48:0573(57)AR - - IBEW, Local 1245 and DOI, Bureau of Reclamation, Mid-Pacifice Region - - 1993 FLRAdec AR - - v48 p573



[ v48 p573 ]
48:0573(57)AR
The decision of the Authority follows:


48 FLRA No. 57

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

LOCAL 1245

(Union)

and

U.S. DEPARTMENT OF INTERIOR

BUREAU OF RECLAMATION

MID-PACIFIC REGION

(Agency)

0-AR-2406

_____

DECISION

September 30, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator John B. LaRocco filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. The Union filed an opposition to the Agency's exceptions.

The grievance alleged that the Agency violated the parties' collective bargaining agreement by unilaterally changing the overtime rate of pay from double the straight time rate (double time) to one and one-half times the straight time rate. The Arbitrator held that the Agency violated the parties' agreement when it unilaterally terminated the practice of paying double time for overtime work. The Arbitrator ordered the Agency to reinstate the practice and remanded the case to the parties for the computation of any compensation due employees as a result of the Agency's unlawful change.

For the following reasons, we find that the Agency has failed to establish that the award is deficient. Therefore, we will deny the exceptions.

II. Background and Arbitrator's Award

The employees involved in this case negotiate their wages and premium pay provisions in accordance with section 704 of the Civil Service Reform Act of 1978 (CSRA), codified at 5 U.S.C. § 5343 (Amendments) and section 9(b) of the Prevailing Rate Systems Act, codified at 5 U.S.C. § 5343 (Amendments, note).(1)

In 1952, the Agency and the Union's predecessor(2) agreed to change the rate of overtime pay from one and one-half times the basic hourly wage to double time and to simultaneously discontinue night shift differential pay.(3) Since 1952, each collective bargaining agreement, including the present one between the Agency and the Union, has contained a provision requiring the Agency to pay an employee double time when the employee performed overtime work. In 1958, the shift differential provision was restored to the parties' agreement.

At various times, the Agency has attempted, through collective bargaining, to reduce the overtime rate to one and one-half times the hourly rate. For example, in 1967 the Agency proposed the establishment of an overtime pay rate of one and one-half times the hourly rate and a shift differential identical to those in the Sacramento Municipal Utility District collective bargaining agreement. Noting that inasmuch as the shift differential for unit members had been restored to the parties' agreement in 1958, the Agency contended that the prevailing pay pattern in California was that employers paid employees one and one-half times the basic hourly rate for overtime service. The parties did not adopt the Agency's proposal.

In 1988, the Agency proposed reducing the overtime rate incrementally from double time to one and three-quarters to one and one-half times the basic hourly rate. The Agency eventually withdrew its proposal from the bargaining table. In 1989, the Agency again proposed decreasing the overtime rate to one and one-half times the basic hourly wage rate and again withdrew its proposal. The Arbitrator noted that the record did not reveal what quid pro quo, if any, the Agency received in exchange for withdrawing its proposals in 1988 and 1989.

The Agency offered the same proposal during the 1990 negotiations. It withdrew its proposal in April 1991 because, according to the Agency, "paying the double time wage rate for overtime work was unlawful." Award at 6. This position reflected the advice of the Bureau of Reclamation's Chief of Labor and Employee Relations (Chief) that the payment of double time for overtime service was a nonnegotiable item. The Arbitrator noted the Chief's position that a pay practice is negotiable under section 704 of the CSRA only if: (1) the specific pay practice was negotiated prior to August 1972; (2) the specific pay practice was prevailing at the time; and (3) the pay practice is a prevailing practice today.(4) The Arbitrator found that the Chief's advice that the payment of double time for overtime service in this case was nonnegotiable "was predicated on information . . . which ostensibly showed that payment of double time for overtime work was not a prevailing pay practice in the region." Award at 6-7.

On May 6, 1991, the Agency notified the Union that it was terminating the practice of paying double time for overtime work. In August 1991, the Agency began to compensate employees for overtime work at the rate of one and one-half times the straight time rate.

The Union filed a grievance over the Agency's unilateral termination of the double time rate of pay for overtime. The grievance was unresolved and was subsequently submitted to arbitration on the following stipulated issue:

Did the [Agency's] change, effective August 1991, of compensating overtime service from double the straight time [rate] to one and one-half times the straight time rate violate Supplementary Labor Agreement [SLA] No. 2, Article III, Section 2, or did the [Agency's] change conform with either Article I, Section 1 or Article IV, Section 1 of the Agreement?

Id. at 1.

Before the Arbitrator, the Agency argued that it correctly relied on the courts' decisions in Rio Grande Project, USIA, and Wapato when it determined that the payment of double time for overtime service was not negotiable. According to the Agency, "the correct definition of a prevailing pay practice is the practice followed by a majority of comparable employers regardless of the size of the employers' work forces." Id. at 13. The Agency contended that the payment of double time for overtime work was not a prevailing pay practice either in 1972 or in 1990 and, therefore, was inconsistent with Rio Grande Project, USIA, and the parties' contract.(5) Accordingly, the Agency asserted that the parties could not negotiate over the payment of double time because it was an illegal bargaining subject.

The Union argued before the Arbitrator that the payment of double time for overtime service was a prevailing practice in 1952 and continues to be a prevailing practice. The Union stated:

Using a weighted average, 60.4 percent of the employees (17,603 of 29,131) in the [eight] surveyed entities receive double time compensation in many overtime service situations. Since there was a prevailing practice of paying double time compensation for various types of overtime service, the parties simply agreed to a single overtime rule, double the basic hourly rate.

Id. at 9. Additionally, the Union contended that the Agency was attempting to achieve unilaterally a result--the elimination of double time as overtime compensation--that it could not attain through collective bargaining. The Union asserted that in view of the fact that the Agency "consistently and unsuccessfully proposed the reduction in overtime compensation to one and one-half times the basic hourly wage rate at the bargaining table, the [Agency] is estopped from asserting that the subject matter is not negotiable." Id. at 10.

The Arbitrator sustained the grievance, concluding that the Agency "breached SLA No. 2, Article III, Section 2 and lacked lawful support for its unilateral termination of paying double time for overtime work." Id. at 16. The Arbitrator stated that his decision was based on the following "two interrelated reasons":

[D]ouble time compensation for overtime service continues to have a place in the prevailing pay practices of the eight entities [surveyed by the parties] and the [Agency] improperly eliminated an existing collective bargaining provision after submitting and then withdrawing a proposal from the bargaining which effectively left SLA No. 2, Article III, Section 2 [intact] and fully enforceable.

Id. at 21.

Noting that this case concerned a pay practice governed by section 704(b) of the CSRA, the Arbitrator stated that although the parties framed the issue as whether the Agency violated provisions in the applicable collective bargaining agreement, "this dispute really centers on what is the permissible scope of bargaining for the prevailing rate employees in the bargaining unit represented by the Union." Id. at 4. The Arbitrator further stated that although he concurred "[f]or the most part" with the Agency's interpretation of the three court decisions relied on by the Agency, the Agency "may have reached an overly broad interpretation of the rulings in two of the three cases." Id. at 14.

The Arbitrator first noted that in Wapato, the court ruled that not all types of pay practices are negotiable merely because the parties had bargained over basic wages before August 19, 1972. The Arbitrator stated that "there is no doubt that the specific pay practice" in the instant case was negotiated prior to August 19, 1972, because the Union and the Agency "have bargained about the amount of overtime compensation since at least 1952, when they agreed to enhance the payment from one and one-half times the hourly rate to double the hourly rate." Id.

With respect to the court's decision in USIA, the Arbitrator noted that the court had decided that "the particular pay practice must have 'some place' among current industry practices." Id. (quoting USIA, 895 F.2d at 1445 (emphasis in original omitted)). The Arbitrator stated that USIA "does not mean that the particular pay practice must precisely conform to the prevailing pay practice so long as the pay practice, in general terms, has a place in current industry practices." Id. at 18 (emphasis in original). The Arbitrator also quoted from the portion of the court's decision in USIA which stated that "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 15 (quoting USIA, 895 F.2d at 1445).

The Arbitrator further noted that in Rio Grande Project, the court held that a proposal for the continuation of Sunday premium pay was not negotiable because: (1) the matter was never a specific subject of bargaining before 1972; and (2) Sunday premium pay was not a prevailing pay practice before 1972. The Arbitrator stated that Rio Grande Project "does not necessarily stand for the proposition that," to be negotiable, the particular pay practice must have been a prevailing practice "each and every year, up to and including 1972, to be preserved under" section 704. Id. at 15. According to the Arbitrator, Rio Grande Project did not suggest that under section 704, parties to a collective bargaining agreement "cannot continue to negotiate over what was a prevailing pay practice when they first negotiated the subject." Id.

The Arbitrator noted that the facts in the instant case differed from the facts in the cases relied on by the Agency "because the subject matter in the dispute is not only addressed by the express language in the collective bargaining agreement but also the [Agency], as opposed to the Union, advanced and then withdrew a proposal to completely abrogate double time compensation for overtime work." Id. at 16-17 (footnote omitted). The Arbitrator ruled that "[a] party cannot put a proposal on the bargaining table and withdraw it during the 'quid pro quo' of collective bargaining and then later assert that its own proposal was unlawful." Id. at 18. The Arbitrator further noted that "[o]nce the [Agency] withdrew its proposal [to reduce the rate of overtime pay], SLA No. 2[,] Article III, Section 2 became a firm provision in the succeeding collective bargaining agreement." Id. at 18 n.12.

Moreover, the Arbitrator found that the subject matter of the disputed pay practice was not, as asserted by the Agency, double time compensation for overtime service. Rather, the Arbitrator stated that "[a] more accurate description of the subject matter in dispute is what rate shall employees be paid when they perform work on an overtime basis." Id. at 17. The Arbitrator noted that the Agency "takes the very narrow view that double time compensation for some types of overtime may be negotiable . . . [and] then illogically attempts to shift the burden to the Union to promulgate a proposal comporting with the [Agency's] interpretation of the scope of negotiability." Id. The Arbitrator held that "[i]f, as the [A]gency concedes, double time compensation is negotiable for some types of overtime, then, because the disputed subject matter is the pay rate for overtime service, the double time compensation is negotiable and . . . collective bargaining determines the ultimate outcome." Id. In this regard, the Arbitrator noted that Article IV, Section 1 of the parties' General Agreement "specifically alludes to 'overtime . . . rates' as being determined by collective bargaining." Id. at 17 n.11.

The Arbitrator acknowledged that "even if the [Agency] acquiesced with the Union on the negotiability of the subject in dispute, the parties may not bargain over an unlawful subject . . . ." Id. at 18. However, the Arbitrator found, contrary to the Agency's assertion, that it was not unlawful to bargain over the subject matter in dispute.

In this regard, as noted above, the Arbitrator determined that USIA does not require that a "particular pay practice must precisely conform to the prevailing pay practice so long as the pay practice, in general terms, has a place in current industry practices." Id. (emphasis in original). The Arbitrator noted that the parties annually survey eight entities to determining prevailing rates. The Arbitrator found, based on jointly compiled survey data for 1989 and 1990, that although "the basic overtime rate" for all eight entities is time and one-half the hourly wage, the survey data and Union testimony demonstrated that "all eight of the surveyed entities paid double time for certain types of overtime." Id. at 7-8. The Arbitrator found that the Agency "narrowly and improperly define[d] the subject in dispute as double time for all overtime work[,]" and that "[u]nder the [Agency's] theory, for double time to be negotiable under any circumstances, at least five of the eight [employers jointly surveyed by the parties to determine prevailing practices] would have to pay double time for all overtime situations or for the same type of overtime service." Id. at 19 (emphasis in original).

Stating that he did not interpret USIA so restrictively, the Arbitrator found that the record testimony that a majority, if not all, of the eight surveyed entities pay double time for certain types of overtime service makes double time compensation for overtime work a negotiable subject because "double time compensation for overtime work has a place in current industry practices." Id. (footnote omitted). In this regard, the Arbitrator noted that three of the companies, including Pacific Gas and Electric, which employed more employees than the other seven companies combined, paid double time for two different types of overtime and that the other five companies paid double time for other types of overtime. The Arbitrator ruled that, under USIA, to preclude the subject of double time pay for overtime work from bargaining, "the survey would have to show that the prevailing practice is to pay one and one-half the basic hourly rate for all overtime work." Id. at 20 (emphasis added). The Arbitrator further stated:

In the give-and-take of collective bargaining, the parties could reach[, among other results,] the following results: (1) all overtime will be paid at the one and one-half rate; (2) certain types of overtime would be compensated at one and three-quarters; (3) certain types of overtime work will be compensated at double time; (4) all overtime work will be compensated at one and three-quarters time; (5) all overtime work could be compensated double time; or, (6) some overtime will be compensated at the double time rate.

Id. at 19-20 (footnote omitted).

Based on the evidence before him, the Arbitrator found that "double time compensation for overtime service continues to have a place in the prevailing practices of the eight entities" in the parties' survey. Id. at 21. The Arbitrator found that regardless "of whether one uses a weighted average of employees or a simple mean of employers" to determine whether the pay practice was prevailing, double time for overtime work was a prevailing practice within the meaning of section 704(b) of the CSRA and negotiable. Id. at 19. Consequently, he concluded that the Agency "improperly eliminated an existing collective bargaining provision after submitting and then withdrawing a proposal from the bargaining which effectively left SLA No. 2, Article III, Section 2 [intact] and fully enforceable." Id. at 21.

The Arbitrator sustained the grievance and issued the following award:

(1) The [Agency] shall cease and desist from violating SLA No. 2, Article III, Section 2;

(2) The Arbitrator remands to the [Agency] and the Union to compute the amount of pay, if any, due employees who were paid less than double time for performing overtime work since August[] 1991.

Id.

III. Positions of the Parties

A. Agency's Exceptions

The Agency contends that the Arbitrator's award is deficient and must be vacated because it is contrary to law, namely, section 704 of the CSRA. Citing Wapato and Rio Grande Project, the Agency asserts that the award is "inconsistent with section 704(a) in that the specific rate for standard overtime work had not been negotiated in accordance with prevailing rates and practices prior to August 19, 1972." Exceptions at 4 (emphasis in original).(6) The Agency contends that:

[P]rior to August 19, 1972, and specifically since 1958 when the shift differential provision was restored to the [a]greement, the prevailing hourly rate for standard overtime work in the segment of the industry used by the parties to determine prevailing rates and practices was not at the double time rate. Rather, the prevailing rate among all the eight companies surveyed was to pay time and one-half for standard overtime service.

Id. at 6 (emphasis in original). The Agency contends that because the double time provision in the parties' agreement was not established prior to August 19, 1972, in accordance with section 704(a), that is, in accordance with the prevailing rate of time and one-half, the provision was "void ab initio and unenforceable." Id. at 7. Therefore, the Agency argues that it had a right to reduce the rate of double time for standard overtime work to the prevailing rate of time and one-half.

Further, the Agency asserts that the award is contrary to section 704(b) of the CSRA because "the double time rate is not a currently prevailing rate for standard overtime work in the companies surveyed [by the parties] pursuant to section 704(b)." Id. at 5 (emphasis in original). The Agency notes the Arbitrator's finding that the basic overtime rate for all eight entities is time and one-half and claims that the Arbitrator "erroneously determined that the atypical (not involving standard overtime work) situations" constituted a prevailing rate for standard overtime work. Id. at 9 (footnote omitted). According to the Agency, "the rate of double time for standard overtime service cannot possibly be 'prevailing' when it is not paid by any of the eight companies surveyed but, rather, all eight surveyed companies pay time and one-half for standard overtime work." Id. at 9 n.4. The Agency claims that the fact that it proposed and then withdrew its proposal to reduce the rate of overtime pay during the parties' negotiations "does not translate into the Agency's determination that [the double time for overtime] provision was proper." Id. at 10 (footnote omitted). Based on the 1990-91 joint survey, the Agency claims that it "rightfully concluded that, since payment of double time for standard overtime was not currently prevailing in the companies surveyed, it could not be renegotiated into the contract but, rather, must be terminated in accordance with section 704(b)." Id. (citation omitted).

B. Union's Opposition

The Union asserts that the Arbitrator's award is supported by the factual record and the law and should be upheld. The Union also argues that the Arbitrator's legal reasoning and analysis of the courts' decisions "is sound and requires no additional commentary from the Union." Opposition at 1.

The Union disputes several of the Agency's factual assertions in its exceptions. Specifically, the Union claims that "the factual assertions made by the Agency bear no resemblance whatsoever to the position taken by the Agency during the arbitration proceeding and find no support in the record thereof." Id. Among other things, the Union takes issue with the Agency's use of the term "standard overtime." The Union asserts that the Agency never declared that double time for standard overtime or non-standard overtime was nonnegotiable, but rather "proposed a reduction in the rate of all overtime[.]" Id. at 3 (emphasis in original). The Union further asserts that the Agency "withdrew its proposal [to reduce the overtime rate] and waited until the negotiated contract went into effect, at which time it unilaterally reduced overtime pay, achieving through unilateral action that which it had been unable to achieve at the bargaining table." Id. at 4.

IV. Analysis and Conclusions

For the following reasons, we find that the Agency has failed to show that the Arbitrator's award is contrary to law. Accordingly, the Agency's exceptions will be denied.

A. The Award Is Not Contrary to Section 704(a)

The Agency excepts to the Arbitrator's award on the ground that it is inconsistent with section 704(a) of the CSRA because "the specific rate for standard overtime work had not been negotiated in accordance with prevailing rates and practices prior to August 19, 1972." Exceptions at 4 (citing Wapato and Rio Grande; emphasis in original). We reject the Agency's contention.

Under section 704(a) of the CSRA, in order for a term or condition of employment or other employment benefit to be negotiable, it must have been the subject of negotiations in accordance with prevailing rates and practices prior to August 19, 1972. See U.S. Department of Interior Bureau of Reclamation, Lower Colorado Dams Project Office, Parker and Davis Dams and International Brotherhood of Electrical Workers, 41 FLRA 119, 126 (1991) (Parker and Davis Dams I), reconsideration denied, 42 FLRA 76 (Parker and Davis Dams II) (1991). See also USIA v. FLRA.

As an initial matter, we find, in agreement with the Arbitrator, that the subject matter at issue in this case concerns the rate at which employees will be paid when they perform work on an overtime basis. In this regard, we note that the relevant collective agreement provision in dispute does not make distinctions between "standard" overtime, the term which is used by the Agency, and other types of overtime. Accordingly, we reject the Agency's contention that the subject matter at issue in this case is the rate at which employees will be paid when they perform work while on "standard" overtime.

Additionally, we note that the Arbitrator found that "there is no doubt that the specific pay practice" in the instant case was negotiated prior to August 19, 1972, because the Union and the Agency "have bargained about the amount of overtime compensation since at least 1952, when they agreed to enhance the payment from one and one-half times the hourly rate to double the hourly rate." Award at 14. Further, we note that based on the parties' collective bargaining history and agreements and other evidence in the record before him, the Arbitrator found that the practice of paying a double time rate for overtime work existed as a "prevailing pay practice[] with regard to overtime compensation in Northern California in the early 1950's." Id. at 5 n.2. Therefore, the Arbitrator found that the subject matter at issue in this case--the rate at which employees will be paid when they perform work on an overtime basis--was the subject of negotiations in accordance with prevailing rates and practices prior to August 19, 1972. We conclude that the Arbitrator's determinations are consistent with section 704(a) and the cases discussed above and that the Agency has provided no basis for finding the Arbitrator's award deficient in this regard. Consequently, we find that the Agency's exception is without merit.

B. The Award Is Not Contrary to Section 704(b)

Under section 704(b) of the CSRA, prevailing rate employees who negotiated rates of pay and pay practices in accordance with prevailing rates and practices prior to August 19, 1972, may negotiate current pay and pay practices only in accordance with current prevailing rate and practices in the industry. See Parker Davis and Dams I, 41 FLRA at 127-28. "[I]f 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." USIA v. FLRA, 895 F.2d at 1455 (emphasis in original). See also Parker Davis and Dams I, 41 FLRA at 127-28. Therefore, under section 704(b), current prevailing rates and practices in the industry determine whether and the extent to which section 704 prevailing rate employees may bargain concerning a specific pay practice. Id. at 128.

The Agency excepts to the Arbitrator's award on the ground that it is inconsistent with section 704(b) of the CSRA. Specifically, the Agency contends that because "the double time rate is not a currently prevailing rate for standard overtime work in the companies surveyed [by the parties]" the award is inconsistent with section 704(b). Exceptions at 5 (emphasis in original). We reject the Agency's contention and find that the Agency has provided no basis for finding the Arbitrator's conclusions in this regard deficient.

As stated above, the subject matter at issue in this case concerns the rate at which employees will be paid when they perform work on an overtime basis, not the rate at which they are paid when they perform work while on "standard" overtime. The Arbitrator found, and the Agency does not dispute, that all eight of the surveyed companies pay double time for certain types of overtime work. Therefore, the Arbitrator found that double time compensation for overtime work has a place in current industry practices and concluded that the Agency "lacked lawful support for its unilateral termination of paying double time for overtime work" and was required to bargain over the disputed pay practice. Award at 16. We agree with the Arbitrator's rationale and determinations and find that because the payment of double time compensation for overtime work is a current prevailing rate and practice in the industry, the Arbitrator's award is consistent with section 704(b) and the cases discussed above. The fact that the payment of time and a half compensation for some overtime work is also a current practice does not alter that result.

Accordingly, because the record establishes that the Arbitrator properly concluded that the collective bargaining provision at issue was established consistent with section 704(b) of the CSRA, the Agency is required to comply with the provision for the life of the agreement. See U.S. Department of the Interior, Bureau of Reclamation, Missouri Basin Region and International Brotherhood of Electrical Workers, 42 FLRA 820, 827-28 (1991) (a pay practice provision in a collective bargaining agreement that was established in accordance with section 704 may be enforced by an arbitrator), reconsideration denied, 43 FLRA 380 (1991), petition for review dismissed, __ F.2d __, No. 92-9503 (10th Cir. Jul. 27, 1993).

V. Decision

The Agency's exceptions are denied.

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.

Article III, Section 2 of the parties' Supplementary Labor Agreement No. 2 provides:

Overtime shall be paid to the nearest half hour at the rate of double the basic hourly wage rate.

Award at 2.

Article I, Section 1 of the parties' General Agreement provides:

It is recognized that Management is an agency of the sovereign Government of the United States; that is dedicated to the accomplishment of the public purposes for which it was created by the Act of June 17, 1902 (32 Stat. 388), and acts amendatory thereof or supplementary thereto; and that in the accomplishment of those public purposes and the discharge of those duties and responsibilities, Management and the employees must comply with and conform to all applicable Federal laws, executive orders, regulations and policies, all of which laws, orders, regulations and policies are regarded as paramount. The Parties further recognize that cooperation by Management and the employees on the basis of mutual understanding between them arrived at through the process of collective bargaining is a valuable aid to the accomplishment of those public purposes. (Section amended 6-9-72).

Id. (citation omitted; emphasis deleted).

Article IV, Section 1 of the parties' General Agreement provides:

The rates of pay to be paid to employees covered by this Agreement shall be determined through the process of collective bargaining between the Parties. They will include basic hourly, overtime, and holiday work rates and, when and as needed, shift differentials, call-back time, penalty rates for changes in regular work schedules, and similar pay items. All rates must be established as nearly as is consistent with the public interest in accordance with prevailing rates in the territory in which the Project's activities are carried on. Once each calendar year but not more often, Management or the Union may notify the other in writing that a conference is desired to consider the need for revising any or all existing rates of pay. Such notice shall be acknowledged within ten days and a date set for holding the conference which date shall be within thirty days of the date of the notice. Unless it is mutually determined that negotiations are not necessary the date for starting the negotiations for the purpose of revising rates of pay shall be within 30 days of the close of the preliminary conference. In addition to the negotiating committees of the Parties who shall participate in the negotiations at the joint conference, representatives of the Union and representatives of Management may be permitted to attend the conference.

Prior to such negotiations, the Parties shall set up a joint fact-finding committee and appropriate sub-committees (the expense of which when approved in advance by the Parties and authorized by existing laws and regulations, except for the compensation and travel expenses of the members shall be borne jointly by the Parties) for the purpose of establishing any relevant facts pertaining to rates of pay, classifications, and conditions of employment. The committee may go outside the Project for the purpose of establishing such relevant facts. Consideration shall be given by the Parties in their negotiations to any facts so established.

Rates of pay, as determined through the process provided herein at regular wage conferences, shall take effect as soon as regulations allow.

Id. at 2-3 (citation omitted; emphasis deleted).




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

1. The text of section 704 of the CSRA and relevant provisions of the parties' general and supplementary collective bargaining agreements are set forth in the Appendix to this decision.

2. The award does not identify the Union's predecessor.

3. The Arbitrator noted that "the parties evidently found dual prevailing pay practices with regard to overtime compensation in Northern California in the early 1950's." Award at 5 n.2. According to the Arbitrator, "[i]f a company paid workers a differential for working one or more undesirable shifts, all workers were paid one and one-half times the straight time rate of pay for overtime service [and] if the company did not pay any shift differentials, workers received double time compensation for overtime work." Id. The Arbitrator found that "the employees opted for the latter practice since it benefited a greater number of workers in the bargaining unit." Id.

4. According to the Arbitrator, the Chief "derived his three prerequisites to negotiability from his interpretation" of the following three decisions issued by the courts of appeals: United States Department of the Interior, Bureau of Reclamation, Rio Grande Project v. FLRA, 908 F.2d 570 (10th Cir. 1990) (Rio Grande Project); United States Information Agency, Voice of America v. FLRA, 895 F.2d 1449 (D.C. Cir. 1990) (USIA); and United States Department of the Interior, Bureau of Indian Affairs, Yakima Agency and the Wapato Irrigation Project v. FLRA, 870 F.2d 554 (9th Cir.), superseded by 887 F.2d 172 (9th Cir. 1989) (Wapato). Award at 7.