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The decision of the Authority follows:
19 FLRA No. 119 BREMERTON METAL TRADES COUNCIL, AFL-CIO Union and DEPARTMENT OF THE NAVY, PUGET SOUND NAVY SHIPYARD, BREMERTON, WASHINGTON Agency Case No. O-NG-725 DECISION AND ORDER ON NEGOTIABILITY ISSUES 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 Statute. Provision 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. /2/ 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 Chairman 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 regulation. /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.