42:0076(4)AR - - Interior, Bureau of Reclamation, Lower CO Dams Project Office, Parker and Davis Dams and IBEW - - 1991 FLRAdec AR - - v42 p76
[ v42 p76 ]
The decision of the Authority follows:
42 FLRA No. 4
FEDERAL LABOR RELATIONS AUTHORITY
U.S. DEPARTMENT OF INTERIOR
BUREAU OF RECLAMATION
LOWER COLORADO DAMS PROJECT OFFICE
PARKER AND DAVIS DAMS
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
(41 FLRA 119 (1991))
ORDER DENYING MOTION FOR RECONSIDERATION
September 11, 1991
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This matter is before the Authority on the Agency's motion for reconsideration of the Authority's decision in 41 FLRA 119 (1991). The Union filed an opposition to the Agency's motion.(*) Because the Agency fails to establish that extraordinary circumstances exist which would warrant reconsideration of our decision, we will deny the motion.
II. Arbitrator's Award and Our Decision in 41 FLRA 119
The Arbitrator initially found that the parties negotiated the subject of Sunday premium pay, within the meaning of section 704 of the Civil Service Reform Act (CSRA), prior to August 19, 1972. Next, the Arbitrator held that because the bargaining unit employees' entitlement to Sunday premium pay is established by contract, the fact that the Sunday premium pay is not in accordance with the prevailing rates and practices is irrelevant. Finally, the Arbitrator found that because the Agency improperly terminated the pay practice, it was required to reinstate the 25 percent Sunday premium pay differential and reimburse all bargaining unit employees who performed nonovertime work on Sunday, on and after the date of the discontinuance of the Sunday premium pay differential.
We denied the Agency's exceptions to the Arbitrator's award. In so doing, we concluded that: (1) Sunday premium pay is a "pay practice" within the meaning of section 704(b) of the CSRA; (2) the parties' Sunday premium pay provision was negotiated consistent with subsections (a) and (b) of section 704 and is, therefore, enforceable; and (3) the Agency failed to establish that the award was contrary to section 704 of the CSRA, the Prevailing Rate Systems Act, or the Federal Service Labor-Management Relations Statute (the Statute). We noted that although the prevailing practices in an industry are relevant to a determination of whether parties must negotiate pay and pay practices under section 704(b), they have no effect on the pay and pay practices provisions of an existing collective bargaining agreement. In this regard, we rejected the Arbitrator's determination that section 704 did not require negotiation of pay "'in accordance with prevailing rates at this time[.]'" 41 FLRA at 133 (quoting Arbitrator's award).
III. Agency's Motion for Reconsideration
The Agency contends that reconsideration of our decision in 41 FLRA 119 is warranted because the decision is contrary to section 704 of the CSRA, the Statute, and "clear established precedent interpreting section 704[.]" Motion at 1, 3.
In support of its contention, the Agency asserts that: (1) there is no showing that Sunday premium pay was the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972 and, therefore, the Authority erroneously concluded that the parties had negotiated a lawful agreement; (2) our decision is inconsistent with U.S. Department of Interior, Colorado River Storage Project and International Brotherhood of Electrical Workers, Local 2159, 36 FLRA 283 (1990) (Colorado River Storage Project); (3) the Authority has drawn a distinction between a practice and a contract provision that is contrary to other Authority decisions; (4) our decision is contrary to the court's decision in United States Department of the Interior, Bureau of Reclamation, Rio Grande Project v. FLRA, 908 F.2d 570, 575 (10th Cir. 1990); and (5) our decision is contrary to 60 Comp. Gen. 668, 673-74 (1981), in which the Comptroller General held that an agency was required to terminate the payment of construction rates to temporary workers, even though a provision of the parties' contract provided for the rates, because it was not a prevailing industry practice.
IV. Union's Opposition
The Union contends that the Agency has failed to establish extraordinary circumstances warranting reconsideration. The Union states that the Authority correctly determined that section 704 does not require the Agency to disregard a contract provision that was voluntarily agreed to by the Agency. The Union asserts that the case law cited by the Agency in its motion for reconsideration does not demonstrate that the Authority's decision is contrary to law. The Union argues that the Authority should deny the Agency's motion for reconsideration and should order the Agency to pay the Union attorney fees.
V. Analysis and Conclusions
Section 2429.17 of the Authority's Rules and Regulations permits a party that can establish the existence of "extraordinary circumstances" to request reconsideration of a decision of the Authority. We conclude that the Agency has not established extraordinary circumstances within the meaning of section 2429.17 to warrant reconsideration of our decision in 41 FLRA 119.
Specifically, we conclude that Colorado River Storage Project does not provide a basis for reconsidering 41 FLRA 119. In Colorado River Storage Project, we set aside an arbitration award because we determined that the arbitrator's finding that the agency's unilateral termination of Sunday premium pay was improper was inconsistent with section 704. The parties in that case stipulated that "[t]he payment of Sunday premium pay is not and was not prior to or since August 19, 1972, a prevailing practice in the geographic area surveyed pursuant to Article V of the Basic Labor and Supplementary Agreements as a basis for establishing prevailing rates and practices." Id. at 288 (citing Award at 3). The Authority found that the stipulation demonstrated that, at the time the disputed provision was agreed upon, there was no current practice of Sunday premium pay in the segment of the industry used by the parties to determine prevailing rates and practices. Thus, the provision was not established in accordance with prevailing rates and practices as required under section 704. Because the Sunday premium pay practice in the agreement was not established in accordance with section 704, that practice was void ab initio and, therefore, was unenforceable.
In 41 FLRA 119, the Arbitrator found that Sunday premium pay was being paid in the area or industry when the parties agreed to the Sunday premium pay provision in their agreement. Thus, the provision providing for Sunday premium pay was established in accordance with prevailing rates and practices in the industry. See 41 FLRA at 122-23. We determined, based on the record, that the Sunday premium pay provision was negotiated consistent with subsections (a) and (b) of section 704. Id. at 125. We concluded in 41 FLRA 119 that because the parties had negotiated a lawful agreement concerning pay and pay practices, the parties were bound by the terms of their agreement for as long as the agreement remained in effect. We also concluded, contrary to the Agency's position, that the current prevailing practices had no effect on the existing contract provision for the life of the parties' contract but would have to be considered when the parties negotiated new pay and pay practice provisions.
Our decision in 41 FLRA 119 is distinguishable from our decision in Colorado River Storage Project. As noted previously, in Colorado River Storage Project, the disputed pay practice was not a practice in the segment of the industry used by the parties for determining prevailing rates and practices at the time the contract being enforced was entered into and, as the practice was not established consistent with section 704, it was void ab initio and unenforceable. In 41 FLRA 119, the Arbitrator found that the pay practice at issue was a practice in the industry when the parties' agreement was entered into and the Agency did not establish that the Arbitrator's finding was legally deficient. Because the contract provision in 41 FLRA 119 was established in accordance with section 704, that provision was enforceable. Consequently, our decision in 41 FLRA 119--that parties which properly negotiate an agreement concerning pay and pay practices under section 704 are bound by the terms of that agreement for the life of the agreement--is in no way inconsistent with our decision in Colorado River Storage Project--that where it is demonstrated that a pay or pay practice provision of a collective bargaining agreement governed by section 704 was not established in accordance with section 704, the provision is contrary to section 704 and, therefore, is unenforceable.
Further, in 41 FLRA 119, the Agency cited 60 Comp. Gen. 668 in support of its argument that, under section 704(b), the Agency was required to terminate the Sunday premium pay provision of the parties' agreement. We rejected that argument and found that nothing in section 704(b) or the Statute as a whole supports the proposition that section 704 either requires or permits agencies to unilaterally terminate an existing agreed-upon pay practice under section 704 because of an alleged change in prevailing industry practices. 41 FLRA at 129. Moreover, we note in this regard that the Comptroller General's conclusion in 60 Comp. Gen. 668 that, under section 704(b), pay and pay practices must be negotiated in accordance with current prevailing rates and practices is consistent with our conclusion in 41 FLRA 119. To the extent that 60 Comp. Gen. 668 can be interpreted to allow an agency to unilaterally terminate the pay and pay practice provisions of a valid collective bargaining agreement, it is, in our opinion, inconsistent with the court's opinion in USIA. Because, as we noted in 41 FLRA 119, we have decided to follow the holding in USIA, we decline to follow the Comptroller General. We restate our conclusion in 41 FLRA 119 that an agency cannot unilaterally terminate pay and pay practice provisions that were negotiated in accordance with section 704 because of changes in the prevailing rates and practices that occur during the life of the agreement. Rather, those provisions are enforceable for the life of the agreement. However, when the parties negotiate new pay and pay practice provisions under section 704, they are obligated to bargain over only pay and pay practices that are in accordance with current prevailing rates and practices in the industry.
Each one of the Agency's remaining arguments was raised by the Agency and addressed by the Authority in our decision in 41 FLRA 119. Those arguments constitute nothing more than disagreement with our findings and conclusions in 41 FLRA 119 and are, therefore, merely an attempt to relitigate the merits of our decision. They do not establish the extraordinary circumstances necessary for reconsideration. See U.S. Department of Health and Human Services, Social Security Administration, Region VI, Dallas, Texas and American Federation of Government Employees, Local 1336, 41 FLRA 512 (1991).
In sum, the Agency has failed to establish that extraordinary circumstances exist which would warrant reconsideration of our decision. Accordingly, we will deny the Agency's motion for reconsideration.
Finally, with regard to Union's request for attorney fees, the Arbitrator retained jurisdiction to allow the Union to file an application for reasonable attorney fees. Award at 27. The Authority has held that an arbitrator has jurisdiction to decide requests for attorney fees after an award becomes final and binding. See National Association of Government Employees, Local R4-106 and Department of the Air Force, Langley Air Force Base, Virginia, 32 FLRA 1159, 1163-64 (1988); Philadelphia Naval Shipyard and Philadelphia Metal Trades Council, 32 FLRA 417 (1988). Therefore, the Union may file its request for attorney fees with the Arbitrator and we will not consider the Union's request here.
The Agency's motion for reconsideration is denied. The Union may file its request for attorney fees with the Arbitrator.
(If blank, the decision does not have footnotes.)
*/ The Agency filed a supplemental submission requesting that the Authority take official notice, under 5 C.F.R. § 2429.5, of American Postal Workers Union v. United States Postal Service, 682 F.2d 1280 (9th Cir. 1982), cert. denied 459 U.S. 1200 (1983) and Leedom v. Kyne, 358 U.S. 184 (1958). Subsequently, the Agency also filed a reply to the Union's opposition. The Union opposes the Agency's request that the Authority take official notice of the cases cited in the supplemental submission. The Union also asserts that the Authority's Rules and Regulations do not provide for the filing of the Agency's reply brief. The Union requests that it be given an opportunity to respond to the Agency's reply brief if it is considered. In our view, the Agency had ample opportunity to raise its arguments concerning the supplemental citations in its initial appeal before the Authority. We find that it is inappropriate to consider the Agency's arguments regarding those cases for the first time on reconsideration. Therefore, we reject the Agency's request. Further, our regulations do not provide for the filing of the Agency's reply to the Union's opposition and the Agency has not demonstrated a reason for us to consider its reply brief in this case. Therefore, we will not consider the Agency's reply brief. Accordingly, we also deny the Union's request that it be allowed to respond to the Agency's reply brief.