09:0164(23)AR - Columbia Basin Trades Council and all of its Constituent Unions, Spokane, WA and The Grand Coulee Project Office, Bureau of Reclamation, Interior, Grand Coulee, WA -- 1982 FLRAdec AR



[ v09 p164 ]
09:0164(23)AR
The decision of the Authority follows:


 9 FLRA No. 23
 
 COLUMBIA BASIN TRADES
 COUNCIL AND ALL OF ITS
 CONSTITUENT UNIONS, SPOKANE,
 WASHINGTON
 Union
 
 and
 
 THE GRAND COULEE PROJECT OFFICE,
 BUREAU OF RECLAMATION, U.S.
 DEPARTMENT OF INTERIOR, GRAND
 COULEE, WASHINGTON
 Activity
 
                                            Case No. 0-AR-78
 
                                 DECISION
 
    THIS MATTER IS BEFORE THE AUTHORITY ON EXCEPTIONS TO THE AWARDS OF
 ARBITRATOR WILLIAM H. DORSEY FILED BY THE AGENCY UNDER SECTION 7122(A)
 OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE)
 AND PART 2425 OF THE AUTHORITY'S RULES AND REGULATIONS.  THE UNION FILED
 AN OPPOSITION.
 
    THE DISPUTE IN THIS CASE AROSE WHEN THE ACTIVITY UNILATERALLY
 DISCONTINUED PAYING CERTAIN CATEGORIES OF ITS PREVAILING RATE EMPLOYEES,
 WHOSE WAGES ARE NEGOTIATED, /1/ AT THE "LOCAL PREVAILING CONSTRUCTION
 RATE" AS PROVIDED BY THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  AS
 RELEVANT TO THIS CASE, GRIEVANCES WERE FILED OVER THE DISCONTINUANCE OF
 THE RATE FOR PERMANENT DRILL EMPLOYEES AND CERTAIN TEMPORARY EMPLOYEES,
 AND THE GRIEVANCES WERE ULTIMATELY PRESENTED TO THE ARBITRATOR AT ONE
 HEARING.  /2/
 
    I.  PERMANENT DRILL EMPLOYEES.
 
    WITH RESPECT TO ITS PERMANENT DRILL EMPLOYEES, THE ACTIVITY HAD
 NOTIFIED THE UNION THAT PAYMENT OF THE LOCAL PREVAILING CONSTRUCTION
 RATE WAS NO LONGER WARRANTED.  IT WAS THE ACTIVITY'S VIEW THAT THESE
 EMPLOYEES WERE A PART OF ITS MAINTENANCE OPERATION AND THEREFORE THEY
 WERE NO LONGER "CONSTRUCTION ORIENTED." CONSEQUENTLY, THE ACTIVITY
 ADVISED THE UNION THAT THE PERMANENT DRILL EMPLOYEES WERE BEING
 RECLASSIFIED AND INCORPORATED INTO THE LOWER MAINTENANCE WAGE SCHEDULE.
 ACCORDINGLY, ON FEBRUARY 27, 1977, THE ACTIVITY CLASSIFIED THESE
 EMPLOYEES AS MAINTENANCE EMPLOYEES AND ESTABLISHED AN EMERGENCY WAGE
 RATE FOR THEM WHICH FROZE THEIR WAGE RATE AT THE LEVEL IT WAS THEN AT
 UNTIL THE LOWER MAINTENANCE RATE EXCEEDED IT.
 
    THE ARBITRATOR FIRST QUESTIONED WHETHER PERMANENT DRILL EMPLOYEES
 COULD BE UNILATERALLY RECLASSIFIED AS MAINTENANCE EMPLOYEES BECAUSE OF
 THE ACTIVITY'S VIEW THAT THEY WERE NO LONGER CONSTRUCTION ORIENTED.  HE
 NOTED THAT THIS ACTION HAD RESULTED IN THESE EMPLOYEES BEING DENIED
 COMPENSATION AT THE LOCAL PREVAILING CONSTRUCTION RATE AND THUS BEING
 DENIED A WAGE INCREASE THAT WAS PUT INTO EFFECT FOR CERTAIN OTHER
 EMPLOYEES ON FEBRUARY 27, 1977.  /3/ THE ARBITRATOR READILY ACKNOWLEDGED
 THE RIGHT OF THE ACTIVITY TO ESTABLISH NEW CLASSIFICATIONS IN THE
 MAINTENANCE RANKS, WITH PAY AT APPROPRIATE MAINTENANCE WAGE RATES, FOR
 DRILL PERSONNEL WHO WOULD BE DOING A TYPE OF WORK ENTIRELY DIFFERENT
 FROM THE TYPE OF WORK BEING DONE BY THE INCUMBENT PERMANENT DRILL
 PERSONNEL.  HOWEVER, THE ARBITRATOR EMPHASIZED THAT THIS WAS NOT WHAT
 HAD OCCURRED IN THIS CASE.  HE FOUND THAT, INSTEAD, THE ACTIVITY HAD
 SIMPLY DECLARED THAT THE INCUMBENT PERMANENT DRILL EMPLOYEES WERE NO
 LONGER CONSTRUCTION ORIENTED AND THAT THEREFORE THEY NO LONGER HAD TO BE
 PAID AT THE LOCAL PREVAILING CONSTRUCTION RATE.  HOWEVER, THE ARBITRATOR
 DETERMINED THAT UNDER THE PARTIES' COLLECTIVE BARGAINING AGREEMENT THESE
 EMPLOYEES WERE ENTITLED TO THE LOCAL PREVAILING CONSTRUCTION RATE
 BECAUSE OF THEIR STATUS AS CONSTRUCTION CRAFTSMEN AND REJECTED THE
 POSITION OF THE ACTIVITY THAT THE AGREEMENT INTENDED THAT PERMANENT
 DRILL EMPLOYEES WERE TO BE PAID THE LOCAL PREVAILING CONSTRUCTION RATE
 ONLY WHEN THEY WERE DOING CONSTRUCTION-ORIENTED WORK.  /4/ THE
 ARBITRATOR THEREFORE RULED THAT THE INCUMBENT PERMANENT DRILL EMPLOYEES
 WERE ENTITLED TO BE PAID THE LOCAL PREVAILING CONSTRUCTION RATE UNTIL
 THE AGREEMENT LANGUAGE WAS RENEGOTIATED.  ACCORDINGLY, HE AWARDED THE
 PERMANENT DRILL EMPLOYEES BACKPAY FOR THE DIFFERENCE IN PAY FROM THE
 DATE (SOMETIME BEFORE FEBRUARY 27, 1977) THAT THE ACTIVITY WAS NOTIFIED
 OF THE INCREASE IN THE LOCAL PREVAILING CONSTRUCTION RATE UNTIL THE
 PARTIES' AGREEMENT PROVISION WAS RENEGOTIATED.  /5/
 
    THE AGENCY'S EXCEPTION TO THIS AWARD IS THAT THE AWARD IS CONTRARY TO
 LAW.  IN SUPPORT OF THIS EXCEPTION, THE AGENCY PRINCIPALLY MAINTAINS
 THAT THE STATUTORY REFERENCE POINT FOR HOURLY WAGES, WHETHER ESTABLISHED
 UNDER THE PREVAILING RATE SYSTEMS ACT OR NEGOTIATED, IS THE LOCALLY
 PREVAILING RATE.  THE AGENCY'S POSITION IN THIS REGARD IS THAT THE
 PREVAILING RATE PRINCIPLE OF THE STATUTORY FRAMEWORK GOVERNING THE
 NEGOTIATION OF WAGES FOR PREVAILING RATE EMPLOYEES COMPELLED AND
 AUTHORIZED THE ACTIVITY TO UNILATERALLY IMPOSE A MAINTENANCE RATE OF PAY
 ON PERMANENT DRILL EMPLOYEES ONCE IT WAS DETERMINED BY THE ACTIVITY THAT
 SUCH AN ADJUSTMENT WAS NECESSARY TO CONFORM TO LOCALLY PREVAILING RATES
 AND PRACTICES OF THE PRIVATE SECTOR, NOTWITHSTANDING THE PARTIES'
 AGREEMENT THAT THEY BE PAID AT THE HIGHER LOCAL PREVAILING CONSTRUCTION
 RATE.  THE AGENCY ACKNOWLEDGES THAT THE UNION CAN THEN REACT THROUGH
 APPROPRIATE ACTION AND TRADITIONAL PROCEDURES, BUT MAINTAINS THAT
 MANAGEMENT'S RIGHT TO INITIALLY ACT IN WHAT IT VIEWS TO BE CONFORMANCE
 WITH LAW MAY NOT BE RESTRAINED.  THE AGENCY THEREFORE ARGUES THAT THE
 ARBITRATOR'S AWARD IS CONTRARY TO LAW BECAUSE IT CONDITIONS THE
 ADJUSTMENT OF THE RATE OF PAY OF PERMANENT DRILL EMPLOYEES ON THE
 RENEGOTIATION OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  IN
 OPPOSITION, THE UNION'S POSITION IS ESSENTIALLY THAT THE ARBITRATOR
 PROPERLY ENFORCED THE WAGE SCHEDULE OF THE COLLECTIVE BARGAINING
 AGREEMENT.
 
    THE AUTHORITY FINDS THAT THE AGENCY'S EXCEPTION FAILS TO ESTABLISH
 THAT THE AWARD RELATING TO THE PERMANENT DRILL EMPLOYEES, WHICH
 ESSENTIALLY ENFORCED THE WAGE SCHEDULE OF THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT UNTIL IT WAS RENEGOTIATED, IS CONTRARY TO LAW.  AS
 HAS BEEN NOTED, ALL OF THE EMPLOYEES IN THIS CASE HAVE COLLECTIVE
 BARGAINING RIGHTS, WHICH HAVE BEEN EXPRESSLY PRESERVED AND RECOGNIZED BY
 LAW, TO NEGOTIATE WAGES AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT IN
 ACCORDANCE WITH PREVAILING RATES AND PAY PRACTICES IN THE PRIVATE
 SECTOR.  AS WAS EXPRESSLY ACKNOWLEDGED BY THE COURT IN IBEW V ANDRUS,
 CIVIL ACTION NO. 80-M-701 (D. COLO. MAR. 31, 1981), THE DEPARTMENT OF
 INTERIOR AND ITS ACTIVITIES "DO NOT SET THE RATES OF PAY" OF THESE
 EMPLOYEES.  ID. AT 2 OF MEMORANDUM OPINION AND ORDER.  INSTEAD,
 PRESERVATION OF THE BARGAINING RIGHTS OF PERMANENT DRILL EMPLOYEES
 COMPELLED NEGOTIATIONS AS THE RESPONSE OF THE PARTIES TO ANY ASSERTED
 CHANGE IN PREVAILING RATES AND PAY PRACTICES.  THEREFORE, CONTRARY TO
 THE AGENCY'S CONTENTION THAT THE PARTICULAR ADJUSTMENT MADE BY THE
 ACTIVITY WAS REQUIRED BY PREVAILING RATE PRINCIPLES, ONLY NEGOTIATIONS
 ARE COMPELLED IN SUCH CIRCUMSTANCES BECAUSE NO PRECISE RATE OR PAY
 PRACTICE IS PRESCRIBED BY LAW.  COLLECTIVE BARGAINING IS THE MEANS BY
 WHICH SUCH RATES AND PRACTICES MUST BE DETERMINED AND OBTAINED.  SEE
 MEDLER V. UNITED STATES, 616 F.2D 450, 454 (9TH CIR.  1980).
 ACCORDINGLY, THE ARBITRATOR PROPERLY REFUSED TO SANCTION THE ACTIVITY'S
 UNILATERAL IMPOSITION OF A LOWER MAINTENANCE RATE OF PAY ON PERMANENT
 DRILL EMPLOYEES AND PROPERLY INVOKED RENEGOTIATION AS THE MEANS FOR THE
 PARTIES TO CONFORM THEIR AGREEMENT TO CURRENTLY PREVAILING PRACTICE,
 WITH THE PREEXISTING AGREEMENT TO BE EFFECTIVE UNTIL SUCH RENEGOTIATION.
 
    II.  TEMPORARY HOURLY OPERATION AND MAINTENANCE EMPLOYEES.
 
    WITH RESPECT TO THESE EMPLOYEES, THE RELEVANT PROVISION OF THE
 PARTIES' COLLECTIVE BARGAINING AGREEMENT PROVIDES:  "TEMPORARY EMPLOYEES
 IN THE FOLLOWING CLASSIFICATIONS WILL BE HIRED AT LOCAL PREVAILING
 CONSTRUCTION RATES OF PAY." THE ACTIVITY, AFTER RECEIVING A LEGAL
 OPINION FROM THE AGENCY'S SOLICITOR'S OFFICE, HAD NOTIFIED THE UNION
 THAT PAYMENT TO THESE EMPLOYEES OF THE LOCAL PREVAILING CONSTRUCTION
 RATES AS PROVIDED BY THE AGREEMENT WAS LEGALLY AUTHORIZED ONLY IF SUCH
 PAY PRACTICE WAS A LOCALLY PREVAILING PRACTICE AND THAT A WAGE SURVEY
 CONDUCTED BY THE ACTIVITY REVEALED THAT IT WAS NOT.  ACCORDINGLY, THE
 ACTIVITY TERMINATED THE PAYMENT OF THE LOCAL PREVAILING CONSTRUCTION
 RATES AND COMMENCED PAYING LOWER MAINTENANCE RATES OF PAY TO NEW HIRES
 IN THESE CLASSIFICATIONS ON DECEMBER 18, 1977.  FOR EMPLOYEES ON THE
 ROLLS PRIOR TO DECEMBER 18, THE ACTIVITY TERMINATED PAYMENT OF THE LOCAL
 PREVAILING CONSTRUCTION RATES ON FEBRUARY 12, 1978.
 
    ON THE BASIS OF THE ACTIVITY'S WAGE SURVEY, THE ARBITRATOR CONCLUDED
 THAT CERTAINLY AS OF THE DAY OF THE ARBITRATION HEARING, THE PAYMENT OF
 CONSTRUCTION RATES TO THESE EMPLOYEES WAS NOT A LOCALLY PREVAILING
 PRACTICE.  HOWEVER, THE ARBITRATOR STILL HAD TO DEAL WITH WHAT EFFECT TO
 GIVE TO THIS SURVEY RESULT.  THE ACTIVITY INSISTED THAT THE WAGE SURVEY
 RENDERED THE AGREEMENT PROVISION FOR PAYMENT OF THE LOCAL PREVAILING
 CONSTRUCTION RATES ILLEGAL AND OF NO FORCE AND EFFECT AND THAT
 CONSEQUENTLY IT HAD ACTED PROPERLY WHEN IT UNILATERALLY DECLARED THE
 AGREEMENT PROVISION NULL AND VOID.  HOWEVER, THE ARBITRATOR QUESTIONED
 THE AUTHORITY AND PROPRIETY OF THE ACTIVITY ABROGATING, SOLELY ON THE
 BASIS OF A LEGAL OPINION OF THE AGENCY'S SOLICITOR'S OFFICE, AN EXPRESS
 PROVISION OF THE PARTIES' COLLECTIVE BARGAINING AGREEMENT.  THE
 ARBITRATOR ALSO NOTED THE ACTIVITY'S REFUSAL TO SEEK AN OPINION FROM THE
 COMPTROLLER GENERAL AS TO THE VALIDITY OF ITS UNILATERAL ACTIONS.
 STRESSING THAT HE DID NOT HAVE THE EXPERTISE OF THE COMPTROLLER GENERAL
 IN THIS AREA, BUT RULING THAT THE ACTIVITY'S UNILATERAL ACTIONS WERE IN
 EXPRESS VIOLATION OF THE PARTIES' AGREEMENT, THE ARBITRATOR ORDERED THE
 PARTIES TO REQUEST A DETERMINATION FROM THE COMPTROLLER GENERAL AS TO
 WHETHER THESE EMPLOYEES COULD CONTINUE TO BE PAID AT THE LOCAL
 PREVAILING CONSTRUCTION RATES.  ON THE BASIS OF THE AGREEMENT, HE
 DETERMINED THAT THE EMPLOYEES WERE ENTITLED TO BE PAID THE LOCAL
 PREVAILING CONSTRUCTION RATES UNTIL SUCH TIME AS THE COMPTROLLER GENERAL
 RULED OTHERWISE.  ACCORDINGLY, THE ARBITRATOR AWARDED THESE EMPLOYEES
 BACKPAY UNTIL THE PARTIES RECEIVED A DECISION FROM THE COMPTROLLER
 GENERAL DETERMINING THAT THESE EMPLOYEES COULD NOT CONTINUE TO BE PAID
 AT THE LOCAL PREVAILING CONSTRUCTION RATES.  THE ARBITRATOR EXPLAINED
 THAT BY THIS AWARD HE HAD ATTEMPTED TO MAKE THESE EMPLOYEES WHOLE FOR
 THE IMPROPER UNILATERAL ACTION OF THE ACTIVITY AND AT THE SAME TIME
 AFFORD THE ACTIVITY AN OPPORTUNITY FOR THE COMPTROLLER GENERAL TO SETTLE
 THE DISPUTE AS TO THE CONTINUATION OF THE PAYMENT OF SUCH RATES.
 
    THE AGENCY'S EXCEPTION TO THIS AWARD IS THAT THE AWARD IS CONTRARY TO
 LAW.  HOWEVER, IN SUPPORT OF THIS EXCEPTION, THE AGENCY MAKES
 ESSENTIALLY THE SAME CONTENTIONS THAT HAVE BEEN REJECTED SUPRA WITH
 RESPECT TO PERMANENT DRILL EMPLOYEES.  THE AGENCY AGAIN ARGUES THAT THE
 PAYMENT OF THE LOCAL PREVAILING CONSTRUCTION RATES WAS PROHIBITED BY LAW
 AS NOT BEING A PREVAILING PRACTICE AND THAT THEREFORE THE ACTIVITY ACTED
 PROPERLY TO UNILATERALLY ADJUST THE COMPENSATION OF THESE EMPLOYEES TO
 CONFORM TO THE LOCALLY PREVAILING RATES.  IN TERMS OF THIS AWARD, THE
 AGENCY SPECIFICALLY MAINTAINS THAT THE AWARD OF BACKPAY UNTIL RECEIPT OF
 THE DECISION OF THE COMPTROLLER GENERAL IS NOT AUTHORIZED BY LAW.  /6/
 THE AGENCY CLAIMS THAT THE ACTIVITY PROPERLY ACTED WHEN IT DID WITHOUT
 THE REQUIREMENT OF A DECISION BY THE COMPTROLLER GENERAL AND THAT
 THEREFORE THE ARBITRATOR'S AWARD OF BACKPAY UNTIL RECEIPT OF THAT
 DECISION IS CONTRARY TO LAW.  IN OPPOSITION, THE UNION PRINCIPALLY
 MAINTAINS THAT IN VIEW OF THE WAGE PROVISION OF THE PARTIES' COLLECTIVE
 BARGAINING AGREEMENT, THE ARBITRATOR'S AWARD OF BACKPAY WAS PROPER.
 
    THE AUTHORITY FINDS THAT THE AGENCY'S EXCEPTION FAILS TO ESTABLISH
 THAT THIS AWARD, WHICH ESSENTIALLY ENFORCED THE WAGE SCHEDULE OF THE
 PARTIES' COLLECTIVE BARGAINING AGREEMENT UNTIL RECEIPT OF THE
 COMPTROLLER GENERAL'S DECISION, IS CONTRARY TO LAW.  AS DETERMINED WITH
 RESPECT TO THE AGENCY'S EXCEPTION RELATING TO PERMANENT DRILL EMPLOYEES,
 PRESERVATION OF THE BARGAINING RIGHTS OF THESE EMPLOYEES AS REQUIRED BY
 LAW MAKES IT IMPERMISSIBLE FOR WAGE RATES AND PAY PRACTICES TO BE
 IMPOSED UNILATERALLY.  ACCORDINGLY, CONTRARY TO THE ASSERTION OF THE
 AGENCY, THE ARBITRATOR PROPERLY REFUSED TO SANCTION THE ACTIVITY'S
 UNILATERAL IMPOSITION OF LOWER MAINTENANCE RATES OF PAY ON THESE
 EMPLOYEES AND PROPERLY REMEDIED THE ACTIVITY'S ABROGATION OF THE
 AGREEMENT BY ENFORCING THE WAGE SCHEDULE IN THE AGREEMENT UNTIL AN
 APPROPRIATE RESOLUTION OF THE DISPUTE AS TO WHETHER THESE EMPLOYEES
 COULD CONTINUE TO BE PAID AT CONSTRUCTION RATES OF PAY.  FURTHER, IN
 VIEW OF THE EXPRESS PROCEDURES OF THE COMPTROLLER GENERAL PROVIDING FOR
 THE RESOLUTION OF SUCH DISPUTES (SEE 4 C.F.R. PART 22), THE AGENCY HAS
 ALSO NOT DEMONSTRATED IN WHAT MANNER THE ARBITRATOR'S INVOCATION OF THE
 EXPERTISE OF THE COMPTROLLER GENERAL IS CONTRARY TO LAW.
 
    FOR THE FOREGOING REASONS, THE AGENCY'S EXCEPTIONS TO THE AWARDS OF
 THE ARBITRATOR RELATING TO BOTH PERMANENT DRILL EMPLOYEES AND TEMPORARY
 HOURLY OPERATION AND MAINTENANCE EMPLOYEES ARE DENIED.
 
    ISSUED, WASHINGTON, D.C., JUNE 23, 1982
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ ALL OF THE EMPLOYEES IN THIS CASE HAVE COLLECTIVE BARGAINING
 RIGHTS WHICH HA