44:0945(77)NG - - NFFE Local 1487 and DOI, Bureau of Reclamation, Lower CO Regional Office, Yuma Project Office, Yuma, AZ - - 1992 FLRAdec NG - - v44 p945
[ v44 p945 ]
The decision of the Authority follows:
44 FLRA No. 77
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL FEDERATION OF FEDERAL EMPLOYEES
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
LOWER COLORADO REGIONAL OFFICE
YUMA PROJECT OFFICE
DECISION AND ORDER ON NEGOTIABILITY ISSUES
April 24, 1992
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). The appeal concerns the negotiability of three proposals, which concern: (1) shift differentials; (2) retained pay; and (3) Sunday premium pay. For the reasons that follow, we find that the proposals are nonnegotiable.
The bargaining unit involved in this case consists of employees who negotiate over pay and pay practices pursuant to section 704 of the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454. 92 Stat. 1111, 1218, codified at 5 U.S.C. § 5343 (Amendments) (1988 ed.) and 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 note) (1988 ed.)
Section 704(a) establishes certain bargaining rights for employees "to whom section 9(b) of [the PRSA] applies." In particular, section 704(a) authorizes parties who negotiated over a term and condition of employment prior to August 19, 1972, to continue existing contractual terms concerning that term or condition of employment or to modify or improve it when negotiating a new agreement, without regard to restrictions in the Statute. See, for example, International Brotherhood of Electrical Workers, Local 1245 and U.S. Department of the Interior, Bureau of Reclamation, Mid-Pacific Regional Office, Sacramento, California, 43 FLRA 1155, 1156 (1992) (Bureau of Reclamation, Sacramento). See also United States Information Agency v. FLRA, 895 F.2d 1449 (D.C. Cir. 1990) (USIA v. FLRA); U.S. Department of Interior, Bureau of Reclamation, Lower Colorado Dams Project Office, Parker and Davis Dams and International Brotherhood of Electrical Workers, Local 640, 41 FLRA 119, 126 (1991), order denying motion for reconsideration, 42 FLRA 76 (1991) (Parker and Davis Dams).
Under section 704(b), the scope of bargaining established in section 704(a) is modified with respect to the specific category of terms and conditions of employment described as "pay and pay practices." Parker and Davis Dams, 41 FLRA at 127. Under section 704(b), employees who negotiated over pay and pay practices in accordance with prevailing rates and practices prior to August 19, 1972, may continue to negotiate over pay and pay practices only in accordance with current prevailing rates and practices. Id. at 128. That is, under section 704(b), current prevailing practices determine whether, and the extent to which, a specific pay practice is negotiable. Id.
For the purposes of section 704(b), the term "pay" encompasses the rate of basic pay for a position held by an employee covered by the provisions of section 704 of the CSRA. United States Information Agency, Voice of America, 37 FLRA 849, 859 (1990). The term "pay practices" encompasses matters historically considered part of an employee's compensation package, including: (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 were entered into and became a part of the employee's total compensation package. Id. at 861.
III. The Proposals
4. Shift Differential. A differential of (65) sixty-five cents per hour in addition to the base rate of pay will be paid regularly scheduled employees for work on the second shift (4 p.m. to 12 midnight) and a differential of (95) ninety-five cents per hour in addition to base rate of pay will be paid regularly scheduled employees for work on the third shift (12 midnight to 8 a.m.).
5. Retained Pay. Employees subject to a project reduction-in-force will retain their pay and thereafter the employee will receive 50 percent (of the cents per hour increase) of the position entered until the rates equalize.
6. Sunday Pay. For all non-overtime regularly scheduled work on a calendar Sunday the employee will receive their base rate plus 25%.
IV. Positions of the Parties
The Agency contends that Proposal 1 is not negotiable for two reasons. First, the Agency asserts that although shift differentials had been negotiated by the parties prior to August 19, 1972, at the time of such negotiations, payment of shift differentials had not been a prevailing practice in the industries surveyed by the parties to establish prevailing rates and practices. The Agency argues that, consequently, the negotiations that had occurred were not "in accordance with prevailing rates and practices prior to August 19, 1972," which the Agency contends is required by section 704(a) in order for a proposal to be negotiable under section 704. Second, the Agency asserts that the payment of shift differentials is not a currently prevailing pay practice in the industries surveyed by the parties to determine prevailing rates and practices. The Agency contends that, therefore, negotiation of Proposal 1 is inconsistent with section 704(b).
The Agency contends that Proposal 2 is nonnegotiable because, although retained pay had been negotiated by the parties prior to August 19, 1972, a survey of industries used by the parties to establish prevailing rates and practices shows that retained pay is not a currently prevailing pay practice.
The Agency argues that Proposal 3 is not negotiable for three reasons: (1) Sunday premium pay was not a subject of negotiations prior to August 19, 1972; (2) Sunday premium pay was not a prevailing practice in the industries surveyed prior to August 19, 1972, and (3) Sunday premium pay is not currently prevailing in the industries that are surveyed to establish prevailing rates and pay practices. As to the first point, the Agency states that Sunday premium pay had been listed in the parties' contract along with other benefits for Federal employees based on the mistaken belief that the employees had a statutory entitlement to Sunday premium pay. The Agency contends that "where negotiations of Sunday premium pay were premised on a perceived entitlement to Sunday premium pay as in this case, this does not constitute negotiations in accordance with prevailing pay practices under section 704(a)." Agency's statement of position at 9.
The Union did not file a reply brief and has presented no arguments or information concerning the Agency's claim that these proposals are not negotiable under section 704.
V. Analysis and Conclusions
The proposals in this case concern shift differentials, retained pay and Sunday premium pay. We find that these matters fall within the definition of "pay practices" as set forth above. That is, they relate to adjustments to an employee's basic rate of pay and the payment of differentials and premiums.
In order for a proposal that concerns pay or pay practices to be negotiable under section 704, it must: (1) concern a subject matter that was the subject of negotiations in accordance with prevailing rates and practices prior to August 19, 1972; and (2) be in accordance with the current prevailing rates and practices. See USIA v. FLRA, 895 F.2d at 1454; Parker and Davis Dams. Here, the Agency asserts, among other things, that none of these proposals is in accordance with the current prevailing rates and practices. The Union presents nothing to rebut this claim. Thus, there is nothing in the record to support a conclusion that these three proposals are "in accordance with the current prevailing rates and practices" as is necessary in order to support a conclusion that these proposals are negotiable under section 704(b).
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); Bureau of Reclamation, Sacramento, 43 FLRA at 1159-60.
Because these proposals do not satisfy the requirement of section 704(b) that they be in