30:0639(77)NG - United Power Trades Organization and Army Corps of Engineers, North Pacific Division -- 1987 FLRAdec NG



[ v30 p639 ]
30:0639(77)NG
The decision of the Authority follows:



30 FLRA NO. 77
 30 FLRA 639

29 DEC 1987


UNITED POWER TRADES ORGANIZATION

                   Union

      and

U.S. ARMY CORPS OF ENGINEERS
NORTH PACIFIC DIVISION

                   Agency

Case No. 0-NG-1396

DECISION AND ORDER ON NEGOTIABILITY ISSUES

     I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed by the Union under section 7105(a)(2)(E) of the
Federal Service Labor - Management Relations Statute (the
Statute) and concerns the negotiability of four proposals. Three
of the proposals involve various aspects of pay and are outside
the duty to bargain because they are contrary to law. The fourth
proposal seeks to limit an employee's pecuniary liability and is
also outside the duty to bargain because it conflicts with
management's right to establish internal security practices.

     II. Proposals 1-3

     Proposal 1

     Article 19.6

     Payment of shift differential will be in accordance with
Article 19.8 below.

     Proposal 2

     Article 19.8

     Provisions of this Article will be paid in accordance with
FPM Supplement 532-1, S8-4. 

     Proposal 3

     Article 20- Environmental Pay

     20.1- The Union and the Division recognize the environmental
and safety hazards specified in Appendix A of this contract. The
parties further recognize that the percentages set in the
appendices are appropriate for the matters concerned.

     20.2- Either the affected employees or the Project
representative will bring to the supervisor's attention those
instances which he believes to be situations warranting
environmental pay.

     20.3- The supervisor will immediately bring the matter to
the attention of the Project Manager for review. If the Project
Manager finds the matter warranting such pay, it shall be
forwarded to the District Personnel Officer for evaluation within
five (5) working days. If the District agrees that pay is
warranted, then the matter will be referred to the Division
office for final action within ten (10) working days.

     20.4- If either the immediate supervisor, the Project
Manager, the District Office or the Division deny the
appropriateness of environmental pay, the matter may be subject
to the grievance procedure at the level which it was denied. If a
new condition develops which is hazardous, the Union will bring
this to management's attention and the matter will be discussed
and if appropriate, a differential will be set.

     20.5- An employee subjected to one or more conditions
covered by this Article, shall be paid for the exposure which
results in the highest pay differential.

     A. Positions of the Parties

     The Agency contends that payment of shift differentials,
premium pay and environmental pay for Corps of Engineers
employees in the North Pacific Division is governed exclusively
by the procedures mandated by the Supplemental Appropriations Act
of 1982, (Pub. L. No. 97-257, 96 Stat. 832). In support, the
Agency relies on United Power Trades Council and United States
Army Corps of Engineers, North Pacific Division, 21 FLRA  501
(1986), petition for review dismissed for lack of
jurisdiction sub nom. United Power Trades Organization v. FLRA, 
No. 86-7375 (9th Cir. Nov. 24, 1986). The Agency concludes that
since these proposals would require the payments at issue to be
based on procedures other than those required by the Supplemental
Appropriations Act of 1982, the proposals are inconsistent with
the Supplemental Appropriations Act of 1982.

     The Union contends that neither the Prevailing Rate Systems
Act of 1972 nor the Supplemental Appropriations Act of 1982
specifically prohibit the payment of shift differentials, premium
pay or environmental pay.

     The Union further asserts that the Authority's decision in
North Pacific Division is distinguishable from this case. The
Union claims that North Pacific Division was based on a finding
that a determination by the Department of Defense Wage Fixing
Authority (DOD WFA) effectively prohibited the payment of shift
differentials. According to the Union, no argument was raised and
no determination was made in North Pacific Division as to whether
the DOD WFA's determination is an agency regulation which is
subject to the compelling need test set forth at section 2424.11
of the Authority's Regulations.

     The Union claims that the DOD WFA's determination is subject
to the compelling need test. Thus, while the Union agrees that
its proposals are inconsistent with determinations of the DOD
WFA, it contends that since the Agency has made no showing that
there is a compelling need for DOD WFA determinations, the
proposals are negotiable.

     The Union also argues with respect to Proposals 2 and 3,
that neither the question of premium pay matters other than shift
differential nor the question of environmental pay was
specifically addressed in North Pacific Division. Finally, as to
Proposal 3, the Union also argues that the DOD WFA has made
incorrect determinations as to which positions in the North
Pacific Division are entitled to environmental pay.

     B. Analysis and Conclusions

     At the onset, we note that North Pacific Division and this
case involve the same union and agency. In North Pacific Division
the agency had discontinued payment of shift differentials
notwithstanding a provision in the parties' collective bargaining
agreement requiring payment of such differentials. The union
filed a grievance. An arbitrator concluded that the agency had
violated the parties' collective bargaining agreement by
discontinuing payment of shift differentials and ordered the
agency to reinstate the shift differentials with an award of
backpay.

     In setting aside the arbitrator's award, the Authority
determined that the wages of the bargaining unit employees were
governed by the Prevailing Rate Systems Act of 1972, 5 U.S.C.
5341-5349. The Authority also found that the Supplemental
Appropriations Act of 1982 applied to these employees and that
the Act required that they be paid wages as determined by the DOD
WFA to be consistent with the wages of employees of the
Departments of Interior and Energy who perform similar work in
the same geographic area.

     The record in that case established that the DOD WFA had
determined that employees at Interior and Energy facilities in
the region were not paid a shift differential. Therefore, the DOD
WFA had issued a wage schedule for Corps of Engineers employees
in the North Pacific Division which excluded shift differential
pay.

     The Authority concluded in North Pacific Division that the
DOD WFA was exclusively authorized to establish wage schedules
for Corps of Engineers prevailing rate employees under the
Supplemental Appropriations Act of 1982. Since the DOD WFA had
determined that the North Pacific Division employees were not
entitled to the shift differentials, such differentials could not
be paid. Consequently, the Authority set aside the arbitrator's
award which required the North Pacific Division to reinstate the
payment of a shift differential with appropriate back pay

     In seeking to negotiate proposals providing for the payment
of shift differentials, premium pay and environmental pay, the
Union concedes that these proposals would require payments not
authorized by the DOD WFA. See Reply Brief at 3.

     According to the Union, the parties previously had agreed to
procedures concerning the payment of shift differentials, premium
pay and environmental pay. However, subsequent to the passage of
the Supplemental Appropriations Act of 1982, the DOD WFA issued
wage schedules which either did not include such payments or
provided for payments different from those which would have been
obtained by application of the collective bargaining agreement.
After issuance of the DOD WFA salary schedules, the parties
removed from their collective bargaining agreement the provisions
which provided for the payment of shift differentials, premium
pay and environmental pay. The Union now seeks to require the
Agency to reestablish procedures for the payment of
shift differentials, premium pay and environmental pay which
would be consistent with the provisions which were removed from
the parties' collective bargaining agreement which preceded the
passage of the Supplemental Appropriations Act of 1982. See
Petition for Review at Paragraphs 1, 2 and 3 of Exhibit B-1.

     In North Pacific Division the Authority held that the
Supplemental Appropriations Act of 1982 requires that prevailing
rate employees of the Corps of Engineers shall be paid wages as
determined by the DOD WFA to be consistent with wages of
employees of the Departments of the Interior and Energy who
perform similar work in the same geographic area.

     Proposals 1, 2 and 3, however, require the Agency to use
procedures for the payment of shift differentials, premium pay
and environmental pay different from those mandated by the
Supplemental Appropriations Act of 1982. Consequently, based on
North Pacific Division, we conclude that since Proposals 1, 2 and
3 require negotiations regarding pay matters for which the
Supplemental Appropriations Act of 1982 establishes an exclusive
procedure, the proposals are contrary to law.

     Further, we reject the Union's claim that Proposals 1, 2 and
3 are negotiable because the Agency has not established that a
compelling need exists for the DOD WFA wage and salary
determinations. In our view the DOD WFA wage and salary
determinations are not agency rules or regulations within the
meaning of section 7117(a)(2) of the Statute. That is, these
determinations do not concern matters within the Agency's
discretion to regulate or not to regulate. Rather, such
determinations are issued under specific statutory authority.
Thus, such wage and salary determinations of the DOD WFA are not
subject to the compelling need test set out in section 2424.11 of
our Rules and Regulations.

     We also reject the Union's claim that the DOD WFA improperly
has determined which bargaining unit employees are entitled to
environmental pay. Such claims are not appropriate for resolution
in a negotiability determination, but rather, are more properly
raised before the DOD WFA.

     In conclusion, we find Proposals 1, 2 and 3 to be outside
the duty to bargain because they are contrary to law.

     III. Proposal 4

     The provisions of AR 735-11 regarding pecuniary liability
shall not apply to any bargaining unit members. Further, there
shall be no pecuniary liability on any bargaining unit members
during the term of this agreement.

     A. Positions of the Parties

     The Agency asserts that a proposal seeking to limit an
employee's pecuniary liability interferes with its right to
determine its internal security practices under section
7106(a)(1) of the Statute. In support, the Agency relies on
National Federation of Federal Employee; Local 29 and Department
of the Army, Kansas City District, U.S. Army Corps of Engineers,
Kansas City, Missouri, 21 FLRA  233 (1986).

     The Union argues that the Authority does not have a
consistent position regarding the negotiability of proposals
involving pecuniary liability. Thus, the Union claims that such
proposals are negotiable. In support, the Union relies on the
fact that the court remanded Kansas City District to the
Authority in National Federation of Federal Employees Local 29 v.
Federal Labor Relations Authority, 812 F.2d 746 (D.C. Cir. 1987)
because the court found that the Authority's holdings regarding
two of the proposals involving pecuniary liability were
inconsistent.

     B. Analysis and Conclusion

     In our Decision on Remand in National Federation of Federal
Employees, Local 29 and Department of the Army, Kansas City
District, U.S. Army Corps of Engineers, Kansas City, Missouri, 27
FLRA  404 (1987) we resolved the apparent inconsistency in our
original decision. We held that proposals which limit the extent
of an employee's pecuniary liability or which foreclose pecuniary
liability under certain circumstances are inconsistent with the
Agency's right under section 7106(a)(1) of the Statute to
determine the substance of its internal security practices, that
is, whether and to what extent to impose pecuniary liability.

     Proposal 4 expressly forecloses any pecuniary liability for
bargaining unit employees. Thus, based on our Decision on Remand
in Kansas City District, we conclude that Proposal