25:1082(91)NG - IBEW Local 121 and Treasury, Bureau of Engraving and Printing, Washington, DC -- 1987 FLRAdec NG
[ v25 p1082 ]
The decision of the Authority follows:
25 FLRA No. 91 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 121 Union and DEPARTMENT OF THE TREASURY, BUREAU OF ENGRAVING AND PRINTING, WASHINGTON, D.C. Agency Case No. 0-NG-782 DECISION AND ORDER ON NEGOTIABILITY ISSUE /1/ 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 a single Union proposal. The proposal relates to the pay of employees of the Agency who are represented by the Union. Based on the following, we find the proposal negotiable. /2/ II. Union Proposal Wage rates for unit employees will be kept aligned with the rates paid the comparable craft at the Government Printing Office. III. Positions of the Parties The Agency contends that the proposal is not within the duty to bargain for the following reasons: (a) The pay of bargaining unit employees has not, historically, been subject to negotiation and, therefore, they are not covered by section 9(b) of the Prevailing Rate Act of 1972, Pub. L. 92-392, 86 Stat. 564 (codified in scattered sections of 5 U.S.C.) (the Act) which allowed prevailing rate employees who had negotiated various matters prior to the passage of the Act to continue to do so afterwards. /3/ By extension it contends they also are not covered by section 704 of the Civil Service Reform Act which continued that savings clause under the Statute. (b) The proposal concerns matters which are specifically provided for by Federal statute -- - 5 U.S.C. Section 5349 /4/ -- and which are therefore excluded from the definitions of "conditions of employment" by section 7103(a)(14)(C) of the Statute. (c) The proposal is inconsistent with Federal law -- 5 U.S.C. Section 5349 -- and is therefore outside the duty to bargain under section 7117(a)(1) of the Statute. (d) The proposal interferes with the Agency's right under section 7106(a)(1) of the Statute to determine its budget. The Union claims that the pay of the employees involved has, historically, been subject to negotiation so that the proposal is negotiable under the savings clause of the Act. The Union further contends, however, that, even assuming unit employees are not subject to the savings clause the proposal, nevertheless, is negotiable under 5 U.S.C. Section 5349. IV. Analysis A. Background Pay of prevailing rate employees is governed by the terms of the Act, which established a system for determining rates of pay for such employees. However, the Act generally excepted the Agency from coverage under that system. 5 U.S.C. Section 5342(a)(1)(I). As to employees of the Agency, the Act provided that their pay should be set "as nearly as is consistent with the public interest in accordance with prevailing rates . . . as the pay fixing authority of (the Agency) may determine." 5 U.S.C. Section 4539(a). Section 9(b) of the Act is a savings clause, which allowed prevailing rate employees who had negotiated over, among other matters, wages prior to the Act to continue to do so. Section 704 of the Civil Service Reform Act (CSRA) preserved the scope of bargaining for employees covered by this savings clause for negotiations occurring under the Statute. See Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA No. 100 (1986). B. Effect of 5 U.S.C. Section 5349 on the Negotiability of the Proposal The proposal does not concern matters specifically provided for by 5 U.S.C. Section 5349 as claimed by the Agency so as to be excluded from the definition of conditions of employment under section 7103(a)(14)(c). Section 5349 itself does not establish a wage scale for covered employees but, instead, gives certain agencies, including the Agency in this case, discretion to fix and adjust employee pay in accordance with prevailing rates and the public interest. The proposal requires that unit employee wage rates be kept aligned with those of the comparable craft at the Government Printing Office (GPO). Thus, the proposal is not excluded from the definition of conditions of employment under section 7103(a)(14)(C) as concerning matters specifically provided for by Federal statute. Moreover, the Agency has not established that the proposal is inconsistent with section 5349. The proposed alignment with GPO pay rates for the comparable craft does not on its face conflict with the statutory standard of "consistent with the public interest and in accordance with prevailing rates." Rather, since GPO also is covered by section 5349, the wage rates it establishes must, likewise, be in accordance with prevailing rates for the craft involved and consistent with the public interest. The Agency has not shown how, by negotiating to align unit employees' rates of pay with those of GPO employees in comparable crafts, /5/ it will thereby violate 5 U.S.C. Section 5349. It is well established that to the extent that an Agency has discretion with respect to a matter affecting the working conditions of its employees and where such discretion is not intended to be sole and exclusive, that matter is within the duty to bargain. See, for example, National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 759-60 (1980). Furthermore, we have recently reaffirmed that nothing in the Statute, or its legislative history, bars negotiation of proposals concerning employee compensation insofar as (1) the matters proposed are not specifically provided for by law and are within the discretion of the agency and (2) the proposals are not otherwise inconsistent with law, Government-wide rule or regulation or an agency regulation for which a compelling need exists. American Federation of Government Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1986), appeal filed sub nom. Department of the Air Force, Eglin Air Force Base, Florida v. FLRA, 87-3073 (11th Cir. Feb. 2, 1987). Determinations as to whether adoption of the particular pay practices involved in the proposal in this case is in the public interest are matters within the Agency's administrative discretion under 5 U.S.C. 5349 and it has not been demonstrated that such discretion was intended to be sole and exclusive. The exercise of that discretion is subject to bargaining. See for example, American Federation of Government Employees, AFL-CIO, Local 3525 and United States Department of Justice, Board of Immigration Appeals, 10 FLRA 61 (1982) (Proposal 1). C. The Proposal Does Not Directly Interfere with Management's Right to Determine Its Budget Under Section 7106(a)(1) In American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced as to other matters sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), the Authority held that in order to demonstrate that a union proposal directly interferes with management's right to determine its budget under section 7106(a)(1) it is necessary for the agency either to show that the proposal prescribes the programs and operations to be included in the agency's budget or the amount to be allocated for them, or to make a substantial demonstration that the anticipated increase in costs is significant and unavoidable and is not offset by compensating benefits. In the present case, the Agency claims that the proposal "dictate(s) to management a particular program establishing fixed rates of pay for employees . . . . " and its implementation would result in "substantial increased financial burden and loss of control of expenditures" with no increase in benefits. /6/ We find that the Agency has not supported its claims in the record. It is clear from the record that the proposal concerns a program or operation which already exists, for example, wages for employees, and is currently funded by the Agency's budget. Moreover, the proposal does not prescribe the amount to be allocated to this program or operation. Thus, in this respect, the proposal does not directly interfere with the Agency's right to determine its budget. Furthermore, the Agency only claims but does not demonstrate by providing any budgetary information or other supporting evidence that implementation of the Union's proposal would result in a significant increase in costs. Therefore, it is not necessary to consider whether the alleged increase is outweighed by compensating benefits. Consequently, in this respect also the proposal does not directly interfere with the right of the Agency to determine its budget under section 7106(a)(1). D. Section 9(b) and Section 704 do not Apply to the Employees involved in this case We do not rely on section 9(b) or section 704 in deciding this case. As already noted, the employees who are the subject of the proposal at issue were excepted from coverage under the pay system established by the Act. 5 U.S.C. Section 5342(a)(1)(I). Consequently, section 9(b) and section 704 which preserved bargaining rights on pay matters for certain employees who would otherwise have their pay determined by that pay system have no relevance to the negotiability of proposals on pay matters relating to these employees. V. Conclusion The proposal is within the duty to bargain. VI. Order The Agency shall upon request or as otherwise agreed to by the parties, negotiate over the Union's proposal. Issued, Washington, D.C., February 27, 1987. /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) Chairman Calhoun dissents for the reasons stated in his separate opinion. (2) In finding the Union's proposal to be within the duty to bargain, the Authority makes no judgment as to its merits. (3) Section 9(b) of Pub. L. No. 92-392 is codified at 5 U.S.C. Section 5343 (Amendments, note) (1982 ed). It provides as follows: Sec. 9. (b) The amendments made by this Act shall not be construed to -- (1) abrogate, modify, or otherwise affect in any way the provisions of any contract in effect on the date of enactment of this Act pertaining to the wages, the terms and conditions of employment, and other employment benefits, or any of the foregoing matters, for Government prevailing rate employees and resulting from negotiations between Government agencies and organizations of Government employees; (2) nullify, curtail, or otherwise impair in any way the right of any party to such contract to enter into negotiations after the date of enactment of this Act for the renewal, extension, modification, or improvement of the provisions of such contract or for the replacement of such contract with a new contract; or (3) nullify, change, or otherwise affect in any way after such date of enactment any agreement, arrangement, or understanding in effect on such date with respect to the various items of subject matter of the negotiations on which any such contract in effect on such date is based or prevent the inclusion of such items of subject matter in connection with the renegotiation of any such contract, or the replacement of such contract with a new contract, after such date. (4) 5 U.S.C. Section 5349(a) provides: (a) The pay of employees, described under section 5102(c)(7) of this title, in the Administrative Office of the United States Courts, the Library of Congress, the Botanic Garden, the Government Printing Office, the Office of the Architect of the Capitol, the Bureau of Engraving and Printing, and the government of the District of Columbia, shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates and in accordance with such provisions of this subchapter, including the provisions of section 5344, relating to retroactive pay, and subchapter VI of this chapter, relating to grade and pay retention, as the pay-fixing authority of each such agency may determine. (5) It is noted that, in the absence of any evidence in the record to the contrary as to the intended meaning of the proposal, the use of the term "aligned" in the proposal does not necessarily require precise equality of wage rates at GPO and the Agency for comparable crafts.