37:0670(51)NG - - IBEW Local 611 and DOI, Bureau of Reclamation, Rio Grande Project - - 1990 FLRAdec NG - - v37 p670



[ v37 p670 ]
37:0670(51)NG
The decision of the Authority follows:


37 FLRA No. 51

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

LOCAL 611

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

RIO GRANDE PROJECT

(Agency)

0-NG-1161

(26 FLRA 906)

(28 FLRA 587)

DECISION AND ORDER ON REMAND

September 27, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on remand from the United States Court of Appeals for the Tenth Circuit. United States Department of the Interior, Bureau of Reclamation, Rio Grande Project v. FLRA, 908 F.2d 570 (10th Cir. 1990) (Bureau of Reclamation, Rio Grande Project v. FLRA). The court reviewed the Authority's Decision and Order requiring the Agency to bargain under section 704 of the Civil Service Reform Act of 1978 (CSRA), codified at 5 U.S.C. § 5343 (Amendments) (1988 ed.), over a proposal providing for the continuation of Sunday premium pay for certain prevailing rate employees at the Agency. 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) (Rio Grande Project I). The court also reviewed the Authority's Order denying the Agency's motion for reconsideration of that decision. International Brotherhood of Electrical Workers, Local Union No. 611, AFL-CIO and U.S. Department of the Interior Bureau of Reclamation, Rio Grande Project, 28 FLRA 587 (1987) (Rio Grande Project II). The court found that the Authority misinterpreted section 704 of the CSRA and section 9(b) of the Prevailing Rate Systems Act (PRSA), codified at 5 U.S.C. § 5343 (Amendments) (1988 ed.), in reaching its conclusion and reversed the Authority's decision. The court remanded the case to the Authority to determine whether prevailing rate employees have any statutory entitlement to Sunday premium pay.

For the reason discussed below, we conclude that the prevailing rate employees involved in this case do not have a statutory entitlement to Sunday premium pay. Therefore, the petition for review will be dismissed.

II. Background

A. Proposal

Any employee whose regular work schedule includes an eight (8) hour period of service, a part or all of which is on Sunday, is entitled to additional pay at the rate of twenty-five percent (25%) of his/her hourly rate of basic pay for each hour of work performed during that eight (8) hour period of service.

B. Facts

The proposal would apply to nonsupervisory, hourly-paid operations and maintenance bargaining unit employees at the Elephant Butte Dam and Powerplant in New Mexico. Those employees negotiate their wages and premium pay provisions in accordance with section 704 of the CSRA and section 9(b) of the PRSA.

The Agency has negotiated concerning the wages and pay practices of the operations and maintenance employees since 1960. In 1984, the Agency determined that its long-standing practice of providing Sunday premium pay was illegal because Sunday premium pay was not in accordance with local prevailing practices. The Agency proposed to terminate the practice. The Union opposed the proposed change. The parties sought the assistance of the Federal Service Impasses Panel. However, the Panel declined jurisdiction until threshold matters concerning the negotiability of the proposal had been resolved. The Union then filed a negotiability appeal with the Authority.

C. Authority's Decisions

The Authority found that under section 704, the Agency must bargain over terms and conditions of employment, including pay and pay practices, of prevailing rate employees where those terms and conditions of employment were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972. The Authority also found that the bargaining provided for under section 704 was not limited only to the particular terms of provisions which were specifically negotiated by the parties in their collective bargaining agreements prior to August 19, 1972. The Authority stated "[i]f a disputed proposal involves subject matters which had previously been negotiated by the parties, those subjects are within the Agency's duty to bargain under section 704." Rio Grande Project I, 26 FLRA at 909.

The Authority determined that the matter of Sunday premium pay for bargaining unit employees was "encompassed within the premium pay practices negotiated by the parties prior to August 19, 1972." Id. at 910. Consequently, the Authority concluded that the Union's proposal concerned a term and condition of employment which was the subject of negotiation prior to August 19, 1972. Id.

The Agency argued that even if the matter of premium pay was previously covered in the parties' agreement, the Agency did not have an obligation to negotiate over Sunday premium pay because it is not a prevailing practice in the local area. The Authority rejected the Agency's argument. The Authority found that "consistent with the purpose of section 9(b) and section 704 to preserve negotiations over existing benefits, employees in this case, who had historically received Sunday premium pay, may negotiate for continued payment of the premium pay regardless of whether it is a prevailing practice in the local area." Id. at 912. The Authority concluded that the "negotiation of Sunday premium pay is consistent with the purpose of pay equity established by the Prevailing Rate Systems Act and the Congressional intent to preserve for negotiations those benefits which employees covered by sections 9(b) and 704 had historically received." Id. The Authority ordered the Agency to bargain over the proposal.

The Agency sought reconsideration of the Authority's bargaining order in Rio Grande Project I. The Agency contended that the Authority: "(1) misapplied section 5341(1) of the [PRSA], 5 U.S.C. § 5341(1), to prevailing rate employees whose wages and wage practices are negotiated pursuant to section 9(b) of the [PRSA] and section 704 of CSRA; and (2) misinterpreted section 704 of the CSRA to preserve negotiations for employees who had historically received Sunday premium pay." Rio Grande Project II, 28 FLRA at 588. However, the Authority found that the Agency did not establish that reconsideration was warranted because of "extraordinary circumstances" within the meaning of section 2429.17 of the Authority's Rules and Regulations. Therefore, the Authority denied the Agency's request for reconsideration.

D. Court's Decision

The U.S. Court of Appeals for the Tenth Circuit disagreed with the Authority's "reading of the legislative history" of section 9(b) of the PRSA and section 704 of the CSRA. Bureau of Reclamation, Rio Grande Project v. FLRA, 908 F.2d at 574. The court stated that "the legislative history makes it clear that Section 704 was intended to 'grandfather' collective bargaining agreements between prevailing rate employees and federal employers that were in effect at the time the Civil Service Reform Act was enacted." Id. The court also stated that "the legislative history demonstrates that Congress enacted Section 9(b) and 704 in order to preserve the status quo, not to expand the scope of the bargaining obligations between federal employers and prevailing rate employees." Id.

The court found, therefore, that the Agency's obligation to bargain under section 704 extended only to those matters that had been specifically negotiated by the parties prior to August 19, 1972. The court also found that demonstration by the Union that the parties had negotiated concerning other kinds of premium pay did not satisfy "the requirement of Section 704(a) of negotiations prior to August 19, 1972." Id. at 576. The court held that in order for the proposal concerning Sunday premium pay to be negotiable, the Union must show that the parties specifically negotiated over Sunday premium pay prior to August 19, 1972. The court noted that the parties admitted that "Sunday premium pay was not specifically negotiated prior to August 19, 1972, because the parties apparently felt that the employees had a statutory right to receive Sunday premium pay" and the Agency paid the employees Sunday premium pay. Id. (emphasis in original). Therefore, the court reversed the Authority's ruling that the subject matter of Sunday premium pay was negotiated by the parties prior to August 19, 1972.

The court also held that under section 704(b), "if the subject matter of negotiations pertains to 'pay and pay practices,' the negotiations 'shall be negotiated in accordance with prevailing rates and pay practices.'" Id. (emphasis in original, citation omitted). The court stated that "the parties do not dispute that payment of Sunday premium pay is not a prevailing pay practice in the relevant area in light of a 1984 survey of pay practices conducted by [the Agency]." Id. The court also stated that "there is no doubt that the matter of Sunday premium pay is a 'pay and pay practice' and that Sunday premium pay is not the local prevailing practice." Id. at 577.

The court reversed the Authority's decision "because it was 'not in accordance with law,' in ordering [the Agency] to negotiate the issue of Sunday premium pay." Id. (Citation omitted.) The court remanded the case to the Authority for further proceedings consistent with its decision "[b]ecause there still may be unresolved issues, particularly pertaining to whether these prevailing rate employees have any statutory entitlement to Sunday premium pay." Id. at 577-78.

III. Analysis and Conclusions

We accept the court's decision as the law of the case. Therefore, we adopt the court's findings that: (1) because Sunday premium pay was not specifically negotiated by the parties prior to August 19, 1972, the Agency is not obligated to bargain over the Union's proposal concerning Sunday premium pay; and (2) Sunday premium pay was not the local prevailing pay practice in the parties' wage survey area in 1984. See U.S. Department of the Interior, Colorado River Storage Project and International Brotherhood of Electrical Workers, Local 2159, 36 FLRA 283 (1990) (where the parties stipulated that Sunday premium pay was not a "current prevailing practice," arbitrator's award reinstating Sunday premium pay was inconsistent with section 704, as interpreted in United States Information Agency v. FLRA, 895 F.2d 1449 (D.C. Cir. 1990) (USIA v. FLRA) and, therefore, was set aside); Department of the Interior, Bureau of Reclamation, Washington, D.C., 36 FLRA 3 (1990), petition for review filed sub nom. American Federation of Government Employees, Local 1978, AFL-CIO v. FLRA, No. 90-70388 (9th Cir. July 30, 1990) (on reconsideration, the Authority adopted the court's interpretation of section 704 in USIA v. FLRA and based on the parties' stipulation that Sunday premium pay was not "among the current practices in the industry," held that the agency had no obligation to continue the payment of Sunday premium pay and, therefore, did not violate the Statute by directing the termination of such payments).

We also conclude that these prevailing rate employees have no statutory entitlement to Sunday premium pay. Under subchapter V of chapter 55 of title 5 of the United States Code, codified at 5 U.S.C. § 5544(a), prevailing rate employees are entitled to premium pay at the rate of 25 percent of their hourly rate of basic pay for each hour of work performed during an 8-hour period of service a part of which is on Sunday. However, section 704(b) of the CSRA provides that prevailing rate employees who negotiate their pay practices in accordance with section 9(b) of the PRSA are excluded from the coverage of subchapter V of chapter 55 of title 5.

In Medler v. United States, Bureau of Reclamation, Department of the Interior, 616 F.2d 450 (9th Cir. 1980) (Medler), the court considered claims for longevity and shift differential pay by Bureau of Reclamation prevailing rate employees subject to collective bargaining agreements. Longevity and shift differential pay was provided other prevailing rate employees under the PRSA (codified at subchapter IV of title 5 of the United States Code). The Bureau of Reclamation employees claimed that they also were entitled to longevity and shift differential pay under the PRSA.

The court stated that "by use of very specific, unambiguous language in § 9(b) of the [PRSA], Congress clearly intended to exclude prevailing rate employees whose wages are determined through collective bargaining from coverage under the [PRSA]." 616 F.2d at 452. The court held that "a fair and reasonable interpretation of § 9(b)(1) excludes prevailing rate employees subject to collective bargaining agreements from receiving statutory entitlements to longevity and differential pay[.]" Id. at 453.

Similarly, we find that in carrying forward the collective bargaining practices for employees covered by § 9(b) of the PRSA by its specific, unambiguous wording in section 704(b), Congress intended to exclude from the coverage of subchapter IV of chapter 53 and subchapter V of chapter 55 of title 5 of the United States Code prevailing rate employees whose wages are determined through collective bargaining. Thus, these employees are specifically excluded from the coverage of the provisions of title 5 which provide Sunday premium pay for prevailing rate employees. However, where the prerequisites for the negotiation of pay practices under section 704(b) are met, prevailing rate employees covered by section 704 may negotiate to provide for Sunday premium pay. See Medler, 616 F.2d at 454.

Based on the cou