American Federation of Government Employees, AFL-CIO, Council of Federal Grain Inspection Locals (Union) and United States Department of Agriculture, Federal Grain Inspection Service, Washington, DC (Activity) 

 3 FLRA No. 85
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, COUNCIL OF FEDERAL
 GRAIN INSPECTION LOCALS
 (Union)
 
 and
 
 UNITED STATES DEPARTMENT
 OF AGRICULTURE, FEDERAL
 GRAIN INSPECTION SERVICE,
 WASHINGTON, D.C.
 (Activity)
 
                                            Case No. 0-NG-126
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
 
                              UNION PROPOSAL
 
    ALL WORK IN EXCESS OF 40 HOURS PER WEEK PERFORMED ON A SUNDAY SHALL
 BE PAID AT TWICE THE BASIC RATE OF PAY.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE AGENCY'S
 DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE BECAUSE IT CONCERNS A
 MATTER THAT IS EXCLUDED FROM "CONDITIONS OF EMPLOYMENT" AS DEFINED IN
 SECTION 7103(A)(14) OF THE STATUTE.  /1/
 
                                  OPINION
 
    CONCLUSION:  THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN
 UNDER THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS, 45 FED. REG. 3513(1980), THE AGENCY'S
 ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 IS SUSTAINED.
 
    REASONS:  THE DUTY TO BARGAIN UNDER THE STATUTE EXTENDS TO THE
 CONDITION OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES.  MATTERS
 "SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE" HOWEVER, ARE EXPRESSLY
 EXCLUDED FROM THE DEFINITION OF "CONDITIONS OF EMPLOYMENT" IN SECTION
 7103(A)(14)(C) (NOTE 1, SUPRA) AND, HENCE, ARE NOT WITHIN THE SCOPE OF
 THE DUTY TO BARGAIN.  THE UNION'S PROPOSAL IN THE INSTANT CASE CONCERNS
 THE RATE OF PAY FOR BARGAINING UNIT EMPLOYEES WHO PERFORM OVERTIME WORK
 ON A SUNDAY.  THE BASIC PAY PROVISIONS APPLICABLE TO FEDERAL EMPLOYEES,
 INCLUDING PROVISIONS REGARDING OVERTIME PAY FOR HOURS WORKED IN EXCESS
 OF 40 PER WEEK OR 8 IN ONE DAY, ARE SET FORTH IN 5 U.S.C. 5542(A) WHICH
 PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    SECTION 5542.  OVERTIME RATES;  COMPUTATION
 
    FOR FULL-TIME, PART-TIME AND INTERMITTENT TOURS OF DUTY, HOURS OF
 WORK OFFICIALLY ORDERED
 
    OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR
 (WITH THE EXCEPTION OF AN
 
    EMPLOYEE ENGAGED IN PROFESSIONAL OR TECHNICAL ENGINEERING OR
 SCIENTIFIC ACTIVITIES FOR WHOM
 
    THE FIRST 40 HOURS OF DUTY IN AN ADMINISTRATIVE WORKWEEK IS THE BASIC
 WORKWEEK AND AN EMPLOYEE
 
    WHOSE BASIC PAY EXCEEDS THE MINIMUM RATE FOR GS-10 FOR WHOM THE FIRST
 40 HOURS OF DUTY IN AN
 
    ADMINISTRATIVE WORKWEEK IS THE BASIC WORKWEEK) IN EXCESS OF 8 HOURS
 IN A DAY, PERFORMED BY AN
 
    EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR, EXCEPT AS OTHERWISE
 PROVIDED BY THIS
 
    SUBCHAPTER, AT THE FOLLOWING RATES:
 
    (1) FOR AN EMPLOYEE WHOSE BASIC PAY IS AT A RATE WHICH DOES NOT
 EXCEED THE MINIMUM RATE OF
 
    BASIC PAY FOR GS-10, THE OVERTIME HOURLY RATE OF PAY IS AN AMOUNT
 EQUAL TO ONE AND ONE-HALF
 
    TIMES THE HOURLY RATE OF BASIC PAY OF THE EMPLOYEE, AND ALL THAT
 AMOUNT IS PREMIUM PAY.
 
    (2) FOR AN EMPLOYEE WHOSE BASIC PAY IS AT A RATE WHICH EXCEEDS THE
 MINIMUM RATE OF BASIC
 
    PAY FOR GS-10, THE OVERTIME HOURLY RATE OF PAY IS AN AMOUNT EQUAL TO
 ONE AND ONE-HALF TIMES
 
    THE HOURLY RATE OF THE MINIMUM RATE OF BASIC PAY FOR GS-10, AND ALL
 THAT AMOUNT IS PREMIUM
 
    PAY.
 
    WHILE THERE ARE STATUTORY PROVISIONS WHICH SPECIFICALLY PERMIT THE
 NEGOTIATION OF PREMIUM PAY FOR CERTAIN CATEGORIES OF FEDERAL EMPLOYEES,
 NO SUCH SPECIFIC STATUTORY AUTHORIZATION FOR THE BARGAINING UNIT
 EMPLOYEES OF THE FEDERAL GRAIN INSPECTION SERVICE INVOLVED HEREIN HAS
 BEEN CITED BY THE UNION OR FOUND BY THE AUTHORITY.  ACCORDINGLY, IN THE
 INSTANT CASE, AS STATED IN THE HOUSE COMMITTEE REPORT ACCOMPANYING H.R.
 11280 FROM WHICH SECTION 7103(A)(14)(C) OF THE STATUTE DERIVED WITHOUT
 CHANGE, "(R)ATES OF OVERTIME PAY ARE NOT BARGAINABLE, BECAUSE THEY ARE
 SPECIFICALLY PROVIDED FOR BY STATUTE." /2/
 
    THE UNION CONTENDS, HOWEVER, THAT 5 U.S.C. 5542(A), WHICH PROVIDES
 THAT OVERTIME SHALL BE PAID AT "ONE AND ONE-HALF TIMES THE (EMPLOYEE'S)
 HOURLY RATE," IS INCONSISTENT WITH SECTION 7(A)(1) OF THE FAIR LABOR
 STANDARDS ACT (FLSA) WHICH REQUIRES OVERTIME COMPENSATION AT "NOT LESS
 THAN" ONE AND ONE-HALF TIMES THE REGULAR RATE.  SECTION 7(A)(1) OF THE
 FAIR LABOR STANDARDS ACT (29 U.S.C. 207(A)(1)) PROVIDES:
 
    EXCEPT AS OTHERWI