39:1272(110)NG - - NFFE, Local 341 and Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, WA - - 1991 FLRAdec NG - - v39 p1272

[ v39 p1272 ]
The decision of the Authority follows:

39 FLRA No. 110














March 18, 1991

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). It concerns one proposal which would require that the Agency not conduct a reduction-in-force in order to convert certain employees from full-time status to seasonal status.

For the following reasons, we conclude that the proposal is negotiable.

II. Proposal

Management shall not conduct a Reduction in Force for the purpose of converting the Wapato Irrigation Project employees from their present fulltime status to seasonal status.

III. Positions of the Parties

The Agency did not file a statement of position. However, in its response to the Union's request for an allegation of negotiability, the Agency contended that the proposal was nonnegotiable because it "conflicts with certain Management Rights as outlined in 5 U.S.C. 7106(a)(2) and Article 4, Section 1 of the Master Agreement." Attachment 2 to the Petition for Review at 1.

The Union contends that the parties "negotiate pay and pay practices" under section 9(b) of the Prevailing Rate Systems Act, Pub. L. No. 92-392, codified at 5 U.S.C. º 5343 (Amendments) and that "this matter" was the subject of negotiation prior to August 19, 1972. Petition for Review at 1-2. The Union also asserts that the proposal is a pay practice because the employment status of an employee--full-time verses seasonal--has a "direct effect on one's income[.]" Id. at 1.

IV. Analysis and Conclusions

The Union asserts, without contradiction by the Agency, that the Agency is obligated to bargain on the proposal under section 9(b) of the Prevailing Rate Systems Act, Pub. L. No. 92-392, codified at 5 U.S.C. º 5343 (Amendments) because it concerns a matter which the parties negotiated prior to August 19, 1972.

Section 704(a) of the Civil Service Reform Act (CSRA) provides that agencies must continue 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, without regard to any provision of the Statute. See United States Information Agency, Voice of America, 37 FLRA 849 (1990) (VOA). 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 . . . ."

The Union asserts that the "length of time during a year when one is employed and paid wages has a direct effect on one's income, and so [the proposal concerns] a pay practice[,]" therefore, "it must be negotiated in accordance with current prevailing practices." Petition for Review at 1-2. We disagree that the proposal concerns a pay practice within the meaning of section 704(b). In VOA, we interpreted "'pay practice,' 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." VOA, 37 FLRA at 861.

This proposal, however, concerns a reduction-in-force designed to convert certain employees from full-time to seasonal status. Although, as the Union contends, the proposal may affect employees' pay, that effect is not sufficient to make the proposal one that concerns pay practices as we have interpreted them under section 704. Consequently, we find that the proposal concerns a term and condition of employment, within the meaning of section 704(a). Furthermore, we note that the proposal need not be consistent with current prevailing practices to be negotiable under section 704(a). See, for example, VOA, 37 FLRA at 869.

In negotiability matters it is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982); U.S. Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration, Payment Center Locals, Local 1760, 36 FLRA 466, 475 (1990). Here, the Agency has not demonstrated or even argued that the requirements of section 704(a) of the CSRA are not met. Rather, the Agency asserts merely that the proposal is nonnegotiable because it conflicts with management's rights under section 7106(a)(2) of the Statute and the parties' collective bargaining agreement. The Agency's assertion that the proposal conflicts with section 7106(a)(2) of the Statute is not relevant, however, because section 704(a) provides for negotiations "without regard to any provision of" the Statute