American Federation of Government Employees, AFL-CIO, Council of Prison Locals (Union) and Department of Justice, Bureau of Prisons (Activity)  

 1 FLRA No. 63
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, COUNCIL
 OF PRISON LOCALS
 (Union)
 
 and
 
 DEPARTMENT OF JUSTICE,
 BUREAU OF PRISONS
 (Activity)
 
                                        FLRC No. 78A-122
 
                   DECISION ON NEGOTIABILITY ISSUES /1/
 
                                PROVISION I
 
    ARTICLE 31-- MERIT PROMOTION PLAN
 
    SECTION B.-- COVERAGE.  1. THIS PLAN APPLIES TO THE PROMOTION OF ANY
 EMPLOYEES TO POSITIONS IN THE UNIT.  IT ALSO COVERS THE FOLLOWING
 PLACEMENT ACTIONS TO POSITIONS WITHIN THE UNIT.
 
   .          .          .          .
 
 
    (H) TEMPORARY PROMOTIONS OF EMPLOYEES TO A HIGHER GRADE FOR A PERIOD
 LONGER THAN 60 DAYS.
 
                           AGENCY DETERMINATION
 
    THE AGENCY DETERMINED IN CONNECTION WITH THE REVIEW PROCESS UNDER
 SECTION 15 OF THE ORDER /2/ THAT THE PROVISION IS NONNEGOTIABLE BECAUSE
 IT VIOLATES SECTION 12(B)(2) OF THE ORDER.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE PROVISION VIOLATES SECTION 12(B)(2) OF
 THE ORDER AND IS, THEREFORE, NONNEGOTIABLE.
 
                                  OPINION
 
    CONCLUSION:  THE PROVISION DOES NOT VIOLATE SECTION 12(B)(2) OF THE
 ORDER.  ACCORDINGLY, THE AGENCY'S DETERMINATION THAT THE PROVISION IS
 NONNEGOTIABLE WAS IMPROPER AND, PURSUANT TO 5 C.F.R. 2411.28 /3/ IS SET
 ASIDE.  /4/
 
    REASONS:  THE AGENCY CLAIMS, IN SUBSTANCE, THAT SECTION 12(B)(2) OF
 THE ORDER RESERVES TO MANAGEMENT OFFICIALS THE RIGHT TO MAKE TEMPORARY
 PROMOTIONS NONCOMPETITIVELY;  AND, THUS, THAT THE DISPUTED PROVISION,
 REQUIRING MANAGEMENT TO EFFECT TEMPORARY PROMOTIONS WHICH ARE FOR A
 PERIOD LONGER THAN 60 DAYS THROUGH THE COMPETITIVE PROCEDURES OF THE
 PARTIES' MERIT PROMOTION PLAN, IS NONNEGOTIABLE BECAUSE IT VIOLATES THE
 RESERVED RIGHT OF MANAGEMENT TO PROMOTE EMPLOYEES UNDER SECTION
 12(B)(2).  /5/
 
    THE UNION ASSERTS ESSENTIALLY THAT THE DISPUTED PROVISION DOES NOT
 VIOLATE MANAGEMENT'S RIGHTS BUT, INSTEAD, ESTABLISHES A PROCEDURE,
 NEGOTIABLE UNDER SECTION 11(A) OF THE ORDER, WHICH THE AGENCY WOULD
 OBSERVE IN MAKING TEMPORARY PROMOTIONS.
 
    IN CONNECTION WITH APPLYING SECTION 12(B)(2) OF THE ORDER, THE
 COUNCIL STATED IN ITS VA RESEARCH HOSPITAL DECISION AS FOLLOWS:  /6/
 
    THE EMPHASIS IS ON THE RESERVATION OF MANAGEMENT AUTHORITY TO DECIDE
 AND ACT ON THESE
 
    MATTERS, AND THE CLEAR IMPORT IS THAT NO RIGHT ACCORDED TO UNIONS
 UNDER THE ORDER MAY BE
 
    PERMITTED TO INTERFERE WITH THAT AUTHORITY.  HOWEVER, THERE IS NO
 IMPLICATION THAT SUCH
 
    RESERVATION OF DECISION MAKING AND ACTION AUTHORITY IS INTENDED TO
 BAR NEGOTIATIONS OF
 
    PROCEDURES, TO THE EXTENT CONSONANT WITH LAW AND REGULATIONS, WHICH
 MANAGEMENT WILL OBSERVE IN
 
    REACHING THE DECISION OR TAKING THE ACTION INVOLVED, PROVIDED THAT
 SUCH PROCEDURES DO NOT HAVE
 
    THE EFFECT OF NEGATING THE AUTHORITY RESERVED.
 
    AS TO TEMPORARY PROMOTIONS UNDER THE ORDER, GENERALLY, IT IS NOT
 DISPUTED THAT SECTION 12(B)(2) RESERVES TO MANAGEMENT THE RIGHT TO
 PROMOTE EMPLOYEES TEMPORARILY.  /7/ HOWEVER, THE DISPUTED PROVISION IN
 THE PRESENT CASE DOES NOT DENY MANAGEMENT THIS RIGHT.  INSTEAD, THE
 PROVISION MERELY PROVIDES THAT, WHERE TEMPORARY PROMOTIONS ARE MADE FOR
 A PERIOD LONGER THAN 60 DAYS, COMPETITIVE PROCEDURES UNDER THE MERIT
 PROMOTION PLAN SHALL BE APPLIED.  SINCE THE DISPUTED PROVISION THEREFORE
 CONCERNS ONLY THE MAXIMUM PERIOD FOR WHICH THE AGENCY WILL EFFECT
 TEMPORARY PROMOTIONS NONCOMPETITIVELY, AND SINCE THESE PROCEDURES
 PLAINLY DO NOT HAVE THE EFFECT OF NEGATING MANAGEMENT'S RESERVED
 AUTHORITY TO DECIDE OR ACT ON SUCH TEMPORARY PROMOTIONS, THE DISPUTED
 PROVISION DOES NOT VIOLATE THE RIGHT TO PROMOTE RESERVED TO MANAGEMENT
 BY SECTION 12(B)(2) OF THE ORDER.
 
    WHILE MANAGEMENT, IN CONTENDING THAT THE DISPUTED PROVISION IS
 NONNEGOTIABLE UNDER SECTION 12(B)(2), RELIES ON THE COUNCIL'S DECISIONS
 IN THE CHERRY POINT AND INS CASES, /8/ THESE DECISIONS ARE CLEARLY
 DISTINGUISHABLE FROM THE INSTANT CASE.  /9/ IN THOSE CASES, THE COUNCIL
 RULED THAT UNION PROPOSALS WHICH WOULD HAVE THE EFFECT, AMONG OTHERS, OF
 ABSOLUTELY PROSCRIBING MANAGEMENT'S ABILITY TO TEMPORARILY PROMOTE ANY
 EMPLOYEES WITHOUT USING COMPETITIVE PROCEDURES, ARE NONNEGOTIABLE:  THAT
 IS, THEY WOULD SO CONSTRICT AS TO NEGATE THE RESERVED RIGHT OF
 MANAGEMENT TO PROMOTE EMPLOYEES UNDER SECTION 12(B)(2) OF THE ORDER.  AS
 STATED BY THE COUNCIL IN THE CHERRY POINT CASE:  /10/
 
    . . . THE SECTION 12(B)(2) RIGHT TO ASSIGN INCLUDES THE RIGHT TO
 TEMPORARILY ASSIGN OR TO
 
    DETAIL EMPLOYEES.  THE PROPOSAL HERE IN DISPUTE, HOWEVER, IN EFFECT
 WOULD DENY MANAGEMENT THE
 
    AUTHORITY TO TEMPORARILY ASSIGN OR TO DETAIL EMPLOYEES TO POSITIONS
 UNLESS THOSE EMPLOYEES HAD
 
    BEEN FOUND QUALIFIED TO OCCUPY THE POSITIONS ON A PERMANENT BASIS.
 THE EFFECT OF THIS DENIAL
 
    OF AUTHORITY, IN THE EVENT THAT NO EMPLOYEE IS FOUND TO BE QUALIFIED
 TO OCCUPY A PARTICULAR
 
    POSITION ON A PERMANENT BASIS, WOULD BE TO PREVENT MANAGEMENT FROM
 TEMPORARILY ASSIGNING OR
 
    DETAILING ANY EMPLOYEE TO THAT POSITION.
 
    SIMILARLY, THE SECTION 12(B)(2) RIGHT TO PROMOTE INCLUDES THE RIGHT
 TO TEMPORARILY PROMOTE
 
    WITHOUT RESORT TO COMPETITIVE PROCEDURES.  THE DISPUTED PROPOSAL,
 HOWEVER, IN EFFECT WOULD
 
    DENY MANAGEMENT THE AUTHORITY TO TEMPORARILY PROMOTE EMPLOYEES TO
 POSITIONS UNLESS THOSE
 
    EMPLOYEES HAD BEEN DETERMINED, COMPETITIVELY, TO BE AMONG THE TOP
 THREE OR FEWER QUALIFIED
 
    CANDIDATES.  THE EFFECT OF THIS DENIAL OF AUTHORITY WOULD BE TO
 PREVENT MANAGEMENT FROM
 
    TEMPORARILY PROMOTING QUALIFIED EMPLOYEES WITHOUT RESORT TO
 COMPETITION.
 
    IN THE PRESENT CASE, THE DISPUTED PROVISION WOULD REQUIRE THE
 APPLICATION OF COMPETITIVE PROCEDURES ONLY TO TEMPORARY PROMOTIONS FOR
 PERIODS LONGER THAN 60 DAYS.  THUS, THE PROVISION, UNLIKE THOSE BEFORE
 THE COUNCIL IN CHERRY POINT AND INS, WOULD NOT APPLY TO AND WOULD HAVE
 NO IMPACT WHATSOEVER ON MANAGEMENT'S ABILITY TO MAKE TEMPORARY
 PROMOTIONS WITHOUT RESORT TO COMPETITIVE PROCEDURES FOR PERIODS OF UP TO
 60 DAYS.
 
    UNDER THESE CIRCUMSTANCES, THE PROVISION IN DISPUTE IN THE PRESENT
 CASE WOULD NOT PREVENT MANAGEMENT FROM MAKING NONCOMPETITIVE TEMPORARY
 PROMOTIONS.  RATHER, AS ALREADY MENTIONED, THE PROVISION CONCERNS THE
 PROCEDURES, CONSONANT WITH LAW AND REGULATIONS, WHICH MANAGEMENT WILL
 OBSERVE IN REACHING THE DECISION TO TEMPORARILY PROMOTE EMPLOYEES
 NONCOMPETITIVELY OR TAKING THE PROMOTION ACTION INVOLVED.  SUCH
 PROCEDURES DO NOT SO CONSTRICT MANAGEMENT'S ABILITY TO PROMOTE EMPLOYEES
 WITHOUT USING COMPETITIVE PROCEDURES AS, IN EFFECT, TO DENY THE RIGHT TO
 PROMOTE EMPLOYEES UNDER SECTION 12(B)(2) OF THE ORDER.  ACCORDINGLY, THE
 PROVISION IS NEGOTIABLE.  /11/
 
                               PROVISION II
 
    ARTICLE 31-- MERIT PROMOTION PLAN
 
    SECTION P.-- TEMPORARY PROMOTIONS.
 
    1.  THE EMPLOYER AGREES THAT ANY EMPLOYEE IN THE UNIT FOR WHOM A
 KNOWN DETAIL IS PLANNED TO
 
    A HIGHER GRADE POSITION IN THE UNIT AND WHICH IS FOR THREE FULL WEEKS
 OR MORE AND WHO IS
 
    QUALIFIED SHALL BE TEMPORARILY PROMOTED AND SHALL RECEIVE THE RATE OF
 PAY FOR THE POSITION TO
 
    WHICH TEMPORARILY ASSIGNED.  IN SUCH CASES THE PAY WILL START AS OF
 THE FIRST DAY OF
 
    ASSIGNMENT.  TEMPORARY PROMOTIONS SHALL NOT BE MADE FOR LESS THAN
 THREE FULL WEEKS.  SHORT
 
    DETAILS WILL NOT BE USED FOR THE PURPOSE OF AVOIDING TEMPORARY
 PROMOTIONS.
 
                           AGENCY DETERMINATION
 
    THE AGENCY DETERMINED IN CONNECTION WITH THE REVIEW PROCESS UNDER
 SECTION 15 OF THE ORDER THAT THE FIRST SENTENCE OF THE PROVISION IS
 NONNEGOTIABLE BECAUSE IT VIOLATES SECTION 12(B)(2) OF THE ORDER.
 ADDITIONALLY, THE AGENCY DETERMINED THAT THE SECOND SENTENCE OF THE
 PROVISION VIOLATES APPLICABLE LAW, NAMELY, 5 U.S.C. 5535 /12/ AND 5596.
 /13/ FURTHER, THE AGENCY DETERMINED THAT THE THIRD SENTENCE OF THAT
 PROVISION CONFLICTS WITH SECTION 12(B)(2) AND (3) OF THE ORDER AND
 VIOLATES THE FEDERAL PERSONNEL MANUAL, CHAP. 335, SUBCHAP. 4-4.D.  /14/
 
                    QUESTIONS HERE BEFORE THE AUTHORITY
 
    I. THE QUESTION IS WHETHER THE FIRST SENTENCE OF THE PROVISION
 VIOLATES SECTION 12(B)(2) OF THE ORDER.
 
    II.  THE QUESTION IS WHETHER THE SECOND SENTENCE OF THE PROVISION
 VIOLATES LAW (5 U.S.C. 5535 AND 5596).
 
    III.  THE QUESTION IS WHETHER THE THIRD SENTENCE OF THE PROVISION
 VIOLATES SECTION 12(B)(2) OR (3) OF THE ORDER OR THE FEDERAL PERSONNEL
 MANUAL (CHAP. 335, SUBCHAP.  4-4.D.).
 
                                  OPINION
 
    A.  CONCLUSION AS TO QUESTION I:  THE FIRST SENTENCE OF THE PROVISION
 DOES NOT VIOLATE SECTION 12(B)(2) OF THE ORDER.  ACCORDINGLY, THE
 AGENCY'S DETERMINATION WAS IMPROPER AND, PURSUANT TO 5 C.F.R. 2411.28,
 /15/ IS SET ASIDE.
 
    REASONS:  THE AGENCY PRINCIPALLY CONTENDS THAT, BY REQUIRING THE
 TEMPORARY PROMOTION OF AN EMPLOYEE SELECTED FOR DETAIL TO A HIGHER-GRADE
 POSITION WHEN THE AGENCY CONTEMPLATES THAT THE DETAIL WILL LAST THREE
 WEEKS OR LONGER, THE FIRST SENTENCE OF THE PROVISION VIOLATES
 MANAGEMENT'S RESERVED RIGHTS UNDER SECTION 12(B)(2) OF THE ORDER.  THIS
 CLAIM IS WITHOUT MERIT.
 
    THERE IS NO MATERIAL DIFFERENCE BETWEEN THE FIRST SENTENCE OF THE
 INSTANT PROVISION AND A PROVISION CONSIDERED BY THE COUNCIL IN ITS
 RECENT VETERANS ADMINISTRATION, ATLANTA REGIONAL OFFICE DECISION /16/
 (INSOFAR AS THAT PROVISION CALLED FOR A TEMPORARY PROMOTION UPON
 ASSIGNMENT FOR MORE THAN 60 DAYS TO A HIGHER-GRADE POSITION).  THERE,
 THE COUNCIL, IN RESPONSE TO THE AGENCY'S CONTENTION THAT THE PROVISION
 VIOLATED SECTION 12(B)(2), STATED:  /17/
 
    THE "TEMPORARY PROMOTION" CALLED FOR BY THE DISPUTED PROVISION IS
 SIMPLY A MINISTERIAL ACT
 
    WHICH IMPLEMENTS THE DECISION AND ACTION TAKEN BY THE AGENCY ITSELF
 IN SELECTING AND ASSIGNING
 
    THE PARTICULAR EMPLOYEE TO THE HIGHER-GRADE POSITION.  NOTHING IN THE
 PROVISION INTERFERES IN
 
    ANY MANNER WITH THE RIGHT OF THE AGENCY TO MAKE SUCH DECISION OR
 ACCOMPLISH SUCH ACTION, AND
 
    THUS NOTHING IN THE PROVISION IMPAIRS THE AGENCY'S RIGHT TO DETERMINE
 WHETHER AND WHOM
 
    TEMPORARILY TO PROMOTE.  ACCORDINGLY, WE FIND THAT THE DISPUTED
 PROVISION IS NOT VIOLATIVE OF
 
    SECTION 12(B)(2) OF THE ORDER.  (FOOTNOTE OMITTED.)
 
    SINCE THE PROVISIONS ARE MATERIALLY INDISTINGUISHABLE, THE AUTHORITY
 FUNDS, BASED UPON THE ANALYSIS IN THE VETERANS ADMINISTRATION, ATLANTA
 REGIONAL OFFICE CASE, THAT THE INSTANT PROVISION DOES NOT VIOLATE
 SECTION 12(B)(2) OF THE ORDER.
 
    B.  CONCLUSION AS TO QUESTION II:  THE SECOND SENTENCE OF THE
 PROVISION DOES NOT VIOLATE 5 U.S.C. 5535 AND 5596.  ACCORDINGLY, THE
 AGENCY'S DETERMINATION WAS IMPROPER AND, PURSUANT TO 5 C.F.R. 2411.28,
 /18/ IS SET ASIDE.
 
    REASONS:  THE AGENCY DETERMINED THAT THE SECOND SENTENCE OF THE
 PROVISION, WHICH PROVIDES THAT PAY FOR AN EMPLOYEE TEMPORARILY PROMOTED
 UNDER THE PROVISION WILL START AS OF THE FIRST DAY OF THE ASSIGNMENT,
 VIOLATES LAW.  THIS AGENCY DETERMINATION WAS BASED ON A CHARACTERIZATION
 OF THE PROVISION BY THE AGENCY AS REQUIRING "MANAGEMENT TO PAY AN
 EMPLOYEE THE SALARY INCIDENT TO A HIGHER LEVEL POSITION BEFORE HE OR SHE
 IS ACTUALLY PROMOTED TO IT." BASED ON THIS CHARACTERIZATION, THE AGENCY
 CONCLUDED THAT THE PROVISION IS VIOLATIVE OF LAW, NAMELY, 5 U.S.C. 5535
 AND 5596.  HOWEVER, IN SUBSEQUENTLY STATING ITS POSITION BEFORE THE
 COUNCIL, THE AGENCY CONCEDED THAT THE PROVISION COULD ALSO BE
 INTERPRETED TO REQUIRE ONLY "THAT TEMPORARY PROMOTIONS MUST (IN EVERY
 CASE COMING UNDER THE THREE WEEK RULE ESTABLISHED (BY THE PROVISION)) BE
 EFFECTED AS OF THE FIRST DAY THE EMPLOYEE IN QUESTION IS DIRECTED TO
 PERFORM THE DUTIES OF A HIGHER GRADED POSITION (REGARDLESS OF COST) . .
 . ." THE AGENCY CONCLUDED THAT, SO INTERPRETED, THE PROVISION WOULD NOT,
 ON ITS FACE, VIOLATE EITHER 5 U.S.C. 5535 OR 5596.
 
    THE AUTHORITY AGREES WITH THIS SUBSEQUENT INTERPRETATION OF THE
 PROVISION BY THE AGENCY AND SO CONSTRUES THE PROVISION FOR PURPOSES OF
 THIS DECISION.  THE AGENCY, AS NOTED, CONCEDES THAT IF THE PROVISION IS
 CONSTRUED IN THIS MANNER IT WOULD NOT VIOLATE EITHER 5 U.S.C. 5535 OR
 5596, /19/ AND RESEARCH FAILED TO REVEAL ANY SUCH VIOLATION.
 
    ACCORDINGLY, THE AUTHORITY FINDS THE SECOND SENTENCE OF THE PROVISION
 CONSISTENT WITH APPLICABLE LAW, NAMELY, 5 U.S.C. 5535 AND 5596.
 
    C.  CONCLUSION AS TO QUESTION III:  THE THIRD SENTENCE OF THE
 PROVISION DOES NOT VIOLATE SECTION 12(B)(2) OF THE ORDER AND DOES NOT
 CONFLICT WITH THE FEDERAL PERSONNEL MANUAL.  ACCORDINGLY, THE AGENCY'S
 DETERMINATION WAS IMPROPER AND, PURSUANT TO 5 C.F.R. 2411.28, /20/ IS
 SET ASIDE.
 
    REASONS:  THE AGENCY'S CLAIM THAT THE THIRD SENTENCE OF THE
 PROVISION, WHICH WOULD PRECLUDE THE AGENCY FROM MAKING TEMPORARY
 PROMOTIONS OF LESS THAN THREE FULL WEEKS, INTERFERES WITH AGENCY
 MANAGEMENT'S RETAINED RIGHTS UNDER SECTION 12(B)(2) AND 12(B)(3) OF THE
 ORDER AND CONFLICTS WITH APPLICABLE SECTIONS OF THE FEDERAL PERSONNEL
 MANUAL, IS NOT SUSTAINED.
 
    AS TO SECTION 12(B)(2), THE DECISION OF THE COUNCIL IN THE VETERANS
 ADMINISTRATION, ATLANTA REGIONAL OFFICE CASE /21/ IS DISPOSITIVE.  IN
 THAT CASE, THE COUNCIL HELD THAT THE PROVISION AT ISSUE, REQUIRING THE
 AGENCY TO PROMOTE TEMPORARILY EMPLOYEES WHOM THE AGENCY HAS DETAILED TO
 HIGHER-GRADE POSITIONS FOR 60 DAYS OR MORE, DID NOT VIOLATE SECTION
 12(B)(2) OF THE ORDER.  IN THIS REGARD, THE COUNCIL STATED, AS
 PREVIOUSLY QUOTED IN THIS DECISION, /22/ THAT THE TEMPORARY PROMOTION
 REQUIRED BY THE PROVISION MERELY IS A MINISTERIAL ACT IMPLEMENTING THE
 AGENCY'S DECISION AND ACTION IN SELECTING AND ASSIGNING THE PARTICULAR
 EMPLOYEE TO THE HIGHER-GRADE POSITION.  THE STATED PRINCIPLE IS
 CONTROLLING AS TO THE THIRD SENTENCE PRESENTLY UNDER CONSIDERATION,
 SINCE THE RESERVATION OF AUTHORITY TO PROMOTE UNDER SECTION 12(B)(2)
 INCLUDES THE AUTHORITY NOT TO PROMOTE.  /23/
 
    THAT IS, THE ACT OF TEMPORARILY PROMOTING, AS IN THE VETERANS
 ADMINISTRATION, ATLANTA REGIONAL OFFICE CASE, OR NOT PROMOTING, AS IN
 THE CONTEXT OF THE PRESENT DISPUTED PROVISION, SIMPLY IS A MINISTERIAL
 ACT IMPLEMENTING THE AGENCY'S DECISION AND ACTION IN SELECTING AND
 ASSIGNING A PARTICULAR EMPLOYEE TO THE POSITION FOR LESS THAN THREE FULL
 WEEKS.  ACCORDINGLY, BASED ON THE COUNCIL'S VETERANS ADMINISTRATION,
 ATLANTA REGIONAL OFFICE DECISION, THE AUTHORITY CONCLUDES THAT THE THIRD
 SENTENCE DOES NOT VIOLATE SECTION 12(B)(2) OF THE ORDER.
 
    THE AGENCY ADDITIONALLY CONTENDS THAT THE THIRD SENTENCE WOULD
 PREVENT MANAGEMENT FROM TERMINATING A TEMPORARY PROMOTION BEFORE THE
 THREE WEEK PERIOD PROVIDED FOR IN THE PROVISION HAS EXPIRED, IN
 VIOLATION OF MANAGEMENT'S RIGHT UNDER SECTION 12(B)(3) OF THE ORDER /24/
 TO RELIEVE AN EMPLOYEE FROM DUTY BECAUSE OF LACK OF WORK OR OTHER
 LEGITIMATE REASONS.  THIS INTERPRETATION IS NOT SUPPORTED BY THE RECORD
 IN THE CASE.  THE PLAIN LANGUAGE OF THE PROVISION, AS PREVIOUSLY
 INDICATED, MERELY PRECLUDES THE AGENCY FROM MAKING TEMPORARY PROMOTIONS
 OF LESS THAN THREE FULL WEEKS IN DURATION.  IT DOES NOT LIMIT THE
 AGENCY'S AUTHORITY UNDER SECTION 12(B)(3) TO RELIEVE THE EMPLOYEE AT ANY
 TIME FROM HIS OR HER DUTIES FOR LEGITIMATE REASONS.  THEREFORE, THE
 THIRD SENTENCE OF THE PROVISION WOULD NOT VIOLATE SECTION 12(B)(3) OF
 THE ORDER.
 
    FINALLY, AS TO THE AGENCY'S CONTENTION BEFORE THE COUNCIL THAT THE
 THIRD SENTENCE OF THE PROVISION CONFLICTS WITH THE FEDERAL PERSONNEL
 MANUAL, CHAP. 335, SUBCHAP. 4-4.D. (WHICH SPECIFIES THAT:  "AN EMPLOYEE
 MAY BE TEMPORARILY PROMOTED FOR THE EXPECTED DURATION OF THE NEED FOR
 HIS SERVICES IN THE HIGHER GRADE, BUT THE INITIAL PERIOD MAY NOT EXCEED
 ONE YEAR . . . ") THIS POSITION IS WITHOUT MERIT.  IN PARTICULAR, THE
 AGENCY CONTENDS THAT "THE LENGTH OF TIME THAT AN AGENCY MAY FIND IT
 NECESSARY TO TEMPORARILY FILL A VACANT POSITION VARIES DEPENDING ON THE
 CIRCUMSTANCES IN WHICH MANAGEMENT'S NEED TO FILL THE VACANCY AROSE," AND
 THAT NOT ALL SUCH CIRCUMSTANCES WILL REQUIRE A TEMPORARY PROMOTION OF
 THREE WEEKS DURATION.  HOWEVER, THE QUOTED SECTION OF THE FPM DOES NOT
 STATE A REQUIREMENT WHICH THE AGENCY MUST FOLLOW.  RATHER, THE FPM
 LANGUAGE RELIED UPON BY THE AGENCY CLEARLY GIVES THE AGENCY DISCRETION
 TO TEMPORARILY PROMOTE AN EMPLOYEE FOR THE LENGTH OF TIME IT ANTICIPATES
 IT WILL NEED HIS OR HER SERVICES IN THE HIGHER GRADE.  IT DOES NOT
 PRECLUDE THE AGENCY FROM DECIDING, AS A MATTER OF POLICY, THAT IT WILL
 NOT GRANT TEMPORARY PROMOTIONS FOR SUCH ASSIGNMENTS AS IT EXPECTS WILL
 NOT LAST FOR THREE FULL WEEKS OR, CORRELATIVELY, FROM EXERCISING ITS
 DISCRETION TO ESTABLISH SUCH A POLICY IN A COLLECTIVE BARGAINING
 AGREEMENT, AS WAS DONE BY THE PARTIES IN THIS CASE.  /25/ THEREFORE,
 THIS PORTION OF THE DISPUTED PROVISION DOES NOT CONFLICT WITH THE FPM.
 
    ACCORDINGLY, BASED ON THE FOREGOING REASONS, SECTION P OF THE
 PARTIES' AGREEMENT IS CONSISTENT WITH APPLICABLE LAW AND REGULATIONS
 AND, THUS, IS NEGOTIABLE.  /26/
 
    ISSUED, WASHINGTON, D.C., JUNE 15, 1979
 
                        RONALD W. HAUGHTON CHAIRMAN
 
                        HENRY B. FRAZIER III MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ IN ACCORDANCE WITH SECTION 2400.4 OF THE AUTHORITY'S TRANSITION
 RULES AND REGULATIONS (44 FED.REG. 5(1979), WHICH ARE CURRENTLY IN
 EFFECT UNDER SECTION 7135(B) OF THE FEDERAL SERVICE LABOR-MANAGEMENT
 RELATIONS STATUTE (92 STAT. 1215), THIS DECISION IS RENDERED UNDER THE
 RULES AND REGULATIONS SET FORTH IN 5 C.F.R. PART 2411, ET SEQ. (1978).
 FURTHER, IN ACCORDANCE WITH SECTION 902(B) OF THE CIVIL SERVICE REFORM
 ACT OF 1978 (92 STAT. 1224), THIS CASE IS DECIDED SOLELY ON THE BASIS OF
 E.O. 11491, AS AMENDED, AND AS IF THE STATUTE "HAD NOT BEEN ENACTED." IN
 THIS REGARD, THE DECISION DOES NOT PREJUDGE IN ANY MANNER EITHER THE
 MEANING OR APPLICATION OF RELATED PROVISIONS IN THE NEW STATUTE OR THE
 RESULT WHICH WOULD BE REACHED BY THE AUTHORITY IF THE CASE HAD ARISEN
 UNDER THE STATUTE RATHER THAN THE ORDER.
 
    /2/ SECTION 15 OF THE ORDER PROVIDES AS FOLLOWS:
 
    SEC. 15.  APPROVAL OF AGREEMENTS.  AN AGREEMENT WITH A LABOR
 ORGANIZATION AS THE EXCLUSIVE
 
    REPRESENTATIVE OF EMPLOYEES IN A UNIT IS SUBJECT TO THE APPROVAL OF
 THE HEAD OF THE AGENCY OR
 
    AN OFFICIAL DESIGNATED BY HIM.  AN AGREEMENT SHALL BE APPROVED WITHIN
 FORTY-FIVE DAYS FROM THE
 
    DATE OF ITS EXECUTION IF IT CONFORMS TO APPLICABLE LAWS, THE ORDER,
 EXISTING PUBLISHED AGENCY
 
    POLICIES AND REGULATIONS (UNLESS THE AGENCY HAS GRANTED AN EXCEPTION
 TO A POLICY OR
 
    REGULATION) AND REGULATIONS OF OTHER APPROPRIATE AUTHORITIES.  AN
 AGREEMENT WHICH HAS NOT BEEN
 
    APPROVED OR DISAPPROVED WITHIN FORTY-FIVE DAYS FROM THE DATE OF ITS
 EXECUTION SHALL GO INTO
 
    EFFECT WITHOUT THE REQUIRED APPROVAL OF THE AGENCY HEAD AND SHALL BE
 BINDING ON THE PARTIES
 
    SUBJECT TO THE PROVISIONS OF LAW, THE ORDER AND THE REGULATIONS OF
 APPROPRIATE AUTHORITIES OUTSIDE THE AGENCY.  A
 
    LOCAL AGREEMENT SUBJECT TO A NATIONAL OR OTHER CONTROLLING AGREEMENT
 AT A HIGHER LEVEL SHALL
 
    BE APPROVED UNDER THE PROCEDURES OF THE CONTROLLING AGREEMENT, OR, IF
 NONE, UNDER AGENCY
 
    REGULATIONS.
 
    /3/ SEE NOTE 1, SUPRA.
 
    /4/ THIS DECISION SHALL NOT BE CONSTRUED AS EXPRESSING OR IMPLYING
 ANY OPINION OF THE AUTHORITY AS TO THE MERITS OF THE DISPUTED PROVISION.
  IT IS DECIDED ONLY THAT, AS AGREED UPON BY THE PARTIES, AND BASED ON
 THE RECORD BEFORE THE AUTHORITY, THE PROVISION WAS PROPERLY SUBJECT TO
 NEGOTIATION BY THE PARTIES.
 
    /5/ SECTION 12(B)(2) OF THE ORDER PROVIDES, IN RELEVANT PART, AS
 FOLLOWS:
 
    SEC. 12.  BASIC PROVISIONS OF AGREEMENTS.  EACH AGREEMENT BETWEEN AN
 AGENCY AND A LABOR
 
    ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
 
   .          .          .          .
 
 
    (B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
 ACCORDANCE WITH APPLICABLE LAWS
 
    AND REGULATIONS--
 
   .          .          .          .
 
 
    (2) TO HIRE, PROMOTE, TRANSFER, ASSIGN, AND RETAIN EMPLOYEES IN
 POSITIONS WITHIN THE AGENCY
 
    . . . .
 
    /6/ VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION AND
 VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, 1 FLRC
 227, 230 (FLRC NO. 71A-31 (NOV. 22, 1972), REPORT NO. 31).
 
    /7/ SEE, E.G., AFGE (NATIONAL BORDER PATROL COUNCIL AND NATIONAL INS
 COUNCIL AND IMMIGRATION AND NATURALIZATION SERVICE, U.S. DEPARTMENT OF
 JUSTICE, 5 FLRC 808, 817 (FLRC NO. 76A-68 (AUG. 31, 1977), REPORT NO.
 136).
 
    /8/ INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
 LOCAL LODGE 1859 AND MARINE CORPS AIR STATION AND NAVAL AIR REWORK
 FACILITY, CHERRY POINT, NORTH CAROLINA, FLRC NO. 77A-28 (FEB. 28, 1978),
 REPORT NO. 145 AT 3-6 OF COUNCIL DECISION;  AFGE (NATIONAL BORDER PATROL
 COUNCIL AND NATIONAL INS COUNCIL) AND IMMIGRATION AND NATURALIZATION
 SERVICE, U.S.  DEPARTMENT OF JUSTICE, 5 FLRC 808, 817 (FLRC NO. 76A-68
 (AUG. 31, 1977), REPORT NO. 136).
 
    /9/ WE NOTE THAT, SINCE THE DISPUTED PROVISION MERELY ESTABLISHES A
 LESSER PERIOD FOR THE DURATION OF A TEMPORARY PROMOTION, WHICH IS
 DISCRETIONARY WITH THE AGENCY UNDER THE FPM, THE NEGOTIATED PROVISION IS
 NOT VIOLATIVE OF THE FPM, CHAP. 335, SUBCHAP.  4-3(E), WHICH PROVIDES AS
 FOLLOWS:
 
    AN AGENCY MAY MAKE A TEMPORARY PROMOTION LIMITED TO 120 DAYS OR LESS
 AS AN EXCEPTION TO
 
    COMPETITIVE PROMOTION PROCEDURES.
 
    CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 1626 AND
 GENERAL SERVICES ADMINISTRATION, REGION 5, 5 FLRC 614, 618 (FLRC NO.
 76A-121 (JULY 13, 1977), REPORT NO. 131).
 
    /10/ INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS,
 LOCAL LODGE 1859 AND MARINE CORPS AIR STATION AND NAVAL AIR REWORK
 FACILITY, CHERRY POINT, NORTH CAROLINA, SUPRA, NOTE 8, AT 4 OF COUNCIL
 DECISION.
 
    /11/ CF. VETERANS ADMINISTRATION INDEPENDENT SERVICE EMPLOYEES UNION
 AND VETERANS ADMINISTRATION RESEARCH HOSPITAL, CHICAGO, ILLINOIS, 1 FLRC
 227 (FLRC NO. 71A-31 (NOV. 22, 1972), REPORT NO. 31).
 
    /12/ 5 U.S.C. 5535(1966) PROVIDES:
 
    SEC. 5535. EXTRA PAY FOR DETAILS PROHIBITED
 
    (A) AN OFFICER MAY NOT RECEIVE PAY IN ADDITION TO THE PAY FOR HIS
 REGULAR OFFICE FOR
 
    PERFORMING THE DUTIES OF A VACANT OFFICE AS AUTHORIZED BY SECTIONS
 3345-3347 OF THIS TITLE.
 
    (B) AN EMPLOYEE MAY NOT RECEIVE--
 
    (1) ADDITIONAL PAY OR ALLOWANCES FOR PERFORMING THE DUTIES OF ANOTHER
 EMPLOYEE;  OR
 
    (2) PAY IN ADDITION TO THE REGULAR PAY RECEIVED FOR EMPLOYMENT HELD
 BEFORE HIS APPOINTMENT
 
    OR DESIGNATION AS ACTING FOR OR INSTEAD OF AN OCCUPANT OF ANOTHER
 POSITION OR EMPLOYMENT.
 
    THIS SUBSECTION DOES NOT PREVENT A REGULAR AND PERMANENT APPOINTMENT
 BY PROMOTION FROM A
 
    LOWER TO A HIGHER GRADE OF EMPLOYMENT.
 
    /13/ 5 U.S.C. 5596(1975) PROVIDES, IN RELEVANT PART, AS FOLLOWS:
 
    SEC. 5596.  BACK PAY DUE TO UNJUSTIFIED PERSONNEL ACTION
 
   .          .          .          .
 
 
    (B)AN EMPLOYEE OF AN AGENCY WHO, ON THE BASIS OF AN ADMINISTRATIVE
 DETERMINATION OR A
 
    TIMELY APPEAL, IS FOUND BY APPROPRIATE AUTHORITY UNDER APPLICABLE LAW
 OR REGULATION TO HAVE
 
    UNDERGONE AN UNJUSTIFIED OR UNWARRANTED PERSONNEL ACTION THAT HAS
 RESULTED IN THE WITHDRAWAL
 
    OR REDUCTION OF ALL OR A PART OF THE PAY, ALLOWANCES, OR
 DIFFERENTIALS OF THE EMPLOYEE--
 
    (1) IS ENTITLED, ON CORRECTION OF THE PERSONNEL ACTION, TO RECEIVE
 FOR THE PERIOD FOR WHICH
 
    THE PERSONNEL ACTION WAS IN EFFECT AN AMOUNT EQUAL TO ALL OR ANY PART
 OF THE PAY, ALLOWANCES,
 
    OR DIFFERENTIALS, AS APPLICABLE, THAT THE EMPLOYEE NORMALLY WOULD
 HAVE EARNED DURING THAT
 
    PERIOD IF THE PERSONNEL ACTION HAD NOT OCCURRED, LESS ANY AMOUNTS
 EARNED BY HIM THROUGH OTHER
 
    EMPLOYMENT DURING THAT PERIOD;  AND
 
    (2) FOR ALL PURPOSES, IS DEEMED TO HAVE PERFORMED SERVICE FOR THE
 AGENCY DURING THAT PERIOD
 
    EXCEPT THAT--
 
    (A) ANNUAL LEAVE RESTORED UNDER THIS PARAGRAPH WHICH IS IN EXCESS OF
 THE MAXIMUM LEAVE
 
    ACCUMULATION PERMITTED BY LAW SHALL BE CREDITED TO A SEPARATE LEAVE
 ACCOUNT FOR THE EMPLOYEE
 
    AND SHALL BE AVAILABLE FOR USE BY THE EMPLOYEE WITHIN THE TIME LIMITS
 PRESCRIBED BY
 
    REGULATIONS OF THE CIVIL SERVICE COMMISSION, AND
 
    (B) ANNUAL LEAVE CREDITED UNDER SUBPARAGRAPH (A) OF THIS PARAGRAPH
 BUT UNUSED AND STILL
 
    AVAILABLE TO THE EMPLOYEE UNDER REGULATIONS PRESCRIBED BY THE
 COMMISSION SHALL BE INCLUDED IN
 
    THE LUMP-SUM PAYMENT UNDER SECTION 5551 OR 5552(1) OF THIS TITLE BUT
 MAY NOT BE RETAINED TO
 
    THE CREDIT OF THE EMPLOYEE UNDER SECTION 5552(2) OF THIS TITLE.
 
    /14/ FEDERAL PERSONNEL MANUAL, CHAP. 335, SUBCHAP. 4-4.D.  PROVIDES,
 IN RELEVANT PART, AS FOLLOWS:
 
    AN EMPLOYEE MAY BE TEMPORARILY PROMOTED FOR THE EXPECTED DURATION OF
 THE NEED FOR HIS
 
    SERVICES IN THE HIGHER GRADE, BUT THE INITIAL PERIOD MAY NOT EXCEED
 ONE YEAR . . . .
 
    /15/ SEE NOTE 1, SUPRA.
 
    /16/ NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 122 AND VETERANS
 ADMINISTRATION, ATLANTA REGIONAL OFFICE, ATLANTA, GEORGIA, FLRC NO.
 77A-94 (NOV. 8 1978), REPORT NO. 159 AT 8-10 OF COUNCIL DECISION.  THE
 PROVISION AT ISSUE PROVIDED IN RELEVANT PART:
 
    TEMPORARY PROMOTION:  AN EMPLOYEE TEMPORARILY PLACED IN A HIGHER
 GRADE POSITION . . . WILL
 
    BE TEMPORARILY PROMOTED, IF THE ASSIGNMENT IS TO EXCEED 60 DAYS.
 
    /17/ ID. AT 10.
 
    /18/ SEE NOTE 1, SUPRA.
 
    /19/ SEE NOTES 11 AND 12, SUPRA.
 
    /20/ SEE NOTE 1, SUPRA.
 
    /21/ SEE NOTE 16, SUPRA.
 
    /22/ SEE P. 8, SUPRA.
 
    /23/ NATIONAL COUNCIL OF OEO LOCALS, AFGE, AFL-CIO, AND OFFICE OF
 ECONOMIC OPPORTUNITY (HARKLESS, ARBITRATOR), 2 FLRC 293, 297 (FLRC NO.
 73A-67 (DEC. 6, 1974), REPORT NO. 61).
 
    /24/ SECTION 12(B)(3) OF THE ORDER PROVIDES, IN RELEVANT PART, AS
 FOLLOWS:
 
    SEC. 12.  BASIC PROVISIONS OF AGREEMENTS.  EACH AGREEMENT BETWEEN AN
 AGENCY AND A LABOR
 
    ORGANIZATION IS SUBJECT TO THE FOLLOWING REQUIREMENTS--
 
   .          .          .          .
 
 
    (B) MANAGEMENT OFFICIALS OF THE AGENCY RETAIN THE RIGHT, IN
 ACCORDANCE WITH APPLICABLE LAWS
 
    AND REGULATIONS--
 
   .          .          .          .
 
 
    (3) TO RELIEVE EMPLOYEES FROM DUTIES BECAUSE OF LACK OF WORK OR FOR
 OTHER LEGITIMATE
 
    REASONS . . . .
 
    /25/ CF. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, NATIONAL JOINT
 COUNCIL OF FOOD INSPECTION LOCALS AND OFFICE OF THE ADMINISTRATOR,
 ANIMAL AND PLANT HEALTH INSPECTION SERVICE, U.S. DEPARTMENT OF
 AGRICULTURE, 1 FLRC 616, 618 (FLRC NO. 73A-36 (DEC. 27, 1973), REPORT
 NO. 47), REV'D AND REMANDED ON OTHER GROUNDS, SUB NOM.  NATIONAL BROILER
 COUNCIL V. FLRC, 382 F.SUPP. 322 (E.D. VA. 1974);  COUNCIL SUPPLEMENTAL
 DECISION IN THE SAME CASE, 3 FLRC 324, 326 (FLRC NO. 73A-36 (JUNE 10,
 1975), REPORT NO. 73), AFF'D SUB NOM. NATIONAL BROILER COUNCIL V. FLRC
 CIVIL ACTION NO. 147-74A (E.D. VA., OCT. 16, 1975);  AMERICAN FEDERATION
 OF GOVERNMENT EMPLOYEES, LOCAL 1626 AND GENERAL SERVICES ADMINISTRATION,
 REGION 5, 5 FLRC 614, 618 (FLRC NO.  76A-121 (JULY 13, 1977), REPORT NO.
 131).
 
    /26/ THIS DECISION SHALL NOT BE CONSTRUED AS EXPRESSING OR IMPLYING
 ANY OPINION OF THE AUTHORITY AS TO THE MERITS OF THE DISPUTED PROVISION.
  IT IS DECIDED ONLY THAT, AS AGREED UPON BY THE PARTIES, AND BASED ON
 THE RECORD BEFORE THE AUTHORITY, THE PROVISION WAS PROPERLY SUBJECT TO
 NEGOTIATION BY THE PARTIES.