[ v30 p845 ]
The decision of the Authority follows:
30 FLRA NO. 95 30 FLRA 845 31 DEC 1987 AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES LOCAL, AFL-CIO, LOCAL 2924 Union and DEPARTMENT OF THE NAVY PORTSMOUTH NAVAL SHIPYARD, PORTSMOUTH, NEW HAMPSHIRE Agency Case No. 0-NG-1398 DECISION AND ORDER ON NEGOTIABILITY ISSUE I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of one proposal, involving the use of details to avoid temporary promotions. 1 We find that the proposal is within the duty to bargain because it constitutes an appropriate arrangement for employees who are adversely affected by the exercise of a management right. II. The Proposal Article 23, Details, Section 3. Details to positions at the same or lower level will be confined to an initial period of 120 days with extensions (of) up to 120-day increments, to a maximum total detail of one year. Details to positions of a higher grade or to positions of known potential for promotion, will not be used to avoid temporary promotions. (Only the underscored portion is in dispute.) III. Positions of the Parties The Agency contends that the proposal interferes with its right under section 7106(a)(2)(A) of the Statute to assign employees. It claims that the proposal is essentially identical to provision 2 which the Authority held was nonnegotiable in National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 14 FLRA 243 (1984). The Agency further claims that the proposal is not an appropriate arrangement which is negotiable under section 7106(b)(3), because it excessively interferes with management's right. The Union argues that the proposal does not interfere with section 7106(a)(2)(A). Alternatively, it claims that the proposal relates to procedures and appropriate arrangements and is negotiable under section 7106(b)(2) and (3). It argues under section 7106(b)(3) that the proposal does not excessively interfere with management's right. It asserts that employees have no control over their assignments but have a significant interest in being compensated commensurate with the level of work they are required to perform. It argues further that the negative impact on the Agency's right to assign work is limited: the proposal proscribes details only when they are used solely to avoid temporary promotions. IV. Analysis A. The Proposal Violates Managements Right To Assign Employees Under Section 7106(a)(2)(A) Of The Statute. The disputed portion of the proposal is to the same effect as Provision 2 which the Authority held nonnegotiable in National Treasury Employees Union and Department of the Treasury, Internal Revenue Service, 14 FLRA 243 (1984). That provision precluded the agency from rotating assignments of employees detailed to higher grade positions to avoid compensating them at the higher level, which was required under the parties' agreement for such details of 30 or more days. The Authority determined that the provision directly interfered with the agency's right to assign employees under section 7106(a)(2)(A). It reasoned that by barring management from rotating assignments for the purpose of avoiding temporary promotions the provision substantively restricted management's exercise of its right to assign those employees. The proposal in this case also bars management from detailing employees to positions of higher grade or positions of known potential to avoid temporary promotions. As a result, it restricts management's right to assign employees. Therefore, for the reasons set forth in Internal Revenue service, we find that this proposal directly interferes with management's right to assign employees under section 7106(a)(2)(A). See also National Treasury Employees Union and Department of the Treasury, 21 FLRA No. 1051 (provision 8). The Union's explanation that its proposal is intended to proscribe the details involved solely when management wishes to avoid temporary promotions does not support a different result. The proposal imposes a substantive condition on management's right to assign employees. By restricting management's ability to detail employees, the proposal directly interferes with management's right to assign employees under section 7106(a)(2)(A) of the Statute. The decision relied on by the Union is distinguishable. The proposal in that case was negotiable because it required promotion of an employee after management had exercised its right to assign that employee to perform higher graded duties. See, NAGE, Local R12-29 and Department of the Navy, Naval Construction Battalion Center, Port Hueneme, California; AFGE, AFL - CIO, Local 48, and Department of the Navy, Naval Supply Center, Puget Sound, Bremerton, Washington; Point Mugu Council of National Association of Government Employees, Local R12-33, NFFE, Local 1374 and Department of the Navy, Pacific Missile Test Center, Point Mugu, California, 19 FLRA 939 (1985) (Proposal 2 and Provision 1). The proposal here, in contrast, prevents management from exercising its right to assign an employee if the purpose of the assignment is to avoid a temporary promotion. Furthermore, this proposal is not like a proposal that provided for the rotation of details of less than 31 days among employees who management had previously determined were qualified to do the work involved. That proposal did not involve management's right to assign employees to positions or establish any substantive criteria which management was required to follow in exercising its right to assign work. Rather, it prescribed only a procedure--rotation--for management to follow in selecting which employee, among those previously judged equally qualified by management, would perform the work. See American Federation of State, County and Municipal Employees, Local 2027 and Action, 23 FLRA 56 (1986). B. The Proposal Does Not Involve Procedures Within The Meaning Of Section 7106(b)(2). Since the proposal prescribes a substantive criterion which management must follow in exercising its right under section 7106(a)(2)(A), it does not constitute a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See American Federation of Government Employees, Local 1923, AFL - CIO, and Department of Health and Human Services, Office of the Secretary, Headquarters, Office of the General Counsel, Social Security Division, 21 FLRA 178 (1986) (Proposal 6), affirmed sub nom. AFGE, AFL - CIO, Local 1923 v. FLRA, 819 F.2d 306 (D.C. Cir. 1987). C. The Proposal Is An Appropriate Arrangement Within The Meaning Of Section 7106(b)(3). We turn now to the question of whether the proposal is negotiable as an appropriate arrangement for employees adversely affected by the exercise of management's right to assign employees. The threshold question is whether the proposal is an "arrangement" for adversely affected employees. See National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986). Based on the wording of the provision and the record as a whole, we find that it is an arrangement to mitigate the adverse economic effect on employees from being detailed to positions to which they could be temporarily promoted, where management's only reason is to avoid paying the higher rate of pay. It is clear that the provision is intended to preserve management's discretion to detail employees to any position for any other reason. Union Response at 5. Consequently, the extent of interference with management's right is narrowly limited. On the other hand, we believe that paying employees at levels commensurate with the work that they are required to perform is good management practice. Further, the proposal is fully consistent with the practice which the Federal Personnel Manual at Chapter 300, Subchapter 8-4 (e) urges managers to follow: 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. This proposal would allow management to detail an employee for any reason other than to avoid paying the higher rate. Balancing the respective interests of management and employees, considering the minimal impact on management's rights and the employees' interest in being compensated at a rate commensurate with the work they are required to perform, we find that the proposal does not excessively interfered with management's rights. V. Order The Agency must bargain upon request, or as otherwise agreed to by the parties, concerning the Union's proposal. 2 Issued, Washington, D.C., December 31, 1987. Jerry L. Calhoun, Chairman v Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY FOOTNOTES Footnote 1 The Petition for Review in this case initially sought Authority determinations on the negotiability of three proposals. In its Statement of Position, the Agency withdrew its allegation of nonnegotiability as to Article 22, Section 4c. In its Response, the union withdrew its petition with respect to Article 20, Section 8a. Therefore, we will not consider these proposals here. Footnote 2 In finding that the proposal is within the duty to bargain, we make no judgment as to its merits.