31:0789(53)NG - AFGE Local 1923 and HHS, Health Care Financing Administration -- 1988 FLRAdec NG



[ v31 p789 ]
31:0789(53)NG
The decision of the Authority follows:


 31 FLRA NO. 53

AMERICAN FEDERATION OF GOVERNMENT
EMPLOYEES, AFL-CIO, LOCAL 1923

              Union

       and

DEPARTMENT OF HEALTH AND HUMAN SERVICES
HEALTH CARE FINANCING ADMINISTRATION

              Agency

                                             Case No. 0-NG-1452

              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)(E) of the Federal Service
Labor - Management Relations Statute (the Statute). The case
concerns the negotiability of a proposal concerning the rate of
pay for employees detailed for more than 20 days to special rate
positions. We find that the proposal is within the duty to
bargain because it is not inconsistent with a Government-wide
regulation and it does not interfere with the Agency's rights to
assign work, assign employees, or determine the numbers and types
of employees assigned to Washington, D.C., as alleged by the
Agency.

     II. Proposal

     When an employee is detailed to a special rate position for
     a period in excess of 20 days the detail shall be considered a
     temporary reassignment, and the employee shall be entitled to the
     special pay rate effective on the first workday of the
     reassignment.

     A. Positions of the Parties

     The Agency contends that the proposal is not within the duty
to bargain because it is inconsistent with (1) 5 C.F.R. 532.411,
a Government-wide regulation; and (2)  management's rights
to assign work, assign employees, and determine the numbers and
types of employees assigned to the Agency's Washington, D.C.,
location, under section 7106 of the Statute.

     The Union maintains that 5 C.F.R. 532.411 applies only to
prevailing rate employees and does not apply to secretarial or
clerical General Schedule (GS) employees who are covered by the
proposal. The Union further argues that the proposal does not
restrict the Agency's right to assign work. Rather, it asserts
that the proposal concerns payment for a work assignment at the
Washington special pay rate. The Union asserts that the proposal
is similar to proposals found negotiable by the Authority that
require employees who have been temporarily assigned to
higher-graded positions to receive the pay authorized for those
positions. In the alternative, the Union argues that if the
proposal interferes with management's right, the extent of the
interference is not excessive. It therefore concludes that the
proposal is an appropriate arrangement under section
7106(b)(3).

     B. Analysis

     This dispute arose during bargaining over the impact and
implementation of the Agency's decision to implement special
salary rates for certain clerical employees whose official duty
station is located in the Washington, D.C., metropolitan area.

     1. 5 C.F.R. 532.411 Does Not Bar Negotiations

     The Agency argues that the proposal is inconsistent with a
Government-wide regulation, 5 C.F.R. 532.411, which provides that
"(a)n appropriated fund employee detailed to a position other
than the position to which appointed shall be paid at the rate of
the position to which appointed." The record establishes that the
proposal applies only to "certain clerical employees" assigned to
perform the duties of various positions classified in the General
Schedule. See, for example, Agency Statement of Position at 1.

     We find that 5 C.F.R. Part 532, including section 532.411,
which is relied on by the Agency, applies only to prevailing rate
employees and not to clerical and secretarial positions in the
General Schedule that are the subject of this bargaining
proposal. 5 C.F.R. 532.103. Consequently, even if 5 C.F.R.
532.411 is a Government-wide regulation, it does not bar
negotiation of this proposal.  

2.  The Proposal Does Not Interfere with Rights

     The Agency argues that the proposal violates its right to
assign work because it prevents the Agency from exercising its
discretion to determine whether to assign work to the employee by
means of a "detail" or a "reassignment." This proposal requires
that if management assigns an employee for more than 20 days to
perform the duties of a position for which management has
implemented special pay rates, the employee to whom that work is
assigned will be compensated at the special rates. This proposal
does not restrict the Agency's right to assign any work to any
employee for any length of time.

     The Agency makes no  arguments in support of its claims that
the proposal interferes with its rights to assign employees, or
to determine the numbers and types of employees to assign. We do
not read the proposal as imposing any restriction on these rights
and, therefore, reject the Agency's claims.

     This case, therefore, is distinguishable from the
Authority's decision in American Federation of Government
Employees, AFL - CIO, National Border Patrol Council and
Department of Justice, immigration and Naturalization Service, 23
FLRA  146, 151-53 (1986) (Proposal 2).  In that decision, the
Authority held that a proposal which required the agency to avoid
assigning certain employees to details which would reduce their
annual compensation was nonnegotiable. The Authority found that
the proposal prevented management from assigning the specified
employees to certain types of details and from assigning the
employees involved work for which "administratively
uncontrollable overtime" was not authorized. Hence, the provision
directly interfered with management's rights to determine which
employee would be assigned and to require the employees to
perform certain duties. The present proposal, in contrast, does
not limit the Agency's exercise of its rights to assign employees
or work.

     This proposal is analogous to proposals which required
agencies to compensate an employee who was temporarily assigned
to perform the duties of a higher-graded position at the rate of
pay appropriate for the higher-graded position. For example,
National Federation of Federal Employees and Department of the
Interior, Bureau of Land Management 29 FLRA  1491, 1494-96
(1987), petition for review filed sub nom. Department of the
Interior, Bureau of Land Management v. FLRA,  No.  87-1838 (D.C.
Cir. Dec. 29, 1987); American Federation of Government
Employees, AFL - CIO and Air Force Logistics Command, Wright -
Patterson Air Force Base, Ohio, 2  FLRA  04, 628-30 (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 those proposals were negotiable because they merely required
the agencies to compensate employees at the level commensurate
with the job being performed, but did not interfere with
management's rights.

     Likewise, the present proposal requires the Agency to
compensate employees at special rates but does not interfere with
management's rights. Furthermore, by specifying that the proposal
does not apply to assignments for 20 days or less, the proposal
preserves the Agency's flexibility to meet emergency or other
special circumstances. See National Association of Government
Employees, Local R12-29 and Department of the Navy, Naval
Construction Battalion Center, Port Hueneme, California, 19 FLRA 
939, 943 (1985).

     C. Conclusions

     The Agency has not shown how this proposal interferes with
its rights to assign employees or work, to determine the members
and types of employees assigned to Washington, D.C., or conflicts
with any other law or regulation. In view of our conclusion that
the proposal does not interfere with management's rights, it is
unnecessary to consider the Union's alternative claim that the
proposal constitutes an "appropriate arrangement" under section
7106(b)(3) of the Statute.

     III. Order

     The Agency must negotiate upon request, or as otherwise
agreed to by the parties, concerning the proposal. */

     Issued, Washington, D.C., March 11, 1988.

                         Jerry L. Calhoun,        Chairman

                         Jean McKee,