21:0501(66)AR - United Power Trades Council and Army Corps of Engineers, North Pacific Div. -- 1986 FLRAdec AR



[ v21 p501 ]
21:0501(66)AR
The decision of the Authority follows:


 21 FLRA No. 66
 
 UNITED POWER TRADES COUNCIL
 Union
 
 and
 
 UNITED STATES ARMY CORPS OF 
 ENGINEERS, NORTH PACIFIC DIVISION
 Activity
 
                                            Case No. 0-AR-960
 
                                 DECISION
 
                         I.  STATEMENT OF THE CASE
 
    This matter is before the Authority on exceptions to the award of
 Arbitrator Gary L. Axon filed on behalf of the Activity by the
 Department of the Army (the Agency) under section 7122(a) of the Federal
 Service Labor-Management Relations Statute and part 2425 of the
 Authority's Rules and Regulations.
 
                  II.  BACKGROUND AND ARBITRATOR'S AWARD
 
    The grievance arose when the Activity discontinued payment of night
 differential pay for certain power plant operational personnel who
 worked night shift hours.  The Activity based its action on the 1983
 Pacific Northwest Regional Power Rate Schedule issued by the Department
 of Defense Wage Fixing Authority.
 
    The wages of the employees involved are governed by the Prevailing
 Rate Systems Act of 1972, which is codified at 5 U.S.C. Sections
 5341-5349 and which is commonly referred to as the prevailing rate
 statute.  /1/ Section 5341 provides that the general policy of the
 prevailing rate statute is that the rates of pay of prevailing rate
 employees are to be fixed and adjusted from time to time, as nearly as
 is consistent with the public interest, in accordance with the
 prevailing rates paid for comparable work in the local area by private
 sector employers.  Under section 5343, which establishes the basic
 mechanism to carry out this policy, the Office of Personnel Management
 (OPM) is responsible for defining geographical wage areas and for
 designating a lead agency for each area.  5 U.S.C. Section 5343(a)(1)
 and (2).  Lead agencies are responsible for conducting wage surveys,
 analyzing wage survey data, and developing and establishing appropriate
 wage schedules and rates for prevailing rate employees.  5 U.S.C.
 Section 5343(a)(3).
 
    The head of each agency having prevailing rate employees in a wage
 area is required to apply to those employees the wage schedules and
 rates established by the lead agency.  5 U.S.C. Section 5343(a)(4).  OPM
 has implemented the prevailing rate statute in 5 CFR part 532, Federal
 Personnel Manual (FPM) chapter 532 and FPM Supplement 532-1.  Section
 5343(f) of the prevailing rate statute and FPM Supp. 532-1 provide for
 the payment of a night differential for prevailing rate employees.
 
    With regard to the prevailing rate employees involved in this case,
 OPM designated the Department of Defense Wage Fixing Authority (DOD WFA)
 as the lead agency to conduct wage surveys among private electric
 utilities in the area in which the Activity operated hydroelectric power
 producing plants and to develop and establish the appropriate wage
 schedules.  DOD WFA's Pacific Northwest Power Rate Schedule established
 the rates of pay for the Activity's prevailing rate employees.  In
 addition, the employees were authorized night shift differential pay as
 provided for in the prevailing rate statute and FPM Supp. 532-1.
 Moreover, the parties' collective bargaining agreement provided that
 night differential would be paid in accordance with FPM Supp. 532-1.
 
    In 1982, the Supplemental Appropriations Act of 1982 was signed into
 law (Pub. L. No. 97-257, 96 Stat. 932).  That Act provides, in part:
 
          Without regard to any other provision of law limiting the
       amounts payable to prevailing wage rate employees, United States
       Army Corps of Engineers employees paid from Corps of Engineers
       Special Power Rate Schedules shall be paid, beginning the
       effective date of each annual wage survey in the region after the
       date of enactment of this Act, wages as determined by the
       Department of Defense Wage Fixing Authority to be consistent with
       wages of the Department of Energy and the Department of the
       Interior employees performing similar work in the corresponding
       area . . . .
 
    The legislative history of the provision indicates that Congress was
 concerned that Corps of Engineers power plant employees were being paid
 less than employees of the Departments of Interior and Energy in the
 same geographic area who were doing comparable jobs, and that Congress
 intended to correct that inequity.  Thus, the Senate Committee Report on
 the Act provides:
 
          The Committee has been informed that certain Corps of Engineers
       power plant operational personnel are paid less than personnel of
       the agencies doing comparable jobs in nearby locations.  The
       Committee believes that all Federal employees should receive
       comparable compensation for performing comparable work and has
       concurred with the House provision in the bill that would remove
       the inequity.
 
    S. Rep. No. 97-516, 97th Cong., 2nd Sess. 80 (1982).
 
    In 1983, DOD WFA issued the first Pacific Northwest Regional Power
 Rate Schedule pursuant to the Supplemental Appropriations Act, following
 wage surveys at Interior and Energy facilities in the region.  Those
 surveys revealed that while Interior and Energy employees in comparable
 positions were compensated at higher rates than Corps of Engineers
 employees in some respects, such as overtime pay, they were not paid
 shift differential.  Accordingly, DOD WFA's 1983 Rate Schedule and
 subsequent amendments provided for pay rates for Corps of Engineer
 employees consistent with the rates for Interior and Energy employees
 and specifically excluded shift differential pay.  The Activity
 implemented the Rate Schedule and discontinued payment of shift
 differential to its prevailing rate employees.  The Union then filed the
 grievance in this case alleging that the Activity had thereby violated
 the parties' agreement.
 
    The Arbitrator determined that the parties' agreement expressly
 provided for payment of shift differential and that nothing in the
 Supplemental Appropriations Act required covered employees to forego the
 benefits of the agreement.  Accordingly, as his award, the Arbitrator
 concluded that the Activity had violated the parties' agreement by
 discontinuing payment of shift differential.  As a remedy, the
 Arbitrator awarded the affected employees backpay from the date the
 shift differential was discontinued and directed the Activity to
 reinstitute shift differential pay until the execution of a new
 agreement.
 
                              III.  EXCEPTION
 
    As one of its exceptions, the Agency contends the Arbitrator's award
 is contrary to the Supplemental Appropriations Act of 1982.
 
                       IV.  ANALYSIS AND CONCLUSION
 
    The Supplemental Appropriations Act of 1982 clearly and unequivocally
 requires that prevailing rate employees of the Corps of Engineers paid
 from the Corps of Engineers Special Power Rate Schedules shall be paid
 wages as determined by the DOD WFA to be consistent with wages of
 employees of the Departments of the Interior and Energy who perform
 similar work in the corresponding area.  Further, the DOD WFA, the
 agency exclusively authorized to establish the appropriate wage
 schedules and rates for Corps of Engineers prevailing rate employees,
 determined that Interior and Energy employees in comparable positions
 were not paid a shift differential.  Therefore, in view of the clear
 language of the Supplemental Appropriations Act and the intent of
 Congress as expressed in the related legislative history, shift
 differential could no longer be paid to the affected Corps of Engineers
 employees after DOD WFA made its determination.  The Authority finds
 that because the Supplemental Appropriations Act effectively prohibited
 payment of a shift differential to the Activity's prevailing rate
 employees after DOD WFA's determination, the Arbitrator was precluded
 from directing otherwise.  Consequently, the Authority concludes that
 the Arbitrator's award is deficient as contrary to the