25:0607(46)NG - Columbia Power Trades Council and Bonneville Power Administration -- 1987 FLRAdec NG

[ v25 p607 ]
The decision of the Authority follows:

 25 FLRA No. 46
                                            Case No. 0-NG-1247
                         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 one proposal.  The proposal, set forth in the Appendix
 to this decision, would grant a wage increase for employees of the
 Bonneville Power Administration, represented by the Columbia Power
 Trades Council.  For the reasons set forth below, we find that the
 proposal is nonnegotiable.
                       II.  Positions of the Parties
    The Agency contends that the proposal is nonnegotiable because it is
 contrary to a statutorily imposed "pay cap" on wage increases for
 prevailing rate employees.  The Union disagrees and contends that, based
 on language in the parties' contract, an exception to the "pay cap"
 applies and the proposal is therefore negotiable.
                       III.  Analysis and Conclusion
    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.  As we discussed in International Brotherhood of
 Electrical Workers, AFL-CIO, Local Union 1245 and Department of the
 Interior, Bureau of Reclamation, 25 FLRA No. 15 (1987), under section
 704 of the Civil Service Reform Act of 1978, Pub. L. No. 94-454, 92
 Stat. 1111, 1218, matters pertaining to pay and pay practices of these
 "section 9(b)" employees are subject to negotiation.  /*/ Public Law No.
 99-190, 99 Stat. 1185 (1985), which made continuing appropriations for
 fiscal year 1986, extended pay restrictions placed on General Schedule
 employees to the pay of section 9(b) employees.  It is undisputed that
 the wage increase set forth in the Union's proposal exceeds that "pay
 cap." However, certain exceptions were allowed to this "pay cap" for
 section 9(0) employees.  Specifically, the "pay cap" did not apply where
 an adjustment to wage rates was "required by the terms of a contract"
 entered into before October 1, 1985.  Federal Personnel Manual (FPM)
 Bulletin 532-68 (April 2, 1986).
    The Office of Personnel Management (OPM) is charged by Congress with
 administering the statutory "pay cap" for section 9(b) employees.  See,
 for example, Public Law 99-190, Section 101(h), which incorporated among
 other things section 613 of Title VI of H.R. 3036;  and Public Law
 99-591, section 613 of Title VI of the Act making appropriations for the
 Treasury Department and other agencies.  As interpreted by OPM in FPM
 Bulletin 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 of companies, wage data to be used, etc.).  Thus,
       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 provisions are as follows:
                          Article 8.  Negotiation
          8.01 Rates of pay and working conditions affecting the
       employees covered by this Agreement shall be determined through
       the process of collective bargaining between the Council and the
       Administrator. . . .
          8.02 When rates of pay are to be negotiated, the Executive
       Secretary of the Council and the Labor Relations Officer of the
       Administration, assisted by additional staff as required, shall
       act as a joint fact-finding committee.  The committee will obtain
       relevant facts bearing on the determinations of the rates of pay
       established by collective bargaining for work of a similar nature
       performed under similar circumstances prevailing in the territory
       in which the Administration operates.  Due consideration shall be
       given by the Administrator and the Council in their negotiations
       to any facts so established.
                  13-1 of Supplementary Agreement No. 13
                            13-1 Wage Agreement
          Effective dates:  The wage adjustment effective dates shall be
       as follows:  (F)or 1986 March 9, 1986.
          General wage adjustment:  The 1984 adjustment shall constitute
       a 2.55 percent increase.  The 1985 adjustment shall constitute a 2
       percent increase.  The 1986 adjustment shall be negotiated.
       (Emphasis added.)
    The Union asserts that section 8.02 of the Parties' contract
 establishes a fixed-pay setting procedure for wage rates;  that the
 evidence demonstrates that the parties have consistently applied this
 procedure for nearly 30 years;  and that in light of such contractual
 procedure the 1986 "pay cap" is not applicable because the contract
 language falls within the exemption of section (b) of FPM Bulletin
    We disagree with the Union's assertions.  Section 8.02 sets forth a
 procedure whereby the Union and the Agency jointly conduct a survey of
 the wages paid by certain utilities within the Agency's service area
 whose employees perform similar work under circumstances similar to the
 Agency's employees.  The contract expressly states that "(d)ue
 consideration (of such survey) shall be given by the parties in their
 negotiations" of the wage rates.  Thus, the survey, by the terms of the
 contract, is to be given due consideration by the parties in their
 upcoming negotiations concerning wage rates.  The procedure followed by
 the parties pursuant to section 8.02 does not automatically result in a
 specific rate of pay, or specific monetary or percentage increase as
 required by section (b) of FPM Bulletin 532.68.  Rather, as previously
 mentioned, the survey is considered by the parties in their negotiations
 of wage rates.  See Exhibit 1 of the Union's Response to the Agency's
 Position Statement, at 2 (statement of Union witness that "all of our
 wage settlements . . . have been within a few cents of the average rate
 of the . . . surveyed utilities").
    Further, we note that section 13-1 of the parties' supplemental
 agreement specifically states that "(t)he 1986 (wage) adjustment shall
 be negotiated." Thus section 8.02 must be read in conjunction with this
 section.  Considering these two sections together, it is clear that the
 procedure described in section 8.02 does not automatically result in a
 specific wage adjustment, as previously mentioned, but rather the data
 obtained from such procedure is considered by the parties in their
 negotiations of the 1986 wage adjustment.  This contractual requirement
 for further negotiations is contrary to section (b) of FPM Bulletin
 532.68 which specifically states that "none of the elements of the
 (contractual) pay-setting procedure may be subject to further
 negotiation by the parties ('elements' are defined as, but not limited
 to, formulas, names of companies, wage date to be used, etc.)."
 Consequently, we conclude that the contract itself dictates neither a
 wage rate nor a pay-setting procedure which will automatically result in
 a specific pay rate.  Thus, we cannot conclude that the pay increase
 contained in the proposal 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.