33:0671(82)CA - - DOI, Bureau of Reclamation, Washington, DC and Lower Colorado Regional Office, Boulder City, NV and AFGE Local 1978 - - 1988 FLRAdec CA - - v33 p671



[ v33 p671 ]
33:0671(82)CA
The decision of the Authority follows:


33 FLRA No. 82

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

WASHINGTON, D.C.

(Respondent)

and

DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

LOWER COLORADO REGIONAL OFFICE

BOULDER CITY, NEVADA

(Respondent)

and

AMERICAN FEDERATION OF GOVERNMENT

EMPLOYEES, LOCAL 1978, AFL-CIO

(Charging Party)

9-CA-70317

DECISION AND ORDER

October 31, 1988

Before Chairman Calhoun and Member McKee.

I. Statement of the Case

This unfair labor practice case is before the Authority under section 2429.1 of the Authority's Rules and Regulations, based on a stipulation of facts by the parties.

The issues are: (1) whether Respondent Lower Colorado Regional Office (Regional Office) violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to bargain with the Charging Party concerning its intention to discontinue payment of 25 percent Sunday premium pay for bargaining unit employees, and by thereafter terminating such payment; and (2) whether Respondent Bureau of Reclamation (Bureau) violated section 7116(a)(1) and (5) of the Statute by interfering with the bargaining relationship between the parties at the level of exclusive recognition when it directed the Regional Office to terminate the payment of Sunday premium pay and also by refusing to bargain with the Charging Party.

For the reasons set forth below, we find that the Bureau violated the Statute by interfering with the parties' bargaining relationship. The other allegations of the complaint will be dismissed.

II. Background

The Charging Party holds exclusive recognition for the following unit: "All wage board employees up to and including Foreman 1 of the Boulder Canyon Project, Bureau of Reclamation, Region 3, Boulder City[,] Nevada." Stipulation of Facts at 2. Since July 7, 1972, the Charging Party has negotiated wages for bargaining unit employees. Prior to and since August 19, 1972, bargaining unit employees have received 25 percent premium pay for regularly scheduled non-overtime Sunday work.

The parties also stipulated that since at least 1972, the Regional Office and the Charging Party have used the Los Angeles Department of Water and Power as a basis for determining prevailing pay rates and pay practices. Stipulation of Facts at 4. Additionally, from 1975 to 1979, the parties also used Southern California Edison for the same purpose. Id. Since 1971, neither of those entities has paid Sunday premium pay for regularly scheduled non-overtime Sunday work. Id.

On April 2, 1987, the Regional Office notified the Charging Party that Sunday premium pay would be discontinued on June 7, 1987. The Charging Party responded on April 23 and requested that the Regional Office bargain regarding the impact of the proposed change. The Regional Office responded that there was no legal basis on which to continue such payment but agreed to delay the implementation date to June 21, 1987. During a meeting between the Charging Party and the Regional Office on June 10, the Charging Party took the position that the matter of Sunday premium pay was negotiable as to substance and proposed that Sunday premium pay be continued until negotiations over the substance of the change, as well as impact bargaining, had been completed. On July 9, the Regional Office reiterated its position that it had no authority to pay the discontinued Sunday premium pay. The Agency stated that it remained ready to discuss impact and implementation proposals if the Charging Party submitted specific proposals. The Charging Party responded on July 14 reiterating its position that Sunday premium pay should be continued. On July 19, the Regional Office terminated the payment of 25 percent Sunday premium pay. The parties stipulated that the action of the Regional Office in refusing to bargain with the Charging Party and terminating Sunday premium pay was based on directions received from the Bureau. Stipulation of Facts at 4.

III. Positions of the Parties

A. General Counsel

The General Counsel argued that the Regional Office violated section 7116(a)(1) and (5) of the Statute by terminating Sunday premium pay. The General Counsel claimed that Sunday premium pay had been negotiated since before August 19, 1972, and that it had matured into an established condition of employment which could not be changed until the Regional Office's bargaining obligation had been met.

The General Counsel also argued that payment of Sunday premium pay is fully negotiable and that the Regional Office's arguments for refusing to negotiate are the same as those presented and rejected by the Authority in 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) (Bureau of Reclamation), motion for reconsideration denied, 28 FLRA 587 (1987), petition for review filed sub nom. Department of the Interior, Bureau of Reclamation, Rio Grande Project v. FLRA, No. 87-2483 (10th Cir. Oct. 8, 1987) (in which the Authority found negotiable a proposal concerning 25 percent Sunday premium pay).

The General Counsel also argued that the Bureau violated section 7116(a)(1) and (5) by interfering with the Regional Office's bargaining obligation and by refusing to bargain on a negotiable matter prior to its implementation. In support of this argument, the General Counsel relied on the Respondent's "Answer to the Amended Complaint" which indicated that the Bureau authorized the Regional Office's refusal to bargain and termination of Sunday premium pay. However, the General Counsel also claimed that the Regional Office never advised the Charging Party that it was acting at the direction of the Bureau. Instead, the Regional Office indicated to the Charging Party that its decision to terminate Sunday premium pay was based on its interpretation of law. Therefore, even apart from the Bureau's conduct, the Regional Office must be found to have violated the Statute since there was no evidence in the record to demonstrate that the Regional Office was prevented from fulfilling its bargaining obligation to the extent of its discretion.

To remedy the unfair labor practice conduct, the General Counsel requested a status quo ante order and backpay, with interest, for affected bargaining unit employees.

B. Respondents

The Respondents' position was that Sunday premium pay was terminated because there was no legal authority to make such payment. The Respondents argued that by law, negotiated pay practices must be in accordance with prevailing pay rates and pay practices in the private sector. Since Sunday premium pay was not a prevailing pay practice, such payment could not continue. The Respondents also argued that the Charging Party did not submit any specific proposals to the Regional Office on the impact and implementation of the termination and that the Regional Office discontinued payment based on directions received from the Bureau.

More specifically, the Respondents indicated that Sunday premium pay for non-overtime work was not the subject of negotiations in any collective bargaining agreement between the parties and that no evidence was offered to show that Sunday premium pay had been negotiated prior to or since 1972. Brief at 6. The Respondents argued that since Sunday premium pay was not negotiated previously, it is not negotiable under 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.)) and section 9(b) of the Prevailing Rate Systems Act (Pub. L. No. 92-392, codified at 5 U.S.C. § 5343 (Amendments, note) (1982 ed.)).(*) Brief at 11-12.

The Respondents indicated that two criteria contained in section 704 must be met in order for a pay practice to be negotiable: (1) the specific pay practice must have been the subject of negotiation prior to August 19, 1972; and (2) the specific pay practice must be prevailing in the local private sector area of an agency's operations. According to the Respondents, the specific pay practice of 25 percent Sunday premium pay was not the subject of negotiations prior to August 19, 1972 and is not a prevailing pay practice in the local area. The Respondents admitted that Sunday premium pay had been received by employees although, as stated above, the Respondents maintained that Sunday premium pay had not been the subject of negotiations prior to August 19, 1972. Brief at 11-12. The Respondents indicated that Sunday premium pay was paid based on an incorrect assumption that the employees were statutorily entitled to such payment. Id. at 11.

The Respondents also argued that the Authority's decision in Bureau of Reclamation is distinguishable in that the subject of premium pay previously was negotiated by the parties in that case. Here, the Respondents argued that the subject of premium pay was not specifically negotiated prior to August 19, 1972 and is not negotiable. Furthermore, the Respondents asserted that the specific subject matter at issue is not premium pay--a broad pay category covering different rates of compensation and involving different pay practices. Brief at 12-13. Rather, the subject matter concerns "a definite rate of extra compensation only for non-overtime work on Sunday known as Sunday premium pay." (emphasis in original). Id. at 12.

The Respondents also argued that "premium pay" is a generic term and is not a specific pay practice. Brief at 13. Therefore, the Respondents argued that premium pay does not constitute a pay practice under section 704 which was negotiated by the parties prior to August 19, 1972. Brief at 15.

The Respondents further argued that only specific pay rates and pay practices can be surveyed to determine what the prevailing rates and practices are. Therefore, the Respondents continued, since premium pay concerns more than a specific pay practice, it would be impossible to survey "premium pay" and the parties could not possibly have negotiated prior to August 19, 1972 on the subject of "premium pay." Brief at 16. The Respondents also argued that Sunday premium pay is not an improvement or modification of premium pay under section 9(b) which would render the matter subject to negotiations. Brief at 17.

Next, the Respondents argued that section 704 requires that pay and pay practices be negotiated in accordance with prevailing practices in the local area. The Respondents maintained that since Sunday premium pay was not a prevailing practice in the local area, negotiations are not authorized under section 704. Brief at 19. Additionally, the Respondents argued that section 704 does not authorize bargaining unit employees here to maintain equality with other Federal prevailing rate employees whose pay is fixed administratively. Brief at 34.

Finally, the Respondents indicated that section 15 of the Boulder Canyon Project Adjustment Act, 43 U.S.C. § 618n (the Act), governs the pay of bargaining unit employees. That section provides:

All laborers and mechanics employed in the construction of any part of the project, or in the operation, maintenance, or replacement of any part of the Hoover Dam, shall be paid not less than the prevailing rate of wages or compensation for work of a similar nature prevailing in the locality of the project. In the event any dispute arises as to what are the prevailing rates, the determination thereof shall be made by the Secretary of the Interior, and his decision, subject to the concurrence of the Secretary of Labor, shall be final.

The Respondents argued that the language of the Act provides that employees are to be paid on the basis of compensation for work of a similar nature prevailing in the locality of the project. Brief at 36. Further, the Act provides a mechanism for establishing prevailing rates, in the event of a dispute, by the Secretary of the Interior with the concurrence of the Secretary of Labor. Id. Therefore, the Respondents argued that the pay of employees of the Boulder Canyon Project must be determined on the basis of prevailing rates and practices in the locality of the project.

IV. Analysis and Conclusions

In order to determine whether the Respondents engaged in an unfair labor practice, we must first decide whether the matter of Sunday premium pay was within the duty to bargain. For the reasons set forth below, we find that it was.

A. Sunday Premium Pay Was Within the Duty to Bargain

In Bureau of Reclamation, we considered and rejected the same arguments now raised by the Respondents in finding negotiable a proposal which would continue the long-standing practice of providing 25 percent Sunday premium pay to bargaining unit employees. We stated that bargaining under section 704 is not limited only to particular provisions which were specifically negotiated by parties in their collective bargaining agreements prior to August 19, 1972. Rather, where a disputed proposal involves a subject matter that had been negotiated by the parties previously, the matter is within the duty to bargain.

We also found that the matter of Sunday premium pay was negotiable whether or not it was a prevailing practice in the local area. We found that the principles of pay equity established by Congress require that employees who negotiate their pay rates and pay practices under sections 9(b) and 704 be permitted to negotiate over Sunday premium pay in order to maintain equity with prevailing rate employees in the local area who are entitled to that pay by law.

We also found that the broad purpose of sections 9(b) and 704 was to preserve the right of employees covered by those sections to negotiate over the continuation of benefits they had historically received and were not intended to deprive employees of existing benefits.

The Respondents claimed that the decision in Bureau of Reclamation is distinguishable from this case because in Bureau of Reclamation, the subject of premium pay had been negotiated previously by the parties, whereas in this case, the subject of premium pay had not been specifically negotiated prior to August 19, 1972. The Respondents noted, moreover, that premium pay refers to different rates of compensation and pay practices and is not itself a specific pay practice.

We agree with the Respondents that premium pay can refer to a variety of pay rates and pay practices. However, we find that the Respondents' distinction between Bureau of Reclamation and this case is misplaced. In Bureau of Reclamation, the agency acknowledged that there existed a history of negotiations on premium pay provisions. Although the Respondents have not so acknowledged here, there is evidence that the parties negotiated over pay matters prior to August 19, 1972. The parties' 1971 collective bargaining agreement, which was made a part of the record in this case as General Counsel Exhibit 2, provides in Article IV, Section 3 that "[r]ates of pay and working conditions already in effect ... are hereby adopted and will remain in effect until modified or amended." Thus, the parties incorporated existing pay matters into their agreement prior to August 19, 1972. Additionally, the parties stipulated that bargaining unit employees have received Sunday premium pay since prior to August 19, 1972. We find sufficient evidence that there existed a history of bargaining over pay matters prior to August 19, 1972 so as to render the subject of Sunday premium pay within the obligation to bargain.

We note that absent sections 9(b) and 704 the parties could not have negotiated Sunday premium pay. See American Federation of Government Employees, AFL-CIO and Department of Defense, Department of the Army and Air Force, Headquarters, Army and Air Force Exchange Service, Dallas, Texas, 32 FLRA 591 (1988). Here, however, the parties negotiated pay matters in the past. Thus, under sections 9(b) and 704 the parties could negotiate Sunday premium pay even if they had not negotiated that specific matter in the past. See United States Information Agency, Voice of America and National Federation of Federal Employees, Local 1418, 33 FLRA No. 74 (1988).

We also reject the Respondents' argument that there was no obligation to bargain since Sunday premium pay was not a prevailing practice in the local area, for the reasons set out in Bureau of Reclamation. See also National Federation of Federal Employees, Local 341 and U.S. Department of the Interior, Bureau of Indian Affairs, Yakima Agency and the Wapato Irrigation Project, 30 FLRA 783 (1987), petition for review filed sub nom. U.S. Department of Interior, Bureau of Indian Affairs, Yakima Agency and the WAPATO Irrigation Project v. FLRA, No. 88-7077 (9th Cir. Feb. 26, 1988) (in which we held that we need not determine the precise nature of prevailing practices in order to make negotiability determinations under the Statute).

The Respondents additionally argued in this case that section 15 of the Boulder Canyon Project Act, which governs the pay of bargaining unit employees, requires that their pay be determined on the basis of prevailing rates and practices in the locality of the project and provides a mechanism for resolving disputes as to what the prevailing rates are. We find that the provision in question does not render the matter of Sunday premium pay outside the duty to bargain. Section 15 of the Boulder Canyon Project Act by its terms is concerned with bargaining unit employees not being paid less than the prevailing rate of wages or compensation. There is no such dispute here. Instead, the dispute involves the continuation of the practice of Sunday premium pay. In addition, the portion of the Act which concerns disputes over prevailing rates does not render the matter of Sunday premium pay nonnegotiable. As previously stated, sections 9(b) and 704 guarantee the continuance of negotiated labor-management contract provisions regardless of restrictions in the compensation laws otherwise applicable to prevailing rate employees. Accord 59 Comp. Gen. 527 (1980).

Based on the foregoing analysis, we conclude that the matter of Sunday premium pay is within the duty to bargain. We next address the respective bargaining obligations of the Respondents.

B. The Respondents' Bargaining Obligations

The complaint alleged that the Regional Office violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over the termination of Sunday premium pay and by terminating such pay. The complaint also alleged that the Bureau violated section 7116(a)(1) and (5) of the Statute by interfering with the bargaining relationship between the parties at the level of exclusive recognition when it directed the Regional Office to terminate the payment of Sunday premium pay and also by refusing to bargain with the Charging Party.

Having found that the matter of Sunday premium pay was within the duty to bargain, we find that there was an obligation to bargain over the decision to terminate the practice. Since the Regional Office is the level of exclusive recognition, it was obligated to bargain with the Charging Party. However, the parties stipulated that the decision to terminate Sunday premium pay was based on directions received from the Bureau. Accordingly, we find that the conduct of the Bureau in directing the Regional Office to terminate such payment interfered with the bargaining relationship of the parties at the level of exclusive recognition in violation of section 7116(a)(1) and (5) of the Statute. See Department of the Interior, Water and Power Resources Service, Grand Coulee Project, Grand Coulee, Washington, 9 FLRA 385 (1982). Since the Bureau itself has no bargaining obligation with the Charging Party, we find no additional violation of section 7116(a)(1) and (5), as alleged.

As to the conduct of the Regional Office, we disagree with the General Counsel that the Regional Office also violated the Statute since there was no evidence presented to demonstrate that the Regional Office was prevented from fulfilling its bargaining obligation to the extent of its discretion. As noted, the Bureau directed the Regional Office to terminate the payment of Sunday premium pay. Therefore, the Regional Office had no choice but to terminate the practice and could not have negotiated with the Charging Party concerning the decision to terminate. Additionally, the Regional Office demonstrated a desire to fulfill the bargaining obligation it thought remained by agreeing to bargain over the impact and implementation of the change and by agreeing to delay implementation of the change until the Charging Party submitted proposals. Under these circumstances, we cannot conclude that the conduct of the Regional Office was violative of the Statute, as alleged.

V. Remedy

We agree with the General Counsel that a status quo ante order is appropriate. We have held that where an agency has violated the Statute by refusing to negotiate over its decision to change working conditions, the Statute requires the imposition of status quo ante remedies, absent special circumstances, in order not to render meaningless the mutual obligation under the Statute to negotiate concerning changes in conditions of employment. See Veterans Administration, West Los Angeles Medical Center, Los Angeles, California, 23 FLRA 278 (1986). Accordingly, we will order that the Bureau direct the Regional Office to reinstitute the practice of Sunday premium pay.

Additionally, we find that an award of backpay, with interest, under the Back Pay Act, 5 U.S.C. § 5596, is appropriate. The Authority has uniformly held that in order for an award of backpay to be authorized under the Back Pay Act, there must be not only a determination that the employees were affected by an unwarranted personnel action, but also a determination that such unwarranted action directly resulted in the withdrawal or reduction in the pay, allowances, or differentials that the employees otherwise would have earned or received. See, for example, American Federation of Government Employees, Local 51 and U.S. Department of the Mint, Old Mint Building, Customer Service Division, 15 FLRA 865 (1984). Under Authority precedent, a refusal to bargain violation under section 7116(a)(5) of the Statute constitutes an unjustified or unwarranted personnel action. Veterans Administration, Washington, D.C. and Veterans Administration Medical and Regional Office Center, Fargo, North Dakota, 22 FLRA 612 (1986).

We find here that the Bureau's unlawful conduct in preventing the Regional Office from fulfilling its bargaining obligation constituted an unwarranted or unjustified personnel action. We also find, in agreement with the General Counsel, that the pay of bargaining unit employees was reduced when the practice of Sunday premium pay was terminated and that such reduction would not have occurred but for the unjustified personnel action.

The inclusion of interest on the backpay award is consistent with a December 22, 1987 amendment to 5 U.S.C. § 5596(b). The text of that amendment can be found in the Continuing Appropriations Act of 1988, Pub. L. No. 100-202, 1988 U.S. Code Cong. & Admin. News (101 Stat.) 1329-1, 1329-428--1329-429. See also Defense Logistics Agency and American Federation of Government Employees, Local No. 2501, 31 FLRA 754 (1988).

ORDER

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Department of the Interior, Bureau of Reclamation, Washington, D.C., shall:

1. Cease and desist from:

(a) Directing the Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Boulder City, Nevada to discontinue payment of 25 percent Sunday premium pay and thereby interfering with the bargaining relationship between the Lower Colorado Regional Office and the American Federation of Government Employees, Local 1978, AFL-CIO.

(b) In any like or related manner interfering with, restraining or coercing employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Direct the Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Boulder City, Nevada to reinstitute the practice of 25 percent Sunday premium pay for bargaining unit employees represented by the American Federation of Government Employees, Local 1978, AFL-CIO.

(b) In accordance with the Back Pay Act, 5 U.S.C. §5596, as amended, make whole bargaining unit employees for any loss of pay or benefits they suffered as a result of the improper termination of 25 percent Sunday premium pay.

(c) Post at the Lower Colorado Regional Office, Boulder City, Nevada, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the head of the Bureau of Reclamation, Washington, D.C., and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Region IX, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

The other allegations of the complaint which were found not to have violated the Statute are dismissed.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT direct the Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Boulder City, Nevada to discontinue payment of 25 percent Sunday premium pay and thereby interfere with the bargaining relationship between the Regional Office and the American Federation of Government Employees, Local 1978, AFL-CIO.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL direct the Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Boulder City, Nevada to reinstitute the practice of 25 percent Sunday premium pay for bargaining unit employees represented by the American Federation of Government Employees, Local 1978, AFL-CIO.

WE WILL in accordance with the Back Pay Act, 5 U.S.C. § 5596, as amended, make whole bargaining unit employees for any loss of pay or benefits they suffered as a result of the improper termination of 25 percent Sunday premium pay.

__________________________
Agency)

Dated:___________ By:__________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Region IX, Federal Labor Relations Authority, whose address is: 901 Market Street, Suite 220, San Francisco, CA 94103 and whose telephone number is: (415) 995-5000.

APPENDIX

*/ Section 704 of the CSRA provides that:

(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 {Oct. 13, 1978} 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 that 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. No. 92-392 provides that:

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 [Aug. 19, 1972] 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 p