Methods and Standards Association and Naval Air Rework Facility, Naval Air Station, Pensacola, Florida (Authority decision, December 21, 1979)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The union proposed higher grade pay for unit employees temporarily assigned higher grade duties for at least five days. The Navy said the proposal would regulate its procedures for filling supervisory positions outside the unit. The Authority read the proposal as addressing pay only after management had chosen an employee for a temporary assignment. Because it left that selection decision to management, the Authority held the proposal negotiable and set aside the Navy's contrary allegation. It did not judge the proposal's merits.

Decision snapshot

• Authority: 5 U.S.C. § 7117(a).
• Outcome: Agency nonnegotiability allegation set aside.
• Key point: A pay proposal tied to a completed assignment did not control management's selection decision.

Full text (FLRA public release)

[ v02 p286 ]

02:0286(34)NG

The decision of the Authority follows:

2 FLRA No. 34

METHODS AND STANDARDS
ASSOCIATION
(Union)

and

NAVAL AIR REWORK FACILITY,
NAVAL AIR STATION,
PENSACOLA, FLORIDA
(Activity)

Case No. 0-NG-41

DECISION ON NEGOTIABILITY ISSUE

UNION PROPOSAL

UNIT EMPLOYEES WHO ARE NON-COMPETITIVELY, TEMPORARILY ASSIGNED THE
DUTIES OF A HIGHER GRADE

POSITION FOR A PERIOD OF FIVE DAYS OR MORE WILL RECEIVE THE PAY
AUTHORIZED FOR THE HIGHER

GRADE POSITION.

QUESTION HERE BEFORE THE AUTHORITY

THE QUESTION IS WHETHER THEUNION'S PROPOSAL IS OUTSIDE THE DUTY TO
BARGAIN UNDER THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS (FSLMR)
STATUTE, AS ALLEGED BY THE AGENCY, BECAUSE IT WOULD PRESCRIBE PROCEDURES
FOR FILLING THRESHOLD SUPERVISORY POSITIONS OUTSIDE THE BARGAINING UNIT.

OPINION

CONCLUSION: THE PROPOSAL CONCERNS MATTERS WITHIN THE DUTY TO BARGAIN
IN GOOD FAITH UNDER SECTION 7117(A) OF THE FSLMR STATUTE. /1/
ACCORDINGLY, PURSUANT TO SECTION 2424.8 OF THE AUTHORITY'S RULES AND
REGULATIONS (44 FED.REG. 44740 ET SEQ.(1979)), THE AGENCY'S ALLEGATION
THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN IS SET
ASIDE. /2/

REASONS: THE UNION'S PROPOSAL IN THIS CASE PROVIDES IN ESSENCE THAT
IF AN EMPLOYEE IN THE UNIT IS NONCOMPETITIVELY, TEMPORARILY ASSIGNED BY
MANAGEMENT TO PERFORM THE DUTIES OF A HIGHER GRADE POSITION, I.E.,
SELECTED FOR A DETAIL, FOR FIVE DAYS OR MORE, THAT EMPLOYEE WILL RECEIVE
THE PAY FOR THAT POSITION.

THE AGENCY ALLEGES THAT THIS PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN
BECAUSE IT INVOLVES PROCEDURES WHICH MANAGEMENT WOULD BE REQUIRED TO USE
IN FILLING SUPERVISORY POSITIONS OUTSIDE THE BARGAINING UNIT. ACCORDING
TO THE AGENCY, THE OBLIGATION TO BARGAIN IS CONFINED TO THOSE PERSONNEL
POLICIES AND PRACTICES RELATING TO POSITIONS WITHIN THE BARGAINING UNIT
AND, THEREFORE, THERE IS NO DUTY TO BARGAIN ON THIS PROPOSAL.

ON THE OTHER HAND, THE UNION CONTENDS THAT THE AGENCY HAS
MISINTERPRETED THE PROPOSAL; THAT ITS PROPOSAL IN NO WAY LIMITS OR
ATTEMPTS TO DETERMINE THE PROCEDURES WHICH MANAGEMENT MUST USE IN
FILLING SUPERVISORY POSITIONS. INSTEAD, THE UNION ASSERTS, THE PROPOSAL
ONLY SEEKS TO INSURE THAT UNIT EMPLOYEES WHO ARE TEMPORARILY PLACED BY
MANAGEMENT IN POSITIONS OF GREATER RESPONSIBILITY WILL RECEIVE THROUGH
TEMPORARY PROMOTION THE HIGHER PAY COMMENSURATE WITH THOSE POSITIONS.
THE AUTHORITY FINDS MERIT IN THE UNION'S CONTENTION.

ON ITS FACE THE PROPOSAL DOES NOT SEEK TO LIMIT MANAGEMENT IN ANY
MANNER WHATSOEVER WITH RESPECT TO THE PROCEDURES MANAGEMENT WILL USE
TO
FILL POSITIONS. IT DOES NOT CONCERN MANAGEMENT'S DECISION TO SELECT AN
EMPLOYEE, IF ANY, FOR NONCOMPETITIVE ASSIGNMENT TO A HIGHER GRADED
POSITION ON A TEMPORARY BASIS. RATHER, THE PROPOSAL, BY ITS EXPRESS
LANGUAGE AS WELL AS THE UNION'S STATEMENT AS TO THE INTENDED MEANING OF
SUCH LANGUAGE ALREADY MENTIONED, SOLELY IS CONCERNED WITH THE LEVEL OF
COMPENSATION THE EMPLOYEE WILL RECEIVE ONLY AFTER MANAGEMENT HAS
SELECTED THAT EMPLOYEE, PURSUANT TO PROCEDURES OF ITS OWN CHOICE.

IN THIS REGARD, THE ACT CALLED FOR BY THE PROPOSAL, OF PROVIDING
COMPENSATION TO THE EMPLOYEE AT THE LEVEL COMMENSURATE WITH THE JOB HE
OR SHE IS PERFORMING (I.E., TEMPORARILY PROMOTING THE EMPLOYEE), SIMPLY
IS A MINISTERIAL ACT IMPLEMENTING MANAGEMENT'S DECISION TO SELECT AND
ASSIGN THE EMPLOYEE INVOLVED TO THE HIGHER GRADE POSITION. AS
PREVIOUSLY INDICATED, NOTHING IN THE PROPOSAL WOULD INTERFERE WITH
MANAGEMENT'S RIGHT TO MAKE SUCH DECISION TO SELECT AND ASSIGN. THUS,
NOTHING IN THE PROPOSAL WOULD IMPAIR MANAGEMENT'S RIGHT TO DETERMINE
WHETHER AND WHOM TEMPORARILY TO PROMOTE.

FOR THE REASONS STATED, AND SINCE IT DOES NOT APPEAR THAT THE
DISPUTED PROPOSAL OTHERWISE IS INCONSISTENT WITH ANY APPLICABLE LAW OR
REGULATION, THE PROPOSAL IS WITHIN THE DUTY TO BARGAIN PURSUANT TO
SECTION 7117(A) OF THE STATUTE. ACCORDINGLY, THE AGENCY'S ALLEGATION TO
THE CONTRARY IS SET ASIDE.

ISSUED, WASHINGTON, D.C., DECEMBER 21, 1979

RONALD W. HAUGHTON, CHAIRMAN

HENRY B. FRAZIER III, MEMBER

LEON B. APPLEWHAITE, MEMBER

FEDERAL LABOR RELATIONS AUTHORITY

/1/ THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE, SEC.
7117 (92 STAT. 1205) PROVIDES, IN RELEVANT PART, 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 NO 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.

(2) THE DUTY TO BARGAIN IN GOOD FAITH SHALL, TO THE EXTENT NOT
INCONSISTENT WITH FEDERAL

LAW OR ANY GOVERNMENT-WIDE RULE OR REGULATION, EXTEND TO MATTERS
WHICH ARE THE SUBJECT TO ANY

AGENCY RULE OR REGULATION REFERRED TO IN PARAGRAPH (3) OF THIS
SUBSECTION ONLY IF THE

AUTHORITY HAS DETERMINED UNDER SUBSECTION (B) OF THIS SECTION THAT NO
COMPELLING NEED (AS

DETERMINED UNDER REGULATIONS PRESCRIBED BY THE AUTHORITY) EXISTS FOR
THE RULE OR REGULATION.

(3) PARAGRAPH (2) OF THE SUBSECTION APPLIES TO ANY RULE OR REGULATION
ISSUED BY ANY AGENCY

OR ISSUED BY ANY PRIMARY NATIONAL SUBDIVISION OF SUCH AGENCY, UNLESS
AN EXCLUSIVE

REPRESENTATIVE REPRESENTS AN APPROPRIATE UNIT INCLUDING NOT LESS THAN
A MAJORITY OF THE

EMPLOYEES IN THE ISSUING AGENCY OR PRIMARY NATIONAL SUBDIVISION, AS
THE CASE MAY BE, TO WHOM

THE RULE OR REGULATION IS APPLICABLE.

/2/ IN SO DECIDING THAT THE SUBJECT PROPOSAL IS WITHIN THE DUTY TO
BARGAIN, THE AUTHORITY MAKES NO JUDGMENT AS TO THE MERITS OF THE
PROPOSAL.