[ v50 p677 ]
50:0677(87)NG
The decision of the Authority follows:


50 FLRA No. 87

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNATIONAL ASSOCIATION OF MACHINISTS

AND AEROSPACE WORKERS

FRANKLIN LODGE NO. 2135

AND

INTERNATIONAL PLATE PRINTERS, DIE STAMPERS AND

ENGRAVERS UNION OF NORTH AMERICA

LOCAL NOS. 2, 24, AND 32

AND

GRAPHIC COMMUNICATIONS INTERNATIONAL UNION

LOCAL NO. 285

AND

INTERNATIONAL ASSOCIATION OF SIDEROGRAPHERS

WASHINGTON ASSOCIATION

(Unions)

and

U.S. DEPARTMENT OF THE TREASURY

BUREAU OF ENGRAVING AND PRINTING

(Agency)

0-NG-1927

(43 FLRA 1202 (1992))

_____

DECISION AND ORDER ON REMAND

July 31, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Pamela Talkin, Members.

I. Statement of the Case

This case is before the Authority pursuant to a remand from the United States Court of Appeals for the District of Columbia Circuit in U.S. Department of the Treasury, Bureau of Engraving and Printing v. FLRA, 995 F.2d 301 (D.C. Cir. 1993) (BEP v. FLRA). In BEP v. FLRA, the court determined that the Authority's decision in IAMAW and Treasury (1) was inconsistent with two previous Authority decisions (2) and reversed and remanded IAMAW and Treasury to the Authority to provide "a more reasoned examination of its precedent and the statutory provisions at issue." BEP v. FLRA, 995 F.2d at 304.

The proposals at issue in this case concern the methodology used to establish wages of Bureau of Engraving and Printing (BEP) employees. On remand, for the reasons that follow, we find that the proposals do not concern matters that are specifically provided for by Federal statute within the meaning of section 7103(a)(14)(C) (section 7103(a)(14)(C) or subsection C) of the Federal Service Labor-Management Relations Statute (the Statute) because the Agency has discretion under 5 U.S.C. § 5349 (section 5349) in establishing wages for BEP employees.(3) Therefore, we conclude that the proposals concern conditions of employment that are subject to collective bargaining. We also conclude that, to the extent that the Authority's decisions in Langley and Dallas hold that all matters pertaining to wage rates for prevailing rate employees under 5 U.S.C. § 5343 (section 5343) are specifically provided for by Federal statute, they are erroneous. Finally, because we find that the Agency's discretion under section 5349 is not sole and exclusive, we conclude that the proposals are not inconsistent with law under section 7117(a)(1) of the Statute. Accordingly, we find that the proposals in this case are negotiable.

II. Background

The Unions represent six bargaining units of BEP employees whose wages are established pursuant to section 5349. Prior to this dispute and in accordance with Department of the Treasury regulations, "most of the employees represented by the Unions 'traditionally had their pay rates aligned with those of employees holding similar jobs at the American Bank Note Corporation ("ABNC").'" IAMAW and Treasury, 43 FLRA at 1205 (quoting Statement of Position at 4). The rates for individual job classifications in BEP were adjusted whenever rates for comparable jobs were adjusted at the ABNC. In 1990, the Agency instituted a new methodology for adjusting wage rates which was then described as an "interim policy." Petition for Review, Appendix B at 2. The Unions sought to bargain over the methodology used to establish the wage rates of unit employees.(4)

The Authority previously concluded, in IAMAW and Treasury, that the Union's proposals were negotiable. As relevant here, the Authority determined that the wage rates established by the Agency under section 5349 are not "specifically provided for by Federal statute" within the meaning of section 7103(a)(14)(C) of the Statute and are not excepted from the conditions of employment subject to collective bargaining. On review, the court noted that the Authority had held in Langley and Dallas that all aspects of pay-setting under 5 U.S.C. § 5343 (section 5343) "met the terms of the 'specifically provided for' exception." BEP v. FLRA, 995 F.2d at 303. The court stated that because the wording of section 5343 is similar to the wording of section 5349, the Authority was required, but had failed, to distinguish its holding in IAMAW and Treasury from its prior holdings in Langley and Dallas. The court reversed IAMAW and Treasury and remanded it to the Authority to provide a "more reasoned examination of its precedent and the statutory provisions at issue." BEP v. FLRA, 995 F.2d at 304.

III. Positions of the Parties

A. Agency

The Agency contends that the proposals are not negotiable because they do not concern a condition of employment. In this regard, the Agency argues that the proposals concern the pay of BEP unit employees, which is "specifically provided for" by section 5349, within the meaning of section 7103(a)(14)(C) of the Statute. The Agency also argues that, to the extent the Agency has discretion to set employees' pay under section 5349, that discretion is sole and exclusive and, because the proposals require the Agency to bargain over that discretion, they are inconsistent with law under section 7117(a)(1) of the Statute. In particular, the Agency asserts that collective bargaining would force the Agency to either adopt pay practices and principles proposed by the Unions or forfeit its wage-setting decisions to the Federal Service Impasses Panel (FSIP) and, therefore, is inconsistent with its sole discretion to set employees' pay under section 5349. The Agency also asserts that collective bargaining over the Agency's sole discretion to adjust wage rates in the public interest is inconsistent with section 5349 and nonnegotiable under section 7117(a)(1) of the Statute.

B. Unions

Although the Unions were given the opportunity to file a supplemental statement setting forth their positions on remand, the Unions did not file a statement.

C. Amicus (5)

DoD requests that the Authority reverse its decision in IAMAW and Treasury and, for the reasons set forth by the Agency, find the proposals nonnegotiable. In the alternative, DoD asserts that if the Authority does not reverse IAMAW and Treasury, it should nonetheless affirm the holdings in Langley and Dallas because wage-setting under section 5343 is distinguishable from wage-setting under section 5349(a), and wage-setting under the former is specifically provided for by Federal statute.

IV. Analysis and Conclusions

The issues to be decided on remand are whether: (1) the proposals, which set forth criteria, methods and procedures for establishing wage rates for BEP employees under section 5349, concern conditions of employment and, in this regard, whether the Authority's decisions in Langley and Dallas continue to be valid;(6) and (2) the proposals are inconsistent with law.

A. Conditions of Employment

Under the Statute, a matter proposed to be bargained is outside the duty to bargain if it does not concern conditions of employment of bargaining unit employees.(7) Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236 (1986). The term "conditions of employment" is defined in section 7103(a)(14) as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions" which are not excepted under subsections 7103(a)(14)(A), (B) or (C). Subsections A and B, respectively, except from conditions of employment matters relating to certain political activities and the classification of any position. Subsection C, which is at issue in this case, excepts personnel policies, practices, and other matters (hereinafter matters) to the extent that they are "specifically provided for" by Federal statute. See American Federation of Government Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA 377, 378-79 (1986). See also American Federation of Government Employees, v. FLRA, 653 F.2d 669, 670 (D.C. Cir. 1981) (AFGE v. FLRA).

1. Matters Specifically Provided for by Federal Statute

Mere reference to a matter in a statute is not sufficient to exclude it from the definition of conditions of employment under subsection C. E.g., National Association of Government Employees, Local R1-144, Federal Union of Scientists and Engineers and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 38 FLRA 456, 487-88 (1990) (Naval Underwater Systems Center), decision on remand as to other matters, 43 FLRA 47 (1991). Under the terms of subsection C, the statute must "specifically provide[] for" the matter, and the exception applies only "to the extent that" it does so. Id. at 488.

In determining whether the requisite relationship exists between the governing statute and the matter in issue, in a long line of cases the Authority has analyzed whether the statute grants the agency discretion over the matter. E.g., National Treasury Employees Union and U.S. Nuclear Regulatory Commission, 47 FLRA 980, 991 (1993); National Federation of Federal Employees and U.S. Department of Agriculture, Forest Service, 35 FLRA 1008, 1014 (1990); American Federation of Government Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA 377 (1986); National Treasury Employees Union and Department of the Treasury, U.S. Customs Service, 21 FLRA 6, 10-11 (1986) (NTEU), enforced, 836 F.2d 1381 (D.C. Cir. 1988); National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 759-60 (1980) (New Orleans District). Under this analysis, the Authority will find that a matter is specifically provided for, within the meaning of subsection C, only to the extent that the governing statute leaves no discretion to the agency. See Overseas Education Association, Inc. and Department of Defense Dependents Schools, 29 FLRA 734, 835 (1987) (OEA) (Chairman Calhoun concurring in relevant part), enforced as to other matters, 911 F.2d 743 (D.C. Cir. 1990). See also Overseas Education Association and U.S. Department of Defense, Office of Dependents Schools, 45 FLRA 1185, 1191-95 (1992) (Office of Dependents Schools) (salaries under 20 U.S.C. §§ 902 and 903 are specifically provided for by statute because that statute leaves no room for the substitution of Federal civilian or military officials' views in the pay-setting process). Conversely, when a statute provides an agency with discretion over a matter it is not excepted from the definition of conditions of employment to the extent of the agency's discretion. See American Federation of Government Employees, AFL-CIO, Local 3732 and U.S. Department of Transportation, United States Merchant Marine Academy, Kings Point, New York, 39 FLRA 187, 191-93 (1991) (Merchant Marine Academy) (under section 1308(d) of the Maritime Education and Training Act of 1980 the agency has discretion to establish a pay system for employees; therefore, the salaries of those employees are not specifically provided for by statute).(8) Insofar as an agency has discretion, even if that discretion is less than total, it is subject to being exercised through negotiation. NTEU, 21 FLRA at 10-11.

This analytic approach is derived from the text and grounded in the legislative history of the Statute. As stated above, by its express terms, subsection C is limited in two respects. First, the phrase "to the extent that" recognizes that a statute may be specific as to some aspects of a matter and not specific as to others. For example, an agency may be granted discretion over some aspects of a personnel matter while, at the same time, it is granted no discretion over other aspects. See Naval Underwater Systems Center, 38 FLRA at 487-88. In such case, only that aspect that is specifically provided for will be found to be excepted from the definition of condition of employment; the aspects over which an agency has discretion will not be so excepted. E.g., National Association of Government Employees, Local R14-52, Federal Union of Scientists and Engineers and U.S. Department of the Army, Red River Army Depot, Texarkana, Texas, 41 FLRA 1057, 1060-62 (1991), decision on remand as to other matters 48 FLRA 1198 (1993).

Second, the term "specifically" also limits the reach of the exception. The dictionary defines "specifically" as "with exactness and precision; in a definite manner." Webster's Third New International Dictionary (ed. 1986). Relying on this ordinary meaning of the words used by Congress, see Smith v. United States, 113 S. Ct. 2050, 2054 (1993), subsection C's exception applies to those statutory provisions that are precise in their prescription of what agencies may do. The Authority has found this required precision where a law asserted as the basis for a subsection C exception provides the agency with no discretion. OEA, 29 FLRA at 835.

The legislative history of the Statute supports the view that Congress intended subsection C to be read narrowly to except from the definition of conditions of employment only those matters with respect to which Congress leaves an agency no discretion. For example, Congressman Clay, addressing proposed language that ultimately was enacted as subsection C, stated that:

only matters "specifically" provided for by statute would be excluded under this subsection. Thus, where a statute merely vests authority over a particular subject with an agency official with the official given discretion in exercising that authority, the particular subject is not excluded by this subsection from the duty to bargain over conditions of employment.(9)

124 Cong. Rec. 29,187 (1978) (emphasis added), reprinted in Legislative History at 933. See also 124 Cong. Rec. 29,199 (1978), reprinted in Legislative History at 956-57 (statement of Congressman Ford).(10)

We recognize that the Authority has held in prior decisions that whether a statute "deals comprehensively" with a matter is relevant to determining whether the Statute "specifically provide[s] for" that matter within the meaning of section 7103(a)(14)(C). For example, National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 775-77 (1992) (citing Association of Civilian Technicians, Wisconsin Chapter and Wisconsin Army National Guard, 26 FLRA 682, 684 (1987)). See also International Organization of Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA 508, 514 (1983) (because Panama Canal Act established a comprehensive statutory scheme of wage determination, rates of basic pay are matters that are specifically provided for by that statute).(11) These decisions do not address whether the statutes in issue leave an agency any discretion to determine the matters in dispute. To the extent that these decisions indicate that the comprehensiveness of a statutory scheme is a sufficient basis on which to find that a matter is specifically provided for, they are inconsistent with the analysis discussed above and the long line of Authority decisions that have applied it. See New Orleans District, 3 FLRA at 759-60. For the reasons set forth in this decision, we will no longer find that a matter is within the subsection C exception without explicitly analyzing whether the governing statute leaves any discretion to the agency.

2. Wage Determination Under Section 5349

On its face, section 5349 does not prescribe the actual pay rates of employees covered by that section. Instead, the statute sets forth a two-factor formula for determining the wages of employees covered by that provision. The statute provides, in relevant part, that the pay of BEP employees shall be: (1) established in accordance with prevailing rates; and (2) adjusted consistent with the public interest. 5 U.S.C. § 5349. For the following reasons, we conclude that the Agency has discretion under each of these factors and, as a result, neither phase of wage-setting under section 5349 is specifically provided for by that statutory provision.

a. Prevailing Rate Factor

Section 5349 requires that the Agency establish pay rates for covered employees that are "in accordance with prevailing rates."(12) At the same time, it leaves the Agency considerable discretion over the process by which it determines what prevailing rate will guide it.(13) For example, the Agency has discretion to determine whether to conduct a wage survey to establish wage rates and, if it decides to do so, to determine which criteria it will use to assess the comparability of jobs. It is clear from other laws that Congress has effectively removed discretion over certain matters from agencies. See, for example, AFGE v. FLRA. It also is clear that in enacting section 5349, Congress chose not to do so.(14)

That the Agency has discretion under section 5349 is evident from its past practice.(15) Indeed, the Agency's submission reflects an exercise of this discretion in 1990, when it implemented a new methodology for setting the wage rates of unit employees, prompting the proposals in this case. The manner in which the Agency has exercised its discretion under section 5349 exemplifies and is consistent with the "range of choice in the prevailing rate phase of the calculation" that was recognized by the court. BEP v. FLRA, 995 F.2d at 304.(16) Published decisions reflect the Agency's discretion in determining relevant job comparison criteria. For example, the Agency decided which of two ABNC presses was comparable to presses operated by BEP employees, which determined whether the BEP employees received higher wage rates. See Bradley II, 26 Cl.Ct. at 704-05. See also Baratt v. United States, 585 F.2d 1041, 1043-44 (Cl.Ct. 1978) (Treasury Department's revision of supervisory pay formula adopted from GPO resulted in lower wage rate for BEP supervisory personnel).

b. Public Interest Factor

The Agency also has discretion under the public interest factor in section 5349. In this phase of the wage-setting formula, pay for BEP employees is fixed and adjusted "as nearly as is consistent with the public interest." Pursuant to this statutory provision, the Agency has discretion to determine when to adjust, and the extent to which it will adjust, prevailing rates. The D.C. Circuit recognized in BEP v. FLRA that the Agency's discretion under this factor is "considerable." BEP v. FLRA, 995 F.2d at 303. Accord Bradley II, 26 Cl.Ct. at 703 (under section 5349(a), the Agency has broad discretion to match the appropriate private sector wages "'as nearly as is consistent with the public interest . . . as the pay[-]fixing authority may . . . determine'"); Bradley v. United States, 870 F.2d 1578, 1580 (Fed. Cir. 1989) (under section 5349, the Agency "has broad discretion in deciding whether to adjust rates"); Adams v. United States, 810 F.2d 1142, 1143-44 (Fed. Cir. 1987) ("'[p]revailing rates' wage legislation like § 5349, . . . with its express reference to adjustment 'from time to time as nearly as is consistent with the public interest'--bestows 'a broad congressional grant of administrative discretion'") (citation omitted). The "fundamental limitation" on an agency's discretion to adjust prevailing rates as nearly as is consistent with the public interest under section 5349 "'is that the discretion not be exercised so as to frustrate the congressional scheme.'" Bradley II, 26 Cl.Ct. at 704 (citing National Maritime Union of America v. United States, 682 F.2d 944, 954 (Ct.Cl. 1982)). See also Archer v. United States, 18 Cl.Ct. 603, 607 (1989).

Accordingly, it is well established that the Agency has discretion to adjust prevailing rates in the public interest. Consequently, we conclude that the public interest factor under section 5349 is not specifically provided for within the meaning of section 7103(a)(14)(C) of the Statute.(17)

3. Langley and Dallas

Although the Authority's decisions in Langley and Dallas addressed wage determinations under section 5343, not section 5349, "both statutes direct the wage-setting agency, in identical language, to look to 'prevailing rates' and the 'public interest.'" BEP v. FLRA, 995 F.2d at 303. Relying on this similarity between the statutory provisions, among other things, the court rejected the Authority's attempt to distinguish its holdings in Langley and Dallas that all aspects of pay-setting under section 5343 were specifically provided for by Federal statute from its holding in IAMAW and Treasury that pay-setting under section 5349 was not specifically provided for by Federal statute.(18)

Section 5343 and section 5349 were both enacted at the same time, as part of the same legislation,(19) and both govern the establishment of wage rates for Federal prevailing rate employees. In addition, the public interest factor in both statutes is "identical." BEP v. FLRA, 995 F.2d at 303. No basis is argued or apparent to distinguish the Agency's authority to adjust the prevailing rate in the public interest under section 5349 from the authority of an agency under section 5343 to vary prevailing rates in the public interest. See National Federation of Federal Employees v. Brown, 645 F.2d 1017 (D.C. Cir. 1981) (NFFE v. Brown).

The two sections are not identical in all respects, however. Unlike section 5349, for example, section 5343 requires agencies to use wage surveys to determine prevailing rates.(20) In addition, unlike section 5349, section 5343 prescribes certain details about how the surveys are to be conducted.(21) Moreover, wage-setting under section 5343 is governed by principles established in section 5341--whose purpose is "to 'set standards of direction' that would control administrative practices and constrain executive discretion"--that are not applicable to wage-setting under section 5349. NFFE v. Brown, 645 F.2d at 1024. Therefore, the discretion exercised by an agency under section 5343 to determine prevailing rates is significantly more constrained than that exercised by an agency under section 5349.

However, section 5343 does not itself establish all aspects of a process that inevitably determines those rates. Compare section 5343 with 20 U.S.C. § 901 et seq. (as held in Office of Dependents Schools, 45 FLRA at 1191-93, wages for overseas teachers are specifically provided for by 20 U.S.C. § 901 et seq. because that statute prescribes a process that inevitably determines those wages).(22)

Even if prevailing rates derived from wage survey data are "more or less determinate" of wage rates ultimately paid under section 5343, this is not sufficient to come within the specifically provided for exception, because the agency still retains discretion under section 5343. BEP v. FLRA, 995 F.2d at 304. As discussed above with respect to section 5349, the public interest factor in section 5343 gives agencies discretion to adjust prevailing rates derived from wage surveys. See also NFFE v. Brown, 645 F.2d at 1025 ("the wage surveys made pursuant to § 5343 are nonbinding to this extent: executive officials may exercise discretion, 'consistent with the public interest,' to alter the rates suggested by the survey, provided that they do so within the confines of the principles of wage policy Congress established in [section] 5341").

In sum, the prevailing rate factor in section 5343 does not prescribe either the wage rates or every aspect of the process that necessarily determines them. Moreover, an agency has discretion under section 5343 to make public interest adjustments in prevailing rates. Thus, applying the analysis set forth above, it follows that all aspects of setting wage rates are not specifically provided for by section 5343, within the meaning of section 7103(a)(14)(C). Therefore, the conclusions stated in Dallas and Langley--that all matters pertaining to wage rates for prevailing rate employees under section 5343 are specifically provided for by Federal statute--were erroneous. Some aspects of wage-setting under 5343 may be specifically provided for by that statute; proposals as to these aspects would be excepted from the definition of conditions of employment under section 7103(a)(14)(C). See, for example, Service Employees International Union, Local 200-B and U.S. Department of Veterans Affairs, Medical Center, Syracuse, New York, 43 FLRA 414, 417-18 (1991). However, to the extent that Dallas and Langley extend to all aspects of pay-setting, we will no longer follow those decisions or others based on the same rationale.(23)

B. Inconsistent with Law

Where law or applicable regulation vests an agency with sole and exclusive discretion over a matter, it would be contrary to law to require that discretion to be exercised through collective bargaining. See, for example, Office of Thrift Supervision, 47 FLRA at 894-99. The Authority resolves an agency's claim that a matter is not negotiable because it has sole and exclusive discretion by examining the plain wording and the legislative history of the statute being relied on. See, for example, id. at 894-95.(24) In the absence of any indication in the wording or the legislative history of section 5349 that Congress intended the Agency's discretion to set wages under section 5349 to be sole and exclusive, the Authority finds that the exercise of discretion under that provision through collective bargaining is not inconsistent with law. E.g., Service Employees International Union, Local 200-B and U.S. Department of Veterans Affairs, Medical Center, Syracuse, New York, 44 FLRA 821, 828 (1992). Inasmuch as Congress has specifically determined that collective bargaining concerning employees' terms and conditions of employment "safeguards the public interest[,]" 5 U.S.C. § 7101(a), we are unable to conclude, as the Agency argues, that collective bargaining concerning the exercise of discretion under this provision would be inconsistent with law or otherwise not in the public interest. See also Bureau of Alcohol, Tobacco and Firearms v. FLRA, 464 U.S. 89, 102 (1983); Patent Office Professional Association and U.S. Department of Commerce, Patent and Trademark Office, 41 FLRA 795, 814 (1991).

Nothing in the plain wording or legislative history of section 5349 demonstrates that the Agency's discretion under that section is intended to be sole and exclusive. Cf. Colorado Nurses Association v. FLRA, 851 F.2d 1486, 1490-91 (D.C. Cir. 1988); Office of Thrift Supervision, 47 FLRA at 892-99. Further, contrary to the Agency's argument, we find the possibility that the FSIP, in fulfilling its mandated role to resolve negotiation impasses, may impose a pay proposal on parties provides no basis for finding that collective bargaining is inconsistent with law. Such action by the FSIP would be wholly consistent with the collective bargaining process established by Congress under the Statute. See, e.g., National Treasury Employees Union, Chapter 83 and Department of the Treasury, Internal Revenue Service, 35 FLRA 398, 414-16 (1990). Consequently, we conclude that the proposals, which require the exercise of the agency's discretion through collective bargaining, are not inconsistent with law. See Department of Veterans Affairs, Veterans Administration Medical Center, Veterans Canteen Service, Lexington, Kentucky, 44 FLRA 162 (1992).

C. Summary

Because neither part of the wage-setting formula--the determination of the prevailing rate under section 5349 or the fixing and adjusting by the Agency of the prevailing rate consistent with the public interest--is specifically provided for by section 5349, and bargaining over the proposals is consistent with law, we conclude that the proposals are negotiable.

V. Order

The Agency shall upon request, or as otherwise agreed to by the parties, bargain on Proposals 1, 2, 3 and 4.(25)

APPENDIX A

Relevant provisions of the Prevailing Rate Systems Act of 1972 (PRSA), 5 U.S.C. §§ 5341-49, provide:

§ 5341. Policy

It is the policy of Congress that rates of pay of prevailing rate employees be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates and be based on principles that--

(1) there will be equal pay for substantially equal work for all prevailing rate employees who are working under similar conditions of employment in all agencies within the same local wage area;

(2) there will be relative differences in pay within a local wage area when there are substantial or recognizable differences in duties, responsibilities, and qualification requirements among positions;

(3) the level of rates of pay will be maintained in line with prevailing levels for comparable work within a local wage area; and

(4) the level of rates of pay will be maintained so as to attract and retain qualified prevailing rate employees.

§ 5342. Definitions; application

(a) For the purpose of this subchapter--

(1) "agency" means an Executive agency; but does not include--

* * * * *

(H) the Bureau of Engraving and Printing, except for the purposes of section 5349 of this title;

* * * * *

(b)(1) Except as provided by paragraphs (2) and (3) of this subsection, this subchapter applies to all prevailing rate employees and positions in or under an agency.

(2) This subchapter does not apply to employees and positions described by section 5102(c) of this title other than by--

(A) paragraph (7) of that section to the extent that such paragraph (7) applies to employees and positions other than employees and positions of the Bureau of Engraving and Printing; and

(B) paragraph (14) of that section.

§ 5343. Prevailing rate determinations; wage schedules; night differentials

(a) The pay of prevailing rate employees shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates. Subject to section 213(f) of title 29, the rates may not be less than the appropriate rates provided by section 206(a)(1) of title 29. To carry out this subsection--

(1) the Office of Personnel Management shall define, as appropriate--

(A) with respect to prevailing rate employees other than prevailing rate employees under paragraphs (B) and (C) or section 5342(a)(2) of this title, the boundaries of--

(I) individual local wage areas for prevailing rate employees having regular wage schedules and rates; and

(ii) wage areas for prevailing rate employees having special wage schedules and rates;

(B) with respect to prevailing rate employees under paragraphs (B) and (C) of section 5342(a)(2) of this title, the boundaries of--

(I) individual local wage areas for prevailing rate employees under such paragraphs having regular wage schedules and rates (but such boundaries shall not extend beyond the immediate locality in which the particular prevailing rate employees are employed); and

(ii) wage areas for prevailing rate employees under such paragraphs having special wage schedules and rates;

(2) the Office of Personnel Management shall designate a lead agency for each wage area;

(3) subject to paragraph (5) of this subsection, and subsections (c)(1)-(3) and (d) of this section, a lead agency shall conduct wage surveys, analyze wage survey data, and develop and establish appropriate wage schedules and rates for prevailing rate employees;

(4) the head of each agency having prevailing rate employees in a wage area shall apply, to the prevailing rate employees of that agency in that area, the wage schedules and rates established by the lead agency, or by the Office of Personnel Management, as appropriate, for prevailing rate employees in that area; and

(5) the Office of Personnel Management shall establish wage schedules and rates for prevailing rate employees who are United States citizens employed in any area which is outside the several States, the District of Columbia, the Commonwealth of Puerto Rico, the areas and installations in the Republic of Panama made available to the United States pursuant to the Panama Canal Treaty of 1977 and related agreements (as described in section 3(a) of the Panama Canal Act of 1979), the territories and possessions of the United States, and the Trust Territory of the Pacific Islands.

* * * * *

(c) The Office of Personnel Management, by regulation, shall prescribe practices and procedures for conducting wage surveys, analyzing wage survey data, developing and establishing wage schedules and rates, and administering the prevailing rate system. The regulations shall provide--

(1) that, subject to subsection (d) of this section, wages surveyed be those paid by private employers in the wage area for similar work performed by regular full-time employees, except that, for prevailing rate employees under paragraphs (B) and (C) of section 5342(a)(2) of this title, the wages surveyed shall be those paid by private employers to full-time employees in a representative number of retail, wholesale, service, and recreational establishments similar to those in which such prevailing rate employees are employed;

(2) for participation at all levels by representatives of organizations accorded recognition as the representatives of prevailing rate employees in every phase of providing an equitable system for fixing and adjusting the rates of pay for prevailing rate employees, including the planning of the surveys, the drafting of specifications, the selection of data collectors, the collection and the analysis of the data, and the submission of recommendations to the head of the lead agency for wage schedules and rates and for special wage schedules and rates where appropriate;

(3) for requirements for the accomplishment of wage surveys and for the development of wage schedules and rates for prevailing rate employees, including, but not limited to--

(A) nonsupervisory and supervisory prevailing rate employees paid under regular wage schedules and rates;

(B) nonsupervisory and supervisory prevailing rate employees paid under special wage schedules and rates; and

(C) nonsupervisory and supervisory prevailing rate employees described under paragraphs (B) and (C) of section 5342(a)(2) of this title;

(4) for proper differentials, as determined by the Office, for duty involving unusually severe working conditions or unusually severe hazards;

(5) rules governing the administration of pay for individual employees on appointment, transfer, promotion, demotion, and other similar changes in employment status; and

(6) for a continuing program of maintenance and improvement designed to keep the prevailing rate system fully abreast of changing conditions, practices, and techniques both in and out of the Government of the United States.

* * * * *

§ 5349. Prevailing rate employees; legislative, judicial, Bureau of Engraving and Printing, and government of the District of Columbia

(a) The pay of employees, described under section 5102(c)(7) of this title, in the Library of Congress, the Botanic Garden, the Government Printing Office, the General Accounting Office, the Office of the Architect of the Capitol, the Bureau of Engraving and Printing, and the government of the District of Columbia, shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates and in accordance with such provisions of this subchapter, including the provisions of section 5344, relating to retroactive pay, and subchapter VI of this chapter, relating to grade and pay retention, as the pay-fixing authority of each such agency may determine. Subject to section 213(f) of title 29, the rates may not be less than the appropriate rates provided for by section 206(a)(1) of title 29. If the pay-fixing authority concerned determines that the provisions of subchapter VI of this chapter should apply to any employee under his jurisdiction, then the employee concerned shall be deemed to have satisfied the requirements of section 5361(1) of this title if the tenure of his appointment is substantially equivalent to the tenure of any appointment referred to in such paragraph.

(b) Subsection (a) of this section does not modify or otherwise affect section 5102(d) of this title, section 305 of title 44, and section 5141 of title 31.

APPENDIX B

The proposals in this case provide as follows:

Proposal 1

Wage rates will be paid as established under 5 U.S.C. §5349(a), which requires that wage rates of employees at the Bureau of Engraving & Printing ("Bureau" or "BEP") shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing wage rates. Pursuant to this enactment, the Bureau under delegated authority from the Department of Treasury has maintained and periodically adjusted wage rates based on an established tandem pay relationship with the American Bank Note Corporation (ABN), a wholly-owned subsidiary of the United States Bank Note Corporation.

The parties agree to continue this relationship under established standards until such time as they mutually agree upon another method for fixing and adjusting wage rates. In the event that there no longer exists one or more comparable crafts at ABN, all necessary determinations shall be based on data and information obtained from ABN's parent company, USBN, using the established job by job comparison method for any and all such determinations.

Proposal 2

The wage rates paid to employees in the steel and die craft trades shall be determined through the process of collective bargaining between the unions serving as their exclusive bargaining agent and management of the Bureau of Engraving & Printing based on the prevailing wage and public interest standards embodied in 5 U.S.C. §5349(a).

Prior to the commencement of such negotiations, the parties shall set up [a] joint fact-finding committee and/or select an independent consultant for the purpose of collecting relevant facts and information bearing on the determination of the comparable rates of pay, job classifications, and conditions of employment for work of a similar nature performed under similar circumstances in the security printing and related industries. Due consideration shall be given by the Bureau and the Unions in their negotiations to any facts so established, and to such other information or data as may be submitted by either party.

Proposal 3

Wage Rate Data Collection
and Evaluation of Data

The Bureau shall provide annual cost of living pay adjustments whenever wage rates of the tandem employer are adjusted to the full extent permitted by law. Should parties mutually agree, the Bureau may also rely upon other wage rate survey data provided that it uses the established job by job comparison method and/or other mutually agreed upon methods or criteria in order to establish or to maintain wage rate comparability.

Any union or unions representing employees in the steel and die trades at the Bureau additionally shall have the right to request a full scale wage rate survey, using job by job comparisons and/or other mutually agreed upon methods or criteria, to adjust or revise applicable wage rates. Such requests, together with substantiating data and appropriate recommendations, shall be promptly forwarded to the Department of Treasury for action thereon. In this regard, the Bureau will furnish [] the requesting union(s) with a copy of any and all studies, reports and/or recommendations made by or on behalf of the Bureau to the Department of Treasury.

The Bureau agrees to consult with the affected union(s) on the formulation of any plan for conducting any wage study or survey and to notify the union(s) promptly whenever it receives information pertaining thereto. It further agrees to conclude any such study and to take action thereon within a ninety (90) day period from the date of commencement or, alternatively, to provide the required increases in wage rates retroactively to that date in the event that the final action is not taken within the specified time period.

Administrative Matters

Reasonable time off from work will be authorized to union representatives to participate in or to monitor, as may be appropriate, all surveys, studies or data collection efforts and/or the evaluation of any and all information collected through this process. Upon reasonable notification by affected employees, his/her immediate supervisor shall make necessary arrangements for releasing such employees from their work assignments.

The Employer agrees that any employee requested or permitted to participate in any wage study, survey or analysis described above shall suffer no loss of pay or loss of leave during official and authorized participation in any such survey.

Proposal 4

The Bureau shall establish and maintain an ongoing system to collect and maintain data and other appropriate information necessary to fix and adjust wage rates on an annual basis in conformity with requirements imposed by 5 U.S.C. §5349(a) and Department of Treasury regulations issued thereunder. This information base shall include but shall not be limited to the use of published and privately compiled data as earlier recommended by TPF&C in a draft report issued on March 23, 1988.

The parties, through collective bargaining negotiations or through a joint committee established for this purpose, shall specify the nature and source(s) of all data and information to be utilized; the procedures and methodology to be used to collect and analyze such information and data; and any other methods or means necessary to establish, administer or modify the system established for the purpose of fixing and adjusting wage rates applicable to their respective crafts.




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

1. International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135 and International Plate Printers, Die Stampers and Engravers Union of North America, Locals Nos. 2, 24, and 32 and Graphic Communications International Union, Local No. 285 and International Association of Siderographers, Washington Association and U.S. Department of the Treasury, Bureau of Engraving and Printing, 43 FLRA 1202 (1992) (IAMAW and Treasury).

2. National Association of Government Employees, Local R4-26 and Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA 118 (1991) (Langley) and American Federation of Government Employees, AFL-CIO and Department of Defense, Department of the Army and Air Force, Headquarters, Army and Air Force Exchange Service, Dallas, Texas, 32 FLRA 591 (1988) (Dallas).

3. 5 U.S.C. § 5349 and other relevant statutory provisions are set forth in Appendix A to this decision.

4. The text of the proposals is set forth in Appendix B to this decision.

5. The Department of Defense (DoD) submitted an amicus brief in support of the Agency which we have considered pursuant to section 2429.26 of the Authority's Regulations.

6. Although Langley and Dallas are not directly before us, we are required by the court's remand to explain our holdings in those cases and discuss their relevance to the issues in this case.

7. A bargaining proposal that concerns a condition of employment must also satisfy other requirements to be negotiable under the Statute: for example, it may not be inconsistent with Federal law, including the Statute and Government-wide regulations, or an agency regulation for which a compelling need exists. 5 U.S.C. § 7117.

8. Where the discretion, regardless of its scope, is granted in a manner indicating that Congress intended it to be exercised only by the agency--typically referred to by the Authority as discretion which is "sole and exclusive" or "unfettered"--negotiating how the discretion is exercised would be inconsistent with law. See, for example, American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 47 FLRA 884, 894-99 (1993), affirmed, 46 F.3d 73 (D.C. Cir. 1995). As noted above, the Agency argues that it has "sole and exclusive" discretion to set wages under section 5349(a); however, we reject that argument below in section IV.B. of our analysis.

9. Congressman Clay's statement was made during debate on the so-called "Udall substitute." The Udall substitute was an amendment which became the final House bill to provide for improved labor-management relations in the Federal service. A modified version of the Udall substitute was enacted and signed into law as Title VII of the Civil Service Reform Act of 1978. Pub. L. No. 95-454, 92 Stat. 1111, 1194 (1978). Section 7103(a)(14)(D) in the Udall substitute, which the Congressman was addressing, was identical to the wording enacted as section 7103(a)(14)(C) of the Statute. See 124 Cong. Rec. 38,713-14 (1978), reprinted in Committee on Post Office and Civil Service, House of Representatives, 96th Cong. 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print 1979) ("Legislative History"), at 991.

10. Congressman Ford stated that

where a statute merely provides particular authority for an agency official (with that authority to be exercised at the official's discretion and in such manner as the official deems appropriate), that authority and its exercise are not included within the definition of section 7103(a)(14)(D) [of the Udall substitute] because it is not "specifically provided for by Federal statute."

(Emphasis added.)

11. Cf. U.S. Immigration and Naturalization Service v. FLRA, 4 F.3d 268 (4th Cir. 1993) (in rejecting the Authority's conclusion that a collective bargaining agreement provision holding an agency responsible for its acts and those of its managers and supervisors with respect to sexual harassment in certain circumstances was negotiable, the court held that 42 U.S.C. § 2000e-16(c) is a comprehensive statute specifically providing a uniform rule).

12. Prevailing rates are wage rates that are, among other things, "in line with" wage rates paid by private employers for comparable work, and at a level "so as to attract and retain qualified prevailing rate employees." Prevailing Rate Systems Act, Pub. L. No. 92-392, 86 Stat. 564 (1972) (PRSA), codified at 5 U.S.C. § 5341(3), (4). Employees covered by section 5349(a), including BEP employees, are not subject to 5 U.S.C. § 5341 (section 5341) which sets forth the policy for wage-setting under the PRSA. 5 U.S.C. §§ 5342(a)(1)(H) and 5342(b)(2)(A). However, the exclusion of BEP employees from the wage-setting policy in section 5341 does not warrant defining the term "prevailing rate" in section 5349 differently from the definition of that term in section 5341, where, as here, the prescribed meaning is not discordant with common usage so as to generate confusion. See 2A Sutherland Statutory Construction, § 47.07, at 152 (5th ed. 1992). Accordingly, we adopt section 5341's definition of "prevailing rate" for purposes of interpreting that term in section 5349 of that statute.

13. In BEP v. FLRA, the court noted that "the agency's range of choice in the prevailing rate phase of the calculation is clearly not as broad as that permitted by the statute at issue in Fort Stewart." Id. at 304. However, as noted earlier herein, "[l]acking total discretion, the agency's duty to bargain . . . extend[s] to such matters as are within its discretion . . . ." American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, 8 FLRA 409, 411 (1982) (Local 32). Moreover, in drawing the comparison between section 5349 and 20 U.S.C. § 241, the statute at issue in Fort Stewart, the court made the point that the agency does, in fact, have a "range of choice in the prevailing rate phase of the calculation . . . ." BEP v. FLRA, 995 F.2d at 304. We agree with the D.C. Circuit's point.

14. The legislative history indicates that Congress excluded the BEP employees from the application of the wage survey requirements under 5 U.S.C. § 5343 because the requirements "are not adaptable to the two groups of Bureau of Engraving and Printing employees, which . . . use[] the Government Printing Office [(GPO)] . . . in one case, and a private bank note company (having the only comparable positions available) outside the area in another case."). Although this legislative history indicates that Congress intended the BEP to continue to set pay in accordance with the pay practices of the GPO and the ABNC, respectively, Congress also gave the Agency the discretion to change its pay setting practices if a "valid basis exists for altering such practices." H.R. Rep. No. 339, 92nd Cong., 1st Sess. 19 (1971).

15. For example, in exercising its discretion to determine whether jobs at ABNC were sufficiently comparable to jobs at the Agency to serve as the basis for wage-setting under section 5349, the Agency previously determined that "(1) comparisons between BEP and ABN[C] machinery, (2) staffing differences between BEP and ABN[C] and (3) supervisory-control differences between BEP and ABN[C]" were relevant criteria. Bradley v. United States, 26 Cl.Ct. 699, 700 (1992) (Bradley II).

16. The court cites Blaha v. United States, 511 F.2d 1165 (Ct.Cl. 1975) (Blaha) for the proposition that "[t]he prevailing rate concept also is determinate enough to give rise to a monetary claim against the [G]overnment . . . ." BEP v. FLRA, 995 F.2d at 304. In Blaha, Department of Commerce civilian mariners covered by 5 U.S.C. § 5348 were awarded pay because they had not been paid at the prevailing rate determined to have existed for a similar group of civilian mariners employed by the Navy. However, the petitioner's claim in Blaha was premised upon the Department of Commerce's partial and selective adoption of some but not all of the practices of civilian mariners, which the Court of Claims determined to be contrary to section 5348. Id. at 1168. The Court of Claims' conclusion in Blaha is not inconsistent with our finding that wages are not specifically provided for by section 5349. Neither section 5348 nor section 5349 prescribes rates of pay. Indeed, the court in Blaha recognized "the broad Government discretion in fixing pay under [s]ection 5348." Id. at 1167.

17. The court stated in BEP v. FLRA that "[a]ssuming that the public interest discretion is broad enough to render § 7103(a)(14)(C) inapplicable to that phase of wage-setting under § 5349(a), it will remain for the Authority to mesh the bargainability of that phase . . . with the apparent exclusion of the initial determination of the prevailing rate itself." BEP v. FLRA, 995 F.2d at 304 (emphasis in original). Having concluded that neither the prevailing rate nor the public interest aspects of wage-setting under section 5349 are specifically provided for by Federal statute within the meaning of section 7103(a)(14)(C), it would serve no purpose to "mesh" the bargainability of a matter specifically provided for by Federal statute with a matter that is not. However, were a reviewing court to disagree with our analysis and find either the prevailing rate or the public interest aspects of the process to be specifically provided for by Federal statute, then, consistent with Authority precedent, the agency would nevertheless be obliged to bargain to the limits of its discretion. See NTEU; Local 32.

18. The court also found that two decisions the Authority relied on in Langley and Dallas--Department of the Navy, Military Sealift Command v. FLRA, 836 F.2d 1409 (3d Cir. 1988) (Military Sealift Command) and Department of Treasury, Bureau of Engraving and Printing v. FLRA, 838 F.2d 1341 (D.C. Cir. 1988) (Bureau of Engraving and Printing)--did not "survive" the Supreme Court's decision in Fort Stewart. BEP v. FLRA, 995 F.2d at 304.

19. Pub. L. No. 92-392, 86 Stat. 564 (1972).

20. The surveys prescribed by section 5343 involve the collection of wage data concerning jobs in the private sector that are similar to the Federal sector jobs for which the wage rates are to be established.

21. Specifically, under section 5343(a), the Office of Personnel Management (OPM) is required to define the boundaries of a wage area and to designate a lead agency within that area. Section 5343(a)(3) requires the lead agency to conduct wage surveys, analyze wage survey data, and develop and establish wage schedules and rates, and section 5343(a)(4) requires the head of each Federal agency to apply those wage schedules and rates to its prevailing rate employees in that wage area. Under section 5343(c), consistent with regulations prescribed by OPM, the wages to be surveyed are those paid by private employers in the wage area for similar work performed by regular full-time employees. Section 5343(c) also requires participation by representatives of unions representing prevailing rate employees in, among other things, the planning of surveys, the drafting of specifications, the selection of data collectors, the collection and analysis of the data, and the submission of recommendations to the head