34:0368(69)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 p368



[ v34 p368 ]
34:0368(69)CA
The decision of the Authority follows:


34 FLRA NO. 69

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-90123

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(a) of the Authority's Rules and Regulations based on a stipulation of facts by the parties. The General Counsel filed a brief. The Respondents did not file a statement
of position.

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 failing and refusing to pay employees in Supervisory Craftsman positions the supplementary wage increase which was paid to all bargaining unit employees pursuant to the parties' Supplementary Labor Agreement #3; and (2) Respondent U.S. Department of Energy, Washington, D.C. (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 refused to allow employees in Supervisory Craftsman positions to be paid the negotiated wage adjustment.

For the reasons set forth below, we find that Respondent WAPA did not violate the Statute by refusing to pay Supervisory Craftsmen the supplementary wage increase which was paid to all bargaining unit employees under the parties' Supplementary Labor Agreement #3. We also find that Respondent DOE did not violate the Statute by interfering with the bargaining relationship at the level of exclusive recognition. The complaints as to Respondent WAPA and Respondent DOE, therefore, will be
dismissed.

II. Background

This case is another 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. United States Department of Energy, Western Area Power Administration, Golden, Colorado v. FLRA, 880 F.2d 1163 (10th Cir. 1989) (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).

As outlined in the decisions cited above, 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 were 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.

III. Facts

The parties stipulated that in August 1988 they conducted a Joint Wage Survey pursuant to Article 17 of their collective bargaining agreement. Based on that survey, the parties negotiated a new wage schedule for unit employees, which was published as Supplementary Labor Agreement #3--1988 Wage Schedule. Stipulation at 2-3; Exhibit 3 to Stipulation.

By a memorandum dated September 19, 1988, Respondent DOE notified Respondent WAPA that Section 613 of the Treasury, Postal Service, and Other Governmental Agencies Appropriation Bill of 1989 provided a pay cap for prevailing rate employees and a 90-day delay in the implementation of that pay cap. Respondent DOE also stated that, based on advice received from the Office of Personnel Management (OPM), the pay cap would not apply to prevailing rate employees, including prevailing rate supervisors, covered by section 9(b) of the Prevailing Rate Systems Act of 1972 and section 704 of the Civil Service Reform Act of 1978. Stipulation at 3; Exhibit 4 to Stipulation.

Beginning on October 9, 1988, the supplemental wage increase required by Supplementary Labor Agreement #3 was paid to employees in the bargaining unit. Based upon the advice of Respondent DOE in the memorandum of September 19, 1988, Respondent WAPA did not pay, and has not paid, the supplemental wage increase to employees in Supervisory Craftsman positions.
Stipulation at 3.

IV. The Position of the General Counsel

The General Counsel notes, citing the Authority's decisions in WAPA 1 through WAPA 4, that the Authority consistently has held that employees in Supervisory Craftsman positions are included in the bargaining unit. The General Counsel also notes that Respondent WAPA consistently has refused to negotiate over wage rates for Supervisory Craftsmen or, based on advice received from Respondent DOE, to pay Supervisory Craftsmen wage rates required for unit employees by the parties' collective bargaining agreements. General Counsel's Brief at 2-4.

The General Counsel argues that Respondent DOE violated the Statute by "advising" Respondent WAPA that it would be improper to pay the negotiated supplemental wage increase to Supervisory Craftsmen. Id. at 4. The General Counsel concludes that by so advising Respondent WAPA, Respondent DOE "improperly insinuated itself" into the collective bargaining relationship at the level of exclusive representation. Id. at 8.

The General Counsel contends that Respondent WAPA violated the Statute by refusing to pay the negotiated supplemental wage increase to employees in Supervisory Craftsman positions. The General Counsel argues that Respondent WAPA's refusal to comply with the supplemental wage agreement as to Supervisory Craftsmen constitutes "a repudiation of the economic provisions of that
agreement(.)" Id. at 6.

V. 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 negotiated