30:0783(9)NG - NFFE Local 341 and DOI, Bureau of Indian Affairs, Yakima Agency and the Wapato Irrigation Project -- 1987 FLRAdec NG



[ v30 p783 ]
30:0783(9)NG
The decision of the Authority follows:


 30 FLRA NO. 91
 30 FLRA 783

  31 DEC 1987

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 341

                           union

         and

U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
YAKIMA AGENCY AND THE
WAPATO IRRIGATION PROJECT

                           Agency

Case No. O-NG-1367

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). This case
involves the negotiability of two parts of a proposal regarding
increases in wage rates and schedules for prevailing wage rate
employees. For reasons more fully set forth below, we find that
the portion of the proposal concerning wage increases does not
conflict with law because by its terms it would not become
effective unless and until existing "pay cap" restrictions
expire. The portion of the proposal providing that employees' pay
shall not be reduced (the "save pay" provision) is negotiable as
well because it relates to the same subject matter as provisions
previously negotiated and does not conflict with law.

     II. The Proposal

     The proposal, which would provide a system for setting wages
for the affected prevailing rate wage employees of the Agency, is
set forth in full in Appendix A attached to this decision.


     III. Positions of the Parties 1

     The Agency asserts that the Union's proposal is not
negotiable because it would require an increase in wages beyond
that permitted by the current pay cap provision found in section
101(m) of Public Law 99-500. In support of this argument, the
Agency relies on the Authority's decision in International
Brotherhood of Electrical Workers, AFL - CIO, Local Union 1245
and Department of the Interior, Bureau of Reclamation, 25 FLRA 
201 (1987).

     The Agency further argues that the "save pay" portion of
section (E) of the proposal is inconsistent with Section 704 of
the Civil Service Reform Act of 1978 (Pub. L. No. 95-454, 92
Stat. 1111, 1218, codified at 5 U.S.C. §§ 5343 (Amendments)(1982
ed.)). 2 The Agency claims that section 704 requires that only
matters which were the subject of bargaining prior to August 19,
1972, or which are shown to be a prevailing practice may be the
subject of negotiations. The Agency asserts that the "save pay"
clause meets neither of these requirements. A decision of the
Comptroller General is relied on in support of this position,
specifically, Grand Coulee Project Office, 60 Comp. Gen. 668,
673-74 (1981). According to the Agency, the "save pay" portion of
the proposal is inconsistent with the principles of the
prevailing rate system, as the "save pay" proposal might inhibit
the setting of lower wage rates even where a prevailing rate
survey established the prevalence of lower rates.

     IV. Analysis and Conclusions

     A. Background

     The parties did not dispute that the employees to whom this
proposal would apply are prevailing rate employees who
are covered by section 9(b) of Public Law 92-392, codified at 5
U.S.C. §§ 5343 (Amendments, note) (1982 ed.). 3 As we discussed
in Columbia Power Trades Council and United States Department of
Energy, Bonneville Power Administration, 22 FLRA  998 (1986),
section 704 of the Civil Service Reform Act of 1978 provides, in
essence, that matters pertaining to terms and conditions of
employment and pay and pay practices which were subject to
bargaining by prevailing rate employees covered under section
9(b) of Pub. L. No. 92-392 prior to August 19, 1972, shall
continue to be subject to bargaining without regard to the
provisions of chapter 71 (the Statute), subchapter IV of chapter
53 (prevailing wage rate system), and subchapter V of chapter 55
(premium pay), of title 5 of the United States Code.

     B. Pay Cap Restrictions

     Public Law No. 99-591, 100 Stat. 3341-330 (1986), continued
appropriations for the Department of the Interior and other
agencies. Section 613 of the statute extended prior restrictions
on wage schedules and rates for prevailing wage rate employees,
among others, until the end of the 1988 fiscal year, September
30,  1988. Under section 613, wage increases for prevailing rate
employees covered by section 9(b) may not exceed the 3 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). Accordingly, any contract falling under this exception
must have been entered into before October 18, 1986.

     We agree with the Agency that this proposal will not qualify
as a contract entered into before October 18, 1986. Only
contracts entered into before that date are exempt from the pay
cap restrictions. Public Law 99-591, 613 (b), 100 Stat. 3341-330.
However, this proposal expressly recognizes the limitations
imposed by the "pay cap" included in the continuing resolution
for fiscal years 1987 and 1988. Section A of the proposal
specifically provides that "any  limitations on pay
increases imposed by Statute prior to the effective date of this
Article will apply to the wage rates herein negotiated."
Therefore, we find that this proposal and any contract which
contained the proposal would have no effect until and unless the
pay cap restrictions contained in Public Law 99-591 expire.

     The proposal recognizes the applicability and effect of the
pay cap for fiscal years 1987 and 1988. Furthermore, the proposal
does not conflict with any existing statute because it would not
be implemented until fiscal year 1989. Accordingly, we conclude
that the proposal is not inconsistent with Federal law. Thus,
Bureau of Reclamation, relied upon by the Agency, is
distinguishable. That case concerned the question of whether the
proposal in dispute met the exceptions permitted under the pay
caps for fiscal years 1987 and 1988. This proposal, however, is
not intended to be implemented until the provisions of the
present pay cap have expired. Thus, it does not provide for wage
increases in excess of the limit set out in the pay cap. We make
no determination as to whether this proposal would permit wage
increases in excess or in contravention of any future pay cap
legislation, since that determination would depend on the
language of future legislation.

     C. "Save Pay"

     The Agency asserts that the "save pay" clause found in
section (E) of the proposal is contrary to the requirements of
section 704 of the Civil Service Reform Act. This assertion
cannot be sustained. The Agency argues that section 704 requires
bargaining only on matters which were the subject of negotiation
for prevailing rate employees prior to August 19, 1972, and that
a save pay provision had never been a subject of negotiation at
that time.

     In Bonneville Power Administration the Authority reviewed
section 704 and section 9(b) as well as the legislative history
of these sections. The Authority determined that Congress did not
intend to preclude prevailing rate employees from negotiating
changes in the provisions of agreements in existence prior to
August 19, 1972. In addition, the Authority found nothing to
prevent adding to or increasing the rights already negotiated for
such employees, even if such rights had not been included
previously in negotiated agreements. It is not controverted that
the parties in this case previously have negotiated over
pay and pay practices. The "save pay" provision clearly relates
to the same subject matter, pay and pay practices, which have
been negotiated previously. We, therefore, conclude that the
negotiation of section (E) of the proposal is not inconsistent
with section 704 of the Civil Service Reform Act of 1978, based
on Bonneville Power Administration.

     The Agency cites the Comptroller General's decision in Grand
Coulee Project Office in support of its conclusion that unions
may not negotiate regarding matters which had not been negotiated
prior to August 19, 1972. The Authority, however, has rejected
the applicability of this decision of the Comptroller General to
cases such as this one. The Authority has stated that section
9(b) and section 704 permit negotiation on the extension,
modification and improvement of the benefits which these
employees historically had received even where such benefits are
not applicable in the local area. International Brotherhood of
Electrical Workers, Local Union No. 611, AFL - CIO and U.S.
Department of the Interior Bureau of Reclamation, Rio Grande
Project, 26 FLRA  906 (1987), petition for review filed sub non.
Department of the Interior, Bureau of Reclamation, Rio Grande
Project v. FLRA,  No. 87-2483 (10th Cir. October 8, 1987)

     Unlike Bureau of Reclamation, there is nothing in the record
in this case to show that a "save pay" provision has ever been
included in a collective bargaining agreement between the
parties. Nevertheless, we conclude that the proposal is
negotiable because it relates to the same subject matter as
previously negotiated agreements. We reject the Agency's
assertion that the proposal is nonnegotiable because the Union
failed to demonstrate that a "save pay" provision is a prevailing
practice in the local area. We recognize that section 704
provides that pay practices shall be negotiated in accordance
with prevailing practices. We find, however, that the purposes of
section 704 and section 9 (b) are best served when
disputes--often factual--over those prevailing practices are
resolved through the negotiation process. That is, we do not
believe that it is appropriate or necessary for the Authority to
determine the precise nature of prevailing practices in order to
make negotiability determinations. Rather, those determinations
are more appropriately resolved through the negotiated process by
which local prevailing practices are surveyed and through
subsequent bargaining. 

     V. Order

     The Agency must, upon request, or as otherwise agreed to by
the parties, bargain on the proposal. 4

     Issued, Washington, D.C., December 31, 1987.

     Jerry L. Calhoun, Chairman

     Jean McKee, Member

     FEDERAL LABOR RELATIONS AUTHORITY 

APPENDIX A

     Proposal I

     (A) In accordance with P.L. 92-392 and P.L. 95-454, wages
for employees will be determined by the process of collective
bargaining, based on P.L. 92-392, 9(b), 86 Stat. 573, 5343, and
Section 704 of P.L. 95-454 (5 USC 5343). It is understood by the
Parties that any limitations on pay increases imposed by Statute
prior to the effective date of this Article will apply to the
wage rates herein negotiated.

     (B) In January after the effective date of this Agreement,
each affected employee of the Wapato Irrigation Project and the
Yakima Agency shall be converted in pay to the lowest step in
their job category of Schedule A (see attached) which exceeds
their rate of pay prior to the conversion. However, this
conversion and the wage adjustments referred to in part (C) shall
not become effective until the first full pay period in
February.

     (C) During the second week in January in each year after the
effective date of this Agreement, a committee of three (3)
representatives of NFFE Local 341 and three (3) representatives
of Management will meet to collect current rate wage data from
preselected prevailing rate employers. Employers to be surveyed
are: Washington State Highway; Roza Irrigation District; Yakima
County Roads; City of Yakima; Sunnyside Irrigation District;
Yakima Cement Products; Superior Asphalt; Bureau of Reclamation;
Associated Grocery; Yakima Firing Center.

     The committee shall determine the weighted (by number of
employees) average pay increase for each available job reference
and shall increase the wage categories of the references by this
amount. The committee shall then determine the weighted average
increase of all of the job references and increase the remaining
categories (for which no exact reference exits) by this amount.
After the wage categories have been increased, then the
'Comparable Increases' (referred to in Section D) shall be added
to given categories.

     These rate changes shall become effective the first full pay
period in February.

     (D) Comparability Increases. To achieve a greater
comparability between the wages paid to its employees and the
 employees in the wage survey area, Management agrees to
pay comparability increases to certain categories of workers in
addition to any increases in the prevailing rate or increases
through ordinary progression through the grade steps. Management
shall increase the scale paid for the following workers by a
comparability increase of $.50 per hour per year: Ditchrider I,
Canal Maintenanceman, Ditchrider II and Ditchrider III.
Management shall increase the scale paid for the following
workers by a comparability increase of $.33 per year: P&P;Attendant; P&P Operator, Jr; P&P Operator Assistant; P&P Operator
Associate; P&P Operator: P&P Operator, Sr. and Foreman, P& P.

     (E) However, no employee shall suffer a reduction in pay as
a result of either a change in the prevailing rate or through the
application of schedule A.

     (F) Each grade of regular wage schedule for non-supervisory
wage bargain unit employees shall have three or four steps as
determined by Schedule A. A prevailing rate employee under a wage
bargaining schedule who has a work performance rating of
satisfactory or better, as determined by the Project Engineer, or
his designee, shall advance automatically to the next higher step
within the schedule at the beginning of the first applicable pay
period following his completion of no less than six (6) months,
but not to exceed more than one (1) year of probationary period,
from the step currently held by the employee.

     (G) Shift Differential: Employees assigned to regularly work
the second shift will receive a 7.5% differential added to their
basic rate of pay. Employee assigned to regularly work the third
shift will receive a 10% differential added to their basic rate
of pay.

     (H) Duration: This supplementary agreement shall remain in
effect for three (3) years from the date that it is approved by
the Deputy Assistant Secretary of Indian Affairs or his designee.
Negotiations to amend or modify this agreement must be requested
between sixty (60) and one hundred and five (105) days prior to
the fourth anniversary date. If neither party requests such
negotiations, the agreement will automatically renew for two (2)
years. In the event that the Deputy Assistant Secretary of Indian
Affairs or his designee has not acted on the agreement within the
thirty (30)  day period, the agreement shall take effect and be
binding.

SCHEDULE A

POSITION               Step 1    Step 2      Step 3    Step 4

LABORER                 6.86       7.26       7.66
CARETAKER               6.86       7.26       7.66
DITCHRIDER I            6.86       7.26       7.66
P&P ATTENDANT           6.86       7.26       7.66
CANAL MAINTENANCEMAN    8.10       8.50       8.90      9.30
WAREHOUSEMAN            8.10       8.50       8.90      9.30
GARAGE SERVICE ASST     8.10       8.50       8.90      9.30
DITCHRIDER II           9.34       9.74      10.14     10.54
GARAGE SERVICE/PARTS    9.34       9.74      10.14     10.54
REPAIRMAN               9.34       9.74      10.14     10.54
EQUIPMENT OPERATOR I    9.34
P&P OPERATOR JR        10.25
DITCHRIDER III         10.59      10.99       11.39
WELDER II               9.34       9.74       10.14    10.54
BODY/FENDER REPAIRMAN   9.76      10.16       10.56    10.96
EQUIPMENT OPERATOR II   9.76      10.16       10.56    10.96
AUTO MECHANIC           9.76      10.16       10.56
MAINTENANCEMAN          9.34       9.74       10.14    10.54
P&P OPERATOR ASST      11.04
EQUIP. OPERATOR III    10.59      10.99       11.39
HEAVY-DUTY MECHANIC    10.59      10.99       11.39
WELDER                 10.59      10.99       11.39
FOREMAN,  MIXED GANG   10.97
P&P OPERATOR ASSOC     11.96
P&P OPERATOR           12.75
FOREMAN#  SHOP         13.14
P&P OPERATOR SR        13.55
FOREMAN,  P&P          14.28


APPENDIX B

     Section 704 of the Civil Service Reform Act of 1978 (CSRA)
provides:

     Sec. 704. (a) Those terms and conditions of employment and
other employment benefits with respect to Government prevailing
rate employees to whom section 9(b) of Public Law 92-392 applies
which were the subject of negotiation in accordance with
prevailing rates and practices prior to August 19, 1972, shall be
negotiated on and after the date of the enactment of this Act in
accordance with the provisions of section 9(b) of Public Law
92-392 without regard to any provision of chapter 71 of title 5,
United States Code (as amended by this title), to the extent that
any such provision is inconsistent with this paragraph.

     (b) The pay and pay practices relating to employees referred
to in paragraph (1) of this subsection shall be negotiated in
accordance with prevailing rates and pay practices without regard
to any provision of--

     (A) chapter 71 of title 5, United States Code (as amended by
this title), to the extent any such provision is inconsistent
with this paragraph;

     (B) subchapter IV of chapter 53 and subchapter V of chapter
55 of title 5, United States Code; or

     (C) any rule, regulation, decision or order relating to
rates of pay or pay practices under subchapter IV of chapter 53
or subchapter V of chapter 55 of title 5, United States Code.

     Section 9(b) of Pub. L. 92-392 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 repla