31:0789(53)NG - AFGE Local 1923 and HHS, Health Care Financing Administration -- 1988 FLRAdec NG
[ v31 p789 ]
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, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTE: */ In finding this proposal to be within the duty to bargain, the Authority makes no judgment as to its merits.