37:0849(71)CA - - Information Agency, Voice of America and NFFE Local 1418 - - 1990 FLRAdec CA - - v37 p849

[ v37 p849 ]
37:0849(71)CA
The decision of the Authority follows:


37 FLRA No. 71

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

UNITED STATES INFORMATION AGENCY

VOICE OF AMERICA

(Respondent)

and

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1418

(Charging Party)

3-CA-70062

(33 FLRA 549)

DECISION AND ORDER ON REMAND

October 4, 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 District of Columbia Circuit. United States Information Agency, Voice of America v. FLRA, 895 F.2d 1449 (D.C. Cir. 1990) (USIA, VOA). The court reviewed the Authority's Decision and Order requiring the Voice of America (Agency) to bargain under section 704 of the Civil Service Reform Act of 1978 (CSRA), codified at 5 U.S.C. § 5343 (Amendments), over the substance of its decision to reduce preparation and cleanup times for radio broadcast technicians. United States Information Agency, Voice of America and National Federation of Federal Employees, Local 1418, 33 FLRA 549 (1988) (USIA, VOA and NFFE, Local 1418). The court found that the scope of bargaining concerning "pay and pay practices" under section 704(b) of the CSRA is narrower than the scope of bargaining concerning "terms and conditions of employment" under section 704(a). The court remanded the case to the Authority to determine whether preparation and cleanup time falls within the scope of section 704(a) or section 704(b).

For the reasons discussed below, we conclude that the Agency was obligated under section 704(a) of the CSRA to bargain over its decision to reduce preparation and cleanup times for radio technicians and that the Agency violated section 7116(a)(1) and (5) of the Statute by failing and refusing to negotiate over that decision.

II. History of Case

A. Facts

This case concerns radio broadcast technicians involved in the operation of the United States Information Agency, Voice of America worldwide broadcasting network. The technicians are "prevailing rate" employees who are covered by section 9(b) of the Prevailing Rate Systems Act (PRSA or the Act), Pub. L. No. 92-392, codified at 5 U.S.C. § 5343 (Amendments). See International Communication Agency, 5 FLRA 97, 99 (1981). See also USIA, VOA and NFFE, Local 1418, 33 FLRA at 550.

Section 704 of the CSRA requires an agency to negotiate on those terms and conditions of employment and other employment benefits, with respect to prevailing rate employees to whom section 9(b) of Pub. L. No. 92-392 applies, which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, in accordance with the provisions of section 9(b), without regard to the provisions of the Federal Service Labor-Management Relations Statute (the Statute). See id. See also Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA 998 (1986). Section 704 and section 9(b) are set forth in full in the appendix to this decision.

Radio technicians are responsible for the operation and maintenance of the Agency's broadcast studios and recording facilities. Their duties include monitoring equipment, recording and "feeding" broadcast programs, and repairing electronic equipment. The Agency's radio broadcasting facility operates 24 hours each day, 7 days a week. The radio technicians' workday is divided into 15-minute periods. The technicians receive sequential recording/broadcast assignments consisting of two to six continuous 15-minute segments which are established by the Agency consistent with its precise programming schedule. Each assignment begins and ends on the quarter hour. See Agency's Supplemental Brief at 8-9.

From about 1965 until October 1986, based on the Agency's practice and collective bargaining agreements between the parties, radio technicians were allowed a 15-minute period at the beginning of their shifts, which was designated as preparation or setup time, and 15 minutes of unscheduled time at the end of their shifts, which was known as cleanup or breakdown time. During this 20-year period the Agency adhered to the practice except in emergencies. In 1986, the Agency reduced the preparation and cleanup times for radio broadcast technicians from 15 minutes to 10 minutes and 5 minutes, respectively. The Union filed an unfair labor practice charge alleging that the Agency violated section 7116(a)(1) and (5) of the Statute by failing and refusing to negotiate in good faith over the substance of its decision to reduce the preparation and cleanup times for radio broadcast technicians.

B. Administrative Law Judge's Decision

The Judge found that prior to August 19, 1972, the parties had negotiated on and agreed to provisions concerning preparation and cleanup times for the radio technicians in the studio and recording areas. He concluded, therefore, that pursuant to section 704 of the CSRA, the subject continued to be a bargainable matter. He also found that the management rights provisions of section 7106 of the Statute did not relieve management of its obligation to negotiate over the substance of the change from 15 minutes of preparation time and 15 minutes of cleanup time to 10 minutes and 5 minutes, respectively.

Consequently, having found that the Agency had a duty to bargain under section 704 of the CSRA, the Judge concluded that the Agency violated section 7116(a)(1) and (5) of the Statute by failing and refusing to bargain with the Union over the decision to change preparation and cleanup times for radio technicians in the studio and recording areas. See USIA, VOA and NFFE, Local 1418, 33 FLRA at 550-54.

The Judge's recommended order required the Agency to rescind the change and reestablish the 15-minute preparation and cleanup times. The order also required the Agency to notify the Union of any anticipated change in preparation and cleanup times and to bargain upon request on any decision to effectuate that change.

C. Authority's Decision

The Agency excepted to the Judge's finding that preparation and cleanup time was a matter which was the subject of negotiation between the parties prior to August 19, 1972. The Agency also excepted to the Judge's finding that section 704 requires the Agency to continue to negotiate over preparation and cleanup times for radio technicians. Finally, the Agency excepted to the Judge's inclusion of a status quo ante remedy in his recommended order.

The Authority found, in agreement with the Judge, that the record as a whole demonstrated that the matter of preparation and cleanup times for radio technicians was a matter which was the subject of negotiation between the parties prior to August 19, 1972. Consequently, the Authority held that the Agency was obligated to bargain over the substance of its decision to change preparation and cleanup times for radio technicians under section 704.

The Authority rejected the Agency's contention that it was not obligated to negotiate over the continuation of preparation and cleanup times because those practices are not current prevailing practices in the broadcast industry. USIA, VOA and NFFE, Local 1418, 33 FLRA at 558-59. The Authority also rejected the Agency's contention that the Union waived its right to bargain over the subject matter when the parties failed to include a specific provision on the subject in subsequent agreements. Id. at 559-60. Finally, the Authority rejected the Agency's challenges to the Judge's status quo ante remedy because the Agency's claims did not establish special circumstances warranting denial of the status quo ante remedy. Id. at 561-63.

The Authority concluded that the Agency's failure to negotiate over the substance of its decision to change preparation and cleanup times violated sections 7116(a)(1) and (5) of the Statute. The Authority also concluded that the remedy recommended by the Judge was warranted under the circumstances.

D. Court's Decision

The Agency filed a petition for review of the Authority's decision in the Court of Appeals for the District of Columbia Circuit. The Agency contended that under section 704, an agency is required to bargain over a term and condition of employment that was negotiated prior to August 19, 1972, only when a union's request for bargaining is consistent with current prevailing practices in the industry. The Agency argued that it need not bargain over the Union's proposal because preparation and cleanup time is not consistent with the prevailing practices in the radio broadcast industry.

In USIA, VOA, the court rejected the Agency's contention that under section 704 an agency is required to bargain over a term and condition of employment only when a union's request for bargaining is consistent with current prevailing practices in the industry. The court stated that the Agency's contention "finds absolutely no support in the statute." USIA, VOA, 895 F.2d at 1453. The court found that "[u]nder subsection 704(a), current prevailing practices are of no significance; rather the critical inquiry is whether the proposed subject for negotiation is a matter that was negotiated by the parties prior to August 19, 1972[.]" Id. The court stated that:

The phrase 'in accordance with prevailing rates and practices' in subsection 704(a) merely defines which terms and conditions are subject to bargaining. Those terms and conditions of employment that were the subject of negotiations in accordance with prevailing rates and practices prior to August 19, 1972, shall now be negotiated in accordance with the provisions of section 9(b) of the [Act].

Id. (emphasis in original).

However, the court found that "[w]hen the subject for negotiation is 'pay and pay practices,' rather than 'terms and conditions of employment,' negotiability may depend on current prevailing practices in the industry." Id. at 1454 (emphasis in original). The court stated that "[i]n subsection 704(b), 'in accordance with prevailing rates and practices' defines the permissible range of outcomes of negotiations--not which subjects may be negotiated." Id. The court further stated:

Thus, in circumstances in which a party seeks to negotiate over a pay practice that is not a current practice in the industry, the "in accordance with prevailing rates and practices" clause of section 704(b) functions as a negotiability provision. But if the pay practice has some place in current industry practice, then the parties must negotiate over the subject and subsection 704(b) functions as a restriction on the permissible outcome of negotiations.

Id. at 1455 (emphasis in original).

The court disagreed with the Authority's interpretation of section 704 because the Authority did not distinguish between bargaining over subject matters governed by subsection 704(a)--terms and conditions of employment--and bargaining over subject matters governed by subsection 704(b)--pay and pay practices.

Because the court found that the scope of bargaining concerning "pay and pay practices" under section 704(b) is narrower than the scope of bargaining concerning "terms and conditions of employment" under section 704(a), it remanded the case to the Authority to determine whether preparation and cleanup time is a matter relating to "terms and conditions of employment" under section 704(a) or "pay and pay practices" under section 704(b). The court stated that if the Authority finds that preparation and cleanup time is within the scope of section 704(a), the proposal in dispute is negotiable and the current prevailing practices in the industry would be irrelevant. The court also stated that if the Authority determines that the proposal is within the scope of section 704(b) as a pay practice, then the Authority must make further findings to determine whether the pay practice proposed by the Union is in accordance with prevailing pay practices. USIA, VOA, 895 F.2d at 1455.

E. Authority's Order

On March 13, 1990, the Authority issued an order directing the parties to file supplemental briefs in USIA, VOA and NFFE, Local 1418. The parties were directed to address the following issues:

1. Whether preparation and cleanup time is a term and condition of employment or other employment benefit for radio broadcast technicians at the Voice of America within the meaning of section 704(a) of the CSRA or a matter relating to the pay and pay practices of those employees within the meaning of section 704(b)?

2. Is preparation and cleanup time a current practice in the industry? If it is, what is the "prevailing practice?"

The Agency, the General Counsel, and the Union filed supplemental briefs.

III. Positions of the Parties

A. Agency

The Agency states that "the term 'pay and pay practices' used in section 704(b) can be interpreted broadly as 'indistinguishable' from the phrase 'terms and conditions of employment related to pay.'" Agency's Supplemental Brief at 13 (citation omitted). The Agency contends that preparation and cleanup time constitutes a "pay practice" within the meaning of section 704(b) because the scheduling of paid preparation and cleanup time periods for radio technicians is a matter relating to the pay of those technicians.

The Agency asserts that the 15 minutes provided radio technicians at the beginning and end of their shifts is "non-productive paid time" and that "some or all of the activities performed during such periods are 'personal' in nature rather than related to regular duties." Id. at 14. The Agency argues that the "allotment of non-productive paid time at the beginning and end of employee shifts plainly is a term of employment related to pay." Id. According to the Agency, the scheduling of "non-productive paid time . . . presents the issue of whether the activities . . . should be performed on the employee's own time or on the agency's time, and thus whether the performance of those activities should be compensated." Id. The Agency cites Federal wage and hour laws, decisions of the Federal courts, and Authority cases as support for its contention that preparation and cleanup time is a pay practice.

The Agency also argues that preparation and cleanup time for radio technicians is a matter related to pay and, therefore, a pay practice because preparation and cleanup time periods directly affect overtime pay. The Agency states that the allowance of a 15-minute period at the beginning and end of each 8-hour shift amounts to a reduction in the workday for each radio technician and in the amount of work performed during regular duty hours. The Agency asserts that the reduction in the workday and the amount of work performed by technicians "plainly is 'related to' the [Agency's] overtime pay scheme as well as each radio technician's entitlement to overtime pay." Id. at 21. The Agency argues that preparation and cleanup time is a pay practice even though it also affects the Agency's right to assign work. According to the Agency, "[n]othing in section 704 suggests that a proposal that interferes with management's right to assign work cannot be a term of employment related to pay." Id. at 23.

The Agency contends that there is no industry practice of providing preparation and cleanup periods in the relevant radio broadcast industry. The Agency maintains that "the General Counsel has the burden of proving all aspects of negotiability, including that an asserted 'pay practice,' once established as such, is consistent with prevailing practice." Id. at 26. The Agency asserts that the record is devoid of evidence of the prevailing practice relative to preparation and cleanup time in the radio broadcast industry and, therefore, the General Counsel cannot meet her burden of proof. The Agency states that although the Agency does not have the burden of proof, it "has determined by means of a survey that there is no prevailing practice of providing paid preparation and clean-up [time]." Id. The Agency argues that because its survey establishes that the pay practice of preparation and cleanup time is not among the currently prevailing practices in the industry, the parties may not negotiate over the subject.

Finally, the Agency contends that even if preparation and cleanup time is a "term and condition of employment" within the meaning of section 704(a), the Union's proposal to continue the current 15-minute periods would not be negotiable. The Agency asserts that section 704(a) does not authorize negotiations on provisions which are contrary to the statutory requirement for a 40-hour workweek established in 5 U.S.C. § 6101. The Agency states that proposals that seek to include time for personal activities within the regularly scheduled workday violate 5 U.S.C. § 6101 and, therefore, are nonnegotiable. The Agency also states that "it is indisputable that a substantial part of the [Agency's] technicians' 15-minute preparation and 15-minute clean-up time is used for personal activities not related to their work." Agency's Supplemental Brief at 33. The Agency contends that it did not commit an unfair labor practice by reducing the preparation and cleanup time periods to eliminate the time used for personal activities and to "conform the preparation and clean-up time with the actual work performed by the technicians, as required by 5 U.S.C. § 6101[.]" Id. at 33-34.

In a submission to the Authority dated July 25, 1990, the Agency cites our decision in National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, National Guard Bureau, Department of Military Affairs, Illinois Air National Guard, 35 FLRA 740 (1990) (Illinois Air National Guard). The Agency asserts that the Authority's ruling in Illinois Air National Guard, that the union's proposal for paid cleanup time was an infringement on management's right to assign work and was inconsistent with 5 U.S.C. § 6101, has "direct bearing" on this case.

B. General Counsel

The General Counsel contends that "the record conclusively shows that preparation and cleanup time is a term and condition of employment within the meaning of section 704(a)." General Counsel's Supplemental Brief (GC's Supplemental Brief) at 4. The General Counsel states that this "is not a dispute over compensation. Rather, as the [Agency] has correctly and consistently argued, the substance of the . . . changes concerns assignment of work issues." Id. at 2-3. The General Counsel argues that the reduction in preparation and cleanup time had no impact on the radio technicians' pay because that time is part of the technicians' 8-hour shift. The General Counsel also argues that the change in preparation and cleanup times does not concern the pay or pay practices of radio technicians because the change "had no effect at all on the technicians' grades and classifications which are the determining factors for pay under the parties' collective bargaining agreement." Id. at 3 (footnote omitted).

As to whether preparation and cleanup time is a current practice in the radio broadcast industry, the General Counsel states that the question is relevant "only to the extent that preparation and cleanup time is a section 704(b) pay and pay practice." Id. at 4. The General Counsel argues that the current prevailing practice in the industry is irrelevant in this case "[s]ince [the Agency's] proposal to reduce the preparation and cleanup times by ten and five minutes, respectively, has nothing to do with the technicians' pay[.]" Id. at 4-5.

C. Union

The Union states that the term "pay" in section 704(b) should be defined as "the money one receives from an employer for performing a job." Union's Supplemental Brief at 2. The Union defines the term "pay practices" in section 704(b) as "the means for determining the level or rate of pay an employee will receive, as well as the circumstances under which employees will have earned such pay." Id. at 2-3. The Union "urge[s] the Authority to rule that 'pay and pay practices' refers to matters having an immediate effect on the money an employee receives for performing the assigned job." Id. at 3-4.

The Union contends that preparation and cleanup time "is a term and condition of employment, as opposed to a matter concerning pay and pay practices of bargaining unit employees." Id. at 2. The Union asserts that, during the preparation and cleanup periods, radio technicians perform duties which have been assigned by the Agency, and, therefore, preparation and cleanup time is related to the terms and conditions of employment of the radio technicians. The Union argues that the Agency's contention that any matter having an effect on the Agency's costs constitutes a "pay practice" is without merit and should be rejected.

The Union states that it has reviewed collective bargaining agreements for the major broadcast networks and preparation and cleanup time is not provided in those agreements. However, the Union contends that the absence of provisions concerning preparation and cleanup time in those agreements is irrelevant to the duty to bargain over preparation and cleanup time because terms and conditions of employment, which are subject to bargaining under section 704(a), are negotiable regardless of current industry practices if the matter was the subject of negotiation prior to August 19, 1972. The Union argues that the subject of preparation and cleanup time is negotiable because it concerns a term and condition of employment and the Authority has determined that preparation and cleanup time was negotiated by the parties as early as 1966.

IV. Analysis and Conclusions

A. "Pay and Pay Practices" Defined

To determine whether preparation and cleanup time concerns the "pay and pay practices" of radio technicians or is a term and condition of employment, we must first determine the meaning of the terms "pay" and "pay practices" in section 704. Those terms are not defined in section 704 of the CSRA. Therefore, we must interpret the terms in light of the legislative history and congressional intent.

1. "Pay"

In 5 U.S.C. § 7511(a)(4), the term "pay" is defined as the "rate of basic pay fixed by law or administrative action for the position held by an employee." That definition applies to adverse actions under 5 U.S.C. § 7512, specifically, "reduction in pay." Section 7511 of title 5 of the United States Code, like section 704, was enacted as part of the CSRA. Therefore, the definition of "pay" in 5 U.S.C. § 7511 provides evidence of the meaning of the term in section 704. "[S]tautory definitions of words used elsewhere in the same statute furnish such authoritative evidence of legislative intent and meaning that they are usually given controlling effect." Sierra Club v. Clark, 755 F.2d 608, 613 (8th Cir. 1985), citing Walling v. Portland Terminal Co., 330 U.S. 148 (1947). "'Such internal legislative construction is of the highest value and prevails over . . . other extrinsic aids.'" Sierra Club v. Clark, 755 F.2d at 613, quoting 1A C. Sands, Statutes and Statutory Construction § 27.02, at 310 (4th ed. 1972).

The definition of "pay" in section 7511 indicates that Congress intended that term to refer to the rate of basic pay fixed for a position held by an employee of the Federal Government. With some modification, we will adopt the title 5 definition of "pay" and apply that definition for the purposes of section 704 of the CSRA. We modify the definition by excluding the phrase "fixed by law or administrative action" because the pay for prevailing rate employees covered by section 704 is not fixed by law or administrative action. Rather, pay for those employees is determined by agreement between agencies and the exclusive representatives of prevailing rate employees. Thus, for the purposes of section 704, we believe that the term "pay" means the rate of basic pay for a position held by an employee covered by the provisions of section 704 of the CSRA. In our view, the definition of "pay" set forth in this decision is consistent with the wording of section 704, its legislative history, and the "internal legislative construction" of that term in the Civil Service Reform Act, as codified in title 5 of the United States Code.

2. "Pay Practice"

The term "pay practice" is not defined in section 704 or other sections of the CSRA. However, the wording of section 704 and section 9(b), the legislative history of those provisions, and relevant case law indicate that "pay practices" in section 704 refers to matters historically considered part of and bargained within the context of wages and compensation policies for employees. See United States Department of Energy v. FLRA, 880 F.2d 1163, 1170-71 (10th Cir. 1989).

The Prevailing Rate Systems Act establishes a mechanism by which the rates of pay of prevailing rate employees can be "fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates[.]" 5 U.S.C. § 5341. "Its declared purpose was to establish rates of pay in accordance with the public interest, to provide 'equal pay for equal work' for agency employees, to maintain rates of pay in line with similar jobs in the private sector, and to attract and retain qualified employees." Department of the Navy, Military Sealift Command v. FLRA, 836 F.2d 1409, 1412 (3d Cir. 1988) (citation omitted) (Military Sealift Command v. FLRA). See also Medler v. United States, Bureau of Reclamation, Department of the Interior, 616 F.2d 450, 453 (9th Cir. 1980). Thus, the goal of the prevailing rate legislation is to equalize and adjust the compensation of prevailing rate employees so that the compensation package offered by the Federal Government would be competitive with that offered by private sector employers in the industry.

When Congress enacted the PRSA, it included a savings clause, section 9(b) of the Act, that specifically excluded certain employees from the wage-setting procedures of the Act and allowed them to continue to determine their wages and terms and conditions of employment through the collective bargaining process. The CSRA incorporated a similar savings clause for prevailing rate employees. Section 704 provided that the employees exempted from the PRSA under section 9(b) would continue to determine their "terms and conditions of employment and other employment benefits" and "pay and pay practices" in accordance with the provisions of section 9(b). It is logical, therefore, to conclude that by providing in section 704(b) that the "pay and pay practices" of certain prevailing rate employees shall continue to be negotiated in accordance with prevailing rates and pay practices, Congress intended to continue the collective bargaining over matters which make up or concern employees' total compensation package that was authorized under section 9(b).

Statements in the legislative history of the CSRA concerning section 704 support the view that "pay practices" refers to matters historically considered part of an employee's compensation package, such as differentials and premiums. During floor debates concerning the CSRA, Representative Ford explained that section 704 was necessary to overrule decisions by the Comptroller General that had invalidated collective bargaining provisions relating to overtime pay. Representative Ford stated that section 704 "would specifically authorize the continuation of prior collective bargaining practices, and would allow these employees, whom Congress already sought to protect in [section 9(b)], to continue to negotiate" those practices. 124 Cong. Rec. at 25722 (Aug. 11, 1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, Committee Print No. 96-7, at 857. See also U.S. Department of Energy v. FLRA, 880 F.2d at 1170-71.

Further, the Court of Claims' interpretation of the term "pay practice" in Blaha v. United States, 511 F.2d 1165 (Ct.Cl. 1975) supports the view that Congress intended that term to refer to matters that traditionally make up the employees' total compensation package. In Blaha, the court considered whether the Secretary of Commerce abused his discretion by refusing to pay civilian mariners a "monthly leave supplement" which was prevailing in the maritime industry. The court stated that by providing, in 5 U.S.C. § 5348, that the pay of civilian mariners shall be fixed and adjusted "in accordance with prevailing rates and practices in the maritime industry," "Congress meant to authorize Government agencies . . . to adopt private industry pay practices in their totality, as to differentials, overtime, premiums, or any other general pay practices that entered into and became a part of the seaman's take-home pay, subject of course to the 'public interest' exception[.]" Blaha v. U.S., 511 F.2d at 1166, 1168.

In light of the above, we find that by providing that prevailing rate employees covered by section 704 could continue to determine their "pay practices" in accordance with prevailing rates and practices, Congress intended to authorize those employees to determine the particulars of their compensation package in addition to basic pay through the collective bargaining process. Therefore, we interpret "pay practices," within the context of section 704, to mean matters historically considered part of an employee's compensation package, such as: (1) adjustments to an employee's basic rate of pay; (2) matters concerning the payment of differentials, overtime, and premiums; and (3) any other general compensation policies that entered into and became a part of the employee's total compensation package.

We note that although matters concerning the method or mechanics of compensating employees, for example, payment by check or direct deposit, time of payment, paycheck delivery, may be considered pay practices, we do not interpret the term "pay practices" in section 704 to include those matters. Proposals concerning the method or mechanics of compensating employees historically have not been considered part of an employee's compensation package. Rather, those proposals have been found by the Authority to concern terms and conditions of employment other than pay or pay practices and generally are negotiable under the Statute. See, for example, Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 770-72 (1987) (Proposals 32-34, providing that teachers could have the option of receiving their pay on a school-year or 12-month basis and should be paid by separate check for regular pay, extracurricular activity pay, and retroactive pay or adjustments in pay, were negotiable), affirmed as to other matters sub nom. Overseas Education Association v. FLRA, 872 F.2d 1032 (D.C. Cir. 1988); Federal Union of Scientists and Engineers, National Association of Government Employees, Local R1-144 and U.S. Department of Navy, Naval Underwater Systems Center, 25 FLRA 615, 617 (1987) (proposal concerning the method of paycheck delivery, which also provided that paychecks would be mailed "before Wednesday noon, payday week," was negotiable). Therefore, agencies and unions whose collective bargaining is governed by section 704 may negotiate over the method or mechanics of compensating employees under section 704(a), without regard to whether a particular process or procedure is in accordance with prevailing practices in the industry.

B. Preparation and Cleanup Time for Radio Technicians Is Not a "Pay Practice" Within the Meaning of Section 704(b)

The Agency contends that because preparation and cleanup time is a matter related to the pay of broadcast technicians, preparation and cleanup time constitutes a "pay practice" within the meaning of section 704(b). We find that the Agency has not established that preparation and cleanup time for radio technicians: (1) is an adjustment to the technician's basic rate of pay, (2) concerns the differentials, overtime, and premiums of the technicians, or (3) concerns any other general compensation policy that entered into and became a part of the technician's total compensation package. Therefore, we conclude that preparation and cleanup time for radio technicians is not a "pay practice" within the meaning of section 704(b) of the CSRA.

1. Federal Wage and Hour Laws Do Not Establish That Preparation and Cleanup Time Is a "Pay Practice"

The Agency states that "[t]he fact that payment for preparation and clean-up has received extensive interpretation under the FLSA [Fair Labor Standards Act, 29 U.S.C §§ 201-219] demonstrates that the subject is a 'pay practice'--a 'matter relating to the pay' of the VOA broadcast technicians--within the meaning of section 704(b)." Agency's Supplemental Brief at 15-16. The Agency cites several cases interpreting the FLSA as support for its contention that preparation and cleanup time for the radio technicians constitutes a pay practice under section 704(b). In our view, the cases cited by the Agency are inapposite and have no application to the issue presented in this case--whether preparation and cleanup time for radio technicians is a "pay practice" within the meaning of section 704(b).

Each of the cases cited by the Agency concerns requests by employees for overtime compensation for preshift and postshift activities. See, for example, Lindow v. United States, 738 F.2d 1057 (9th Cir. 1984) (employees are not entitled to overtime compensation for 15 minutes before the start of their scheduled shift where employer did not require, "suffer," or "permit" them to report 15 minutes early to review log book and exchange information); Hodgson v. Katz and Besthoff, #38, Inc., 365 F. Supp. 1193 (W.D. La. 1973) (employees are not entitled to overtime compensation for preshift and postshift activities where there was no pattern, practice, rule, routine, method, habit or understanding which required the employees to punch in or out other than in accordance with time clock rules and where early and late "punch ins" were governed by employees' convenience); and other cases cited in Agency's Supplemental Brief at 15-16. This case does not concern requests for overtime compensation. Also, preparation occurs during the first 15 minutes of a radio technician's shifts and cleanup occurs during the last 15 minutes of the technician's shift. Agency's Supplemental Brief at 10. Because preparation and cleanup periods occur within the hours of the technician's scheduled shift, this case does not concern "preshift" and "postshift" activities. Finally, the provisions of the FLSA cited in those cases provide for the payment of overtime and do not provide that preparation and cleanup time is a pay practice.

The Agency argues that "the mere fact that a federal wage and hour law governing public and private employees explicitly addresses the issue of 'preliminary and postliminary' activities, makes it incontrovertible that at a minimum such activities are 'pay practices.'" Id. at 17. However, we find that the cases cited in the Agency's supplemental brief are inapposite and do not establish that preparation and cleanup time is a "pay practice" under Federal wage and hour laws, specifically, the Fair Labor Standards Act.

2. Preparation and Cleanup Time Does Not Directly Affect Overtime Pay

The Agency states that:

[I]t is axiomatic that an employee's actual rate of pay is a function of both the total compensation received and the number of hours worked for which that money is intended to compensate the employee. . . . Where, as here, an employee is effectively paid on the basis of a flat eight hours of work (exclusive of overtime), then, if the number of hours within the eight in which work is actually performed decreases, the pay for hours actually worked effectively increases. As a result, a practice which involves the assigning or not assigning of work within a paid eight-hour period is a matter affecting the employees' pay.

Agency's Supplemental Brief at 20-21.

The Agency argues that the allowance of preparation and cleanup time at the beginning and end of each 8-hour shift, respectively, "amounts to a reduction both in the work day for each radio technician at the [Agency] and in the amount of work performed in regular duty (i.e., non-overtime) hours. This plainly is 'related to' the [Agency's] overtime pay scheme[.]" Id. at 21.

The Agency's arguments can be summarized as: preparation and cleanup time is "nonproductive" time during an employee's shift for which the employee is compensated. Adding preparation and cleanup periods to the workday reduces the amount of time during the shift that an employee actually performs work. Because employees are paid on the basis of 8 hours of work even though they do not perform 8 hours of work, the rate of pay for the hours actually worked is increased. In addition, providing preparation and cleanup time affects overtime pay practices because employees are paid overtime compensation for hours in excess of 40 hours per workweek although they have not actually "worked" a full 40 hours of the workweek. Therefore, the Agency contends that preparation and cleanup time is "related to" overtime pay practices and is a pay practice within the meaning of section 704(b).

The Agency's contention that preparation and cleanup time is "related to" overtime pay rests on its premise that preparation and cleanup time is "nonproductive" time used for "personal," "non-work" activities, and therefore, that time cannot be counted as part of the 40 hours that make up the workweek. See id. at 15-21. However, the record demonstrates that the Agency's premise is unsupported.

The Agency states that "[b]ecause studio and recording technicians must be in place at the appointed minute and remain until the conclusion of the assignment, paid periods without assigned duty are provided between assignments that entail changes in studios or other locations, to enable transit between locations within the facility." Id. at 9 (citation omitted). The breaks are 15 minutes in length "due to the 15-minute scheduling grid." Id. In addition to these "between-assignment" 15-minute periods, the Agency provides technicians 15 minutes of paid time at the beginning of their shift (preparation time) and at the end of the technicians' shift "for so-called 'clean-up[.]'" Id. at 10. "[T]he allowance of a full 15 minutes for both preparation and clean-up . . . was a function of the [Agency's] system of 15-minute block scheduling, enabling assignments always to begin and end on the quarter-hour." Id. (citation omitted). Thus, the scheduling of between-assignment and preparation and cleanup periods is due to the Agency's up-to-the-minute scheduling practices and is not within the technician's control.

The Agency also states that preparation time is "to allow time to sign-in, pick up tapes and reels for the first assignment (if necessary) and report to the first assignment by the quarter-hour start-time for that assignment." Id. The 15 minutes of paid time at the end of the technicians' shift are provided "for so-called 'clean-up,' essentially to leave the last assignment location, lock the door (if the studio was not in use thereafter), and leave the building." Id. (citation omitted).

On January 4, 1990, the Agency issued a memorandum "reminding technicians of the types of activities that could be performed during the preparation and clean-up periods." Id., Attachment B (Affidavit of James P. Hagan) at 4. That memorandum provided:

2) The first 15 minutes of the technician's work day will be utilized in preparation for the day's assignments; the last 15 minutes will be used in closing down the assignment, normalling [sic] equipment, or be available for assignment in case of operational emergencies.

3) At the end of each work day, the technicians are required to remain in or report back to Room 2259 for the last 15 minutes of their designated shift.

Id., Attachment B, Exhibit B-6. The Agency disciplined employees who failed to adhere to its policy concerning preparation and cleanup time. Technicians reporting to work after the shift began (during the time provided for "preparation" activities) or leaving the building during the 15-minute "clean up" period at the end of their shift received letters of admonishment and warning letters. Id., Attachment B at 3. Thus, technicians are assigned official, prescribed duties during the preparation and cleanup time periods. Those duties are required by the Agency and pursued necessarily and primarily for the benefit of the Agency. Activities which are controlled or required by the employer and pursued necessarily and primarily for the benefit of the employer is "work" for purposes of fulfilling the requirement of a basic 40-hour workweek and may be considered a legitimate part of the workday. Illinois Air National Guard, 35 FLRA at 747; American Federation of Government Employees, AFL-CIO, Local 3231 and Department of Health and Human Service, Social Security Administration, 25 FLRA 600, 602-03 (1987).

We find that preparation and cleanup time periods are not used primarily for personal activities and that the activities performed during the preparation and cleanup time periods by the technicians constitute "work" for which the technicians should be compensated. Therefore, we reject the Agency's argument that preparation and cleanup time is "non-work," "personal" time and that the allowance of preparation and cleanup time at the beginning and end of each 8-hour shift, respectively, "amounts to a reduction both in the work day for each radio technician at the [Agency] and in the amount of work performed in regular duty (i.e., non-overtime) hours." Agency's Supplemental Brief at 21.

Further, because preparation and cleanup time does not reduce the number of hours in the workday, the Agency's arguments that preparation and cleanup time increases the rate of pay of technicians and affects the Agency's overtime pay practices are without merit. The Agency has failed to substantiate its claim that the allowance of preparation and cleanup time is "related to" overtime pay, and, thus, constitutes a "pay practice" within the meaning of section 704(b).(*)

Even if the record supported the Agency's contention that preparation and cleanup time affects the numbers of nonovertime hours worked, and, thereby, has an effect on the amount of overtime paid employees, that relationship to overtime pay would not establish preparation and cleanup time as a pay practice. To constitute a "pay practice" within the meaning of section 704(b), the practice must have more than a tenuous relationship to the amount of compensation an employee receives. Rather, that practice must be a procedure, process, or policy concerning the adjustment of the basic rate of pay of employees; must determine the differentials, overtime, and premiums of employees; or must establish some other general compensation policy that enters into and is part of employees' total compensation package.

3. Preparation and Cleanup Time Concerns the Terms and Conditions of Employment of Radio Technicians

The Agency acknowledges that preparation and cleanup time "involves management's right to assign work." Agency's Supplemental Brief at 24. However, the Agency argues that "the subject of preparation and clean-up is a 'pay practice' or a matter relating to the pay of the [Agency] broadcast technicians" because "[n]othing in section 704 suggests that "a proposal that interferes with management's right to assign work cannot be a term of employment related to pay." Id. at 23 and 24.

The dispute in this case does not concern the technicians' right to compensation or the Agency's pay practices for preparation and cleanup periods. Rather, the issue is whether the Agency is obligated to bargain over a change in the amount of time allotted broadcast technicians to perform the duties assigned by the Agency during the time set aside for preparation and cleanup activities. We found above that preparation and cleanup time is not a "pay practice" within the meaning of section 704(b). In our view, preparation and cleanup time relates to the terms and conditions of employment of radio technicians because it concerns the work assignments of radio technicians. See, for example, Overseas Education Association and Department of Defense Dependents Schools, 29 FLRA 485, 498-99 (1987) (Proposals 11-14 concerned management's right to assign work because they prescribed the amount of duty time to be devoted to work preparation and had the effect of specifying the type of work to be performed and the time to be allocated to its performance), enforced as to other matters sub nom. Department of Defense Dependents Schools v. FLRA, No. 87-1734 (D.C. Cir. June 22, 1990) (en banc order vacating 863 F.2d 988); National Federation of Federal Employees, Local 1655 and Illinois National Guard, 26 FLRA 654, 666 (1987) (Proposal 10, providing make ready time to perform duties that are directly connected with performance of a job and cleaning time for personal cleanup, concerned management's right to assign duties to employees).

The Agency's obligation to bargain over terms and conditions of employment under section 704 is governed by section 704(a) of the CSRA. The court stated the following with respect to that provision:

Under subsection 704(a), "terms and conditions of employment and other employment benefits" with respect to the radio technicians "which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, shall be negotiated . . . in accordance with the provisions of section 9(b) of [the PRSA] without regard" to any inconsistent provisions of [the Statute].

USIA, VOA, 895 F.2d at 1453.

In USIA, VOA and NFFE, Local 1418, 33 FLRA at 555-58, the Authority found, in agreement with the Administrative Law Judge, that the record as a whole demonstrated that the matter of preparation and cleanup times for radio technicians was a matter which was the subject of negotiation between the parties prior to August 19, 1972. Consequently, because we have found that preparation and cleanup time concerns the terms and conditions of employment of radio technicians and that the matter was the subject of negotiation between the parties prior to August 19, 1972, the matter is governed by section 704(a) of the CSRA. Under section 704(a), the Agency is obligated to bargain over the substance of its decision to change preparation and cleanup times for radio technicians without regard to whether bargaining is inconsistent with the provisions of the Statute.

Because we have found that preparation and cleanup time is a matter concerning the terms and conditions of employment of radio technicians and is governed by section 704(a) of the CSRA, we do not consider the Agency's arguments concerning the current prevailing practices in the industry. "[T]erms and conditions of employment subject to bargaining under subsection 704(a) are negotiable regardless of current industry practices, so long as the matter in dispute was the subject of negotiation prior to August 19, 1972." USIA, VOA, 895 F.2d at 1455. Therefore, we "need not consider the prevailing practices in the industry[.]" Id. at 1454.

4. The Union's Request to Bargain Over Preparation and Cleanup Time Is Not Inconsistent with Law

The Agency states that "[a]ssuming, arguendo, that the Authority found preparation and clean-up to be a 'term and condition of employment' as addressed in section 704(a), the Union's proposal to continue the current 15-minute period would not be negotiable." Agency's Supplemental Brief at 29. The Agency also states that "[b]y its terms, . . . section 704(a) does not authorize negotiations of provisions which are contrary to 'the federal statutory requirement for a 40-hour work week' established by [5 U.S.C. §] 6101." Id. The Agency asserts that the proposals that effectively seek to include time for personal activities within the regularly scheduled workday violate 5 U.S.C. § 6101. The Agency argues that the Union's proposal effectively seeks to include time for personal activities within the regularly scheduled workday and, thereby, violates 5 U.S.C. § 6101.

As we found above, the preparation and cleanup activities assigned radio technicians constitute "work" for purposes of fulfilling the requirement of a basic 40-hour workweek because they are controlled and required by the Agency and pursued necessarily and primarily for the benefit of the Agency. See Illinois Air National Guard, 35 FLRA at 746-47. Also, above, we rejected the Agency's contention that the preparation and cleanup periods are used largely for personal activities. The record established that technicians are assigned specific and prescribed duties during those periods, and that even when the technicians are not assigned specific duties they are required by the Agency to be present and on call during those periods and are subject to discipline if they fail to comply with the Agency's requirements concerning preparation and cleanup times.

We have found that preparation and cleanup time is set aside for activities which constitute "work" for purposes of fulfilling the requirement of a basic 40-hour workweek. Therefore, we reject the Agency's contention that the Union's proposal to continue the 15 minutes of preparation and cleanup time is inconsistent with the requirement for a 40-hour workweek in 5 U.S.C. § 6101 because it seeks to include time for personal activities within the regularly scheduled workday.

C. Remedy

The Judge ordered, among other things, that the Respondent return to the practice of providing 15 minutes of preparation time at the beginning of each technician's shift and 15 minutes of cleanup time at the end of each shift. In USIA, VOA, the Agency excepted to the Judge's status quo ante remedy. USIA, VOA, 33 FLRA at 554. The Agency argued that a status quo ante remedy was not warranted because: (1) the change in preparation and cleanup periods had a "de minimis" impact on employees; and (2) the Union acted in bad faith by refusing to bargain over the impact and implementation of the change. Id. at 562.

The Authority rejected the Agency's argument concerning the impact of the change on employees. The Authority held that the impact of a change in conditions of employment on unit employees is irrelevant where an agency fails to fulfill its obligation to bargain over the decision to change conditions of employment. Id. at 562. The Authority also rejected the Agency's argument that a status quo ante remedy was not warranted because the Union acted in bad faith when it refused to bargain. The Authority agreed with the Judge's conclusion that the Union did not prevent the Agency from fulfilling its obligation to bargain by refusing to enter into impact and implementation bargaining and insisting on its right to bargain on the substance of the change. Id. at 562-63. The Authority concluded that the Agency's claims did not establish special circumstances warranting denial of a status quo ante remedy. Id. at 563.

We conclude, on remand, that the Agency has not established special circumstances warranting denial of the status quo ante remedy recommended by the Judge and adopted by the Authority in USIA, VOA. Therefore, for the reasons stated in USIA, VOA, we find that the status quo ante remedy is warranted under the circumstances.

V. Conclusion

Preparation and cleanup time for radio broadcast technicians is not a matter concerning the "pay and pay practices" of radio broadcast technicians. Rather, preparation and cleanup time concerns the terms and conditions of employment of the radio technicians. Under section 704(a) of the CSRA, the Agency is obligated to bargain with the union over the substance of its decision to reduce the amount of time allotted the technicians to perform the preparation and cleanup activities. See USIA, VOA, 895 F.2d at 1455. We conclude that the Agency violated section 7116(a)(1) and (5) of the Statute by failing and refusing to negotiate over that decision and we shall order an appropriate remedy.

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 United States Information Agency, Voice of America, shall:

1. Cease and desist from:

(a) Changing the preparation time and cleanup time of the radio technicians in the studio and recording areas without first notifying the National Federation of Federal Employees, Local 1418, the exclusive representative of its employees, and affording it the opportunity to bargain, to the extent consistent with law and regulation, on the decision to effectuate such change.

(b) In any like or related manner interfering with, restraining or coercing its 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) Rescind the 10-minute preparation time and 5-minute cleanup time for radio technicians in the studio and recording areas, and reestablish the 15-minute preparation time and 15-minute cleanup time for those unit employees.

(b) Notify the National Federation of Federal Employees, Local 1418, the exclusive bargaining representative of its employees, of any intention to change the preparation time and cleanup time of radio technicians in the studio and recording areas and, upon request, bargain with such representative, to the extent consistent with law and regulation, on any decision to effectuate such change.

(c) Post at its Washington Plant, in Washington, D.C., 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 Director of the Voice of America, 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 III, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

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 change the preparation time and cleanup time of the radio technicians in the studio and recording areas without first notifying the National Federation of Federal Employees, Local 1418, the exclusive representative of our employees, and affording it the opportunity to bargain, to the extent consistent with law and regulation, on the decision to effectuate such change.

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 rescind the 10-minute preparation time and 5-minute cleanup time for radio technicians in the studio and recording areas, and reestablish the 15-minute preparation time and 15-minute cleanup time for those unit employees.

WE WILL notify the National Federation of Federal Employees, Local 1418, the exclusive representative of our employees, of any intention to change the preparation time and cleanup time for radio technicians in the studio and recording areas and, upon request, bargain with such representative, to the extent consistent with law and regulation, on any decision to effectuate such change.

___________________________
(Activity)

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 III, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500.

APPENDIX

Section 704 of the CSRA, codified at 5 U.S.C. § 5343 (Amendments), 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, codified at 5 U.S.C. § 5343 (Amendments), 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 party to such contract to enter into negotiations after the date of enactment of this Act [Aug. 19, 1972] for the renewal, extension, modification, or improvement of the provisions of such contract or for the replacement of such contract with a new contract; or

(3) nullify, change, or otherwise affect in any way after such date of enactment [Aug. 19, 1972] any agreement, arrangement, or understanding in effect on such date [Aug. 19, 1972] with respect to the various items of subject matter of the negotiations on which any such contract in effect on such date [Aug. 19, 1972] is based or prevent the inclusion of such items of subject matter in connection with the renegotiation of any such contract, or the replacement of such contract with a new contract, after such date [Aug. 19, 1972].




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

*/ Contrary to the Agency's argument, the Authority did not hold in Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA 998 (1986) (Bonneville) that the term "pay and pay practices" in section 704(b) can be interpreted broadly to include any "term of employme