37:1385(113)NG - - NFFE Local 1418 and Information Agency, Voice of America - - 1990 FLRAdec NG - - v37 p1385



[ v37 p1385 ]
37:1385(113)NG
The decision of the Authority follows:


37 FLRA No. 113

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL FEDERATION OF FEDERAL EMPLOYEES

LOCAL 1418

(Union)

and

UNITED STATES INFORMATION AGENCY

VOICE OF AMERICA

(Agency)

0-NG-1613

DECISION AND ORDER ON NEGOTIABILITY ISSUE

October 30, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal.(1)

The proposal, entitled "Jurisdiction," describes the work that will be performed exclusively by bargaining unit employees. The "[w]ork described in the proposal as being within the Union's jurisdiction could not be assigned by the Agency to employees outside the bargaining unit." Petition for Review at 2. We find that the proposal is negotiable under section 704(a) of the Civil Service Reform Act of 1978 (CSRA), codified at 5 U.S.C. § 5343 (Amendments).

II. Background

This case concerns radio 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), Pub. L. No. 92-392, codified at 5 U.S.C. § 5343 (Amendments). See International Communication Agency, 5 FLRA 97, 99 (1981). See also United States Information Agency, Voice of America, 33 FLRA 549, 550 (1988) (USIA, VOA I), decision on remand United States Information Agency, Voice of America, 37 FLRA No. 71 (1990) (USIA, VOA II). Unions representing these employees negotiate their terms and conditions of employment and pay and pay practices pursuant to section 704 of the CSRA.

As relevant to this case, section 704(a) of the CSRA provides generally that 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 and which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, shall be negotiated on and after October 13, 1978, in accordance with the provisions of section 9(b) without regard to the provisions of the Statute. See USIA, VOA II; Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA 998 (1986) (Bonneville Power Administration). Section 704 and section 9(b) are set forth in full in Appendix A to this decision.

III. Proposal

The text of the Union's proposal is set forth in full in Appendix B to this decision. The "Introduction" section of the Union's proposal constitutes an agreement that the parties have engaged in substantive negotiations concerning "jurisdiction over the operation of technical equipment by Radio Broadcast Technicians" prior to August 19, 1972 (Section 1). The proposal then describes the work that will be performed by radio broadcast technicians at the Voice of America (VOA) in the Washington, D.C. headquarters, the New York City News Bureau and the Los Angeles News Bureau. See Petition for Review at 1. Under the proposal, radio broadcast technicians would be responsible for the operation of all technical equipment associated with the broadcast of VOA programs. The proposal provides also that the computer and automation systems which assist in the broadcast or routing of VOA programs are technical equipment which shall be operated by technicians.

The proposal would have the effect of precluding the Agency from assigning the work described in the proposal to employees who are not in the bargaining unit represented by the Union. The proposal would govern technicians' assignments in Master Control (Section 2), World Operations Control (Section 3), Studios (Section 4), Central Recording (Section 5), and Technical Support (Section 6). The proposal also lists the equipment that is not within the technicians' exclusive jurisdiction and, thus, "may be operated by either technicians or non-technicians" (Section 7).

IV. Positions of the Parties

A. Union

The Union states that "the central issue here is whether the parties negotiated over the subject matter of jurisdiction prior to August 19, 1972. If there were such negotiations, then the Union's proposal on this subject is negotiable today." Union's Response at 9. The Union contends that the subject of "jurisdiction" was negotiated by the parties prior to August 19, 1972. The Union argues that the Union Meeting Notes of the labor-management meetings on July 7, 1966 and October 11, 1967 provide proof that the parties negotiated over the subject of its proposal. The Union states that "the Agency incorrectly asserts that formal collective bargaining agreements are the only evidence that can prove 'negotiations.'" Id. at 13.

The Union claims that the negotiations in 1966 and 1967 concerned the same subject matter as the proposal currently in dispute. The Union states that:

The 1966 and 1967 provisions concern the operation of technical equipment in the studio control room and require that such work be performed only by technical personnel in the bargaining unit. The instant proposal concerns the operation of technical equipment in Master Control, World Operations Control Center (WOCC), Central Recording, and Technical Support, as well as studios, and requires that such work be performed by technical personnel in the bargaining unit. The Union's proposal clearly and logically expands upon the language negotiated in 1966 and 1967.

Union's Response at 15-16. The Union asserts that section 9(b) and section 704 allow the Union to negotiate for the modification or improvement of negotiated provisions.

The Union contends that the proposal concerns work that is to be performed by bargaining unit employees exclusively. The Union states that it "does not seek to add any positions to the bargaining unit. The Union only intends to preserve certain work for it[s] unit members." Id. at 17. The Union argues that to the extent that the proposal affects nonunit employees, that effect is irrelevant to determining the negotiability of the proposal.

The Union contends that the agreements reflected in the Union Meeting Notes were negotiated consistent with the Agency's authority under Executive Order 10988. The Union asserts that under Executive Order 10988, agencies had the authority to interpret the Executive Order for themselves because there was no third party designated to settle negotiability disputes. The Union argues that as the Agency agreed to the provisions concerning jurisdiction in 1966 and 1967, the Authority must presume that the Agency acted with the belief that it had the legal authority to enter into the agreements. The Union argues that it is improper to use the decisions of the Federal Labor Relations Council (FLRC)--which was responsible for administering Executive Order 11491--to determine the scope of bargaining under Executive Order 10988. Union's Response at 20-24.

The Union maintains that the proposal is negotiable whether or not the practice in the proposal comports with the prevailing practices in the radio broadcast industry. The Union asserts that "[s]ection 704 and [s]ection 9(b) are best served when disputes over whether a proposal comports with prevailing practices are resolved through the negotiation process." Id. at 24. The Union argues that to the extent that prevailing practices are found to be relevant in determining the negotiability of the proposal, the proposal comports with the prevailing practice in the industry. See id. at 30-31.

The Union contends that the proposal is negotiable notwithstanding the fact that it conflicts with management's right to assign work under the Statute. The Union states that the proposal concerns employees whose conditions of employment are negotiated under section 704 of the CSRA. The Union asserts that section 704 makes a proposal negotiable notwithstanding the management rights clause in the Statute, if the matter was negotiated by the parties prior to August 19, 1972. The Union argues that it has clearly established that the matter was negotiated prior to that date and, therefore, the Agency has a duty to bargain under section 704.

B. Agency

The Agency contends that section 9(b) and section 704 were designed to require agencies to bargain over terms and conditions of employment contained in collective bargaining agreements which were in effect prior to August 19, 1972. The Agency asserts that "[i]n order to establish a section 704 right to bargain over its jurisdiction proposal, the Union must prove that the 1967 [U]nion meeting notes, and specifically [section] '2-15' [of the meeting notes] constitute a negotiated agreement." Agency's Statement at 27-28. The Agency emphasizes that "the Union's burden is to establish the negotiation and agreement of a right or benefit." See id. at 27-29.

The Agency denies that it negotiated concerning jurisdiction over the operation of technical equipment with the Union prior to August 19, 1972. "The Agency maintains that neither the 1967 document as a whole nor '2-15' specifically is evidence of a negotiated agreement within the meaning of [s]ection 704 . . . ." Id. at 29. The Agency argues that the meeting notes on which the Union relies to show pre-1972 bargaining do not establish "negotiations" over the subject of the Union's proposal within the meaning of section 704. Id. at 32-35.

Assuming for the sake of argument that the parties engaged in negotiations prior to August 19, 1972, concerning the assignment of work to radio broadcast technicians, the Agency contends that "no enforceable rights could arise from such activity." Id. at 35. The Agency asserts that Executive Order 10988--which governed the parties' bargaining relationship during 1966 and 1967--prohibited bargaining on the assignment of work. The Agency argues that any bargaining on the assignment of work to radio broadcast technicians would have been inconsistent with the Agency's authority under Executive Order 10988. The Agency contends that actions taken by the Agency or agreements reached between the parties which were inconsistent with the Agency's authority to act under Executive Order 10988 do not create any enforceable rights under section 704 and do not provide a basis for imposing a duty to bargain concerning the Union's proposal.

The Agency also contends that even if the Authority finds that the Union has established that the parties "negotiated" over the subject of work jurisdiction, the proposal is not negotiable because work preservation clauses like the jurisdiction proposal are not the prevailing practice in the radio broadcast industry. The Agency asserts that section 704 requires bargaining only over practices that correspond to prevailing practices in private industry. Agency's Statement at 48-49. The Agency argues that because the proposal is not consistent with the prevailing practice in the radio broadcast industry, the proposal is nonnegotiable.

The Agency asserts that the effect of the Union's proposal is to "expand its bargaining rights to include not only work outside of its unit, but positions that were not even in existence prior to 1985, as well as employees who are not, and never were, prevailing rate employees." Id. at 25. The Agency argues that section 704 does not authorize negotiations over the expansion of a section 9(b) unit to reach employees who are not covered by section 9(b) and whose terms and conditions of employment were not negotiated pursuant to that provision prior to 1972. The Agency contends that the proposal is nonnegotiable because it would expand the unit of prevailing rate employees represented by the Union to include employees who are outside of the bargaining unit.

Finally, the Agency contends that the proposal is nonnegotiable because it is inconsistent with management's right to assign work under section 7106 of the Statute. The Agency states that the proposal "would result in the Agency's having to bargain over virtually every aspect of the assignment of work in its broadcast operations, effectively eliminating the exercise of management's statutory right to assign work[.]" Id. at 3.

In supplemental submissions, the Agency argues that the decisions of the United States Courts of Appeals for the Ninth and Tenth Circuits in United States Department of Interior, Bureau of Indian Affairs v. FLRA, 887 F.2d 172 (9th Cir. 1989) (Bureau of Indian Affairs v. FLRA) and United States Department of the Interior, Bureau of Reclamation, Rio Grande Project v. FLRA, 908 F.2d 570 (10th Cir. 1990) (Rio Grande Project v. FLRA), respectively, are controlling in this case.

V. Analysis and Conclusions

It is undisputed that these employees are prevailing rate employees as described in section 9(b) of Pub. L. No. 92-392. Section 704(a) of the CSRA authorizes prevailing rate employees to negotiate over conditions of employment and other employment benefits which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, without regard to the provisions of the Statute. See USIA, VOA II. Therefore, if the matter at issue in this dispute was a term and condition of employment within the meaning of section 704(a) that was the subject of negotiation between the parties in accordance with prevailing rates and practices prior to August 19, 1972, the Agency must bargain with the Union concerning the matter, notwithstanding that it might conflict with section 7106 of the Statute.

For the reasons set forth below, we find that the subject of "work jurisdiction" for radio technicians was a matter which was the subject of negotiation between the parties in accordance with prevailing rates and practices prior to August 19, 1972. Consequently, the Agency is obligated to bargain over the Union's proposal concerning the work which shall be assigned to radio technicians.

A. "Work Jurisdiction" Was the Subject of Negotiation Between the Parties Prior to August 19, 1972

The Union argues that the notes of the parties' labor-management meetings on July 7, 1966 and October 11, 1967, which were prepared by management and signed by both parties, prove that the parties negotiated over "work jurisdiction" for radio broadcast technicians prior to August 19, 1972. Union's Response at 10.

Section 2-15 of the notes of the parties' July 7, 1966 labor-management meeting provides:

Management and Union agree to delete the first section. It was agreed that all technical equipment in the studio and control room shall be operated by technical personnel only, and that program levels and quality shall follow the prescribed principles of good engineering practice, and that it shall be the technician's responsibility to see that these standards are maintained. Any digression by Production from these practices shall be logged by the technician for action by the Technical Services Division.

Agency's Statement, Attachment I at 2. The meeting between the parties on July 7, 1966 "was to review the notes of previous meetings in order to make a summation of what was accomplished in the way of agreements and/or disagreements between the Union and the Technical Services Division for presentation to the Agency for their possible ratification." Id. at 1.

"The purpose of [the October 11, 1967] meeting was to prepare a draft of the proposed Agreement between the Agency and [the Union] to be presented to [the VOA Personnel Office] for their approval before formally presenting the set of Agreements to [the USIA Personnel Office] for ratification." Union's Response, Attachment 4 at 1. See also Agency's Statement at 30-31. Section 2-15 of the October 11, 1967, Union meeting notes provides:

It shall be the policy that all technical equipment in the Studio Control Room shall be operated by technical personnel only, and it shall be the technician's responsibility to see that the program levels and quality shall follow the prescribed principles of good engineering practice, and that any digression from these practices shall be logged by the technician for action by the Technical Operations Division.

Union's Response, Attachment 4 at 2.

We find that the 1966 and 1967 Union Meeting Notes demonstrate that the parties had negotiated over the subject of the work jurisdiction of bargaining unit employees. Section 2-15 of the 1966 and 1967 meeting notes provide that all technical equipment in the studio and control room--referred to as "the Studio Control Room" in the 1967 meeting notes--"shall be operated by technical personnel only." The meeting notes demonstrate that the parties negotiated and that the Union and the Technical Services Division of the Agency reached agreement, subject to ratification by the Agency, concerning the operation of technical equipment by technical personnel prior to August 19, 1972.(2) See also USIA, VOA I, 33 FLRA at 555-56 (the Authority agreed with the Administrative Law Judge that the July 7, 1966 and the October 11, 1967 meeting notes provided sufficient proof that preparation and cleanup time for radio broadcast technicians was negotiated by the Agency and the Union prior to August 19, 1972).

The proposal before us concerns the same subject matter as section 2-15 of the meeting notes. The proposal provides that all technical equipment in Master Control, WOCC, Studios, Central Recording, and Technical Support shall be operated exclusively by technical personnel. The proposal includes computer and automation systems used in VOA radio broadcasts among the technical equipment which shall be operated only by the radio broadcast technicians. There is no meaningful distinction between the subject matter in section 2-15 of the 1966 and 1967 meeting notes and the proposal in dispute in this case. Both concern the operation of technical equipment in connection with the VOA radio broadcasting network by radio broadcast technicians exclusively. We find that the proposal is the same kind of provision and concerns the same subject matter as section 2-15 of the meeting notes.

We reject the Agency's contention that its obligation to bargain with the Union under section 704(a) extends only to subject matters which are reflected in the provisions of formal collective bargaining agreements entered into prior to August 19, 1972. See Bonneville Power Administration at 1000 (the Authority found that "both the language and the structure of section 704 support the conclusion that . . . agencies must continue to negotiate on terms and conditions of employment . . . of prevailing rate employees where those terms and conditions of employment were subject to negotiation prior to August 19, 1972.") The plain wording of section 704(a) provides that the Agency's obligation to bargain under that section extends to those matters which were "the subject of negotiation" prior to August 19, 1972. See United States Information Agency, Voice of America v. FLRA, 895 F.2d 1449, 1453 (D.C. Cir. 1990) (USIA v. FLRA) ("Under subsection 704(a), . . . the critical inquiry is whether the proposed subject for negotiation is a matter that was negotiated by the parties prior to August 19, 1972.")

We have examined the record before us and have determined that the record reflects that the assignment of work relating to the operation of technical equipment to radio broadcast technicians exclusively was "the subject of negotiation" between the parties in 1966 and 1967. Therefore, we find that the Union's proposal concerns a matter which was the subject of negotiation prior to August 19, 1972.

B. Executive Order 10988 Does Not Restrict the Union's Right to Bargain Under Section 9(b) and Section 704

The Agency contends that its obligation to bargain under section 704 does not extend to a matter which was the subject of negotiation prior to August 19, 1972, if negotiation of that matter would have been inconsistent with Executive Order 10988. The Authority rejected the Agency's argument to that effect in USIA, VOA I, 33 FLRA at 556-58, and we find it equally unpersuasive in this case.

Executive Order 10988 was issued on January 18, 1962, and grew out of the report of the President's Task Force on Employee-Management Relations in the Federal Service.(3)

Executive Order 10988 represents in essence a formulation of broad policy by the President for the guidance of federal employing agencies. It had no specific foundation in Congressional action, nor was it required to effectuate any statute. It could have been withdrawn at any time for any or no reason. It represented simply one President's effort to move in the direction of what he had been advised by his experts would be an improvement in the efficiency of federal employment. . . . [The President] imposed no hard and fast directives on the many different kinds of federal employees; and he left large areas for the exercise of discretion at levels below the summit, although he went to some pains to provide continuing advisory services from those people and agencies within his Administration equipped with special knowledge or experience in personnel matters.

Manhattan-Bronx Postal Union v. Gronouski, 350 F.2d 451, 456 (D.C. Cir. 1965), cert. denied, 382 U.S. 978 (1966) (Manhattan-Bronx Postal Union).

Under Executive Order 10988 the heads of agencies were directed to carry out the policies expressed in the Order. They were instructed to adopt appropriate regulations and procedures to achieve the purposes and policies of the Executive Order. "Presumably the President foresaw that such regulations and procedures should not be uniform throughout the Government, for he left their formulation and adoption to the heads of the various agencies. It would thus appear that the President intended to allow his subordinates some considerable flexibility in the implementation of his objective." Manhattan-Bronx Postal Union, 350 F.2d at 455.

Courts generally declined to review the decisions of agency heads which involved an exercise of their discretion to implement the policy of Executive Order 10988. Those courts held that "[t]he President did not undertake to create any role for the judiciary in the implementation of this policy." Manhattan-Bronx Postal Union, 350 F.2d at 456. See also Lodge 1647 and Lodge 1904 American Federation of Government Employees v. McNamara, 291 F. Supp. 286 (M.D. Pa. 1968). In Manhattan-Bronx Postal Union, the court saw a challenge to the exercise of an agency head's discretion under Executive Order 10988 as one concerning whether the agency head had misconstrued the President's instruction in the Executive Order. The court declined to review that exercise of discretion because to do so, in the court's opinion, would have constituted an invasion of the province of the executive branch. The court recognized the President as the appropriate arbiter of whether or not Presidential appointees had faithfully executed the policies of the President as expressed in Executive Order 10988. See Manhattan-Bronx Postal Union, 350 F.2d at 456-57.

We reject the Agency's assertion that the Authority must review each exercise of an agency's discretion under Executive Order 10988 to determine whether matters negotiated prior to August 19, 1972 may be negotiated under section 704. In our view, the President committed questions concerning the scope of bargaining under Executive Order 10988 to the discretion of each executive agency. The President did not establish an administrative body with the authority to review an agency's determination concerning the extent of its duty to bargain under Executive Order 10988. In addition, the President did not indicate an intent to circumscribe an agency's discretion to determine the subject matters over which it could bargain, or provide meaningful standards for defining the limits of an agency's discretion under the Executive Order.

It is inappropriate for the Authority to review the Agency's decisions concerning the scope of bargaining under Executive Order 10988 without: (1) evidence that the President limited the Agency's discretion under Executive Order 10988; (2) meaningful standards by which the Authority may judge whether the Agency exceeded those limits; or (3) specific authority from Congress to review the Agency's decisions under the Executive Order. See, for example, Heckler v. Chaney, 470 U.S. 821, 827-38 (1985) (an administrative agency's exercise of a statutory grant of discretion is unreviewable unless Congress has indicated an intent to circumscribe that discretion, and has provided meaningful standards for defining the limits of that discretion). In the absence of any power to review, or a standard of review or any other evidence that the Agency improperly exercised its discretion under Executive Order 10988, we must conclude that the 1966 and 1967 negotiations constituted a proper exercise of that discretion.

We conclude, therefore, that the Agency was authorized, in its discretion, to implement the policies of the President as expressed in Executive Order 10988. The Agency bargained with the Union concerning technicians' work assignments under Executive Order 10988. In the absence of evidence to the contrary, we will presume that, in negotiating concerning technicians' work assignments on July 7, 1966 and October 11, 1967, the Agency acted in a manner that was consistent with Executive Order 10988. See American Federation of Government Employees v. Reagan, 870 F.2d 723 (D.C. Cir. 1989) (AFGE v. Reagan) (a presumption of regularity supports the official acts of public officers and, in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties). See also Colorado Health Care Association v. Colorado Department of Social Services, 842 F.2d 1158, 1164 (10th Cir. 1988) (presumption of validity attaches to agency action and the burden of proving that the action is invalid rests with the party challenging the action).

In our opinion, in enacting section 704(a) of the CSRA, Congress gave unions the right to bargain over terms and conditions of employment which had been the subject of negotiations between the parties if it was demonstrated that the matter was negotiated prior to August 19, 1972. Nowhere in the wording of section 704 or its legislative history do we see manifested an intent on the part of Congress that the Authority should review each subject matter which is preserved for negotiation under section 704 to determine whether it is consistent with a repealed Executive order and then approve for negotiation only those provisions which are consistent with the terms of that Executive order. In fact, the legislative history supports a contrary conclusion. In enacting section 704, Congress expressly overruled decisions of the Comptroller General which held that section 9(b) was designed to preserve only those provisions that were properly negotiable in the first instance and would not operate to cure a provision that was contrary to law and regulations when negotiated. See 124 Cong. Rec. 33,772 (1978). Accord 60 Comp. Gen. 668, 673 (1981) ("[N]egotiated provisions of labor-management agreements which were in effect on August 19, 1972 . . . are protected and may be continued under the provisions of sections 9(b) and 704, even though these negotiated provisions may be in conflict with certain other provisions of law or prior interpretations thereof.").

C. The "Work Jurisdiction" Proposal Need Not Comport With the Current Prevailing Practices in the Radio Broadcast Industry

The Agency contends that "[e]ven if the Union established pre-1972 bargaining over the subject of work jurisdiction, . . . its negotiability appeal would fail because work preservation clauses such as the jurisdiction proposal are not the prevailing practice in the radio broadcast industry." Agency's Statement at 48. The Agency argues that section 704 requires the Agency to negotiate concerning only those terms and conditions of employment which correspond with the prevailing practices in the industry. The Agency asserts that "[s]ection 704 provides that a proposal is not negotiable unless it also comports with prevailing practices in the private sector." Id.

Section 704(a) provides that "terms and conditions of employment and other employment benefits" of employees subject to section 704 and section 9(b) "which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972," shall continue to be negotiated after that date. Section 704(b) provides that the "pay and pay practices" of employees subject to section 704 and section 9(b) "shall be negotiated in accordance with prevailing rates and pay practices[.]"

In USIA v. FLRA, the court rejected the Agency's contention that under section 704(a) 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." Id. at 1453. The court found that "[u]nder subsection 704(a), current prevailing practices are of no significance[.]" 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 [PRSA].

Id. (emphasis in original). The court also stated that "terms 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." Id. at 1455.

In Department of Interior, Bureau of Reclamation, Washington, D.C., 36 FLRA 3 (1990), petition for review filed sub nom. American Federation of Government Employees, Local 1978 v. FLRA, No. 90-70388 (9th Cir. July 30, 1990) (Reclamation), we adopted the Court of Appeals for the District of Columbia Circuit's interpretation of section 704 in USIA v. FLRA. We also stated that we would not follow previous decisions to the extent that they were inconsistent with that interpretation. See also U.S. Department of Interior, Colorado River Storage Project and International Brotherhood of Electrical Workers, Local 2159, 36 FLRA 283 (1990).

The proposal in this case preserves certain work assignments for bargaining unit radio broadcast technicians. It is undisputed that the proposal concerns the assignment of work to radio broadcast technicians. Thus, the proposal seeks to determine the terms and conditions of employment of radio broadcast technicians and is governed by section 704(a) of the CSRA. It is not a matter relating to "pay and pay practices" within the meaning of section 704(b). See USIA, VOA II, 37 FLRA No. 71, slip op. at 19-21 (preparation and cleanup time relates to the terms and conditions of employment of radio technicians and is governed by section 704(a) of the CSRA because it concerns the work assignments of radio technicians).

We have found that the subject matter of the proposal--work jurisdiction--was the subject of negotiation between the parties prior to August 19, 1972. As stated above, section 704(a) provides that those terms and conditions of employment that were the subject of negotiation 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 PRSA. For the reasons stated in our decision in Reclamation in which we adopted the Court of Appeals for the District of Columbia Circuit's interpretation of section 704 in USIA v. FLRA, we reject the Agency's claim that current prevailing practices are relevant to an analysis of the negotiability of the proposal under section 704(a). Further, the Agency does not argue, and nothing in the record demonstrates, that the parties' earlier negotiation of work jurisdiction was not in accordance with prevailing rates and practices prior to August 19, 1972. Therefore, we find that, under section 704(a), work jurisdiction was the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972. Because the Union's work jurisdiction proposal concerns the terms and conditions of employment of radio technicians and because work jurisdiction was the subject of negotiation between the parties in accordance with prevailing rates and practices prior to August 19, 1972, the Agency has an obligation to bargain over the proposal under section 704(a) of the CSRA.

The Agency also argues that Bureau of Indian Affairs v. FLRA, 887 F.2d 172 (9th Cir. 1989) and Rio Grande Project v. FLRA, 908 F.2d 570 (10th Cir. 1990) are controlling in this case. In those cases the courts disagreed with the Authority's interpretation of section 704 and reversed the Authority's conclusions that certain provisions concerning the pay and pay practices of prevailing rate employees were negotiable under section 704 of the CSRA. However, as we stated above, we adopted the Court of Appeals for the District of Columbia Circuit's interpretation of section 704 in USIA v. FLRA, and we have applied the D.C. Circuit's interpretation of section 704 in this case. Because we have decided to follow USIA v. FLRA, we have accepted the Tenth Circuit's decision only as the law of that case. See International Brotherhood of Electrical Workers, Local 611 and U.S. Department of the Interior, Bureau of Reclamation, Rio Grande Project, 37 FLRA No. 51 (1990). Consequently, consistent with USIA v. FLRA, we interpret section 704 to preserve for negotiation matters which were the "subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972," not, as argued by the Agency, to preserve only matters which have been incorporated in a "negotiated agreement" prior to August 19, 1972.

As to the Ninth Circuit's decision, the court in that case interpreted section 704 narrowly to preclude bargaining on Sunday premium pay because, although premium pay had been negotiated prior to August 19, 1972, Sunday premium pay had not been negotiated. The Agency appears to be arguing that, under the Ninth Circuit's decision, although the parties had negotiated on the subject of the work jurisdiction of technicians prior to August 19, 1972, the fact that they did not negotiate on technicians' jurisdiction over, for example, computerized equipment, means that the Agency can not now be required to negotiate on technicians' jurisdiction over that equipment.

The circumstances of this case, however, are distinguishable from the Ninth Circuit case: while Sunday premium pay is a subject over which the parties in the Ninth Circuit case could have negotiated prior to August 19, 1972, computerized equipment of the type used by the Agency is not something that the parties to this case could have negotiated prior to that date. Interpreting the Ninth Circuit's decision as narrowly as the Agency appears to do, in our opinion, fails to take into account the provisions of section 9(b) allowing the "renewal, extension, modification or improvement of the provisions of a contract." See Bonneville Power Administration, 22 FLRA 998 (1986).

D. The "Work Jurisdiction" Proposal Vitally Affects the Working Conditions of Bargaining Unit Employees

The Agency contends that the proposal is nonnegotiable because it concerns work that is not performed by employees in the bargaining unit and concerns positions which "were not even in existence prior to 1985." Agency's Statement at 25. It is clear from the record that the "work" the Agency claims is not performed by bargaining unit employees is the "work," i.e., the specific tasks, associated with the operation of new technical equipment that was installed at the Agency to fulfill the same functions as those traditionally performed by the radio broadcast technicians. The positions that the Agency claims are not within the bargaining unit are technical positions at the Agency's new broadcast facilities. See Agency's Statement at 11-21.

The proposal requires the Agency to assign the technical functions associated with the operation of new technical equipment to bargaining unit employees. The proposal also requires the Agency to assign bargaining unit radio broadcast technicians to perform technical functions and operate technical equipment at the Agency's new broadcast facilities. Correspondingly, the Agency could not assign those functions to other employees.

The Agency's arguments that the proposal concerns nonbargaining unit employees and that the proposal affects positions outside the bargaining unit do not establish that the proposal is nonnegotiable. In determining whether there is a duty to bargain over matters concerning conditions of employment of bargaining unit employees that also affect employees or positions outside the unit, the Authority will examine how the proposal affects the conditions of employment of employees in the bargaining unit. If the proposal: (1) vitally affects the working conditions of unit employees; and (2) is consistent with applicable law and regulations, it is negotiable. American Federation of Government Employees, Local 32, AFL-CIO and Office of Personnel Management, 33 FLRA 335, 338 (1988) (AFGE, Local 32), enforced sub nom. United States Office of Personnel v. FLRA, 905 F.2d 430 (D.C. Cir. 1990).

The proposal is intended to address changes in the Agency's operation due to technological advancement and physical expansion. The introduction of new technology has resulted in changes in the traditional functions associated with the bargaining unit technicians' positions. Bargaining unit technicians who perform the work associated with the new technology face the possibility of losing their positions or experiencing a substantial change in their working conditions. Therefore, we find that the proposal vitally affects the working conditions of the radio broadcast technicians represented by the Union. Additionally, the Agency has not cited any governing provision of law or regulation with which the proposal is inconsistent. Because the proposal vitally affects the terms and conditions of employment of bargaining unit technicians and the Agency has failed to establish that the proposal is inconsistent with governing law or regulation, we find that the Agency has an obligation to bargain concerning the Union's proposal notwithstanding its effect on nonunit employees. See AFGE, Local 32, 33 FLRA at 338-39.

Further, we do not interpret the requirement in the proposal that the Agency assign bargaining unit technicians to perform traditional technician duties at the Agency's new facilities as an attempt by the Union to expand its bargaining unit. As the Union specifically states, the proposal "does not seek to add any positions to the bargaining unit. The Union only intends to preserve certain work for it[s] unit members." Union's Response at 17. Because we find that the proposal concerns the work jurisdiction of unit employees, we conclude, in agreement with the Union, that the proposal is not an attempt by the Union to expand its bargaining unit. Rather, the proposal merely seeks to define bargaining unit technicians' responsibilities in light of the changes in the Agency's operation.

E. Bargaining Over the "Work Jurisdiction" Proposal Is Not Precluded By the Management Rights Clause of the Statute

Proposals which include a work preservation requirement--that is, proposals which restrict management's ability to assign work outside of the bargaining unit--violate management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, AFGE, National Council of SSA Field Operations Locals, 25 FLRA 622 (Proposal 1); International Brotherhood of Electrical Workers, Local 570, AFL-CIO-CLC and Department of the Army, Yuma Proving Ground, Arizona, 14 FLRA 432 (1984) (Proposal 2 would have prevented the agency from assigning bargaining unit work to employees outside the bargaining unit in nonemergency situations and was outside the duty to bargain because it restricted management's right to assign work); American Federation of Government Employees, AFL-CIO, National Joint Council of Food Inspection Locals and Department of Agriculture, Food Safety and Quality Service, Washington, D.C., 9 FLRA 663 (1982) (Proposal 1 directly interfered with management's right to assign work by limiting the agency's ability to assign duties normally performed by bargaining unit employees to supervisors).

However, in Bonneville Power Administration, 22 FLRA at 1005, the Authority held that "[t]he plain meaning of [section 704(a)] is that it exempts provisions of specified collective bargaining agreements from the limitations on the scope of bargaining set forth in the Statute, including the management rights provisions of section 7106." Consequently, where, as here, the parties are covered by section 704 and have negotiated matters which conflict with the management's right provision of the Statute, section 704 preserves the parties' right to continue to negotiate on those matters. See USIA, VOA I, 33 FLRA at 557. Therefore, we reject the Agency's contention that the proposal is nonnegotiable because it directly interferes with the Agency's right to assign work under section 7106 of the Statute. Similarly, we reject the Agency's contention that the proposal is nonnegotiable because it conflicts with the Agency's right under section 7106(b)(1) to determine the technology which will be used in the performance of the Agency's work.

The Agency also argues that the Union's work jurisdiction proposal is "so repugnant to [F]ederal sector labor law" that it must be ruled nonnegotiable even under section 704. See Agency's Statement at 2-3. The Agency states that the proposal "effectively throws management's right to assign work 'out the window.'" Id. at 55. The Agency asks the Authority to rule that proposals like the proposal in this case are not compatible with the system of labor-management relations in the Federal service because of their impact on an agency's right to assign work. The Agency essentially argues that requiring the Agency to bargain over the Union's proposal would not be in the public interest.

However, attempts to define the "public interest" with respect to matters affecting prevailing rate employees without reliance on the explicit standards set by Congress will be invalidated. See AFGE v. Reagan, 870 F.2d at 726 n.26 (citing National Federation of Federal Employees, Local 1622 v. Brown, 645 F.2d 1017 (D.C. Cir.), cert. denied, 454 U.S. 820 (1981)). When Congress enacted section 704 it expressed its intent to exclude the agencies and unions that bargain pursuant to that section from the limitations of the Statute. See Bonneville Power Administration, 22 FLRA at 1005. The Agency has provided no basis for the Authority to rule that requiring the Agency to bargain over the proposal in this case is contrary to the public interest. By including section 704 in the CSRA, Congress determined that the scope of bargaining defined in that section effectuates the public interest.

VI. Conclusion

The subject of "work jurisdiction" for radio broadcast technicians was negotiated by the parties in accordance with prevailing rates and practices prior to August 19, 1972. Therefore, the subject matter is a term and condition of employment preserved for bargaining under section 704(a). Negotiation of the proposal is not barred by: (1) Executive Order 10988, (2) the prevailing rate/practice principle in section 704, or (3) section 7106 of the Statute. Additionally, the Agency is not precluded from bargaining because the proposal affects nonbargaining unit employees and concerns work which is not presently assigned to unit employees. We conclude that the Agency is obligated to bargain concerning the Union's work jurisdiction proposal under section 704(a) of the CSRA.

VII. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, bargain on the proposal.(4)

APPENDIX A

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].

APPENDIX B

JURISDICTION

SECTION 1. Introduction:

Both Parties recognize that jurisdiction over the operation of technical equipment by the Radio Broadcast Technicians of the NFFE Local 1418 Bargaining Unit at the Voice of America was the subject of substantive negotiations between the Parties prior to August 19, 1972. Therefore, the jurisdiction over technical equipment by the Radio Broadcast Technicians in the Bargaining Unit is as follows:

SECTION 2. Master Control:

Bargaining Unit technicians assigned to the Master Control Branch shall operate, maintain or otherwise be responsible for all equipment associated with the broadcast of VOA programs and/or the routing of audio to and/or from internal and/or external broadcast sources via Master Control. Technicians in the Bargaining Unit assigned to Master Control shall also operate and/or be responsible for computer and automation systems which assist in the broadcast or routing of audio in program, feed and/or production modes. In addition, technicians in the Master Control Branch shall be responsible for such transmission requirements related to Master Control as pertains to satellite, microwave and land line facilities.

SECTION 3. World Operations Control (WOCC):

Technicians of the Bargaining Unit assigned to the World Operations Control Center (WOCC) shall operate, maintain and/or otherwise be responsible for the equipment associated with the WOCC and the Satellite Interface System (SIS) including computer and automation systems responsible for the transmission and/or reception of broadcast audio, and/or for adjustments to transmission sites as would normally be communicated and/or controlled from this facility.

SECTION 4. Studios:

Technicians of the Bargaining Unit assigned to the Studio Branch are responsible for the operation of all audio, computer and automation equipment used in the VOA studio control rooms associated with the broadcast of live airshows and pre-/post-production operations. Studios, in this sense, refer to all studios in the VOA Headquarters Building including those studios used for regular VOA programs and VOA/Europe, the language area production studios (LAPS), and the studios of the New York News Bureau and Program Center, and such studios as may be added in additional locations either in Washington or in the United States and/or its territories. If consolidation of VOA operations merges Radio Marti into the mainstream VOA broadcast operations, jurisdiction shall extend to the Radio Marti operations and technicians. Equipment refers to computer and automation systems commonly developed for broadcast applications, audio consoles, turntables, cartridge machines, compact disc players and cassette machines, reel-to-reel tape machines, microphones, patch bays, equalizers, remote control devices and like or similar equipment.

SECTION 5. Central Recording:

Technicians of the Bargaining Unit assigned to the Central Recording Branch are responsible for the operations of broadcast audio equipment associated with the recording and playback of VOA airshows, production programs, feeds from internal and external sources routed either through studios, telephone "beeper" booths, within Central Recording or via Master Control. Technicians of the Bargaining Unit assigned to Central Recording are also responsible for the operation of cassette, reel-to-reel and video duplication equipment, IGM or other automation systems, the "Bubble" facilities, Tape Correction and High Speed facilities, and the Sound-On- Demand facility.

SECTION 6. Technical Support:

a. Maintenance: Bargaining Unit technicians assigned to the Technical Support Branch are responsible for the maintenance of all broadcast and broadcast-related equipment in use by the VOA at its headquarters facility, the New York News Bureau and Program Center, the Los Angeles News Bureau and Program Center, various domestic VOA facilities and, as the needs of the Agency require, VOA facilities sited in host countries overseas. Such equipment includes audio consoles, cassette machines, compact disc players, turntables, microphones, cart machines, patch bays, automation and computer systems used in broadcast applications and such audio and video equipment existing or to be developed.

b. Field: Technicians of the Bargaining Unit assigned to the Technical Support Branch are also responsible for all broadcast audio equipment associated with remote site broadcasts for the VOA including remote/portable audio consoles, reel-to-reel tape machines, cassette machines, microphones, mixers, microwave equipment, stands, equipment associated with/and including the VOA Voyager Van and such routine field maintenance as is normally performed by Field technicians.

SECTION 7. Exceptions:

The following equipment is specifically non-jurisdictional and may be operated by either technicians or non-technicians:

a. Cassette machines for correspondent interviews in non-studio applications.

b. The "NEB" mini-booths (although it is specifically understood that these booths are solely for the use of NEB personnel only).