26:0211(27)NG - IBEW and Western Area Power Administration, Energy -- 1987 FLRAdec NG



[ v26 p211 ]
26:0211(27)NG
The decision of the Authority follows:


 26 FLRA No. 27
 
 INTERNATIONAL BROTHERHOOD OF 
 ELECTRICAL WORKERS, AFL-CIO
 Union
 
 and
 
 WESTERN AREA POWER ADMINISTRATION 
 DEPARTMENT OF ENERGY
 Agency
 
                                            Case No. 0-NG-1345
 
                 DECISION AND ORDER ON NEGOTIABILITY ISSUE
 
                         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.  For the reasons set forth below, we find
 that the petition must be dismissed.
 
                               II.  Proposal
 
          (The) union is requesting . . . a 4% across-the-board general
       wage increase to be granted to all classifications listed in
       Supplemental Labor Agreement (SLA) #3, Wage Schedules to be
       effective on the first day of the first pay period of October 1986
       as provided for in the Basic Agreement, Article 17, Section 17.5.
 
                      III.  Positions of the Parties
 
    In responding to the Union's initial request to bargain, the Agency
 declared the proposal nonnegotiable because it was contrary to a
 statutorily imposed pay limitation of three percent on wage increases
 for fiscal year 1987.  The Union contends that read together, the
 parties' basic agreement, section 17.5 and SLA #3 create an "absolute
 lock-step agreement" which excepts the wage increase in this case from
 the statutorily imposed pay limitation.  /1/
 
                       IV.  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, Public Law No. 95-454, 92
 Stat. 1111, 1218, matters pertaining to pay and pay practices of these
 "section 9(b)" employees are subject to negotiation.  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.
 
    Section 101(m) of Public Law No. 99-591 (approved October 30, 1986),
 which made continuing appropriations for fiscal year 1987, incorporated
 section 613 of Title VI of the Act making appropriations for the
 Treasury Department and other agencies.  Under section 613, wage
 increases for prevailing rate employees covered by section 9(b) may not
 exceed the three percent increase provided for General Schedule (GS)
 employees, and must be delayed for 90 days, except where the increases
 in wage schedules or rates are "required by the terms of a contract"
 entered into before the date of enactment of Public Law 99-591.  See
 Federal Personnel Manual (FPM) Bulletin 532-75 (January 23, 1987).  More
 specifically, any contract falling under this exception must have been
 entered into before October 18, 1986.  Id.
 
    The Office of Personnel Management (OPM) is charged by Congress with
 administering the pay limitation concerning prevailing rate employees
 who are covered under section 9(b).  See Public Law No. 99-591.  As
 interpreted by OPM in FPM Bulletin 532-75, the condition for being
 excepted from the pay limitation 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 compute specific
       rates of pay, or specific monetary or percentage increases.
 
    Concerning the effective date for implementation of any wage
 increase, OPM stated in FPM Bulletin 532-75 that:
 
          If the increases are exempt from the statutory limitation, they
       will be effective on the date determined under the provisions of
       the contract.
 
          If the increases are subject to the statutory limitation, they
       will be placed into effect no sooner than ninety days after the
       increase would otherwise become effective or, when no effective
       date is specified in the contract, the increases will be placed
       into effect:
 
          (a) on the anniversary date of the last increase if that
       increase was delayed 90 days by law;  or
 
          (b) ninety days after the anniversary date of the last increase
       if that increase was not delayed by law.
 
    It is undisputed that the wage increase set forth in the Union's
 proposal exceeds that provided for GS employees for fiscal year 1987.
 Therefore, in order to rule on the negotiability of the proposal it is
 necessary to determine whether the parties' contract fulfills the
 criteria for being excepted from the pay limitation.  The relevant
 contract provisions are as follows:
 
                    Section 17.5, Basic Labor Agreement
 
          Supplementary wage adjustments shall become effective upon
       approval or on the first day of the first pay period of October,
       whichever is later, unless agreed otherwise by the parties.
       (Modified October 1, 1984)
 
          Existing rates of pay shall remain in effect until supplanted
       by new rates negotiated pursuant to this section.
 
          All rates must be established as nearly as is consistent with
       prevailing rates in the private sector within the geographic area
       of Western.
 
                        SLA #3 (in pertinent part)
 
                           Three-Year Agreement
 
          This Agreement has a three-year duration period, from October
       1, 1984 to October 1, 1987.  Salary adjustments reflected by the
       enclosed pay schedule will be implemented effective September 16,
       1984, and January 20, 1985.  For the scheduled October 1985 salary
       adjustment, the parties will conduct a joint telephone survey to
       update the job match information in the 1984 Wage Survey which
       will be used to negotiate a new pay schedule.  Only wage rates
       will be open for negotiation for the duration of this agreement.
       An additional wage adjustment will be due in October 1986.  At the
       expiration of this three-year agreement, October 1987, the entire
       agreement may be reopened as provided in the Basic Agreement,
       Article 19.  (Modified October 1, 1984)
 
    The Union asserts, as mentioned above, that certain provisions in the
 parties' contract except the wage increase in this case from the
 statutorily imposed pay limitation.  We disagree with this assertion.
 Section 17.5 of the parties' contract states that "existing rates of pay
 shall remain in effect until supplemented by new rates negotiated
 pursuant to this section" (emphasis added).  SLA #3 refers to a specific
 pay schedule for salary adjustments to be implemented September 16, 1984
 and January 20, 1985.  For the October 1985 salary adjustment, it
 requires the parties jointly to conduct a job wage survey and to use the
 results of the survey to negotiate a new pay schedule.  No specific pay
 schedule is mentioned for fiscal year 1987.  Reading SLA #3 together
 with Section 17.5, it is our view that with respect to fiscal year 1987,
 the contract does not dictate a specific rate of pay, or specific
 monetary or percentage increase, but rather provides for negotiation of
 wage rates for years following the salary adjustments effective on
 January 20, 1985.
 
    Our conclusion in this regard is supported by other material in the
 record.  In particular, the attachments to the Union's Petition for
 Review, dated September 11 and November 7, 1986, show that:  (1) The
 wage increase for prevailing rate employees was to be effective on the
 first day of the first pay period of October 1986;  (2) the 4% wage
 figure was arrived at through a joint union and management survey
 conducted pursuant to the parties' contract;  (3) the Union considered
 the "4% wage figure (as) a specific proposal, a matter proposed to be
 bargained;" (4) the Union "requested that the parties open bargaining
 for wages;" and (5) the Agency declared the proposal nonnegotiable
 because in its view the proposal was contrary to the pay limitation
 imposed for fiscal year 1987.
 
    From a review of this material, it is apparent that the Union was
 seeking to negotiate a wage increase for fiscal year 1987 in keeping
 with the parties' contract.  Negotiation of a wage increase is contrary
 to section (b) of FPM Bulletin 532-75, which specifically states that
 "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.)."
 The proposal explicitly seeks negotiations on the amount of the wage
 increase.  Consequently, we conclude that the contract dictates neither
 a wage rate nor a pay-setting procedure which will automatically result
 in a specific rate.  Thus, we cannot conclude that the wage increase
 contained in the proposal is one which is "required" by the contract
 within the meaning of FPM Bulletin 532-75 so as to be excepted from the
 pay limitation imposed by Public Law No. 99-591.  The proposal is
 therefore inconsistent with Federal law and is nonnegotiable.  /2/
 
                                 V.  Order
 
    The Union's petition for review is dismissed.
 
    Issued, Washington, D.C., March 17, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The Union claims that the Agency's Statement of Position was not
 timely filed and should not be considered by the Authority.  Under the
 Authority's Rules and Regulations, it appears that the Agency's
 Statement of Position is untimely.  5 C.F.R. Section 2424.6.  Therefore,
 we have not considered it in this decision.  The Agency's declaration of
 nonnegotiability, as mentioned above, was submitted by the Union as an
 attachment to its Petition for Review.
 
    (2) In its request to negotiate the wage increase, the Un