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The decision of the Authority follows:
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.