34:0361(68)CA - - Energy, Washington, DC and Western Area Power Administration, Golden, CO and IBEW, Government Coordinating Council #l, Locals 640, 1245, 1759, 1959 and 2159 - - 1990 FLRAdec CA - - v34 p361



[ v34 p361 ]
34:0361(68)CA
The decision of the Authority follows:


34 FLRA NO. 68


U.S. DEPARTMENT OF ENERGY
WASHINGTON, D.C.
(Respondent)

and

WESTERN AREA POWER ADMINISTRATION
GOLDEN, COLORADO
(Respondent)

and

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
GOVERNMENT COORDINATING COUNCIL #1
LOCALS 640, 1245, 1759, 1959 AND 2159
(Charging Party)

7-CA-80390

DECISION AND ORDER

January 18, 1990


Before Chairman McKee and Members Talkin and Armendariz.

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 General Counsel filed a brief. The Respondents have not filed a statement of position. 1

The issues in this case are whether: (1) Respondent Western Area Power Administration (WAPA) violated section 7116(a)(1) and (5) of the Federal Service Labor - Management Relations Statute (the Statute) by improperly imposing a 2 percent pay cap on the wage increase of Supervisory Craftsmen instead of paying those employees the 6.1 percent wage increase which was paid to all bargaining unit employees under the parties' collective bargaining agreement; and (2) Respondent DOE violated section 7116(a)(1) and (5) of the Statute by interfering with the bargaining relationship of the parties at the level of exclusive recognition when it "directed that WAPA not pay certain unit employees the negotiated wage increase(.)" Complaint at 3.
For the reasons set forth below, we find that Respondent WAPA did not violate the Statute by failing to pay Supervisory Craftsmen a 6.1 percent wage increase which the parties' collective bargaining agreement required to be paid to unit employees. We also find that Respondent DOE did not interfere with the bargaining relationship at the level of exclusive recognition. The complaint as to Respondent WAPA and Respondent
DOE will, therefore, be dismissed.

II. Background

This case is part of the continuing dispute between the International Brotherhood of Electrical Workers, Government Coordinating Council #1, Locals 640, 1245, 1759, 1959, and 2159 (the Union) and WAPA over the unit status of prevailing rate employees in Supervisory Craftsman positions. The history of the dispute is set forth in the Authority's decisions in Department of Energy, Western Area Power Administration, 3 FLRA 77 (1980) (WAPA 1); Department of Energy, Western Area Power Administration, Golden, Colorado, Case No. 7-CU-24 (Feb. 17, 1981) (WAPA 2); U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 22 FLRA 758 (1986) (WAPA 3), rev'd sub nom. WAPA v. FLRA; and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 27 FLRA 268 (1987) (WAPA 4), reversed sub nom. U.S. Department of Energy, Western Area Power Administration, Golden, Colorado v. FLRA, No. 87-2062 (10th Cir. Nov. 15, 1989).


Pursuant to section 9(b) of the Prevailing Rate Systems Act of 1972, Pub. L. 92-392, codified at 5 U.S.C. 5343 (Amendments, note) (1982 ed.) and section 704 of the Civil Service Reform Act of 1978, Pub. L. 95-454, 92 Stat. 1111, 1218, codified at 5 U.S.C. 5343 (Amendments) (1982 ed.), WAPA negotiates the wage rates of its prevailing rate employees in units of exclusive recognition represented by the Union. WAPA consistently has maintained that prevailing rate employees in Supervisory Craftsman positions--positions previously denominated Foreman II and III--are "supervisors" within the meaning of section 7103(a)(10) of the Statute and are excluded from the units of exclusive recognition with which it has an obligation to bargain. WAPA, therefore, has refused to bargain with the Union over wage rates for Supervisory Craftsman employees.

The Authority determined, however, in WAPA 1 and WAPA 3, that employees in Supervisory Craftsman positions are included in units of exclusive recognition. Consequently, the Authority found, in WAPA 3 and WAPA 4, that WAPA's refusal to bargain over wage rates for Supervisory Craftsman positions constituted an unfair labor practice under section 7116(a)(1) and (5) of the Statute.

The parties stipulated that the Union is the exclusive representative of all wage board--that is, prevailing rate--employees of WAPA, including employees classified as Foreman, I, Foreman II, and Foreman III. Stipulation at 2. As noted above, positions in the latter two classifications have been reclassified as Supervisory Craftsman positions.


The Union and WAPA executed a collective bargaining agreement on February 5, 1988. That agreement was approved by DOE pursuant to section 7114(c) of the Statute on February 21, 1988. Stipulation at 2, 3, and 4; Stipulation, Exhibit 2. The collective bargaining agreement contained a 6.1 percent wage increase for unit employees. Stipulation at 3. This wage increase "was paid to all employees in the bargaining unit, except for . . . Supervisory Craftsmen . . ., retroactively to January 3, 1988." Stipulation at 4. Wage adjustments for Supervisory Craftsman positions were limited to 2 percent. Id. 


Prior to the execution and approval of the parties' collective bargaining agreement, DOE notified WAPA by a memorandum dated January 28, 1988, of the requirements as to wage increases for prevailing rate employees set forth in a draft of Federal Personnel Manual (FPM) Bulletin 532-76. Stipulation at 4; Stipulation, Exhibit 4. According to the FPM Bulletin, under section 101(m) of Pub. L. 100-202, wage rates for prevailing rate employees covered by 5 U.S.C. 5342(a)(2) and 5348 would be limited to a 2 percent increase. Stipulation, Exhibit 3. Employees whose wages are negotiated pursuant to section 9(b) of Pub. L. 92-392 would not be subject to the limitation. Id. The DOE memorandum stated that the 2 percent pay cap applied to supervisors whose wages are set administratively, but that supervisors whose wages are negotiated were exempt from the limitation. Stipulation, Exhibit 4. In early March 1988, after execution and approval of the collective bargaining agreement, WAPA notified employees in Supervisory Craftsman positions that they were subject to the 2 percent pay cap. Stipulation at 4; Stipulation, Exhibit 5. WAPA's notice to Supervisory Craftsmen was based on the DOE memorandum and its own independent
determination as to their status. Id.

In a letter to the Office of Personnel Management (OPM) dated April 8, 1988, DOE requested an exception to the pay increase limitation for supervisory prevailing rate employees, including employees in Supervisory Craftsman positions at WAPA. Stipulation at 4; Stipulation, Exhibit 6. By letter dated July 26, 1988, OPM granted the DOE request. Stipulation at 4; Stipulation, Exhibit 7. Beginning July 31, 1988, pursuant to the exception granted by OPM, WAPA began to pay employees in Supervisory Craftsman positions a 6.1 percent wage increase. Stipulation at 5. Consequently, from January 3, 1988 to July 31, 1988, Supervisory Craftsmen were paid the 2 percent pay cap, rather than the 6.1 percent negotiated wage increase retroactive to January 3, 1988. Id, WAPA's decision to pay Supervisory Craftsmen at the 2 percent instead of the 6.1 percent rate was based on its position that Supervisory Craftsmen were not members of the bargaining unit and, therefore, were subject to the pay increase limitations of Pub. L. 100-202, FPM Bulletin 532-76, and the DOE memorandum. Id.

III. The Position of the General Counsel

The General Counsel contends that Respondent DOE and Respondent WAPA "must be held jointly and severably liable for violation of the Statute(.)" General Counsel's Brief at 5. The General Counsel argues that Respondent DOE violated section 7116(a)(1) and (5) of the Statute by "improperly" interfering with "the Union - WAPA bargaining relationship." Id. at 9. The General Counsel claims "that Respondent DOE's conduct in 'advising' Respondent WAPA that it would be improper to pay Supervisory Craftsmen more than a 2% wage increase was more than an informational announcement - it was a policy decision from the Agency level." Id.
The General Counsel also contends that even if Respondent DOE is found not to have violated the Statute, Respondent WAPA must be found to have violated section 7116(a)(1) and (5) of the Statute. The General Counsel argues that because the Union has the right to bargain over the pay and pay practices of employees in Supervisory Craftsman positions, the unilateral imposition of the 2 percent pay cap, without notice and an opportunity to bargain, constituted a failure to bargain in good faith. General Counsel's Brief at 7. The General Counsel maintains that this unilateral change, based on WAPA's "independent" determination that Supervisory Craftsmen were not members of the unit, constituted "a repudiation of one of the (wage) provisions" of the parties' collective bargaining agreement. Id.


The General Counsel notes that WAPA received the DOE memorandum concerning the pay cap before it executed the collective bargaining agreement with the Union and that WAPA at no time informed the Union about the pay cap prior to notifying employees in Supervisory Craftsman positions that their wage increase would be limited to 2 percent. Id. at 7-8. The General Counsel contends that WAPA agreed to the wage provisions of the collective bargaining agreement with no intent to comply with those provisions insofar as they applied to Supervisory Craftsmen. Id. at 8. The General Counsel concludes that WAPA's conduct "is the epitome of bad faith(.)" Id.

The General Counsel requests as an appropriate remedy that Respondent WAPA be ordered to: (1) cease desist from failing to honor wage provisions of negotiated agreements and from unilaterally establishing wage rates for unit employees represented by the Union; (2) recognize the International Brotherhood of Electrical Workers, AFL - CIO, Government Coordinating Council #1, Locals 640, 1245, 1759, 1959 and 2159 as the exclusive representative of all employees in the unit, including Supervisory Craftsmen; and (3) provide Supervisory Craftsmen with backpay and all other pay-based benefits for the period January 3, 1988, through July 31, 1988, including interest as provided in section 623 of Pub. L. 100-202 (Dec. 22, 1987).

IV. Discussion

A. Whether WAPA Violated Section 7116(a)(1) and (5) of the
Statute

During the pendency of this case before the Authority, the United States Court of Appeals for the Tenth Circuit issued its decision in WAPA v. FLRA, reversing the Authority's decision in WAPA 3. The Court concluded that, by including employees in Supervisory Craftsman positions in bargaining units represented by the Union, the Authority "improperly certified a mixed unit of supervisory and non-supervisory employees(.)" WAPA v. FLRA, 880 F. 2d at 1172.

The parties in this case are the same as the parties in the case before the Tenth Circuit in WAPA 3. The resolution of this case depends on the determination of the unit status of employees in Supervisory Craftsman positions, which is the same issue that was before the Court in WAPA 3. Consistent with the Court's decision in WAPA v. FLRA, we conclude that the unit of prevailing rate employees represented by the Union in this case does not include employees in Supervisory Craftsman positions.


Consequently, we find that Respondent WAPA had no duty under the Statute to bargain with the Union over the conditions of employment of employees in those positions and no obligation to pay Supervisory Craftsmen the 6.1 percent wage increase, retroactive to January 3, 1988, which was paid to unit employees under the parties' collective bargaining agreement. Accordingly, we conclude that Respondent WAPA, by failing to pay Supervisory Craftsmen the 6.1 percent wage increase due unit employees under the collective bargaining agreement, did not repudiate that agreement in violation of section 7116(a) (1) and (5) of the Statute. We will, therefore, dismiss the complaint as to Respondent WAPA.

B. Whether DOE Violated Section 7116(a)(1) and (5) of the
Statute

When management at a higher level in an agency directs or requires management at a subordinate level of exclusive recognition to act in a manner that is inconsistent with the subordinate level's bargaining obligations under the Statute, the higher-level management entity violates section 7116(a)(1) and (5) of the Statute. See United States Department of Agriculture, Washington, D.C. and United States Department of Agriculture, Farmers Home Administration, Little Rock, Arkansas, 24 FLRA 682, 686-87 (1986); Headquarters, Department of the Army, Washington, D.C. and U.S. Army Training Center Engineer and Fort Leonard Wood, Fort Leonard Wood, Missouri, 22 FLRA 647 (1986).


We have found, however, that Respondent WAPA did not have an obligation to bargain to with the Union over the conditions of employment of employees in Supervisory Craftsman positions. Consequently, there was no bargaining relationship as to Supervisory Craftsmen at WAPA with which Respondent DOE's issuance of the January 28, 1988 memorandum could have interfered. Accordingly, we conclude that Respon