25:0201(15)NG - IBEW, Local Union 1245 and Interior, Bureau of Reclamation -- 1987 FLRAdec NG
[ v25 p201 ]
The decision of the Authority follows:
25 FLRA No. 15 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO, LOCAL UNION 1245 Union and DEPARTMENT OF THE INTERIOR, BUREAU OF RECLAMATION Agency Case No. 0-NG-1207 DECISION AND ORDER ON NEGOTIABILITY ISSUES I. Statement of the Case This case is before the Authority because of a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of three proposals. Based on the following, we find that the petition should be dismissed. II. Union Proposal 1 Union proposes that the Bureau will not implement the 1985 Reduction In Force provision of part 351 of title 5 of the Code of Federal Regulations (5 CFR Part 351), and further described in FPM Chapter 351. A. Positions of the Parties The Agency argues that this proposal is not sufficiently specific and delimited and does not meet the conditions for review set forth in the Authority's Rules and Regulations. It argues that the petition is further deficient because the Union has not submitted copies of 5 CFR Part 351 and FPM Chapter 351. Substantively, the Agency asserts that the proposal conflicts with a Government-wide rule or regulation. The Union states that the Agency had previously agreed that the proposal was sufficiently specific and that a contrary claim now should not be entertained. It also asserts that the subject of the proposal -- reduction-in-force (RIF) procedures -- historically has been a mandatory subject for bargaining. B. Analysis and Conclusion 1. The Petition Does Not Warrant Dismissal Based on Procedural Defects Although there may be some questions as to which version of 5 CFR, Part 351, the Union is referring to in this proposal, we find that the proposal is sufficiently specific and delimited to allow us to reach a conclusion as to its negotiability. Also, the Union's failure to provide copies of 5 CFR, Part 351, and FPM Chapter 351 is not prejudicial in view of the fact the copies of these authorities are generally available in the Federal sector. 2. The Proposal Either Is Moot or Is Nonnegotiable Because It Conflicts With Government-wide Rules or Regulations Regulations governing RIF actions which are issued by the Office of Personnel Management (OPM) are codified at 5 CFR, Part 351. They are binding on agencies with respect to RIF actions to which they apply. See 5 CFR Sections 351.201(a)(2), 351.202 and 351.204. Hence they are Government-wide regulations which bar negotiation of conflicting proposals. On July 3, 1985, revised RIF regulations which had previously been published on October 25, 1983 at 48 Federal Register 49462 et seq. went into effect. However, OPM provided an exception for agencies to delay implementation of these RIF regulations if RIF plans were underway as of July 3, 1985, and the RIF would take effect on or before December 31, 1985. 50 Fed. Reg. 35506 (1985). Subsequently, OPM issued further revised RIF regulations which became effective and were required to be implemented on February 3, 1986. 51 Fed. Reg. 318-326 (1986) (codified at 5 CFR, Part 351). The permissible delay in implementing the July 3, 1985 revised regulations was not extended beyond December 31, 1985. 51 Fed. Reg. 318, 319 (1986). The proposal refers to the "1985" RIF provisions, and the Union does not explain precisely which version of the RIF regulations its proposal refers to. For the following reasons we conclude that if we assume for purposes of this decision that the proposal refers to those RIF regulations which became effective on July 3, 1985, the proposal is moot. If, on the other hand, we assume for purposes of decision that the regulations involved are those effective on February 3, 1986, which currently remain in effect, the proposal is inconsistent with Government-wide regulations and is nonnegotiable. As to the July 3, 1985 regulations, they were superseded by the February 3, 1986 regulations. Therefore, insofar as the proposal may have been intended to prevent or delay their implementation, it is moot. /1/ As to the February 3, 1986 regulations, which are currently in effect, insofar as the proposal is intended to prevent or delay their implementation, it conflicts with them. Since they are Government-wide regulations, Union Proposal 1 is, if so intended to be applied, outside the duty to bargain. National Treasury Employees Union, NTEU Chapter 202 and Department of the Treasury, Bureau of Government Financial Operations, 22 FLRA No. 58 (1986). III. Union Proposal 2 Union proposes the elimination of Reclamation Instruction Part 365-5 and R930.1. Sections: 930.1.5 Last Sentence 930.1.6B (1) 930.1.6C (2)(a)(c) 930.1.6C (3) & (7) 930.1.6E 930.1.7A First Sentence Third Paragraph 930.1.7C & D 930.1.7D 930.1.8D A. Positions of the Parties The Agency asserts that the petition as to this proposal should be dismissed because the proposal is not sufficiently specific and delimited and because the Union has failed to submit copies of those regulatory provisions which it proposes to eliminate. Substantively, the Agency argues that the proposal which concerns its regulations about motor vehicle and mobile equipment operators, interferes with its management rights to take disciplinary actions against employees and to assign work. The Union contends that the Agency's regulation is subject to the duty to bargain and that the Agency had previously agreed that the proposal was sufficiently specific and delimited for purposes of bargaining. B. Analysis and Conclusion In our view the proposal which seeks elimination of specified portions of the Agency's regulations is sufficiently clear as to constitute a specific and delimited proposal for purposes of a negotiability appeal. See National Federation of Federal Employees, Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA 68 (1980), remanded as to other matters sub nom. Department of Defense, Department of the Army v. FLRA, 685 F.2d 641 (D.C. Cir. 1982). However, we agree with the Agency's other point -- in the absence of submission by the Union of copies of the provisions which the proposal seeks to eliminate, we can make no assessment as to the relationship of the proposal to the Agency's management rights. It is the responsibility of the parties to create the record upon which we will resolve negotiability disputes. National Federation of Federal Employees, Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir. 1982). A party failing to assume this burden acts at its peril. In a negotiability appeal it is the responsibility of the party filing the appeal to provide the express language of the disputed proposal as well as a copy of all pertinent material. Section 2424.4 of the Authority's Rules and Regulations. In this case the Union has failed to submit material which is critical to its petition and to the Authority's ability to rule on the dispute. Unlike provisions contained in, for example, the Code of Federal Regulations and the Federal Personnel Manual, internal agency regulations are not generally available throughout the Federal sector. Thus, we are entirely dependent upon the parties to provide such documents. We, therefore, find that the petition for review as to this proposal must be dismissed. IV. Union Proposal 3 U.S.B.R. will grant a 10.4% general wage increase to all classifications listed in the wage schedule (SLA #3) effective the beginning of the last full pay period of December, 1985. The 10.4% figure was arrived at by conducting a survey of those properties in the "Gould 9" group. A 10.4% wage increase would bring the wage rate up to the prevailing wage rates in the territory in which the Project's activities are carried on, as provided for in the basic agreement Article IV Section 1. A. Positions of the Parties The Agency asserts that the proposal is nonnegotiable because it is contrary to a statutorily imposed "pay cap" on wage increases for prevailing rate employees. The Union contends that, based on language in the parties' contract, an exception to the "pay cap" applies and the proposal is, therefore, negotiable. B. Analysis and Conclusions It is undisputed that the employees to whom this proposal would apply are prevailing rate employees who are covered by section 9(b) of Public Law No. 92-392. Under section 704 of the Civil Service Reform Act of 1978, Pub. L. No. 95-454. 92 Stat. 1111, 1218, matters pertaining to, among other things, their pay and pay practices, are subject to negotiation. /2/ Public Law No. 99-190, 99 Stat. 1185 (1985), which made continuing appropriations for fiscal year 1986, extended restrictions placed on General Schedule pay to the wage rates and schedules of prevailing rate employees including those covered by section 9(b) and section 704. It is undisputed that the wage increase proposed exceeds that "pay cap." However, certain exceptions were allowed to this "pay cap" insofar as employees covered under section 9(b) were concerned. Specifically the "pay cap" did not apply where an adjustment to wage rates was "required by terms of a contract" entered into before October 1, 1985. The Office of Personnel Management (OPM) is charged by Congress with administering the statutory "pay cap" insofar as prevailing rate employees who are covered under section 9(b) are concerned. See, for example, Public Law 99-190, Section 101(h), which incorporated among other things section 613 of title VI of H.R. 3036; Public Law 99-591, section 613 of Title VI of the Act making appropriations for the Treasury Department and other agencies; and FPM Bulletin 532-60. As interpreted by OPM in FPM Bulletins 532-60 and 532-68 the condition for being excepted from the "pay cap" is met when either of the following criteria is met: (a) the contract dictates specific rates of pay, or specific monetary or percentage increases; or (b) the contract dictates a fixed pay-setting procedure which results in a specific increase; however, none of the elements of the pay-setting procedure may be subject to further negotiation by the parties ("elements" are defined as, but not limited to, formulas, names companies, wage data to be used, etc.). Thus, application of the pay-setting procedure must automatically result in specific rates of pay, or specific monetary or percentage increases. In order to rule on the negotiability of the proposal, we must decide whether the parties' contract fulfills either of these criteria. The relevant contract language is as follows: Article IV Compensation Section 1. The rates of pay to be paid to the employees covered by this Agreement shall be determined through the process of collective bargaining between the Parties. They will include basic hourly, overtime, and holiday work rates and, when and as needed shift differentials, call-back time, penalty rates for changes in regular work schedules, and similar pay items. All rates must be established as nearly as is consistent with the public interest in accordance with prevailing rates in the territory in which the Project's activities are carried on. Once each calendar year but not more often, Management or the Union may notify the other in writing that a conference is desired to consider the need for revising any or all existing rates of pay. Such notice shall be acknowledged within ten days and a date set for holding the conference which date shall be within thirty days of the date of the notice. Unless it is mutually determined that negotiations are not necessary the date for starting the negotiations for the purpose of revising rates of pay shall be within 30 days of the close of the preliminary conference. In addition to the negotiating committees of the Parties who shall participate in the negotiations at the joint conference, representatives of the Union and representatives of Management may be permitted to attend the conference. Prior to such negotiations, the Parties shall set up a joint fact-finding committee and appropriate sub-committees . . . for the purpose of establishing any relevant facts pertaining to rates of pay, classifications, and conditions of employment. The committee may go outside the Project for the purpose of establishing such relevant facts. Consideration shall be given by the Parties in their negotiations to any facts so established. The Union asserts that, under this contract language as interpreted by two arbitrators, the wage-setting process is "automatic." The Union describes the two arbitrators' decisions as construing the contract to require that wage rates must be established "as nearly as is consistent with the public interest in accordance with prevailing rates" in the territory in which the Agency's activities are carried on. /3/ Additionally, one of the arbitrators' decisions specified which employers were to be surveyed for purposes of establishing relevant facts as to pay rates and practices to be considered in the negotiations of rates of pay under the above-quoted article. The Union argues that, in view of these decisions, adoption of the prevailing rates is mandated and that determination of the prevailing rate is a ministerial task of matching comparable jobs. The Union's argument is flawed. First, accepting the characterization of the contract as requiring wage rates to be established as nearly as is consistent with the public interest in accordance with prevailing rates in the area, does not result in a conclusion that specific wage rates are mandated. The requirement that prevailing rates be adopted is qualified by the criteria that such adoption be done as nearly as is consistent with the public interest. This leaves discretion as to what specific wages rates will actually be adopted. /4/ Second, even if the parties are limited to surveying the wage rates and practices of specific employers, such a survey is, by the terms of the contract, for purposes of producing facts for consideration by the parties in ensuing negotiations as to what wage rates should be. Consequently, we conclude that the contract itself neither dictates a wage rate nor a pay-setting procedure application of which will automatically result in a specific pay rate. Thus, we cannot conclude that the proposed pay increase is one which is "required" by the contract within the meaning of FPM Bulletin 532-68 so as to be excepted from the "pay cap" established by Public Law 99-190. /5/ We find, rather, that the Union's proposal conflicts with the statutory "pay cap." It is therefore inconsistent with Federal law and is nonnegotiable. /6/ Finally, we note that the Union's claim that the contract effectively mandates the adoption of certain wage rates seems inconsistent with its request to bargain wage rates. Rather, the appropriate means for pursuing such claim would appear to be through those proceedings available for administering the contract, such as grievance and arbitration procedures. V. Order The Union's petition for review is dismissed. Issued, Washington, D.C., January 15, 1987. /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Even if those regulations had not been superseded, the delay of implementation permitted with respect to them, if it applied at all, could not in any event have extended beyond December 31, 1985. After that date the proposal would have been in conflict with those Government-wide regulations and nonnegotiable. In fact, the exception probably would not have applied. The Agency states and the Union tacitly concedes that no RIF occurred during the period which could have triggered the exception. Agency Statement of Position at 2. (2) See Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA No. 100 (1986) for a discussion of this provision. (3) The Union failed to supply copies or specific citation to either arbitrator's decision. However, as discussed further herein, even if we accept the Union's characterization of the arbitrators' findings we cannot conclude that the contract provides an exception to the "pay cap." (4) See also National Maritime Union of America, AFL-CIO v. United States, 682 F.2d 944, 949-50 (Ct. Cl. 1982) in which the court examined the language "pay . . . shall be fixed and adjusted . . . as nearly as is consistent with the public interest in accordance with prevailing rates and practices . . ." which appears at 5 U.S.C. Section 5348(a) and found that "discretion inheres" in the phrase, "as nearly as is consistent with the public interest." (5) See also International Brotherhood of Electical Workers v. James Watt, No. 83-F-972 (D. Colo. Nov. 15, 1984). (6) We note that the "pay cap" has been continued through fiscal year 1987. Pub. L. No. 99-591.