19:0939(111)NG - NAGE Local R12-29 and Navy, Naval Construction Battalion Center, Port Hueneme, CA; AFGE, Local 48 and Navy, Naval Supply Center, Puget Sound, Bremerton, WA; Point Mugu Council of NAGE Local R12-33, NFFE Local 1374 and Navy, Pacific Missile Test Center, Point Mugu, CA -- 1985 FLRAdec NG



[ v19 p939 ]
19:0939(111)NG
The decision of the Authority follows:


 19 FLRA No. 111
 
 NATIONAL ASSOCIATION OF GOVERNMENT
 EMPLOYEES, LOCAL R12-29
 Union
 
 and
 
 DEPARTMENT OF THE NAVY, NAVAL
 CONSTRUCTION BATTALION CENTER,
 PORT HUENEME, CALIFORNIA
 Agency
 
                                            Case No. O-NG-528
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, LOCAL 48
 Union
 
 and
 
 DEPARTMENT OF THE NAVY, NAVAL SUPPLY
 CENTER, PUGET SOUND, BREMERTON,
 WASHINGTON
 
                                            Case No. O-NG-595
 
 and
 
 POINT MUGU COUNCIL OF NATIONAL
 ASSOCIATION OF GOVERNMENT EMPLOYEES,
 LOCAL R12-33, NATIONAL FEDERATION
 OF FEDERAL EMPLOYEES, LOCAL 1374
 Union
 
 and
 
 DEPARTMENT OF THE NAVY, PACIFIC
 MISSILE TEST CENTER, POINT MUGU,
 CALIFORNIA
 Agency
                                            Case No. O-NG-661
 
                DECISION AND ORDER NO NEGOTIABILITY ISSUES
 
    The petitions for review in these cases come before the Authority
 pursuant to section 7105(a)(2)(D) and (E) of the Federal Service
 Labor-Management Relations Statute (the Statute), and present issues
 concerning the negotiability of two Union proposals and one provision of
 a negotiated agreement disapproved by the Agency head pursuant to
 section 7114(c) of the Statute.  /1/ Upon careful consideration of the
 entire record, including the parties' contentions, the Authority makes
 the following determinations.  /2/
 
                             Union Proposal 1
 
                         (from Case No. O-NG-528)
 
          Any unit employee who is temporarily assigned/detailed or
       promoted to any higher graded position on a non-competitive basis,
       and performs the duties of that higher graded position, will after
       5 days (calendar) receive the pay of that position.  At the
       beginning of the 6th day the employee shall receive pay
       retroactive back to the start of the first hour of the day
       assigned/detailed or promoted.  (Only the first sentence is in
       dispute.) /3/
 
                             Union Proposal 2
 
                         (from Case No. O-NG-595)
 
          When a qualified employee is assigned as an acting supervisor
       for fourteen (14) calendar days or more and performs the full
       scope of the duties of the position for such time, a temporary
       promotion will be made under applicable rules and regulations.
       /4/
 
                             Union Provision 1
 
                         (from Case No. O-NG-661)
 
          Employees assigned to a classified higher graded position will
       (if qualified) be temporarily promoted when the employee is in the
       position in excess of 10 work days.  Temporary promotions will be
       documented on the appropriate forms.
 
    The Agency contends that, since the disputed language in each case
 consolidated herein concerns a matter related to the filling of
 supervisory positions, such language does not concern conditions of
 employment of bargaining unit employees and, thus, is negotiable only at
 the election of the Agency.  In addition, the Agency contends that the
 disputed language in each case is barred from negotiation under section
 7117(a)(2) of the Statute by an Agency regulation for which there is a
 "compelling need." These contentions will be dealt with in turn.
 
    In American Federation of Government Employees, AFL-CIO and Air Force
 Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604,
 628 (1980), enforced sub nom. Department of Defense v. Federal Labor
 Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub
 nom. AFGE v. FLRA, 455 U.S. 945 (1982) the Authority found that Proposal
 XIV, which required the employer to temporarily promote an employee on
 the 31st day of a detail to a higher graded position, was within the
 duty to bargain even assuming that the proposal applied to details to
 supervisory positions.  See also Methods and Standards Association and
 Naval Air Rework Facility, Naval Air Station, Pensacola, Florida, 2 FLRA
 286 (1979) wherein a proposal requiring that employees temporarily
 assigned duties of higher level positions for five days or more be
 temporarily promoted was found to be within the duty to bargain.  Since
 the language in dispute in the instant cases is to the same effect as
 the proposals found to be within the duty to bargain in the cited
 decisions the disputed language herein is within the duty to bargain
 unless otherwise barred from negotiation by Agency regulations for which
 a compelling need exists, as also claimed by the Agency in these cases.
 
    The regulation in question (DON, CPI 355 VI, D) provides that "(n)o
 temporary promotion may be made to a supervisory position for less than
 31 days." The Agency argues that a compelling need exists for this
 regulation under each of the illustrative criteria for determining
 compelling need set out in section 2424.11 of the Authority's Rules and
 Regulations.  /5/ As to criteria (a) and (b), it is well settled that an
 agency can establish that a "compelling need" exists for its regulation
 to bar negotiation of a conflicting union proposal under the Statute and
 the Authority's Rules and Regulations only if it demonstrates that such
 regulation is "essential" or "necessary" to achieve certain ends.
 American Federation of Government Employees, AFL-CIO, Local 3804 and
 Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA
 217, 220 (1981).
 
    In the instant cases the Agency's claim that a compelling need exists
 for its regulation under criterion (a) is based essentially on the
 argument that since OPM directives do not require temporary promotions
 for time periods as brief as the disputed language in the cases would
 require, the negotiation of such language would impose administrative
 and cost burdens on the Agency which are inconsistent with "the
 requirement of an effective and efficient government." Specifically the
 Agency states:
 
          It has been a long standing rule . . . that assignments
       (details) to other positions, including higher level positions, of
       30 days or less are of such little significance that they may be
       made with no documentation . . . .  Further, in the case of
       details to higher level positions or positions with known
       promotion potential, OPM has established no requirement for
       competitive procedures to be used until the detail exceeds 120
       days.  These procedures recognize the fact that there is
       frequently a need to assign employees to duties other than those
       of their regular positions for brief periods of time for a variety
       of reasons.  They also recognize that the administrative workload
       associated with documenting these brief assignments and processing
       the necessary documents for effecting and discontinuing temporary
       promotions for brief periods can be very burdensome and costly.
       /6/
 
 With regard to these administrative and cost burdens the Agency states
 that in order to temporarily promote an employee and then to return that
 employee to the employee's original grade involves a 14 step
 administrative process.  Further, the Agency adds that a study at one
 activity indicated that a processing and salaries cost of approximately
 $10,000 was incurred in temporarily promoting 150 individuals for 14
 days.
 
    In the Authority's view, the Agency's contention that a compelling
 need exists for its regulation under criterion (a) cannot be sustained.
 Subchapter 8 of FPM Chapter 300 concerns details and provides in 8-3
 that "(d)etails are intended only for meeting temporary needs of the
 agency's work program when necessary services cannot be obtained by
 other desirable or practicable means." Subchapter 8-3 provides further
 that emergency details may be made appropriately "(t)o meet emergencies
 occasioned by abnormal workload, special projects or studies, changes in
 mission or organization, or unanticipated absences" and that other
 details may be made "(p)ending official assignment, pending description
 and classification of new position, pending security clearance and for
 training purposes(.)" Subchapter 8-4 provides that details are to be
 kept "within the shortest practicable time limits" and specifically in
 8-4(e), with regard to details to higher grade positions, as follows:
 
          e.  Details to higher grade positions.  (1) Except for brief
       periods, an employee should not be detailed to perform work of a
       higher grade level unless there are compelling reasons for doing
       so.  Normally, an employee should be given a temporary promotion
       instead.
 
 These OPM directives indicate that details in general are intended to be
 utilized sparingly and that when a higher grade position is involved and
 except for brief periods, agencies should temporarily promote employees
 instead of detailing them.  It is noted in this respect, that the
 disputed language in each case herein sets out a specified period of
 time that employees will perform the duties of a higher grade position
 before a temporary promotion is required.  Thus, the disputed language
 in each case preserves the Agency's flexibility to meet emergency or
 special circumstances while, after a brief period of time, permitting an
 employee to receive pay commensurate with the higher level duties being
 performed.  As to the administrative and cost burden incurred by the
 Agency in effecting temporary promotions, it is obvious that temporarily
 promoting employees will always involve some amount of administrative
 cost.  In those cases, based on the data provided by the Agency, such
 costs average approximately $133 per temporary promotion action.
 However, such costs are, to some extent, within the Agency's control
 since they are a function of the 14 step process created by the Agency
 to effect temporary promotions.  Consequently, the Agency in these cases
 has not established that the additional administrative costs associated
 with temporarily promoting employees for less than 31 days, as
 prohibited by the Agency's regulation, are of such a nature and amount
 as to render the Agency's regulation "essential" or "necessary" to
 achieve "an effective and efficient government." Thus, the Authority
 concludes that a compelling need does not exist under criterion (a) for
 the regulation in question.
 
    The Agency also contends that a compelling need exists for its
 regulation under criterion (b) because it is necessary to insure the
 maintenance of basic merit principles.  In essence, the Agency argues
 that employees detailed to supervisory positions do not perform the full
 range and depth of the duties and responsibilities of supervisory
 positions during the first 30 days of such details.  Thus, the Agency
 concludes "(o)ur decision (to permit temporary promotions only after the
 31st day of a detail) in an attempt to establish equity, i.e., pay for
 the exercise of supervisory duties, and no pay when they are not fully
 exercised, must of necessity provide for an arbitrary time limitation."
 In this respect, however, when an employee is detailed to a higher grade
 position that employee can be expected to bear the responsibilities and
 be expected to perform the duties of the position at any time during the
 detail.  While the employees who in these cases are detailed to
 supervisory positions are not expected to perform certain of the duties
 of the supervisory positions they are required to "respond adequately to
 matters or questions of specific work performance and keep the work flow
 moving" which at a minimum concerns directing other employees and
 assigning work.  Therefore, the Agency has not established that its
 regulation is "essential" or "necessary" to insure the maintenance of
 basic merit principles.
 
    Finally, the Agency's contention that since its regulation implements
 a nondiscretionary mandate to the Agency under law and OPM directives it
 meets the requirement of criterion (c) also cannot be sustained.
 Specifically, the OPM directives relied upon by the Agency establish
 time limitations on the length of a detail to a higher grade position,
 /7/ on the length of an undocumented detail to a higher grade position
 /8/ and on the length of a detail to a higher grade position effected
 without the use of competitive promotion procedures.  /9/ There is
 nothing in these directives which prohibits or otherwise indicates that
 an agency is prohibited from temporarily promoting employees at any
 time.  In fact, as previously indicated in this decision these OPM
 directives indicate that a temporary promotion is the preferred way of
 requiring employees to perform the duties of a higher grade position.
 Thus, in the absence of any showing that the Agency's regulation
 implements a mandate to the effect that temporary promotions could not
 be effected for time periods as brief as the disputed language in these
 cases would require, the Authority concludes that a compelling need for
 such regulation does not exist under criterion (c).
 
    Consequently, the Agency has failed to demonstrate that the
 regulation relied upon as a bar to negotiation of the otherwise
 negotiable language in each of these cases meets the criteria for
 compelling need pursuant to section 2424.11.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall upon request (or as
 otherwise agreed to by the parties) bargain on the disputed proposals in
 Case No. O-NG-528 and Case No. O-NG-595.  IT IS FURTHER ORDERED that the
 Agency shall rescind its disapproval of the disputed provision in Case
 No. O-NG-661 which was bargained on and agreed to by the parties at the
 local level.  /10/ Issued, Washington, D.C., August 23, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Since the two disputed proposals, one each in Case Nos. O-NG-528
 and O-NG-595, and the one disputed provision in Case No. O-NG-661 each
 concerns a common issue and since the Department of the Navy has alleged
 that the disputed language in each case is inconsistent with the same
 regulation for which it claims a compelling need exists, the Authority
 has deemed it appropriate to consolidate these three cases in this
 decision.
 
 
    /2/ The Union in Case No. O-NG-528 did not file a Reply Brief.
 
 
    /3/ The Agency's arguments as to the nonnegotiability of this
 proposal concern only the requirement to temporarily promote employees
 detailed to supervisory positions for less than 31 days.
 
 
    /4/ During the pendency of Case No. O-NG-595 the Union withdrew from
 consideration a portion of its proposal concerning rotation of temporary
 promotions among eligible employees.  Consequently, that portion of the
 proposal is not set forth and will not be further considered herein.
 
 
    /5/ Section 2424.11 of the Authority's Rules and Regulations
 provides:
 
          (a) The rule or regulation is essential, as distinguished from
       helpful or desirable, to the accomplishment of the mission or the
       execution of functions of the agency or primary national
       subdivision in a manner which is consistent with the requirements
       of an effective and efficient government.
 
          (b) The rule or regulation is necessary to insure the
       maintenance of basic merit principles.
 
          (c) The rule or regulation implements a mandate to the agency
       or primary national subdivision under law or other outside
       authority, which implementation is essentially nondiscretionary