25:1082(91)NG - IBEW Local 121 and Treasury, Bureau of Engraving and Printing, Washington, DC -- 1987 FLRAdec NG



[ v25 p1082 ]
25:1082(91)NG
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.
 
    (6) Agency Statement of Position at 9.
 
 
                   Separate Opinion of Chairman Calhoun
 
    In my opinion in American Federation of Government Employees,
 AFL-CIO, Local 1897 and Depa