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

 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