30:0845(95)NG - AFGE Local 2024 and Navy, Portsmouth Naval Shipyard, Portsmouth, NH -- 1987 FLRAdec NG

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.