19:0939(111)NG - NAGE Local R12-29 and Navy, Naval Construction Battalion Center, Port Hueneme, CA; AFGE, Local 48 and Navy, Naval Supply Center, Puget Sound, Bremerton, WA; Point Mugu Council of NAGE Local R12-33, NFFE Local 1374 and Navy, Pacific Missile Test Center, Point Mugu, CA -- 1985 FLRAdec NG
[ v19 p939 ]
19:0939(111)NG
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.