersey, 11 FLRA 630 (1983) (proposal concerning us of "picnic area" and "recreational facilities" does not concern "conditions of employment"); National Federation of Federal Employees, Local 1363 and United States Army Garrison, Yongsan, Korea, 12 FLRA 635 (1983) (proposal concerning dispensation of alcoholic beverages in membership association nonappropriated fund instrumentalities does not concern "conditions of employment"); International Organization of Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA 508, 517-18 (1983) (proposal concerning acquisition of licenses for personal activities of employees, e.g., boats and airplanes, does not concern "conditions of employment"); Maritime Metal Trades Council and Panama Canal Commission, 17 FLRA No. 116 (1985) (proposal concerning personal check cashing privileges does not concern "conditions of employment"). Thus, for the reasons set forth in the cited decisions, Union Proposal 3 herein, which concerns recreational use of Agency property during weekends, i.e., non-duty time, is outside the duty to bargain under section 7103(a)(14) of the Statute. Moreover, contrary to the Union's contention, the fact that the Agency has in the past permitted recreational use of its launch by employees on weekends does not thereby transform the matter into a "condition of employment" which is subject to the duty to bargain. See Maritime Metal Trades Council, at 3 of slip opinion, citing National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA 588, 593 (1981). Union Proposal 4 1. All Panamanian professional employees who were hired before October 1, 1979 on a temporary basis, and who achieved permanent status after October 1, 1979 without a break in service shall be given the option of remaining covered under the Panamanian social security system or obtaining coverage under the Federal Civil Service Retirement program. 2. The Commission will do everything it can to see that the goal set forth in paragraph 1 of this article is achieved. 3. The Commission will report to the union monthly on its progress in achieving the goal set forth in paragraph 1 of this article. Union Proposal 4 would afford all Panamanian, i.e., non-United States citizen, professional employees of the Panama Canal Commission who received permanent appointment after October 1, 1979, but who had been employed on temporary appointments prior to that date, an option of choosing coverage under the Federal Civil Service Retirement System. The Agency contends that this proposal is outside the duty to bargain under section 7117(a)(1) of the Statute because it is inconsistent with law, i.e., 22 U.S.C. 3649 (Pub. L. 96-70, Sec. 1209) /11/ and Paragraph (1) of Article VIII of the Agreement in Implementation of Article III of the Panama Canal Treaty of 1977 (hereinafter referred to as the "Agreement"). /12/ The Authority agrees. In this regard, 22 U.S.C. 3649 provides, as relevant herein, that the laws governing retirement benefits for Federal employees do not apply to non-United States citizens who were initially appointed to positions in the Panama Canal Commission after October 1, 1979, and who are covered by the Social Security System of Panama pursuant to the Panama Canal Treaty and related agreements. The legislative history of this provision, read in conjunction with Paragraph (1)(b) of the Agreement, indicates that it was the intent of Congress, as well as the United States and Panamanian governments, that only those employees who were covered by the Civil Service Retirement System prior to October 1, 1979, would be covered by the System after that date. The House Committee report which accompanied the legislation eventually enacted as the Panama Canal Act of 1979 stated, with respect to this provision, as follows: /13/ Section 128. Inapplicability of Certain Benefits to Certain Non Citizens.-- This section would effect technical amendments to conform certain provisions of personnel law to the new Treaty provisions concerning non-United States citizen employees of the Panama Canal Commission hired after the Treaty effective date who would be covered by the social security system of the Republic of Panama (see Article VIII of the Agreement in Implementation of Article III of the Panama Canal Treaty of 1977). The amendments would make inapplicable to such persons the provisions of title 5 of the United States Code dealing with compensation for work injuries, retirement, life insurance, and health insurance. Coverage under such provisions would continue for non-United States citizen federal employees who had such coverage immediately prior to Treaty effective date. The Senate Committee report accompanying this same legislation contained similar language: /14/ Section 309-- Inapplicability of certain benefits to certain noncitizens Subsection (a) of section 309 provides that the provisions of title 5, United States Code, relating to compensation for work injuries (chapter 81), civil service retirement (chapter 83), life insurance (chapter 87), and health insurance (chapter 89) shall be inapplicable to non-United States citizen employees of the Panama Canal Commission who are initially hired by the Commission after October 1, 1979 (the effective date of the Treaty) and who are covered by the Social Security System of the Republic of Panama. Non-United States citizen employees who were covered by such provisions of title 5 immediately before the effective date of the treaty of the treaty (i.e., coverage as of September 30, 1979) will continue to be covered by those provisions. Paragraph (1)(b) of Article VIII of the Agreement is to the same effect: /15/ (Non-United States citizens) who were employed prior to the entry into force of this Agreement by the Panama Canal Company and Canal Zone Government and who were covered under the Civil Service Retirement System of the United States shall continue to be covered by the system until their retirement or until the termination of their employment with the Commission for any other reason. Thus, under 22 U.S.C. 3649 and Paragraph (1)(b) of Article VIII of the Agreement, employees who were not covered by chapter 83 of title 5 prior to October 1, 1979 are precluded from coverage after that date. In this regard, Union Proposal 4 pertains to Panamanian citizens who were temporary employees of either the Panama Canal Company or the Canal Zone Government prior to October 1, 1979. Under 5 U.S.C. 8347(g), the Office of Personnel Management (OPM) may exclude from subchapter III of chapter 83 of title 5 an employee or group of employees in an Executive agency whose employment is temporary. /16/ By regulation, OPM has excluded temporary employees from coverage of subchapter III of chapter 83. Such exclusion applied prior to 1979. /17/ Thus, temporary employees of the Panama Canal Company or the Canal Zone Government who did not become permanent employees of the successor agency, the Panama Canal Commission, until after October 1, 1979, were never covered by subchapter III of chapter 83 of title 5. They were not entitled to participate in the Federal Civil Service Retirement System prior to October 1, 1979, and, therefore, under 22 U.S.C. 3649, are precluded from participating therein after that date. Hence, by purporting to create an option for Panamanian citizen employees of the Panama Canal Commission, who did not become permanent employees until after October 1, 1979, to participate in the Federal Civil Service Retirement System under chapter 83 of title 5, Union Proposal 4 is inconsistent with 22 U.S.C. 3649 and Paragraph (1)(b) of Article VIII of the Agreement and outside the Agency's duty to bargain under section 7117(a)(1) of the Statute. Cf. International Organization of Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA 508, 523 (1983) (proposal to grant newly hired pilots, without regard to citizenship, option of choosing union pension plan nonnegotiable because inconsistent with Paragraph (1)(a) of Article VIII of the Agreement). Union Proposal 5 1. The Commission will do everything it can to establish 6/4 and/or 50-50 workplans for all employees in the bargaining unit. 2. The Commission will report to the union monthly on its progress in achieving the goal set forth in paragraph 1 of this article. As explained by the Union, Union Proposal 5 would require the Agency to make every effort to establish work schedules whereby employees may work six (6) weeks and then have four (4) weeks off, or some similar schedule, such as a "50-50" plan, whereby an employee would have "an equal time off for that time on." /18/ The Agency contends that this proposal is outside the duty to bargain under section 7117(a)(1) of the Statute because it is inconsistent with law, i.e., the Federal Employees Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. 6120 et seq. The Authority agrees. Under chapter 61 of title 5 of the United States Code, for agencies and employees within its coverage, Federal agencies are required to establish a basic workweek of five (5) 8-hour days, Monday through Friday. 5 U.S.C. 6101(a)(2) and (3). 5 CFR 610.121. /19/ However, under the Federal Employees Flexible and Compressed Work Schedules Act of 1982, agencies are authorized to establish, as alternatives to the 40-hour workweek, flexible and compressed work schedules, see 5 U.S.C. 6122 and 6127, which, in essence, permit employees to work longer workdays in exchange for time off in the same or in the following workweek. In this regard, as to flexible schedules, 5 U.S.C. 6122 permits employees not only to vary their starting and quitting times, as long as they are present during certain "core hours," but also to work longer than their 8-hour daily work requirement so as to accumulate "credit hours" to be used to reduce the length of the workweek or of another workday. /20/ Under 5 U.S.C. 6126(a), however, an employee working a flexible schedule established pursuant to 5 U.S.C. 6122, may not accumulate more than 24 credit hours during a biweekly pay period for use during the following biweekly pay period. /21/ Union Proposal 5, considered as a proposed flexible schedule pursuant to 5 U.S.C. 6122, contemplates an arrangement where an employee would work for 6 weeks and then be entitled to 4 weeks off. In order for an employee to be entitled to 4 weeks off within the framework of a flexible schedule under 5 U.S.C. 6122, that employee would have to be able to accumulate 160 credit hours during three biweekly pay periods for use in the following two biweekly periods. Under Union Proposal 5, therefore, the number of credit hours required to implement the proposed work schedule exceeds the 24 credit hour limit provided in 5 U.S.C. 6126(a). Moreover, since it would also be necessary under the proposal to carry those credit hours beyond the biweekly pay period following the pay period in which they were accumulated, in this respect as well as the proposal conflicts with Sec. 6126(a). Thus, considered as a proposed flexible work schedule pursuant to 5 U.S.C. 6122, Union Proposal 5 is inconsistent with the limitations governing the use of credit hours in connection with such schedules under 5 U.S.C. 6126(a). Moreover, Union Proposal 5 does not fall within the definition of a "compressed schedule" under 5 U.S.C. 6121(5). /22/ By the terms of that definition, such a schedule involves an 80-hour basic biweekly work requirement which is scheduled for less than 10 workdays. That is, a "compressed schedule" authorized under 5 U.S.C. 6127 is a fixed work schedule which, by means of longer daily work requirements, i.e., longer than 8 hours, results in a reduced length for the basic workweek, e.g., to 4 days out of 5, or 9 days out of 10 on a biweekly basis. /23/ Union Proposal 5 is not a proposal which is intended to reduce the length of the workweek on either a weekly or biweekly basis as contemplated by 5 U.S.C. 6121(5) and 6127. Rather, as discussed above, it appears intended to authorize a work schedule, e.g., in which employees work longer than 8-hour workdays and/or 5-day workweeks for 6 weeks and the extra time thus accumulated is used to provide 4 weeks off from work. Thus, the proposal does not constitute a "compressed schedule" which agencies are authorized to establish under 5 U.S.C. 6121(5) and 6127. Finally, though the Union states that the proposal is intended only to require the Agency to "explore the possibility that such a plan could be implemented on behalf of bargaining unit members," /24/ that fact does not render the proposal negotiable. The Authority has consistently held that proposals requiring an agency to make an effort to accomplish an objective which is outside the duty to bargain are themselves nonnegotiable. See American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 8 FLRA 409 (1982); Maritime Metal Trades Council and Panama Canal Commission, 17 FLRA No. 116 (1985) (Union Proposal 4). /25/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review as to Union Proposals 1, 2, 3, 4 and 5 be, and it hereby is, dismissed. Issued, Washington, D.C., May 31, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Pursuant to section 2424.3 of the Authority's Rules and Regulations, the Union requested written allegations of nonnegotiability from the Agency as to six disputed proposals. However, as a result of a subsequent agreement with the Agency to discuss further the sixth proposal, the Union did not appeal that matter herein. Union Petition for Review at seventh unnumbered page. /2/ The referenced provisions represent the codification of sections 1241 and 1242 of the Panama Canal Act of 1979, Pub. L. 96-70, 93 Stat. 465. See Agency Brief at 1. /3/ Union Petition for Review at second unnumbered page. /4/ Agency Brief at 1-2. /5/ Section 7117(a)(1) provides: Sec. 7117. Duty to bargain in good faith; compelling need; duty to consult (a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation. /6/ Section 7121(c)(2) provides, in relevant part, as follows: Sec. 7121. Grievance procedures * * * * (c) The preceding subsections of this section shall not apply with respect to any grievance concerning-- * * * * (2) retirement, life insurance, or health insurance(.) /7/ MSPB has jurisdiction over appeals as to retirement claims under 5 U.S.C. 7701 as well. Hein v. OPM, 1 MSPB 396 (1980); Chavez v. OPM, 6 MSPB 343 (1981). /8/ In this regard, cf. section 7121(e)(1) of the Statute, wherein Congress especially provided employees an option to raise, under the negotiated grievance procedure, matters pertaining to unacceptable performance under 5 U.S.C. 4303 and to adverse actions under 5 U.S.C. 7512, which matters would otherwise be appealable to MSPB under 5 U.S.C. 7701. /9/ Union Petition for Review at third unnumbered page. /10/ Section 7103(a)(14) provides, in relevant part, as follows: Sec. 7103. Definition; application (a) For the purpose of this chapter-- * * * * (14) "conditions of employment" means personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions . . . (.) /11/ 22 U.S.C. 3649 provides: Sec. 3649. Inapplicability of certain benefits to certain noncitizens Chapter 81 of Title 5, relating to compensation for work injuries, chapter 83 of such Title 5, relating to civil service retirement, chapter 87 of such Title 5, relating to life insurance, and chapter 89 of such Title 5, relating to health insurance, are inapplicable to any individual-- (1) who is not a citizen of the United States; (2) whose initial appointment by the Commission occurs after October 1, 1979; and (3) who is covered by the Social Security System of the Republic of Panama pursuant to any provision of the Panama Canal Treaty of 1977 and related agreements. /12/ Paragraph (1) of Article VIII of the Agreement in Implementation of Article III of the Panama Canal Treaty of 1977 provides as follows: (1) Concerning Social Security and retirement benefits applicable to employees of the Commission who are not United States citizens, the following provisions shall apply: (a) Such persons who are employed by the Commission subsequent to the entry into force of this Agreement shall, as of their date of employment, be covered by the Social Security System of the Republic of Panama. (b) Such persons who were employed prior to the entry into force of this Agreement by the Panama Canal Company and Canal Zone Government and who were covered under the Civil Service Retirement System of the United States shall continue to be covered by the system until their retirement or until the termination of their employment with the Commission for any other reason. /13/ H.R. REP. NO. 96-98, 96th Cong., 1st Sess. 52 (1979). /14/ S. REP. NO. 96-225, 96th Cong., 1st Sess. 23 (1979). /15/ See note 12, supra. /16/ 5 U.S.C. 8347(g) provides, in relevant part, as follows: Sec. 8347. Administrative; regulations * * * * (g) The Office may exclude from the operation of this subchapter an employee or group of employees in or under an Executive agency whose employment is temporary or intermittent. The Panama Canal Commission is an Executive agency within the meaning of 5 U.S.C. 8347(g). See 22 U.S.C. 3611, 5 U.S.C. 8331(1)(A), and 5 U.S.C. 2105. /17/ 5 CFR 831.201(a)(1) (1978) provides as follows: Sec. 831.201 Exclusions from retirement coverage. (a) The following groups of employees in the executive branch of the Government are excluded from subchapter III of chapter 83 of title 5, United States Code: (1) Employees serving under appointments limited to 1 year or less. See also 5 CFR Part 316, Subpart C. /18/ Union Petition for Review at sixth unnumbered page. /19/ Professional employees of the Panama Canal Commission are covered by chapter 61 of title 5 of the United States Code. 5 U.S.C. 105, 2105, 6101, 6121 and 22 U.S.C. 3611. /20/ 5 U.S.C. 6122(a) provides: Sec. 6122. Flexible schedules; agencies authorized to use (a) Notwithstanding section 6101 of this title, each agency may establish, in accordance with this subchapter, programs which allow the use of flexible schedules which include-- (1) designated hours and days during which an employee on such a schedule must be present for work; and (2) designated hours during which an employee on such a schedule may elect the time of such employee's arrival at and departure from work, solely for the such purpose or, if and to the extent permitted, for the purpose of accumulating credit hours to reduce the length of the workweek or another workday. An election by an employee referred to in paragraph (2) shall be subject to limitations generally prescribed to ensure that the duties and requirements of the employee's position are fulfilled. /21/ 5 U.S.C. 6126(a) provides: Sec. 6126. Flexible schedules; credit hours, accumulation and compensation (a) Subject to any limitation prescribed by the Office of Personnel Management or the agency, a full-time employee on a flexible schedule can accumulate not more than 24 credit hours, and a part-time employee can accumulate not more than one-fourth of the hours in such employee's biweekly basic work requirement, for carryover from a biweekly pay period to a succeeding biweekly pay period for credit to the basic work requirement for such period. See also 5 U.S.C. 6121(4) /22/ 5 U.S.C. 6121(5) provides: Sec. 6121. Definitions For purposes of this subchapter-- * * * * (5) "compressed schedule" means-- (A) in the case of a full-time employee, an 80-hour biweekly basic work requirement which is scheduled for less than 10 workdays, and (B) in the case of a part-time employee, a biweekly basic work requirement of less than 80 hours which is scheduled for less than 10 workdays(.) /23/ 5 U.S.C. 6127 provides: Sec. 6127. Compressed schedules; agencies authorized to use (a) Notwithstanding section 6101 of this title, each agency may establish programs which use a 4-day workweek or other compressed schedule. (b)(1) An employee in a unit with respect to which an organization of Government employees has not been accorded exclusive recognition (1) unless a majority of the employees in such unit who, but for this paragraph, would be included in such program have voted to be so included. (2) Upon written request to any agency by an employee, the agency, if it determines that participation in a program under subsection (1) would impose a personal hardship on such employee, shall-- (A) except such employee from such program; or (B) reassign such employee to the first position within the agency-- (i) which becomes vacant after such determination, (ii) which is not included within such program, (iii) for which such employee is qualified, and (iv) which is acceptable to the employee. A determination by an agency under this paragraph shall be made not later than 10 days after the day on which a written request for such determination is received by the agency. /24/ See note 18, supra. /25/ In support of its contention that Union Proposal 5 is negotiable, the Union claims that the Agency has established a "6/4" plan for employees of another bargaining unit. However, regardless of the Agency's practices with respect to a different unit, it cannot be concluded from that fact that unit employees herein are not subject to the requirements as to basic workweek under chapter 61 of title 5 of the United States Code.