26:0906(105)NG - IBEW, Local Union No. 611, and Interior, Bureau of Reclamation, Rio Grande Project -- 1987 FLRAdec NG



[ v26 p906 ]
26:0906(105)NG
The decision of the Authority follows:


 26 FLRA No. 105
 
 INTERNATIONAL BROTHERHOOD OF 
 ELECTRICAL WORKERS, LOCAL UNION 
 NO. 611, AFL-CIO
 Union
 
 and
 
 U.S. DEPARTMENT OF THE INTERIOR 
 BUREAU OF RECLAMATION 
 RIO GRANDE PROJECT
 Agency
 
                                            Case No. 0-NG-1161
 
                 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).  It concerns the
 negotiability of the following proposal:
 
          Any employee whose regular work schedule includes an eight (8)
       hour period of service, a part or all of which is on Sunday, is
       entitled to additional pay at the rate of twenty-five percent
       (25%) of his/her hourly rate of basic pay for each hour of work
       performed during that eight (8) hour period of service.
 
    The proposal would apply to nonsupervisory, hourly, operations and
 maintenance bargaining unit employees employed at the Elephant Butte Dam
 and Powerplant in New Mexico.  These employees negotiate their wages and
 premium pay provisions in accordance with section 704 of the Civil
 Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111,
 1218, codified at 5 U.S.C. Section 5343 (Amendments) and section 9(b) of
 Pub. L. No. 92-392, codified at 5 U.S.C. Section 5343 (Amendments,
 note).
 
    We find the proposal to be negotiable.
 
                              II.  Background
 
    The negotiation of wages and pay practices for certain operations and
 maintenance employees has occurred in the Bureau of Reclamation for a
 long time, beginning in 1949.  Agency Statement of Position at 3.  In
 the Bureau's Southwest Region, these negotiations with the Union for
 unit employees have occurred since at least the mid-1960's.  Agency
 Submission of December 17, 1984 to the Federal Service Impasses Panel,
 at Sheet 2, attached to the Union's Petition for Review.  In 1984, the
 Agency took the position that the long-standing practice of providing
 premium pay compensation for work on a Sunday was illegal because it was
 not in accordance with local prevailing pay practices.  Accordingly, the
 Agency proposed to terminate the practice.  The Union opposed this
 change, and sought the assistance of the Federal Service Impasses Panel.
 
    Before the Panel, the Agency argued that the Panel did not have
 jurisdiction over the dispute because it concerns, among other things, a
 question of negotiability and statutory entitlement.  The Union asserted
 that the unit employees are entitled under 5 U.S.C. Section 5544(a) to
 receive premium pay without regard to whether it is the prevailing
 practice.  /1/ The Panel declined jurisdiction because it found that it
 was unable to resolve the impasse until threshold matters, including the
 negotiability of the proposal, had been resolved.  Thereafter, the Union
 filed this negotiability appeal.
 
                      III.  Positions of the Parties
 
    The Agency contends that the issue of Sunday premium pay is not a
 negotiability dispute properly before the Authority, but rather is an
 issue of the employees' entitlement under 5 U.S.C. Section 5544(a).  The
 Agency argues that because these employees are subject to section 704,
 they can receive Sunday premium pay only pursuant to a collective
 bargaining agreement and not pursuant to title 5 of the U.S. Code.
 Further, the Agency maintains that since the subject of Sunday premium
 pay was never specifically negotiated by the parties, it can not now be
 subject to bargaining under section 704.  Finally, the Agency argues
 that even if the matter was previously covered in the parties'
 agreement, it may not be negotiated now because the payment of Sunday
 premium pay is not a prevailing pay practice in the local area.
 
    The Union states that under its proposal, employees who are regularly
 scheduled to work on Sunday would continue to receive Sunday premium pay
 in a prescribed amount.  The Union acknowledges that Sunday premium pay
 (1) is not a prevailing practice in the local area under consideration;
 (2) has never been specifically included in any agreement between the
 parties;  and (3) was not the subject of any negotiations until 1984.
 However, the Union contends that the entitlement to Sunday premium pay
 was incorporated by reference indirectly into the Basic Agreement,
 approved September 9, 1971 and still effective, and Supplementary
 Employee-Management Agreement No. 1, approved May 14, 1971, wherein the
 parties agreed that benefits provided by Federal law would continue in
 effect.  /2/ The Union argues that where the parties have not negotiated
 to displace those benefits provided by Federal law, those benefits
 continue in effect if the parties have so agreed.
 
    Alternatively, the Union contends that the local prevailing pay and
 pay practices exceed those of the Agency even if Sunday premium pay is
 included in the computation.  The Union states (at 5 of its March 22,
 1983 submission to the Panel):
 
          Accordingly, even though the specific pay practice of Sunday
       premium pay is not prevailing, the prevailing wage rates and pay
       practices justify the Agency paying the Sunday premium pay.  In
       other words in accordance with Section 704 of the Civil Service
       Reform Act, the unit employees are entitled to the Sunday premium
       pay because even with that premium pay, their pay and pay
       practices are less (than) the prevailing rates and pay practices
       in the area.
 
    In sum, the Union disagrees with the Agency's allegation that the
 continued payment of Sunday premium pay is inconsistent with Federal
 law.
 
                               IV.  Analysis
 
         A.  The Union's Proposal Presents a Negotiability Dispute
 
                Which Is Properly Before The Authority
 
    The Agency maintains that the Union's proposal to continue the
 payment of 25 percent Sunday premium pay relates to whether these
 employees are entitled to benefits under statute.  The Agency asserts
 that it has no obligation to make premium payments under 5 U.S.C.
 Section 5544(a) and that the issue must be resolved in another forum.
 While the Union contends that these employees are entitled to Sunday
 premium pay as a matter of law, the proposal itself would impose on the
 Agency a purely contractual obligation.  As such, the question of
 whether the proposal concerns a negotiable subject which is within the
 Agency's duty to bargain is appropriately within our jurisdiction.  We
 do not pass on the issue of whether, under 5 U.S.C. Section 5544(a),
 these employees are entitled to Sunday premium pay.
 
            B.  The Subject of Sunday Premium Pay Is Within The
 
                Agency's Duty to Bargain
 
    Under section 704, agencies must bargain over terms amd conditions of
 employment, including pay and pay practices, of prevailing rate
 employees where those terms and conditions of employment were the
 subject of negotiation in accordance with prevailing rates and practices
 prior to August 19, 1972.  See generally Columbia Power Trades Council
 and United States Department of Energy, Bonneville Power Administration,
 22 FLRA No. 100 (1986).  As we held in Bonneville Power Administration,
 section 704 does not limit its protections only to the particular terms
 of provisions which were specifically negotiated by the parties in their
 collective bargaining agreements prior to August 19, 1972.  If a
 disputed proposal involves subject matters which had previously been
 negotiated by the parties, those subjects are within the Agency's duty
 to bargain under section 704.  Additionally, parties are not confined
 merely to the continuation of terms of previously existing agreements.
 In a new agreement, the parties may change those terms or alter their
 rights concerning the matters involved.  Id., slip op. at 10-12.
 
    Applying Bonneville Power Administration to this case, we find that
 the matter of Sunday premium pay for bargaining unit employees is one
 which is encompassed within the premium pay practices negotiated by the
 parties prior to August 19, 1972.  As the Agency acknowledges, it has
 negotiated premium pay provisions in accordance with section 704 for
 many years, including prior to 1972.  Agency Response to Union's
 Petition for Review at 3.  Accordingly, the Union's proposal in this
 case concerns a term and condition of employment -- namely premium pay
 -- which was the subject of negotiation prior to August 19, 1972.
 
    The Agency relies on Medler v. United States, Bureau of Reclamation,
 Department of the Interior, 616 F.2d 450 (9th Cir. 1980) as mandating
 the discontinuance of the Sunday premium pay.  That reliance is
 misplaced.  In Medler, the court held that Congress excluded prevailing
 rate employees whose wages were determined through collective bargaining
 from coverage under the Prevailing Rate Systems Act (Pub. L. No. 92-392,
 86 Stat. 564, codified in 5 U.S.C. Sections 5341-5349), and unless the
 applicable collective bargaining agreement provided for shift
 differential pay or longevity pay, the employees covered by the
 agreement were not entitled to that pay.  Because that case concerned
 questions as to the entitlement of unit employees to certain pay
 differentials, it is distinguishable from this case, which concerns the
 negotiability of a form of premium pay.  For the same reasons, the
 Agency's reliance on the Comptroller General's decision in Matter of
 Donald Cross, B-204984 (May 10, 1982), is likewise misplaced.
 
        C.  Sunday Premium Pay is Negotiable Whether or Not it is a
 
                Prevailing Practice in the Local Area
 
    The Agency contends that even if the matter of premium pay was
 previously covered in the parties' agreement, Sunday premium pay may not
 be negotiated now because it is not a prevailing practice in the local
 area.  We do not believe that result to be consistent with the purpose
 of the Prevailing Rate Systems Act in general or with the purpose of
 section 9(b) and section 704 in particular.
 
    Employees covered by the Prevailing Rate Systems Act, 5 U.S.C.
 Sections 5343 et seq., are entitled by law to Sunday premium pay whether
 or not it is a prevailing pay practice in the local wage area.  See 5
 U.S.C. Sections 5541(2)(xi) and 5544.  Although the dollar amount of
 Sunday premium pay is calculated as a percentage of their base pay,
 which is established on the basis of the local wage area survey,
 entitlement to Sunday premium pay for employees covered by the
 Prevailing Rate Systems Act does not depend upon whether Sunday premium
 pay is provided locally.  We do not believe that in exempting section
 704 employees from the coverage of the Prevailing Rate Systems Act,
 Congress intended to preclude negotiations on benefits that they would
 otherwise have received, without regard to the prevailing practices in a
 given local wage area, if they had been covered by that Act.
 
    Congress intended the Prevailing Rate Systems Act, including section
 9(b), to provide "equal pay for substantially equal work for all
 prevailing rate employees who are working under similar conditions of
 employment in all agencies within the same local wage area." 5 U.S.C.
 Section 5341(1).  See also National Maritime Union of America v. United
 States, 682 F.2d 944, 951-52 (Ct. Cl. 1982) and National Federation of
 Federal Employees v. Brown, 645 F.2d 1017, 1024 (D.C. Cir. 1981).  In
 our opinion, even if the Agency is correct that section 704(b)(B)
 removes any entitlement to Sunday premium pay under 5 U.S.C. Section
 5544 for unit employees in this case, the principles of pay equity
 established by Congress require that those employees be permitted to
 negotiate on Sunday premium pay so as to maintain equity with those
 prevailing rate employees in the local area who are entitled to that pay
 under 5 U.S.C. 5544.  In short, even if Congress excluded section 704
 employees from coverage by 5 U.S.C. Section 5544, we do not believe that
 it intended thereby to condition those employees' right to negotiate
 over Sunday premium pay on whether that premium pay was a prevailing
 practice in the local wage area.  To find otherwise would be
 inconsistent with the purpose of the Prevailing Rate Systems Act.
 
    Furthermore, the broad purpose of section 9(b) and section 704 was to
 preserve the rights of employees covered by those sections to negotiate
 for the continuation of benefits which they had historically received,
 without regard to otherwise applicable legal limitations.  Those
 sections were not intended to deprive employees of existing benefits.
 In fact, section 704 was enacted in order to correct such a limiting
 interpretation of section 9(b) by the Comptroller General.  See Columbia
 Power Trades Council and United States Department of Energy, Bonneville
 Power Administration, 22 FLRA No. 100 (1986).  On the contrary, section
 9(b) and section 704 permit negotiation on the extension, modification
 and improvement of those benefits and the legislative history of section
 704 in particular suggests that such negotiations need not be tied to
 conditions in the local area.  See Bonneville Power Administration,
 slip. op. at 4-7.
 
    We find, therefore, that consistent with the purpose of section 9(b)
 and section 704 to preserve negotiations over existing benefits,
 employees in this case, who had historically received Sunday premium
 pay, may negotiate for continued payment of the premium pay regardless
 of whether it is a prevailing practice in the local area.  Accord Matter
 of W.L. Ableidinger and E.G. Walters, 60 Comp. Gen. 58, 60 (1980) and
 Matter of Corps of Engineers, North Pacific Division, 59 Comp. Gen. 583,
 584 (1980) (prevailing rate employees not covered by section 704 who had
 historically received double overtime may continue to receive those
 benefits, despite 5 U.S.C. Section 5544, because such payment is
 consistent with the broad purpose of section 704 to preserve existing
 practices).  In our view, these decisions of the Comptroller General are
 more relevant to the circumstances of this case than the decision in
 Grand Coulee Project Office, 60 Comp. Gen. 668 (1981), cited by the
 Agency.
 
    In sum, for the foregoing reasons, we conclude that negotiation of
 Sunday premium pay is consistent with the purpose of pay equity
 established by the Prevailing Rate Systems Act and the Congressional
 intent to preserve for negotiations those benefits which employees
 covered by section 9(b) and 704 had historically received.
 
    Finally, in light of our conclusions, we do not address the Union's
 contention that even if the prevailing practice in the local area did
 govern, the proposal would be negotiable because the total premium pay
 available to unit employees would still be less than the prevailing
 practice for total premium pay in the local area.
 
                              V.  Conclusion
 
    The proposal is within the duty to bargain under section 704 of the
 CSRA.
 
                                VI.  Order
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, negotiate over the proposal.  /3/
 
    Issued, Washingtion, D.C. April 30, 1987
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) The relevant portion of 5 U.S.C. Section 5544(a) is set forth in
 the Appendix to this decision.
 
    (2) The relevant provisions of the Basic Agreement and the
 Supplementary Employee-Management Agreement No. 1 are set forth in the
 Appendix to this decision.
 
    (3) In finding that this proposal is within the duty to bargain, we
 make no judgment as to its merits.
 
 
                                 APPENDIX
 
    5 U.S.C. Section 5544(a) provides, in pertinent part:
 
                       * * * *
 
 
          (a) An employee whose pay is fixed and adjusted from time to
       time in accordance with prevailing rates under Sec. 5343 or 5349
       of this title, or by a wage board or similar administrative
       authority serving the same purpose, is entitled to overtime pay
       for overtime work in excess of 8 hours a day or 40 hours a week.
 
                       * * * *
 
 
          As employee subject to this subsection whose regular work
       schedule includes an 8 hour period of service a part of which is
       on Sunday is entitled to additional pay at the rate of 25 percent
       of his hourly rate of basic pay for each hour of work performed
       during that 8 hour period of service.
 
    As set forth at page 2 of the Union's March 22, 1985, submission to
 the Federal Service Impasses Panel, attached to Petition for Review, the
 Basic Agreement provides, in pertinent part:
 
          Priority of Law and Regulations
 
          A.  In the administration of all matters covered by the
       agreement, the Employer, the Union, and employees are governed by
       existing or future laws and regulations of appropriate authorities
       including policy set forth in the Federal Personnel Manual;  by
       published Bureau and Department of the Interior policies and
       regula