Methods and Standards Association (Union) and Naval Air Rework Facility, Naval Air Station, Pensacola, Florida (Activity) 

 2 FLRA No. 34
 
 METHODS AND STANDARDS
 ASSOCIATION
 (Union)
 
 and
 
 NAVAL AIR REWORK FACILITY,
 NAVAL AIR STATION,
 PENSACOLA, FLORIDA
 (Activity)
 
                                            Case No. 0-NG-41
 
                      DECISION ON NEGOTIABILITY ISSUE
 
                              UNION PROPOSAL
 
    UNIT EMPLOYEES WHO ARE NON-COMPETITIVELY, TEMPORARILY ASSIGNED THE
 DUTIES OF A HIGHER GRADE
 
    POSITION FOR A PERIOD OF FIVE DAYS OR MORE WILL RECEIVE THE PAY
 AUTHORIZED FOR THE HIGHER
 
    GRADE POSITION.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THEUNION'S PROPOSAL IS OUTSIDE THE DUTY TO
 BARGAIN UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS (FSLMR)
 STATUTE, AS ALLEGED BY THE AGENCY, BECAUSE IT WOULD PRESCRIBE PROCEDURES
 FOR FILLING THRESHOLD SUPERVISORY POSITIONS OUTSIDE THE BARGAINING UNIT.
 
                                  OPINION
 
    CONCLUSION:  THE PROPOSAL CONCERNS MATTERS WITHIN THE DUTY TO BARGAIN
 IN GOOD FAITH UNDER SECTION 7117(A) OF THE FSLMR STATUTE.  /1/
 ACCORDINGLY, PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES AND
 REGULATIONS (44 FED.REG. 44740 ET SEQ.(1979)), THE AGENCY'S ALLEGATION
 THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET
 ASIDE.  /2/
 
    REASONS:  THE UNION'S PROPOSAL IN THIS CASE PROVIDES IN ESSENCE THAT
 IF AN EMPLOYEE IN THE UNIT IS NONCOMPETITIVELY, TEMPORARILY ASSIGNED BY
 MANAGEMENT TO PERFORM THE DUTIES OF A HIGHER GRADE POSITION, I.E.,
 SELECTED FOR A DETAIL, FOR FIVE DAYS OR MORE, THAT EMPLOYEE WILL RECEIVE
 THE PAY FOR THAT POSITION.
 
    THE AGENCY ALLEGES THAT THIS PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN
 BECAUSE IT INVOLVES PROCEDURES WHICH MANAGEMENT WOULD BE REQUIRED TO USE
 IN FILLING SUPERVISORY POSITIONS OUTSIDE THE BARGAINING UNIT.  ACCORDING
 TO THE AGENCY, THE OBLIGATION TO BARGAIN IS CONFINED TO THOSE PERSONNEL
 POLICIES AND PRACTICES RELATING TO POSITIONS WITHIN THE BARGAINING UNIT
 AND, THEREFORE, THERE IS NO DUTY TO BARGAIN ON THIS PROPOSAL.
 
    ON THE OTHER HAND, THE UNION CONTENDS THAT THE AGENCY HAS
 MISINTERPRETED THE PROPOSAL;  THAT ITS PROPOSAL IN NO WAY LIMITS OR
 ATTEMPTS TO DETERMINE THE PROCEDURES WHICH MANAGEMENT MUST USE IN
 FILLING SUPERVISORY POSITIONS.  INSTEAD, THE UNION ASSERTS, THE PROPOSAL
 ONLY SEEKS TO INSURE THAT UNIT EMPLOYEES WHO ARE TEMPORARILY PLACED BY
 MANAGEMENT IN POSITIONS OF GREATER RESPONSIBILITY WILL RECEIVE THROUGH
 TEMPORARY PROMOTION THE HIGHER PAY COMMENSURATE WITH THOSE POSITIONS.
 THE AUTHORITY FINDS MERIT IN THE UNION'S CONTENTION.
 
    ON ITS FACE THE PROPOSAL DOES NOT SEEK TO LIMIT MANAGEMENT IN ANY
 MANNER WHATSOEVER WITH RESPECT TO THE PROCEDURES MANAGEMENT WILL USE
 TO
 FILL POSITIONS.  IT DOES NOT CONCERN MANAGEMENT'S DECISION TO SELECT AN
 EMPLOYEE, IF ANY, FOR NONCOMPETITIVE ASSIGNMENT TO A HIGHER GRADED
 POSITION ON A TEMPORARY BASIS.  RATHER, THE PROPOSAL, BY ITS EXPRESS
 LANGUAGE AS WELL AS THE UNION'S STATEMENT AS TO THE INTENDED MEANING OF
 SUCH LANGUAGE ALREADY MENTIONED, SOLELY IS CONCERNED WITH THE LEVEL OF
 COMPENSATION THE EMPLOYEE WILL RECEIVE ONLY AFTER MANAGEMENT HAS
 SELECTED THAT EMPLOYEE, PURSUANT TO PROCEDURES OF ITS OWN CHOICE.
 
    IN THIS REGARD, THE ACT CALLED FOR BY THE PROPOSAL, OF PROVIDING
 COMPENSATION TO THE EMPLOYEE AT THE LEVEL COMMENSURATE WITH THE JOB HE
 OR SHE IS PERFORMING (I.E., TEMPORARILY PROMOTING THE EMPLOYEE), SIMPLY
 IS A MINISTERIAL ACT IMPLEMENTING MANAGEMENT'S DECISION TO SELECT AND
 ASSIGN THE EMPLOYEE INVOLVED TO THE HIGHER GRADE POSITION.  AS
 PREVIOUSLY INDICATED, NOTHING IN THE PROPOSAL WOULD INTERFERE WITH
 MANAGEMENT'S RIGHT TO MAKE SUCH DECISION TO SELECT AND ASSIGN.  THUS,
 NOTHING IN THE PROPOSAL WOULD IMPAIR MANAGEMENT'S RIGHT TO DETERMINE
 WHETHER AND WHOM TEMPORARILY TO PROMOTE.
 
    FOR THE REASONS STATED, AND SINCE IT DOES NOT APPEAR THAT THE
 DISPUTED PROPOSAL OTHERWISE IS INCONSISTENT WITH ANY APPLICABLE LAW OR
 REGULATION, THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN PURSUANT TO
 SECTION 7117(A) OF THE STATUTE.  ACCORDINGLY, THE AGENCY'S ALLEGATION TO
 THE CONTRARY IS SET ASIDE.
 
    ISSUED, WASHINGTON, D.C., DECEMBER 21, 1979
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, SEC.
 7117 (92 STAT. 1205) PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    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 NO 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.
 
    (2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
 INCONSISTENT WITH FEDERAL
 
    LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
 WHICH ARE THE SUBJECT TO ANY
 
    AGENCY RULE OR REGULATION REFERRED TO IN PARAGRAPH (3) OF THIS
 SUBSECTION ONLY IF THE
 
    AUTHORITY HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO
 COMPELLING NEED (AS
 
    DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS FOR
 THE RULE OR REGULATION.
 
    (3) PARAGRAPH (2) OF THE SUBSECTION APPLIES TO ANY RULE OR REGULATION
 ISSUED BY ANY AGENCY
 
    OR ISSUED BY ANY PRIMARY NATIONAL SUBDIVISION OF SUCH AGENCY, UNLESS
 AN EXCLUSIVE
 
    REPRESENTATIVE REPRESENTS AN APPROPRIATE UNIT INCLUDING NOT LESS THAN
 A MAJORITY OF THE
 
    EMPLOYEES IN THE ISSUING AGENCY OR PRIMARY NATIONAL SUBDIVISION, AS
 THE CASE MAY BE, TO WHOM
 
    THE RULE OR REGULATION IS APPLICABLE.
 
    /2/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
 BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
 PROPOSAL.