17:0650(93)CA - Health Care Financing Administration and AFGE Local 1923 -- 1985 FLRAdec CA

[ v17 p650 ]
The decision of the Authority follows:

 17 FLRA No. 93
 Charging Party
                                            Case No. 3-CA-30335
                            DECISION AND ORDER
    This matter is before the Authority pursuant to the Regional
 Director's "Order Transferring Case to the Federal Labor Relations
 Authority" in accordance with section 2429.1(a) of the Authority's Rules
 and Regulations.
    Upon consideration of the entire record in this case, including the
 stipulation of facts, accompanying exhibits, and the parties'
 contentions, /1/ the Authority finds:
    The complaint alleges that the Health Case Financing Administration
 (the Respondent) violated section 7116(a)(1) and (5) of the Federal
 Service Labor-Management Relations Statute (the Statute) /2/ by
 unilaterally changing a past practice concerning retroactive temporary
 promotions while a question concerning representation (QCR) was pending
 before the Authority, /3/ as such change was not required consistent
 with the necessary functioning of the Respondent.  /4/
    The stipulated record reveals that since August 21, 1980, the
 American Federation of Government Employees, AFL-CIO (AFGE), has been
 certified as the exclusive representative of a consolidated unit of
 professional and nonprofessional employees at the Respondent's
 Headquarters, and that since February 17, 1982, and at all times
 material herein, a QCR existed involving such bargaining unit.  Also, at
 all times material herein, AFGE Local 1923 (the Union) has been the
 designated agent of AFGE for handling collective bargaining issues
 arising within the Respondent's Baltimore, Maryland and Washington, D.C.
    Since about 1978, the Respondent had followed the practice of
 granting to an otherwise qualified employee detailed to a higher-grade
 position for more than 120 days a retroactive temporary promotion and
 backpay beginning with the 121st day of the detail.  This practice was
 consistent with and based upon the Comptroller General's decisions in 55
 Comp.Gen. 539 (1975), hereinafter referred to as Turner-Caldwell I,
 holding that employees detailed to higher-grade positions for more than
 120 days were entitled to retroactive temporary promotions with backpay
 for the period beginning with the 121st day of the detail until its
 termination, and with 56 Comp.Gen. 427 (1977), hereinafter referred to
 as Turner-Caldwell II, which sustained Turner-Caldwell I.  However, in
 or about June 1982, the Respondent decided to discontinue this practice
 without notifying the Union.
    The stipulated record further indicates that the Respondent, a
 component of the Department of Health and Human Services (HHS), had
 earlier received a letter dated February 1982, from the Acting Director
 of the Division of Compensation of HHS, which referred to the Court of
 Claims decision in Wilson v. United States, 229 Ct.Cl. 510 (1981),
 wherein the court, in considering a claim for a retroactive temporary
 promotion and backpay based upon Turner-Caldwell II, denied such claim.
 Rejecting the Comptroller General's Turner-Caldwell II decision, the
 court held that neither the applicable statute (5 U.S.C. 3341, which
 limits details to 120 days) nor the Federal Personnel a Manual,
 authorizes a retroactive temporary promotion and backpay in cases
 involving overlong details.  After referring to the court's decision,
 the letter further noted the questionable validity of the Comptroller
 General's decision, supra, and advised the Respondent to stop processing
 claims for retroactive temporary promotions until the Comptroller
 General reached a final determination on the matter.  Later, the
 Respondent received another letter from HHS which referred to the
 Comptroller General's decision in 61 Comp.Gen. 408 (1982), hereinafter
 referred to as Turner-Caldwell III, wherein the Comptroller General, in
 view of the court's decision in Wilson, overruled its decisions in
 Turner-Caldwell I and II, and adopted the Wilson decision.  The letter
 also indirectly referred to the Comptroller General's decision in
 another case, 61 Comp.Gen. 403 (1982), hereinafter referred to as
 Beachley and Davis, wherein the Comptroller General carved out
 exceptions to the Wilson decision and, among other things, advised the
 Respondent to resolve any claims concerning retroactive temporary
 promotions consistent with the Comptroller General's decisions.  /5/
    Sometime later, by letter dated February 9, 1983, the Respondent, in
 reply to a letter from the Union dated January 19, 1983, concerning
 retroactive temporary promotions stated, among other things, that:
          The Agency's practice has always been to follow the governing
       (Comptroller General) decisions in (cases concerning when
       employees are entitled to reimbursement for higher-grade details).
        As you know, the Turner-Caldwell line of cases was reversed last
       year in the U.S. Court of Claims in Leon V. Wilson v. U.S.
          In Wilson, it was determined that payment for details to higher
       graded positions was deemed improper and illegal by the General
       Accounting Office (GAO), absent a binding Agency regulation or
       collective bargaining agreement (CBA).  Since neither a binding
       Agency regulation nor CBA has ever existed in HCFA, the Agency was
       required to continue its practice of following the governing line
       of (Comptroller General) cases and modifying the procedures for
       reimbursement to higher graded duties to reflect the new legal
    The General Counsel and the Union argue in their briefs to the
 Authority that the Comptroller General's decision in Turner-Caldwell
 III, wherein the Comptroller General decided to follow the Wilson
 decision, did not require the Respondent to institute a change in its
 policy.  Citing United States Department of Justice, United States
 Immigration and Naturalization Service, 9 FLRA 253 (1982), they contend
 that the Respondent's change herein was not "required consistent with
 the necessary functioning of the agency," and therefore the Respondent,
 by failing to maintain existing conditions of employment during the
 pendency of a QCR, violated section 7116(a)(1) and (5) of the Statute.
    The Authority disagrees, finding that the decision in Immigration and
 Naturalization Service, supra, is inapposite where management's change
 in practice is required by applicable law.  In this regard, the
 Respondent's practice was based upon compliance with the decisions of
 the Comptroller General concerning retroactive temporary promotions.  It
 here simply followed the Comptroller General's decision as set forth in
 Turner-Caldwell III, consistent with the Court of Claims' decision in
 Wilson, i.e., that retroactive temporary promotions may not be granted
 in the absence of a nondiscretionary agency regulation or a collective
 bargaining agreement dealing specifically with the matter.  It is
 neither alleged nor shown that such agency regulation or co