32:0591(86)NG - - AFGE and DOD, Army and Air Force, HQ Army and Air Force Exchange Service, Dallas, TX - - 1988 FLRAdec NG - - v32 p591



[ v32 p591 ]
32:0591(86)NG
The decision of the Authority follows:


32 FLRA No. 86

UNITED STATES OF AMERICA

BEFORE THE

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

 

AMERICAN FEDERATION OF
GOVERNMENT EMPLOYEES
AFL-CIO

Union

and 

DEPARTMENT OF DEFENSE
DEPARTMENT OF THE ARMY
AND AIR FORCE, HEADQUARTERS
ARMY AND AIR FORCE EXCHANGE
SERVICE, DALLAS, TEXAS
Agency

Case No. 0-NG-1493

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. The proposal arose during negotiations which resulted from the Agency's announcement that the commission rates paid to automotive mechanics at Fort Hood, Texas, and Carswell Air Force Base, Texas, would be reduced from 60 percent to 40 percent. Union response to Agency statement of position at 2. The Union proposed that the rates not be reduced.

For the reasons expressed in our separate opinions, we find that the proposal is nonnegotiable.

II. The Proposal

To increase the percentage rates of commission paid AAFES mechanics by the same amounts that the Employer proposed to decrease that percentage.

III. Background

The dispute in this case concerns the commission rates paid to automotive mechanics at Fort Hood, Texas, and Carswell Air Force Base, Texas. The automotive mechanics are nonappropriated fund employees who are subject to the provisions of the Prevailing Rate Act of 1972, Pub. L. No. 92-392, 86 Stat. 564 (codified in scattered sections of 5 U.S.C.)(the Act). The automotive mechanics are not covered by either section 9(b) of the Act (reprinted in 5 U.S.C. § 5343 note (1982)) or section 704 of the Civil Service Reform Act. Section 9(b) and section 704 allow bargaining on matters pertaining to pay and terms and conditions of employment where such matters were subject to bargaining by prevailing rate employees prior to August 19, 1972. See, for example, Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA 998 (1986).

Under the provisions of the Act, the automotive mechanics are subject to the prevailing rate wage system which is codified at 5 U.S.C. § 5343. Under 5 U.S.C. § 5343, pay of prevailing rate employees is to be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates. The Act prescribes various procedures and provisions which are incorporated into the system.

The Office of Personnel Management (OPM) is responsible for, among other things, issuing regulations which prescribe practices and procedures for implementing and administering the prevailing rate system. 5 U.S.C. § 5343(c). The OPM regulations are codified at part 532 of title 5, Code of Federal Regulations. Additionally, OPM issued Federal Personnel Manual (FPM) Supplement 532-2, entitled "Federal Wage System--Nonappropriated Fund Employees." This supplement sets forth procedures and instructions for the administration and operation of the prevailing rate wage system as it applies to nonappropriated fund employees.

The automotive mechanics are subject to Appendix V of FPM Supplement 532-2. Appendix V sets forth a schedule of commission rates for various Army and Air Force Exchange Service employees. For automotive mechanics, the allowable commission range is set as 40-65 percent "of labor charged to a repair job that a customer might purchase." Agency statement of position at 9, note 12. Appendix V also provides that current agency practices with respect to wage rates for employees who are paid on a commission basis may be continued.

The Union seeks to negotiate, within this prescribed range, that the commission rate to be paid the automotive mechanics at the Fort Hood and Carswell Air Force Base activities will remain at 60 percent.

IV. Positions of the Parties

The Agency contends that the proposal is nonnegotiable for the following reasons.

(1) It concerns a matter which is specifically provided for by statute and, therefore, is not a condition of employment.

(2) Whatever discretion exists under Appendix V is not subject to negotiation. It is for the Federal Prevailing Rate Advisory Committee (FPRAC), not the Authority, to determine whether commission rates may be set through collective bargaining.

(3) Contrary to the Authority's decision in American Federation of Government Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA 377 (1986), and consistent with recent court decisions--Department of the Navy, Military Sealift Command v. FLRA, 836 F.2d 1409 (3d Cir. 1988), and Department of the Treasury, Bureau of Engraving and Printing v. FLRA, 838 F.2d 1341 (D.C. Cir. 1988)--Congress did not intend to subject the pay of Federal employees to collective bargaining.

(4) There is no Congressional authorization for negotiation of the wages involved in this case.

The Union argues that the proposal concerns a matter which is not specifically provided for by statute but, rather, is within the discretion of the Agency. The Union contends that the proposal does not conflict with law or regulation and is negotiable under the Authority's decision in Eglin Air Force Base. Although the Union states that it disagrees with the court decisions relied on by the Agency, the Union contends that the circumstances in those cases are distinguishable from the instant case. The Union describes the proposal in this case as limited to negotiating over the discretion which the Agency possesses within the wage setting system which was established by the Act. The Union contends that this limitation was not present either in the proposals involved in Military Sealift Command, which it describes as seeking to change the statutorily mandated wage setting system, or in the proposal in Bureau of Engraving and Printing, which the Union describes as seeking to establish wages without regard for the wage setting mechanism provided for by the Act. As to the role of FPRAC, the Union asserts that the Authority, not FPRAC, is responsible for resolving negotiability disputes.

V. Analysis and Conclusions

For the reasons set forth in our separate opinions, we conclude that the proposal is not within the duty to bargain.

VI. Order

The petition for review is dismissed.

Issued, Washington, D.C.,

_________________________
Jerry L. Calhoun, Chairman
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY


Separate Opinion of Chairman Calhoun

As I stated 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 377 (1986), I believe that absent a clear expression of congressional intent to the contrary, wages and money-related fringe benefits of Federal employees are not proper subjects of collective bargaining under the Statute. In my view, the legislative history of the Statute supports a conclusion that Congress did not intend wages and money-related fringe benefits to be included in the scope of Federal-sector collective bargaining. I also find persuasive the fact that in other specific instances, Congress clearly authorized negotiation over wages and fringe benefits. Such instances occurred when Congress passed the Postal Reorganization Act, 39 U.S.C. §§ 101-5605, and when Congress provided a "grandfather clause" when it established the "prevailing rate system," 5 U.S.C. §§ 5341-5349. Congress specifically carried this "grandfather clause" forward in section 704 of the Civil Service Reform Act. It is my view that silence of the Congress on the negotiation of other pay matters was deliberate.

I have applied the principles which I articulated in Eglin Air Force Base in subsequent cases involving the negotiability of pay and fringe benefits. See, for example, my opinions in American Federation of Government Employees, AFL-CIO, Local 2317 and U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia, 29 FLRA 1587 (1987), petition for review filed sub nom. U.S. Marine Corps, Marine Corps Logistics Base, Nonappropriated Fund Instrumentality, Albany, Georgia v. FLRA, No. 88-8006 (11th Cir. Jan. 5, 1988); Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734 (1987), petition for review filed sub nom. Department of Defense Dependents Schools v. FLRA, No. 87-1735 (D.C. Cir. Nov. 30, 1987); and Fort Knox Teachers Association and Fort Knox Dependents Schools, 28 FLRA 179 (1987), petition for review filed sub nom. Fort Knox Dependents Schools v. FLRA, No. 87-3878/87-3976 (6th Cir. Sept. 18, 1987).

My position is consistent with a decision recently issued by the United States Court of Appeals for the Third Circuit. Department of the Navy, Military Sealift Command v. FLRA, 836 F.2d 1409 (3d Cir. 1988) reversing National Maritime Union of America, AFL-CIO and Department of the Navy, Military Sealift Command, 25 FLRA 105 (1987). That decision involved proposals relating to the pay of civilian mariners who are covered by 5 U.S.C. § 5348(a). That provision states that the pay of members of crews of vessels "shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with the prevailing rates and practices in the maritime industry."

The court noted that section 5348 provides instruction to administering agencies on the establishment of pay rates for civilian mariners and creates a tension between the "public interest" and "prevailing rates and practices" in the private sector. The court held that section 5348 provided the Department of the Navy with discretion to determine the public interest in setting the mariners' wages. The court was unable to harmonize section 5348 with the collective bargaining mandates of the Statute. Accordingly, the court looked to the Statute to determine whether Congress intended to supersede section 5348 and subject the pay and pay practices of civilian mariners to collective bargaining. 836 F.2d at 1416-17. Based on analysis of the Statute and its legislative history, the court held that "Congress did not intend to subject the pay of federal employees to collective bargaining under the Labor-Management Statute." 836 F.2d at 1419.

The Third Circuit's analysis of statutory language and legislative history was subsequently adopted by the United States Court of Appeals for the District of Columbia Circuit. Department of the Treasury, Bureau of Engraving and Printing v. FLRA, 838 F.2d 1341 (D.C. Cir. 1988) (per curiam), reversing International Brotherhood of Electrical Workers, Local 121 and Department of the Treasury, Bureau of Engraving and Printing, Washington, D.C., 25 FLRA 1082 (1987). That decision involved a proposal regarding the wages of electricians who are covered by 5 U.S.C. § 5349. Under that provision, the electricians' wages "shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates . . . ." The court held the reasoning of the Third Circuit with regard to the "Navy, civilian mariners, and 5 U.S.C. § 5348" applied fully to the "[Department of the Treasury], electricians in the Bureau of Engraving and Printing, and 5 U.S.C. § 5349." 838 F.2d at 1343.

The automotive mechanics involved in this case are covered by 5 U.S.C. § 5343, which provides that pay "shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates." Thus, the underlying legal principles which govern the setting of the mechanics' wages is the same as that involved in Military Sealift Command and Bureau of Engraving and Printing. Moreover, the Third Circuit's holding as to the general nonnegotiability of pay in the Federal sector under the Statute applies here as well as to the mariners in Military Sealift Command.

For the reasons which I expressed in Eglin Air Force Base and its progeny, I find that the proposal in this case is nonnegotiable. There is no expression of Congressional intent that the automotive mechanics' wages be negotiable. The automotive mechanics are subject to the wage system set forth in 5 U.S.C. § 5343, and are not covered by either section 9(b) of the Act or section 704 of the Civil Service Reform Act, the "grandfather clauses" established by Congress to allow collective bargaining over wages by some employees whose wages would otherwise be set by the prevailing rate system prescribed by the Act. In my view, the fact that the automotive mechanics are covered by section 5343 rather than the "grandfather clauses" demonstrates that Congress did not intend for them to negotiate over their wages.

Having reached this conclusion, I find it unnecessary to address the parties' other contentions.

Issued, Washington, D.C.,

_______________________________
Jerry L. Calhoun, Chairman
FEDERAL LABOR RELATIONS AUTHORITY


SEPARATE OPINION OF MEMBER MCKEE

I concur with Chairman Calhoun that the proposal in this case is nonnegotiable. However, I reach this result through different reasoning.

I previously have found that insofar as matters relating to the compensation of employees are not specifically provided for by Federal statute but, instead, are within the discretion of an agency, they are conditions of employment and are, therefore, negotiable unless they conflict with law or regulation. See, for example, American Federation of Government Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA 377 (1986).

In National Maritime Union of America, AFL-CIO and Department of the Navy, Military Sealift Command, 25 FLRA 105 (1987) (Military Sealift Command), rev'd sub nom. Department of the Navy, Military Sealift Command v. FLRA, 836 F.2d 1409 (3d Cir. 1988), I applied this principle to proposals relating to the pay of civilian mariners. The pay system for civilian mariners is established by 5 U.S.C. § 5348(a) which provides that their pay "shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with the prevailing rates and practices in the maritime industry." I found that 5 U.S.C. § 5348(a) vested the agency with discretion in setting wages for crews of vessels and that since the agency had not demonstrated that such discretion was intended to be sole and exclusive, the exercise of that discretion was subject to bargaining.

The United States Court of Appeals for the Third Circuit, however, determined "that § 5348(a) specifically gives the Navy discretion over the pay practices at issue and that bargaining over them is inconsistent with law and therefore beyond the FLRA's power to order." 836 F.2d at 1410. The