[ v01 p550 ]
01:0550(63)NG
The decision of the Authority follows:
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.