[ 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 Department of the Air Force, Eglin Air Force
Base, Florida, 24 FLRA No. 41 (1986), petition for review filed sub nom.
Department of the Air Force, Eglin Air Force Base, Florida v. FLRA,
87-3073 (11th Cir. February 2, 1987), I stated that in the absence of a
clear expression of Congressional intent to make wages and money-related
fringe benefits negotiable, I would find that these matters are not
within the duty to bargain under the Statute. I find no such expression
in 5 U.S.C. 5349, which provides the mechanism for determining the pay
of the employees involved in this case. Accordingly, I do not join the
majority.
Issued, Washington, D.C., February 27, 1987.
/s/ Jerry L. Calhoun, Chairman