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

 17 FLRA No. 93
 
 
 HEALTH CARE FINANCING ADMINISTRATION 
 Respondent
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT 
 EMPLOYEES, LOCAL 1923 
 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.
 locations.
 
    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.
       decision.
 
          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
       interpretation.
 
    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.
 /6/
 
    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 collective
 bargaining agreement existed here.  /7/ In these circumstances, the
 Respondent was not obligated to maintain, even during the pendency of a
 question concerning representation, a practice that had become unlawful.
  See Department of the Interior, U.S. Geological Survey, Conservation
 Division, Gulf of Mexico Region, Metairie, Louisiana, 9 FLRA 543 (1982);
  March Air Force Base, Riverside, California, 13 FLRA 255 (1983).
 Accordingly, the Authority shall order that the complaint be dismissed.
 
                                   ORDER
 
    IT IS ORDERED that the complaint in Case No. 3-CA-30335 be, and it
 hereby is, dismissed in its entirety.  
 
 Issued, Washington, D.C., April 22, 1985
 
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ The Respondent's brief was untimely filed and has not been
 considered by the Authority.
 
 
    /2/ Section 7116(a)(1) and (5) of the Statute provides:
 
          Sec. 7116.  Unfair labor practices
 
          (a) For the purpose of this chapter, it shall be an unfair
       labor practice for an agency--
 
          (1) to interfere with, restrain, or coerce any employee in the
       exercise by the employee of any right under this chapter;
 
                                .  .  .  .
 
          (5) to refuse to consult or negotiate in good faith with a
       labor organization as required by this chapter(.)
 
 
    /3/ On December 22, 1983, the Authority issued a Decision in Case No.
 3-RO-20008, thereby resolving the QCR.
 
 
    /4/ The gravamen of the complaint and the sole argument presented by
 the General Counsel is that the Respondent unilaterally instituted a
 change in its policy during the pendency of a QCR and that such change
 was not required consistent with the necessary functioning of the
 agency.  No violation is alleged respecting the Respondent's duty to
 bargain over the change or its impact and implementation prior to
 effectuating the change, and thus the Authority does not pass upon the
 Union's assertions in this regard contained in its brief.
 
 
    /5/ In Beachley and Davis, the Comptroller General stated (1) that an
 agency, by its own regulation or by the terms of a collective bargaining
 agreement, has the discretion to establish a specified period after
 which it becomes mandatory to promote an employee who is detailed to a
 higher grade position, and (2) that if the regulation or the agreement
 establishes a nondiscretionary agency policy and if the provision in
 question is consistent with applicable Federal laws and regulations,
 then the violation of such a mandatory provision in a regulation or
 negotiated agreement which causes an employee to lose pay may be found
 to be an unjustified or unwarranted personnel action under the Back Pay
 Act, 5 U.S.C. 5596.  The Comptroller General found that the two
 employees involved therein were entitled to retroactive temporary
 promotions and backpay for details to higher-grade positions after 60
 days when such promotions were mandatory by the terms of a collective
 bargaining agreement in one case, and by a nondiscretionary agency
 regulation in the other.
 
 
    /6/ In United States Department of Justice, United States Immigration
 and Naturalization Service, supra, the Authority determined that the
 Respondent therein had committed certain unfair labor practices by
 failing to maintain existing conditions of employment during the
 pendency of a QCR because the changes were not required consistent with
 the necessary functioning of the agency.  On review, the Fifth Circuit,
 in U.S. Dept. of Justice v. FLRA, 727 F.2d 481 (5th Cir. 1984), denied
 enforcement of two of the Authority's unfair labor practice findings, in
 part because the facts in that case established that a change in
 conditions of employment by agency management during the pendency of a
 QCR was the result of the exercise of a management right under section
 7106 of the Statute.  However, the court did not reverse the Authority's
 general rule that during the pendency of a QCR agency management must
 maintain existing conditions of employment to the maximum extent
 possible unless changes are required consistent with the necessary
 functioning of the agency.  See Immigration and Naturalization Service,
 16 FLRA No. 19 (1984).
 
 
    /7/ Cf. U.S. Department of Justice, Immigration and Naturalization
 Service and National Immigration and Naturalization Service Council,
 American Federation of Government Employees, Local 2805, 15 FLRA No. 163
 (1984) (in which the Authority stated that it had not been shown that
 Wilson precludes an arbitrator from appropriately awarding backpay to
 remedy a violation of a provision of a collective bargaining agreement);
  Beachley and Davis, supra, (in which the Comptroller General held that
 a violation of a provision in an agency regulation making temporary
 promotions mandatory for details to higher-grade positions after 60 days
 was compensable under the Back Pay Act.