36:0003(1)CA - - DOI, Bureau of Reclamation, Washington, DC and DOI, Bureau of Reclamation, Lower Colorado Regional Office, Boulder City, NV and AFGE Local 1978 - - 1990 FLRAdec CA - - v36 p3


[ v36 p3 ]
36:0003(1)CA
The decision of the Authority follows:


36 FLRA No. 1

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

(33 FLRA 671)

DECISION AND ORDER ON RECONSIDERATION

June 4, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a motion filed by the Department of the Interior, Bureau of Reclamation (Respondent Bureau) seeking reconsideration of the Authority's decision in Department of the Interior, Bureau of Reclamation, Washington, D.C., 33 FLRA 671 (1988). No opposition to the motion was filed.

Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish extraordinary circumstances to request reconsideration of a decision. For the following reasons, we grant the motion.

II. Background

In its decision, the Authority concluded that Respondent Bureau violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by directing its Lower Colorado Regional Office (Respondent Regional Office) to terminate the practice of providing bargaining unit employees with 25 percent Sunday premium pay. The employees negotiate their wages and premium pay provisions in accordance 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. º 5343 (Amendments) (1988 ed.) and section 9(b) of the Prevailing Rate Systems Act, Pub. L. No. 92-392, codified at 5 U.S.C. º 5343 (Amendments, note) (1988 ed.).

The Authority also dismissed an allegation of the complaint that Respondent Regional Office violated section 7116(a)(1) and (5) by refusing to bargain over the termination of Sunday premium pay and thereafter terminating such pay. The Authority found that Respondent Regional Office terminated the practice at the direction of Respondent Bureau and, further, that Respondent Regional Office demonstrated a desire to fulfill its bargaining obligation by agreeing to bargain over the impact and implementation of the termination. However, a review of the record was devoid of any evidence that the Charging Party ever submitted impact or implementation proposals for bargaining. Instead, the Charging Party sought to continue the practice of Sunday premium pay.

To remedy the unfair labor practice found, the Authority ordered Respondent Bureau to direct Respondent Regional Office to reinstitute the practice of Sunday premium pay. Respondent Bureau also was ordered to make whole bargaining unit employees for any loss of pay or benefits they suffered as a result of the improper termination of Sunday premium pay.

In reaching its conclusions, the Authority noted that the arguments raised by the Respondents were the same as those considered 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, Rio Grande Project), 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 a proposal concerning 25 percent Sunday premium pay was found to be negotiable. Relying, in part, on Bureau of Reclamation, Rio Grande Project, the Authority found that Sunday premium pay was within the duty to bargain. In response to an argument that Sunday premium pay had not been negotiated by the parties and, therefore, could not be bargained about under section 704, the Authority found that bargaining under section 704 is not limited only to those matters that were specifically negotiated in collective bargaining agreements prior to August 19, 1972. Rather, the Authority found that where there is evidence that a matter proposed to be bargained involves a subject that was previously negotiated, the matter is within the duty to bargain. The Authority found sufficient evidence in this case that the parties had negotiated over pay matters prior to August 19, 1972, so as to render the subject of Sunday premium pay within the duty to bargain.

The Authority also rejected the Respondents' claim that there was no obligation to continue Sunday premium pay because it was not a prevailing practice in the local area. The Authority held that Sunday premium pay was negotiable regardless of whether it was a prevailing practice in the local area. The Authority noted that the principles of pay equity established by Congress require that employees, who negotiate their rates of pay and pay practices pursuant to sections 9(b) and 704, be able to negotiate over Sunday premium pay for the purpose of maintaining equity with prevailing rate employees in the local area who are entitled to such pay by law. Moreover, the Authority noted that sections 9(b) and 704 were not intended to deprive employees of existing benefits.

Finally, the Authority dismissed an argument, not raised in Bureau of Reclamation, Rio Grande Project, that section 15 of the Boulder Canyon Project Adjustment Act, 43 U.S.C. º 618n, requires that unit employees' pay be determined on the basis of local prevailing rates and practices, and provides a mechanism for resolving disputes as to what prevailing rates are. The Authority found that section 15 of the Boulder Canyon Project Adjustment Act merely requires that unit employees not be paid less than the prevailing rate of wages or compensation and does not render the matter of Sunday premium pay outside the duty to bargain.

III. Motion for Reconsideration

The Respondent Bureau raises four arguments in support of its motion for reconsideration.

First, Respondent Bureau argues that the Authority erroneously applied the principles of pay equity, contained in 5 U.S.C. º 5341, to bargaining unit employees who are not covered by that section. Second, Respondent Bureau argues that as Sunday premium pay is not a prevailing practice, sections 704 and 9(b) do not authorize negotiations over Sunday premium pay. Third, Respondent Bureau argues that the Authority disregarded the parties' stipulation that Sunday premium pay is not a prevailing practice in the local area. Again, Respondent Bureau claims that the Authority failed to apply correctly the provisions of section 704.

Fourth, and finally, Respondent Bureau argues that the Authority failed to consider properly the application of the Comptroller General's decision in Grand Coulee Project Office, 60 Comp. Gen. 668 (1981) and, thus, incorrectly imposed a status quo ante remedy. According to Respondent Bureau, the Comptroller General found that a particular pay practice was not a prevailing practice and could no longer be paid to the bargaining unit employees involved. The Respondent Bureau claims that the facts of that case are similar to the facts of this case and, therefore, the Respondents were entitled to discontinue the practice of paying Sunday premium pay in this case.

Subsequent to the filing of the motion for reconsideration, Respondent Bureau filed a "Request for Leave to File Other Documents in Connection with Motion for Reconsideration" pursuant to section 2429.26 of our Rules and Regulations. The documents pertain to litigation involving other Authority decisions which concern the negotiability of different matters under sections 9(b) and 704. As there is no opposition to this request, the request is hereby granted.

IV. Analysis and Conclusions

Extraordinary circumstances have been established under section 2429.17 of our Rules and Regulations warranting reconsideration of the Authority's decision. More specifically, and based on a recent decision involving litigation of a matter under sections 704 and 9(b), we now conclude that no unfair labor practice was committed in this case.

In 33 FLRA 671, the Authority concluded, among other matters, that the matter of Sunday premium pay was negotiable and could not be unilaterally terminated regardless of whether it was a prevailing practice under section 704. On reconsideration, we find that based on the parties' stipulation that Sunday premium pay was not among the current practices in the industry, it was not subject to negotiation for purposes of section 704(b). Accordingly, Respondent Bureau's conduct in directing Respondent Regional Office to terminate the practice of providing such payments to bargaining unit employees did not violate the Statute.

Recently, the United States Court of Appeals for the District of Columbia Circuit issued its decision in United States Information Agency v. FLRA, 895 F.2d 1449 (D.C. Cir. 1990) (USIA). Among other things, the court held that under section 704(b), "if a pay practice is not among the current practices in the industry, the parties may not negotiate over that subject." Id. at 1455. The court further held that the Authority must determine whether a proposal relating to pay or pay practices is negotiable "if the parties cannot agree as to whether" a proposal is "'in accordance with prevailing rates and pay practices[.]'" Id.

On reexamination, we agree with the court's interpretation that section 704(b) precludes negotiations over matters relating to pay and pay practices if those matters are not among current industry practices. Accordingly, we adopt that interpretation and will no longer follow previous Authority decisions to the extent they are inconsistent.

In this case, the parties stipulated that Sunday premium pay was not a currently prevailing practice in the segment of the industry that the parties had agreed to use as a basis for determining prevailing pay rates and prevailing pay practices. More specifically, the parties stipulated the following:

In accordance with the Memorandum of Understanding dated December 11, 1979, since December 11, 1979, and prior thereto since at least 1972, Respondent Lower Colorado Regional Office and the Union have used the Los Angeles Department of Water and Power (LADWP) as a basis for determining prevailing pay rates and prevailing pay practices. From 1975 to 1979 Southern California Edison (SCE) was also used by the parties in combination with LADWP as the basis for determining prevailing pay and pay practices. Neither SCE nor LADWP has paid since 1971, or currently pays, Sunday premium pay for regularly-scheduled non-overtime Sunday work.

Stipulation of Facts at 4.

The parties' stipulation, containing their agreement as to prevailing industry practice, establishes that Sunday premium pay is not "among the current practices in the industry[ ]" for purposes of section 704(b). USIA, 895 F.2d at 1455. Consistent with the stipulation and the court's decision, therefore, we now conclude that Respondent Regional Office was not obligated to continue making payments of Sunday premium pay and Respondent Bureau did not violate section 7116(a)(1) and (5) of the Statute by directing the termination of such payments.

A change in a condition of employment may give rise to an obligation to bargain over the "impact and implementation" of the change, even if there is no obligation to bargain over the decision to effect the change. See, for example, United States Department of Justice, United States Immigration and Naturalization Service, El Paso District Office, 34 FLRA 1035, 1037 (1990). Consequently, even though we find here that there was no obligation to bargain over the decision to terminate Sunday premium pay, we need to address whether there was any remaining obligation to bargain over the