[ v19 p939 ]
The decision of the Authority follows:
19 FLRA No. 111 NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-29 Union and DEPARTMENT OF THE NAVY, NAVAL CONSTRUCTION BATTALION CENTER, PORT HUENEME, CALIFORNIA Agency Case No. O-NG-528 and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 48 Union and DEPARTMENT OF THE NAVY, NAVAL SUPPLY CENTER, PUGET SOUND, BREMERTON, WASHINGTON Case No. O-NG-595 and POINT MUGU COUNCIL OF NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES, LOCAL R12-33, NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 1374 Union and DEPARTMENT OF THE NAVY, PACIFIC MISSILE TEST CENTER, POINT MUGU, CALIFORNIA Agency Case No. O-NG-661 DECISION AND ORDER NO NEGOTIABILITY ISSUES The petitions for review in these cases come before the Authority pursuant to section 7105(a)(2)(D) and (E) of the Federal Service Labor-Management Relations Statute (the Statute), and present issues concerning the negotiability of two Union proposals and one provision of a negotiated agreement disapproved by the Agency head pursuant to section 7114(c) of the Statute. /1/ Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. /2/ Union Proposal 1 (from Case No. O-NG-528) Any unit employee who is temporarily assigned/detailed or promoted to any higher graded position on a non-competitive basis, and performs the duties of that higher graded position, will after 5 days (calendar) receive the pay of that position. At the beginning of the 6th day the employee shall receive pay retroactive back to the start of the first hour of the day assigned/detailed or promoted. (Only the first sentence is in dispute.) /3/ Union Proposal 2 (from Case No. O-NG-595) When a qualified employee is assigned as an acting supervisor for fourteen (14) calendar days or more and performs the full scope of the duties of the position for such time, a temporary promotion will be made under applicable rules and regulations. /4/ Union Provision 1 (from Case No. O-NG-661) Employees assigned to a classified higher graded position will (if qualified) be temporarily promoted when the employee is in the position in excess of 10 work days. Temporary promotions will be documented on the appropriate forms. The Agency contends that, since the disputed language in each case consolidated herein concerns a matter related to the filling of supervisory positions, such language does not concern conditions of employment of bargaining unit employees and, thus, is negotiable only at the election of the Agency. In addition, the Agency contends that the disputed language in each case is barred from negotiation under section 7117(a)(2) of the Statute by an Agency regulation for which there is a "compelling need." These contentions will be dealt with in turn. In American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 628 (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 Proposal XIV, which required the employer to temporarily promote an employee on the 31st day of a detail to a higher graded position, was within the duty to bargain even assuming that the proposal applied to details to supervisory positions. See also Methods and Standards Association and Naval Air Rework Facility, Naval Air Station, Pensacola, Florida, 2 FLRA 286 (1979) wherein a proposal requiring that employees temporarily assigned duties of higher level positions for five days or more be temporarily promoted was found to be within the duty to bargain. Since the language in dispute in the instant cases is to the same effect as the proposals found to be within the duty to bargain in the cited decisions the disputed language herein is within the duty to bargain unless otherwise barred from negotiation by Agency regulations for which a compelling need exists, as also claimed by the Agency in these cases. The regulation in question (DON, CPI 355 VI, D) provides that "(n)o temporary promotion may be made to a supervisory position for less than 31 days." The Agency argues that a compelling need exists for this regulation under each of the illustrative criteria for determining compelling need set out in section 2424.11 of the Authority's Rules and Regulations. /5/ As to criteria (a) and (b), it is well settled that an agency can establish that a "compelling need" exists for its regulation to bar negotiation of a conflicting union proposal under the Statute and the Authority's Rules and Regulations only if it demonstrates that such regulation is "essential" or "necessary" to achieve certain ends. American Federation of Government Employees, AFL-CIO, Local 3804 and Federal Deposit Insurance Corporation, Chicago Region, Illinois, 7 FLRA 217, 220 (1981). In the instant cases the Agency's claim that a compelling need exists for its regulation under criterion (a) is based essentially on the argument that since OPM directives do not require temporary promotions for time periods as brief as the disputed language in the cases would require, the negotiation of such language would impose administrative and cost burdens on the Agency which are inconsistent with "the requirement of an effective and efficient government." Specifically the Agency states: It has been a long standing rule . . . that assignments (details) to other positions, including higher level positions, of 30 days or less are of such little significance that they may be made with no documentation . . . . Further, in the case of details to higher level positions or positions with known promotion potential, OPM has established no requirement for competitive procedures to be used until the detail exceeds 120 days. These procedures recognize the fact that there is frequently a need to assign employees to duties other than those of their regular positions for brief periods of time for a variety of reasons. They also recognize that the administrative workload associated with documenting these brief assignments and processing the necessary documents for effecting and discontinuing temporary promotions for brief periods can be very burdensome and costly. /6/ With regard to these administrative and cost burdens the Agency states that in order to temporarily promote an employee and then to return that employee to the employee's original grade involves a 14 step administrative process. Further, the Agency adds that a study at one activity indicated that a processing and salaries cost of approximately $10,000 was incurred in temporarily promoting 150 individuals for 14 days. In the Authority's view, the Agency's contention that a compelling need exists for its regulation under criterion (a) cannot be sustained. Subchapter 8 of FPM Chapter 300 concerns details and provides in 8-3 that "(d)etails are intended only for meeting temporary needs of the agency's work program when necessary services cannot be obtained by other desirable or practicable means." Subchapter 8-3 provides further that emergency details may be made appropriately "(t)o meet emergencies occasioned by abnormal workload, special projects or studies, changes in mission or organization, or unanticipated absences" and that other details may be made "(p)ending official assignment, pending description and classification of new position, pending security clearance and for training purposes(.)" Subchapter 8-4 provides that details are to be kept "within the shortest practicable time limits" and specifically in 8-4(e), with regard to details to higher grade positions, as follows: e. Details to higher grade positions. (1) Except for brief periods, an employee should not be detailed to perform work of a higher grade level unless there are compelling reasons for doing so. Normally, an employee should be given a temporary promotion instead. These OPM directives indicate that details in general are intended to be utilized sparingly and that when a higher grade position is involved and except for brief periods, agencies should temporarily promote employees instead of detailing them. It is noted in this respect, that the disputed language in each case herein sets out a specified period of time that employees will perform the duties of a higher grade position before a temporary promotion is required. Thus, the disputed language in each case preserves the Agency's flexibility to meet emergency or special circumstances while, after a brief period of time, permitting an employee to receive pay commensurate with the higher level duties being performed. As to the administrative and cost burden incurred by the Agency in effecting temporary promotions, it is obvious that temporarily promoting employees will always involve some amount of administrative cost. In those cases, based on the data provided by the Agency, such costs average approximately $133 per temporary promotion action. However, such costs are, to some extent, within the Agency's control since they are a function of the 14 step process created by the Agency to effect temporary promotions. Consequently, the Agency in these cases has not established that the additional administrative costs associated with temporarily promoting employees for less than 31 days, as prohibited by the Agency's regulation, are of such a nature and amount as to render the Agency's regulation "essential" or "necessary" to achieve "an effective and efficient government." Thus, the Authority concludes that a compelling need does not exist under criterion (a) for the regulation in question. The Agency also contends that a compelling need exists for its regulation under criterion (b) because it is necessary to insure the maintenance of basic merit principles. In essence, the Agency argues that employees detailed to supervisory positions do not perform the full range and depth of the duties and responsibilities of supervisory positions during the first 30 days of such details. Thus, the Agency concludes "(o)ur decision (to permit temporary promotions only after the 31st day of a detail) in an attempt to establish equity, i.e., pay for the exercise of supervisory duties, and no pay when they are not fully exercised, must of necessity provide for an arbitrary time limitation." In this respect, however, when an employee is detailed to a higher grade position that employee can be expected to bear the responsibilities and be expected to perform the duties of the position at any time during the detail. While the employees who in these cases are detailed to supervisory positions are not expected to perform certain of the duties of the supervisory positions they are required to "respond adequately to matters or questions of specific work performance and keep the work flow moving" which at a minimum concerns directing other employees and assigning work. Therefore, the Agency has not established that its regulation is "essential" or "necessary" to insure the maintenance of basic merit principles. Finally, the Agency's contention that since its regulation implements a nondiscretionary mandate to the Agency under law and OPM directives it meets the requirement of criterion (c) also cannot be sustained. Specifically, the OPM directives relied upon by the Agency establish time limitations on the length of a detail to a higher grade position, /7/ on the length of an undocumented detail to a higher grade position /8/ and on the length of a detail to a higher grade position effected without the use of competitive promotion procedures. /9/ There is nothing in these directives which prohibits or otherwise indicates that an agency is prohibited from temporarily promoting employees at any time. In fact, as previously indicated in this decision these OPM directives indicate that a temporary promotion is the preferred way of requiring employees to perform the duties of a higher grade position. Thus, in the absence of any showing that the Agency's regulation implements a mandate to the effect that temporary promotions could not be effected for time periods as brief as the disputed language in these cases would require, the Authority concludes that a compelling need for such regulation does not exist under criterion (c). Consequently, the Agency has failed to demonstrate that the regulation relied upon as a bar to negotiation of the otherwise negotiable language in each of these cases meets the criteria for compelling need pursuant to section 2424.11. Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain on the disputed proposals in Case No. O-NG-528 and Case No. O-NG-595. IT IS FURTHER ORDERED that the Agency shall rescind its disapproval of the disputed provision in Case No. O-NG-661 which was bargained on and agreed to by the parties at the local level. /10/ Issued, Washington, D.C., August 23, 1985 Henry B. Frazier III, Acting Chairman William J. McGinnis, Jr., Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Since the two disputed proposals, one each in Case Nos. O-NG-528 and O-NG-595, and the one disputed provision in Case No. O-NG-661 each concerns a common issue and since the Department of the Navy has alleged that the disputed language in each case is inconsistent with the same regulation for which it claims a compelling need exists, the Authority has deemed it appropriate to consolidate these three cases in this decision. /2/ The Union in Case No. O-NG-528 did not file a Reply Brief. /3/ The Agency's arguments as to the nonnegotiability of this proposal concern only the requirement to temporarily promote employees detailed to supervisory positions for less than 31 days. /4/ During the pendency of Case No. O-NG-595 the Union withdrew from consideration a portion of its proposal concerning rotation of temporary promotions among eligible employees. Consequently, that portion of the proposal is not set forth and will not be further considered herein. /5/ Section 2424.11 of the Authority's Rules and Regulations provides: (a) The rule or regulation is essential, as distinguished from helpful or desirable, to the accomplishment of the mission or the execution of functions of the agency or primary national subdivision in a manner which is consistent with the requirements of an effective and efficient government. (b) The rule or regulation is necessary to insure the maintenance of basic merit principles. (c) The rule or regulation implements a mandate to the agency or primary national subdivision under law or other outside authority, which implementation is essentially nondiscretionary in nature. /6/ Agency Statements of Position at 3-4. /7/ FPM Chapter 300, subchapter 8-3(b)(2) establishes that details to higher grade positions will generally be confined to a maximum of 240 days. /8/ FPM Chapter 300, subchapter 8-4(c) requires that details in excess of 30 days be recorded. /9/ FPM Chapter 300, subchapter 8-4(e) requires that details of more than 120 days to higher grade positions be made under competitive promotion procedures. /10/ In deciding that the disputed language in each of these cases is within the duty to bargain, the Authority makes no judgment on the merits of such language.