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U.S. Federal Labor Relations Authority

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19:1023(119)NG - Bremerton MTC and Navy, Puget Sound Navy Shipyard, Bremerton, WA -- 1985 FLRAdec NG

[ v19 p1023 ]
The decision of the Authority follows:

 19 FLRA No. 119
                                            Case No. O-NG-725
    The petition for review in this case comes before the Authority
 pursuant to section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues
 concerning the negotiability of one provision of a negotiated agreement
 disapproved by the Agency head pursuant to section 7114(c) of the
          Should the Department of Navy's compelling need arguments not
       be sustained by the authority, /1/ the parties adopt the past
       practice of a pay period or more.  Furthermore, unit employees who
       have been detailed to a supervisory position in accordance with
       paragraph 1 shall be compensated for periods in excess of a pay
       period or more on a retroactive basis subject to the following
       conditions:  (a) providing such retroactive payment is legal;  (b)
       the employee is a unit member at the time of such retroactive
       adjustment;  (c) the employee submits a claim using "temporary
       assignment notice" as proof;  and, (d) the retroactive adjustment
       shall be limited to twelve (12) months prior to the date of the
       FLRA decision.  (Footnote added.)
    Upon careful consideration of the entire record, including the
 parties' contentions, the Authority makes the following determinations.
 This provision would require the Agency to retroactively effectuate a
 temporary promotion under certain circumstances if the Authority rules
 in favor of the Union in two other cases.  See note 1, supra.  The
 proposals in those cases would require an employee assigned to a detail
 to be promoted after a time period which would be less than that
 provided for by Agency regulation.  The Authority found in those cases
 that, contrary to the Agency's claim, no compelling need existed for the
 Agency regulation to bar negotiation, and, hence, found the proposals to
 be within the duty to bargain.  This appeal relates to a determination
 made by the Agency head that the instant provision, which is concerned
 only with according retroactive effect to those proposals if the
 Authority issues a bargaining order, as it in fact has done in those
 cases, is inconsistent with the Back Pay Act.  The Agency contends,
 among other things, that the provision does not come within the purview
 of the Back Pay Act and, hence, is in violation of Federal law.
    The Back Pay Act, 5 U.S.C. 5596, is the authority under which an
 agency may retroactively adjust an employee's compensation "who, on the
 basis of a timely appeal or an administrative determination (including a
 decision relating to an unfair labor practice or a grievance) is found
 by appropriate authority under applicable law, rule, regulation, or
 collective bargaining agreement, to have been affected by an unjustified
 or unwarranted personnel action which has resulted in the withdrawal or
 reduction of all or part of the pay, allowances, or differentials of the
 employee(.)" 5 U.S.C. 5596(b)(1).  The Authority has consistently held
 that in order for a backpay order to be authorized under the Back Pay
 Act, there must be a determination that an employee has been adversely
 affected by an unjustified or unwarranted personnel action and a
 determination that but for the improper action such employee would not
 have suffered a loss or reduction in pay, allowances or differentials.
 See, e.g., United States Department of Agriculture, Plant Protection and
 Quarantine, Animal Plant Health Inspection Service and National
 Association of Agriculture Employees, formerly The Federal Plant
 Quarantine Inspector's National Association, 17 FLRA No. 40 (1985).  See
 also Federal Aviation Administration, Northwest Mountain Region,
 Seattle, Washington and Professional Airways Systems Specialists, 14
 FLRA 644 (1984).
    Under the circumstances giving rise to the instant case, the Agency
 refused to agree to the Union's substantive proposals regarding
 temporary promotions.  Rather, it alleged those proposals to be
 nonnegotiable.  Under the Statute either party has the right not to
 agree to any proposal, and even the issuance of a bargaining order is
 not a requirement that the parties agree to a particular proposal.  See
 American Federation of Government Employees, AFL-CIO, Local 32 and
 Office of Personnel Management, Washington, D.C., 6 FLRA 423, 428-29
 (1981), enforced as to other matters sub nom. Office of Personnel
 Management v. Federal Labor Relations Authority, No. 81-2106 (D.C. Cir.
 Apr. 6, 1983);  Department of Defense v. FLRA, 659 F.2d 1140 at 1147
 (D.C. Cir. 1981), affirming American Federation of Government Employees,
 AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force
 Base, Ohio, 2 FLRA 603 (1980), cert. denied sub nom. American Federation
 of Government Employees v. FLRA, 455 U.S. 945 (1982).  Furthermore, an
 agency has the right under section 7117 of the Statute to allege a
 proposal to be nonnegotiable, i.e., inconsistent with applicable law,
 rule or regulation, as the Agency did in the circumstances of Case Nos.
 O-NG-528, O-NG-595.  Clearly, the Agency's assertion of its rights as
 set forth above cannot be considered to be an "unjustified or
 unwarranted personnel action" such that retroactive adjustment of an
 employee's compensation would be warranted under the Back Pay Act upon
 the Authority's issuance of a bargaining order.
    As to the Union's assertion that the provision is negotiable because
 it is an appropriate arrangement for employees adversely affected by the
 exercise of management's rights under section 7106(b)(3) of the Statute,
 it cannot be sustained.  Under the Statute, the duty of an agency to
 negotiate with a union extends to the conditions of employment affecting
 bargaining unit employees except as provided otherwise by, among other
 things, Federal law.  National Treasury Employees Union, Chapter 6 and
 Internal Revenue Service, New Orleans District, 3 FLRA 747 (1980).
 Therefore, a provision is outside the duty to bargain to the extent that
 it is inconsistent with any Federal law.  Insofar as the Authority finds
 the provision herein is inconsistent with a Federal law, the provision
 is outside the duty to bargain under section 7117(a)(1) of the Statute.
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Union's petition for review be, and
 it hereby is, dismissed.  /3/ Issued, Washington, D.C., August 23, 1985
                                       Henry B. Frazier III, Acting
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 --------------- FOOTNOTES$ ---------------
    /1/ With respect to the Agency's arguments referenced in the
 provision, the Authority held, in National Association of Government
 Employees, Local R12-29 and Department of the Navy, Naval Construction
 Battalion Center, Port Hueneme, California (and cases consolidated
 therewith), 19 FLRA No. 111 (1985) issued this day, that a compelling
 need does not exist for the Agency's regulation to bar negotiations on
 proposals in the two cases related to the instant dispute.  See
 discussion, infra.
    /2/ Section 7117(a)(1) of the Statute provides 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 not 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
    /3/ Since the Authority concludes that the disputed provision is
 outside the duty to bargain under section 7117(a)(1), it is unnecessary
 to consider the Agency's additional contentions concerning the
 nonnegotiability of the provision.