[ v19 p1023 ]
19:1023(119)NG
The decision of the Authority follows:
19 FLRA No. 119
BREMERTON METAL TRADES COUNCIL,
AFL-CIO
Union
and
DEPARTMENT OF THE NAVY,
PUGET SOUND NAVY SHIPYARD,
BREMERTON, WASHINGTON
Agency
Case No. O-NG-725
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and presents issues
concerning the negotiability of one provision of a negotiated agreement
disapproved by the Agency head pursuant to section 7114(c) of the
Statute.
Provision
Should the Department of Navy's compelling need arguments not
be sustained by the authority, /1/ the parties adopt the past
practice of a pay period or more. Furthermore, unit employees who
have been detailed to a supervisory position in accordance with
paragraph 1 shall be compensated for periods in excess of a pay
period or more on a retroactive basis subject to the following
conditions: (a) providing such retroactive payment is legal; (b)
the employee is a unit member at the time of such retroactive
adjustment; (c) the employee submits a claim using "temporary
assignment notice" as proof; and, (d) the retroactive adjustment
shall be limited to twelve (12) months prior to the date of the
FLRA decision. (Footnote added.)
Upon careful consideration of the entire record, including the
parties' contentions, the Authority makes the following determinations.
This provision would require the Agency to retroactively effectuate a
temporary promotion under certain circumstances if the Authority rules
in favor of the Union in two other cases. See note 1, supra. The
proposals in those cases would require an employee assigned to a detail
to be promoted after a time period which would be less than that
provided for by Agency regulation. The Authority found in those cases
that, contrary to the Agency's claim, no compelling need existed for the
Agency regulation to bar negotiation, and, hence, found the proposals to
be within the duty to bargain. This appeal relates to a determination
made by the Agency head that the instant provision, which is concerned
only with according retroactive effect to those proposals if the
Authority issues a bargaining order, as it in fact has done in those
cases, is inconsistent with the Back Pay Act. The Agency contends,
among other things, that the provision does not come within the purview
of the Back Pay Act and, hence, is in violation of Federal law.
The Back Pay Act, 5 U.S.C. 5596, is the authority under which an
agency may retroactively adjust an employee's compensation "who, on the
basis of a timely appeal or an administrative determination (including a
decision relating to an unfair labor practice or a grievance) is found
by appropriate authority under applicable law, rule, regulation, or
collective bargaining agreement, to have been affected by an unjustified
or unwarranted personnel action which has resulted in the withdrawal or
reduction of all or part of the pay, allowances, or differentials of the
employee(.)" 5 U.S.C. 5596(b)(1). The Authority has consistently held
that in order for a backpay order to be authorized under the Back Pay
Act, there must be a determination that an employee has been adversely
affected by an unjustified or unwarranted personnel action and a
determination that but for the improper action such employee would not
have suffered a loss or reduction in pay, allowances or differentials.
See, e.g., United States Department of Agriculture, Plant Protection and
Quarantine, Animal Plant Health Inspection Service and National
Association of Agriculture Employees, formerly The Federal Plant
Quarantine Inspector's National Association, 17 FLRA No. 40 (1985). See
also Federal Aviation Administration, Northwest Mountain Region,
Seattle, Washington and Professional Airways Systems Specialists, 14
FLRA 644 (1984).
Under the circumstances giving rise to the instant case, the Agency
refused to agree to the Union's substantive proposals regarding
temporary promotions. Rather, it alleged those proposals to be
nonnegotiable. Under the Statute either party has the right not to
agree to any proposal, and even the issuance of a bargaining order is
not a requirement that the parties agree to a particular proposal. See
American Federation of Government Employees, AFL-CIO, Local 32 and
Office of Personnel Management, Washington, D.C., 6 FLRA 423, 428-29
(1981), enforced as to other matters sub nom. Office of Personnel
Management v. Federal Labor Relations Authority, No. 81-2106 (D.C. Cir.
Apr. 6, 1983); Department of Defense v. FLRA, 659 F.2d 1140 at 1147
(D.C. Cir. 1981), affirming American Federation of Government Employees,
AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio, 2 FLRA 603 (1980), cert. denied sub nom. American Federation
of Government Employees v. FLRA, 455 U.S. 945 (1982). Furthermore, an
agency has the right under section 7117 of the Statute to allege a
proposal to be nonnegotiable, i.e., inconsistent with applicable law,
rule or regulation, as the Agency did in the circumstances of Case Nos.
O-NG-528, O-NG-595. Clearly, the Agency's assertion of its rights as
set forth above cannot be considered to be an "unjustified or
unwarranted personnel action" such that retroactive adjustment of an
employee's compensation would be warranted under the Back Pay Act upon
the Authority's issuance of a bargaining order.
As to the Union's assertion that the provision is negotiable because
it is an appropriate arrangement for employees adversely affected by the
exercise of management's rights under section 7106(b)(3) of the Statute,
it cannot be sustained. Under the Statute, the duty of an agency to
negotiate with a union extends to the conditions of employment affecting
bargaining unit employees except as provided otherwise by, among other
things, Federal law. National Treasury Employees Union, Chapter 6 and
Internal Revenue Service, New Orleans District, 3 FLRA 747 (1980).
Therefore, a provision is outside the duty to bargain to the extent that
it is inconsistent with any Federal law. Insofar as the Authority finds
the provision herein is inconsistent with a Federal law, the provision
is outside the duty to bargain under section 7117(a)(1) of the Statute.
/2/
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Union's petition for review be, and
it hereby is, dismissed. /3/ Issued, Washington, D.C., August 23, 1985
Henry B. Frazier III, Acting
Chairman
William J. McGinnis, Jr., Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ With respect to the Agency's arguments referenced in the
provision, the Authority held, in National Association of Government
Employees, Local R12-29 and Department of the Navy, Naval Construction
Battalion Center, Port Hueneme, California (and cases consolidated
therewith), 19 FLRA No. 111 (1985) issued this day, that a compelling
need does not exist for the Agency's regulation to bar negotiations on
proposals in the two cases related to the instant dispute. See
discussion, infra.
/2/ Section 7117(a)(1) of the Statute provides as follows:
Sec. 7117. Duty to bargain in good faith, compelling need;
duty to consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to
bargain in good faith shall, to the extent not inconsistent with
any Federal law or any Government-wide rule or regulation, extend
to matters which are the subject of any rule or regulation only if
the rule or regulation is not a Government-wide rule or
regulation.
/3/ Since the Authority concludes that the disputed provision is
outside the duty to bargain under section 7117(a)(1), it is unnecessary
to consider the Agency's additional contentions concerning the
nonnegotiability of the provision.