U.S. Department of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project and National Federation of Federal Employees, Local 341

[ v55 p152 ]

55 FLRA No. 25

U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF INDIAN AFFAIRS
WAPATO IRRIGATION PROJECT
(Agency)

and

NATIONAL FEDERATION OF FEDERAL
EMPLOYEES, LOCAL 341
(Union)

0-AR-2945

______

DECISION

January 28, 1999

______

Before the Authority: Phyllis N. Segal, Chair; Donald S. Wasserman and Dale Cabaniss, Members.

Decision by Member Cabaniss for the Authority.

I. Statement of the Case

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

      The Arbitrator sustained a grievance alleging that the Agency breached the parties' collective bargaining agreement in proposing that unit employees' negotiated salaries take effect on May 26, 1996, instead of the first pay period in February, 1996. He ordered back pay in accordance with the new wage scale for all hours worked since the first pay period in February, 1996. He also ordered that interest on the back pay award be paid in accordance with the current savings deposit rate for the state of Washington.

      For the reasons that follow, we conclude that the Arbitrator's award of interest is deficient under law and applicable regulation. Accordingly, we modify the award to require payment of interest consistent with law and regulation. The remaining Agency exceptions do not establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny those exceptions. [ v55 p153 ]

II. Background and Arbitrator's Award

      The Arbitrator found that the parties negotiate unit employees' wage rates under section 9(b) of the Prevailing Rate Systems Act of 1972 (PRSA), 5 U.S.C. § 5343 note (section 9(b)) and section 704 of the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 5343 note (section 704). [n1] According to the Arbitrator, as part of the process of wage bargaining, the parties have historically formed wage survey committees, consisting of Union and Agency representatives, that gather wage data from an agreed upon group of employers. The raw survey data is weighted by an agreed-upon set of factors. The results are then certified by the members of the committee, and presented to the parties as a recommendation for consideration during wage negotiations. The Arbitrator found that this process was established by the parties' Wage Alignment Contract of 1989 (Wage Alignment Contract). [n2] 

      Early in 1996, the parties jointly conducted a wage survey. [n3] The parties commenced formal wage negotiations in April 1996. According to the Arbitrator, the Agency proposed an approximate 7.8 percent increase in wages and the Union agreed. The Agency also proposed that the increase take effect on May 26, 1996. The Union did not agree to that proposal, claiming that, under the Wage Alignment Contract, the increase should take effect the first full pay period in February 1996. When the Agency did not respond to its request that the agreed-upon wage increase be given effect as of that pay period, the Union filed the grievance in this case.

      According to the Arbitrator, the parties stipulated to the following issue:

Whether the Agency breached the negotiated agreement when proposing that the negotiated salaries for the Wapato Irrigation Project "prevailing rate" employees be implemented on May 26, 1996. [n4] 

Award at 2.

      The Arbitrator found that the parties agreed that "the prevailing wage survey had been completed in accordance wit[h] the terms of the [Wage Alignment Contract]." Award at 13. The Arbitrator cited an Agency representative's notes of the parties' bargaining sessions as evidence that the Agency had proposed and the Union had agreed to a wage increase. According to the Arbitrator, "the Union clearly accepted the results of the prevailing wage survey and that concluded negotiations" because the parties "had reached agreement on . . . wages." Id. at 15. Although the parties disputed whether the Wage Alignment Contract was still in force, the Arbitrator found that, because the parties had reached agreement, the Wage Alignment Contract "takes effect." [n5] Id. Quoting Section C of the Wage Alignment Contract, the Arbitrator found that that contract provided for "wage changes" to become "effective the first full pay period after the anniversary date of this agreement." Id. The Arbitrator also found that the Wage Alignment Contract established the procedures for determining annual prevailing wage rates but did not permit "either party to interject other contract issues in the process." Id. at 14.

      Although the parties disagreed as to the significance of the 1994 and 1995 wage agreements, the Arbitrator found that, in those agreements, "[t]he parties had adopted an effective date for the prior two years of the wage increase of the first pay period in February." [n6] Id. at 15. Specifically, the 1995 wage increase was effective the first pay period in February even though "[t]he [ v55 p154 ] agreement was not signed until June 21, [1995]." Id. The Arbitrator found that "the parties[,] in agreeing to make a joint survey of the prevailing wages in the local area[,] had intended that the wages were to be effective as close to the completion of the survey as practical." Id. According to the Arbitrator, "[t]o do otherwise[] would defeat the purpose and data collected." Id. The Arbitrator concluded that "the effective date for the wage increase for . . . 1996 was intended to be the first full pay period in February, 1996." Id. Consequently, the Arbitrator sustained the grievance and found that the Agency had breached the negotiated agreement by proposing that the negotiated salaries for unit employees take effect on May 26, 1996.

      As a remedy, the Arbitrator ordered that the wage rates as found in the prevailing wage survey completed in the early part of 1996 should take effect with the first pay period of February, 1996. He also ordered that affected employees receive "back wages in accordance with the new salary scale for all hours worked since the first pay period in February, 1996." Id. at 16. He specified that interest should be paid those employees "in accordance with the current savings deposit rate for the State of Washington." Id. The Arbitrator retained jurisdiction for the purpose of assisting in the determination of back wages and interest due, if such assistance should be necessary.

III. First Exception

A. Positions of the Parties

1. Agency's Exceptions

      The Agency contends that the Arbitrator's award is based on a nonfact because the Arbitrator erroneously characterized the Agency's position as arguing that the parties had not negotiated over the establishment of prevailing wages. According to the Agency, it was the Union's position that the wage-setting process was simply a "rubber stamp" of the wage survey. Exceptions at 10.

      The Agency also claims that the award is based on a nonfact because the Arbitrator relied on a document that is not a contract. According to the Agency, comparison between the terms of the Wage Alignment Contract quoted by the Arbitrator, Joint Exhibit 7, and the parties' actual Wage Alignment Contract, Management Exhibit 3, demonstrates that the Arbitrator cited an earlier version of that agreement. The Agency claims that the Arbitrator also erred by relying on the Wage Alignment Contract because that agreement expired in 1992. The Agency claims that the agreement in effect at the time of the events in this case is the local supplemental agreement which was effective on June 21, 1995.

      Finally, the Agency asserts that the award is based on a nonfact because the Arbitrator erroneously found that the parties had adopted the first pay period in February as the effective date of the previous two wage increases.

2. Union's Opposition

      The Union maintains that the Agency misinterprets the Arbitrator's statement of the Agency's position.

      The Union also claims that the Agency has failed to show "any important difference between the documents" that were the foundation of the Arbitrator's award. Opposition at 2.

B. Analysis and Conclusions

      To establish that an award is based on a nonfact, the appealing party must demonstrate that the central fact underlying the award is clearly erroneous, but for which a different result would have been reached by the arbitrator. U.S. Department of the Air Force, Lowry Air Force Base, Denver, Colorado and National Federation of Federal Employees, Local 1497, 48 FLRA 589, 593 (1993). However, the Authority will not find an award deficient on the basis of an arbitrator's determination on any factual matter that the parties disputed at arbitration. Id. at 594 (citing Mailhandlers v. U.S. Postal Service, 751 F.2d 834, 843 (6th Cir. 1985). The mere fact that an appealing party disputes an arbitral finding of fact does not provide a basis for concluding that an award is based on a nonfact. Social Security Administration, Mid-Atlantic Program Service Center and American Federation of Government Employees, Local 1923, 53 FLRA 956, 959 (1997).

1. Erroneous Statement

      The Agency claims that the Arbitrator mischaracterized its position. According to the Agency, the Arbitrator erred by stating that the Agency claimed wage rates for unit employees are not established by negotiations. The Agency appears to be correct. However, any such error by the Arbitrator is of no consequence because he ultimately found that the parties bargained over wages in this case, thus adopting the position urged by the Agency.

2. Different Versions of the Wage Alignment Contract

      Even assuming that the correct version of the Wage Alignment Contract was a central fact underlying [ v55 p155 ] the award, and that the version quoted by the Arbitrator was clearly the wrong version, the Agency has not demonstrated that, but for that error, the Arbitrator would have reached a different result. In particular, the portions of the Wage Alignment Contract specifically relied on by the Arbitrator are virtually identical in both versions. Because there is no material difference between Joint Exhibit 7 and Management Exhibit 3 as to those portions, given his other findings, reliance on the signed version, Management Exhibit 3, would not have led the Arbitrator to a different conclusion as to an effective date for the 1996 prevailing wage increase. In any event, the Agency's exception on this point is ambiguous because the Agency also asserts that the Wage Alignment contract had expired.

3. Expiration of the Wage Alignment Contract

      Even assuming that the question of whether the Wage Alignment Agreement had expired was a question of fact, because the parties disputed that fact before the Arbitrator, see n.5, supra, the Agency's exception would not provide a basis for finding the award deficient. See, e.g., Social Security Administration, Branch Office, East Liverpool, Ohio and American Federation of Government Employees, Local 3448, 54 FLRA 142, 146 (1998).

      Moreover, an appealing party may not challenge an arbitrator's interpretation and application of a collective bargaining agreement as a nonfact. See, e.g., U.S. Department of Defense, Army and Air Force Exchange Service, Dallas, Texas and American Federation of Government Employees, 53 FLRA 20, 27 (1997). A determination as to whether an agreement has expired is a matter of contract interpretation. Specifically, as noted above, the parties disagreed as to the interpretation of the provision of the Wage Alignment Contract governing the duration of the agreement. See n.5, supra. Consequently, the Arbitrator's implicit determination that the Wage Alignment Contract was still in effect so as to be applicable to the resolution of the grievance in this case cannot be challenged as a nonfact.

      Accordingly, we deny this exception.

IV. Second Exception

A. Positions of the Parties

1. Agency's Exceptions

      The Agency claims that "the agreement that was actually in force" was not the Wage Alignment Contract, but the supplemental agreement dated June 21, 1995. Exceptions at 9. The Agency states that the June 21, 1995, agreement expired one year from that date and provided for the negotiation of a new supplemental agreement within one year from that date. According to the Agency, "[t]his enforceable agreement speaks only to a salary increase in February 1995." Id. The Agency maintains that there is "no rational way" to conclude that the 1995 agreement justifies a wage increase "mandated on a date certain in 1996" when the agreement "was not to be renegotiated until several months after that date." Id. Given these facts, the Agency claims that "the award clearly evidences a manifest disregard of the agreement which was in force." Id.

2. Union's Opposition

      The Union claims that the "only salient difference" between the version of the Wage Alignment Contract cited by the Arbitrator and the version signed by the parties in 1989 is that the former had a duration of 5 years and the latter had a duration of 2 years. Opposition at 1. According to the Union, this difference was not a factor in the Arbitrator's decision.

      As to the Agency's claims with respect to the June 21, 1995, agreement, the Union argues that the Agency is only disputing the weight that the Arbitrator gave to that agreement.

B. Analysis and Conclusions

      Under the deferential standard of review established by section 7122(a)(2) of the Statute, the Authority will find that an arbitration award is deficient as failing to draw its essence from the collective bargaining agreement when the appealing party establishes that the award: (1) cannot in any rational way be derived from the agreement; (2) is so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) does not represent a plausible interpretation of the agreement; or (4) evidences a manifest disregard of the agreement. See United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575 (1990) (OSHA).

      The Agency's exception is based on a misapprehension as to the Arbitrator's finding with respect to the contract that governed disposition of the agreement. The Arbitrator's award is based on the Wage Alignment Contract, not the 1995 supplemental wage agreement. An essence exception, therefore, should have been framed in terms of whether the award drew its essence from the Wage Alignment Contract. [ v55 p156 ]

      Although the Agency made certain statements to the effect that the Wage Alignment Contract had expired, even if the Authority were to construe those statements as raising an essence argument, they provide no basis for finding the award deficient. The Arbitrator discussed both the Wage Alignment Contract and the 1995 supplemental agreement. Without explicitly articulating his reasons for doing so, he applied the Wage Alignment Contract rather than the 1995 supplemental agreement. However, arbitrators are not obligated to provide a rationale for their findings unless required to do so by contract, submission of the parties, or law. See, e.g., U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center and American Federation of Government Employees, Local 1916, 53 FLRA 34, 40 (1997). See also Wissman v. Social Security Administration, 848 F.2d 176 (Fed. Cir. 1988). In this case, there is no argument about, or evidence of, any contractual, statutory, or regulatory requirements obligating the Arbitrator to set forth in detail the rationale of his decision.

      Further, the Agency did not articulate in its exceptions any reasons under the essence criteria for finding that the Arbitrator's implicit determination that the Wage Alignment Contract had expired was deficient. Specifically, nowhere in its exceptions did the Agency articulate reasons for finding that the award, for example, could not in any rational way be derived from Section F of the Wage Alignment Contract or does not represent a plausible interpretation of that contract. The Authority will not find an award deficient merely because a party believes the arbitrator misinterpreted the agreement. See OSHA, 34 FLRA at 577. In sum, the Agency has not established that the award is deficient on essence grounds because the Agency has not demonstrated that the award is unfounded, implausible, irrational, or manifests a disregard of the parties' agreement.

      Accordingly, we deny this exception.

V. Third Exception

A. Positions of the Parties

1. Agency's Exceptions

      According to the Agency, the collective bargaining process under sections 7117(a)(1), 7117(c)(1), 7114(b)(1) and (3) of the Statute, and 704(a) and (b), involves the exchange of proposals by the parties and does not require either party to agree to a proposal. When the parties do not agree to a proposal, they are at impasse. A proposal to change an existing provision of a contract, or to add or delete a provision, does not amount to a breach of contract. Because the parties were not at impasse, the Arbitrator was not resolving an interest arbitration dispute, and his award, choosing between the parties' proposed effective dates, is inconsistent with the cited provisions of law.

      The Agency also claims that, as provided in the 1995 agreement, which was the agreement "that was actually in force[,]" the parties began negotiations in April 1996 on the results of the wage survey. The Agency contends that the Arbitrator's award forces "implementation of salaries based on the strength of an advisory wage survey" instead of bargaining. Exceptions at 9. In so doing, the Agency argues, the award is also inconsistent with 5 U.S.C. § 5343(a) and (b). [n7] 

      Further, the Agency maintains that the Arbitrator's award is inconsistent with section 7105(a)(2)(E) of the Statute because the Arbitrator made a negotiability determination. In particular, the Arbitrator found that the Wage Alignment Contract did not permit bargaining on any subjects other than the determination of the prevailing wage rate. According to the Agency, the Arbitrator thereby precluded negotiation on subjects such as the effective date of the wage increase that the parties had previously negotiated.

      Finally, the Agency claims that the Arbitrator's award of interest in accordance with the current savings deposit rate for the State of Washington is inconsistent with 5 U.S.C. § 5596(b)(2)(B) and section 6621(a)(1) of the Internal Revenue Code. [n8] According to the Agency, this portion of the award cannot be modified because the Arbitrator has retained jurisdiction to ensure compliance with the proper computation of back pay and interest.

2. Union's Opposition

      According to the Union, the Agency misstates the facts when it claims that the grievance is based on its proposal for an effective starting date for the wage agreement. Rather, the Union asserts, the grievance is based on the Agency's refusal to implement the Wage Alignment Agreement.

      The Union claims that the Agency's contention that the Arbitrator made a negotiability determination restates the Agency's previous argument concerning "open annual bargaining."

      The Union agrees that the Arbitrator's award of interest is deficient. The Union contends that interest on [ v55 p157 ] the back pay award should be computed consistent with 5 C.F.R. § 550.806(d) and requests that the award be modified accordingly. [n9] 

B. Analysis and Conclusions

      The Authority reviews questions of law raised in a party's exceptions and the arbitrator's award de novo. National Treasury Employees Union, Chapter 24 and U.S. Department of the Treasury, Internal Revenue Service, 50 FLRA 330, 332 (1995) (citing U.S. Customs Service v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994). In applying a standard of de novo review, the Authority assesses whether an arbitrator's legal conclusions are consistent with the applicable standard of law. National Federation of Federal Employees, Local 1437 and U.S. Department of the Army, Army Research, Development and Engineering Center, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.

1. Sections 7114(b)(1) and (3), 7117(a)(1), 7117(c)(1) of the Statute; Section 704(a) and (b); 5 U.S.C. § 5343(a) and (b)

      It is not necessary to review the award de novo with respect to the cited provisions of law because the premises of the Agency's exceptions in this regard are contrary to the Arbitrator's findings. Specifically, the Agency's argument that the award, in effect, imposes an effective date on the parties while the parties were still bargaining assumes that the parties' negotiations had not been completed and that the Agency was not under a contractual obligation as to an effective date. The Arbitrator found, however, that the parties had agreed on a wage rate and that their agreement brought bargaining to a close. The Arbitrator also found that, under the Wage Alignment Contract, the Agency was obligated to put the wage agreement into effect as of the first pay period in February 1996.

      The Agency does not except to the Arbitrator's findings that the parties had agreed to a wage increase or that bargaining had been completed as a result of that agreement. Further, as noted above, the Agency has not supported its exception that the Wage Alignment Contract had expired. Consequently, the Arbitrator's award does not conflict with the bargaining process established by the cited provisions of law by imposing an agreement while the parties are still negotiating and are not at impasse. In any event, in the absence of a contractual reopener, the Union would not be obligated to bargain on its right to an effective date for the wage increase under the Wage Alignment Contract as found by the Arbitrator. See, e.g., Sacramento Air Logistics Center, McClellan Air Force Base California, 47 FLRA 1242, 1245 (1993). Consequently, this argument provides no basis for finding the award deficient under section 7122(a)(1) of the Statute.

2. Section 7105(a)(2)(E) of the Statute

      The Agency's argument misconstrues the nature of a "negotiability determination." Section 7105(a)(2)(E) of the Statute authorizes the Authority "to resolve issues relating to duty to bargain in good faith;" specifically, to determine whether a matter proposed for bargaining is inconsistent with law and Government-wide regulation under section 7117(a)(1) of the Statute. See also section 7117(c) of the Statute. Even assuming that the Statute precluded grievance arbitrators from making such a determination, the Arbitrator's finding that the Wage Alignment Contract did not allow negotiation of any issues other than the wage rate does not constitute a determination that the Agency's proposed effective date was inconsistent with law or Government-wide regulation. Consequently, this argument provides no basis for finding the award deficient under section 7122(a)(1) of the Statute.

3. Back Pay Act

      The Back Pay Act provides that interest "shall be computed at the rate or rates in effect under section 6621(a)(1) of the Internal Revenue Code of 1986." 5 U.S.C. § 5596(b)(2)(B)(ii). See also 5 C.F.R. § 550.806(d). There is nothing in the Arbitrator's award that indicates that the Arbitrator considered the rates in effect under section 6621(a)(1) of the Internal Revenue Code when he set the interest rate at the current savings deposit rate for the State of Washington. In addition, the Union does not claim that the rate set by the Arbitrator is consistent with section 6621(a)(1) of the Internal Revenue Code. Rather, the Union agrees with the Agency that the rate established by the Arbitrator is inconsistent with the rate required by law and regulation and that, in this regard, the award is deficient. Thus, it is undisputed that the Arbitrator's award of interest is deficient under applicable law and regulation.

      The Union requests that the award relating to the rate of interest be "adjusted" to reflect the appropriate rate. Opposition at 2. In the one case in which the Authority confronted a similar issue, U.S. Department of Defense, Dependents Schools, Germany Region and Overseas Education Association, 39 FLRA 13, 20 (1991) (OEA), the Authority modified the award to [ v55 p158 ] reflect the legally appropriate rate. The record in this case does not disclose the interest rate or rates applicable under section 6621(a)(1). Consequently, the award should be modified, consistent with OEA, to require the payment of such rate or rates. See also Corsiglia v. United States Postal Service, 72 MSPR 65, 70 (1996).

      The Agency argues that the Arbitrator's retention of jurisdiction to assist in determining the amount of back pay and interest due precludes the Authority from modifying the award. The Agency's argument is unavailing. Such retention of jurisdiction does not render the exceptions in that regard interlocutory. See U.S. Department of the Navy, Mare Island Naval Shipyard, Vallejo, California and Federal Employees Metal Trades Council, Local 217, 53 FLRA 267, 269 (1997) (citing United States Customs Service, Region I, Boston, Massachusetts and National Treasury Employees Union, 15 FLRA 816, 817 (1984)). Moreover, the Arbitrator's retention of jurisdiction would not preclude the Authority, once it has found the award deficient, from exercising its power under section 7122(a) to "take such action and make such recommendations concerning the award as it considers necessary, consistent with applicable laws, rules, or regulations."

      Accordingly, we will modify the award to require the payment of interest in accordance with applicable law and regulation.

VI. Decision

      The award as to the rate of interest is deficient under section 7122(a)(1) of the Statute because it is inconsistent with 5 U.S.C. § 5596(b)(2)(B)(ii), section 6621(a)(1) of the Internal Revenue Code of 1986, and 5 C.F.R. § 550.806(d). Accordingly, we modify the award to require the payment of interest consistent with the rate or rates applicable under section 6621(a)(1) of the Internal Revenue Code of 1986 and 5 C.F.R. § 550.806(d). The remaining Agency exceptions are denied.


APPENDIX

1. Section 9(b) of the PRSA provides as follows:

Sec. 9 (b) The amendments made by this Act shall not be construed to--
(1) abrogate, modify, or otherwise affect in any way the provisions of any contract in effect on the date of enactment of this Act pertaining to the wages, the terms and conditions of employment, and other employment benefits, or any of the foregoing matters, for Government prevailing rate employees and resulting from negotiations between Government agencies and organizations of Government employees;
(2) nullify, curtail, or otherwise impair in any way the right of any party to such contract to enter into negotiations after the date of enactment of this Act for the renewal, extension, modification, or improvement of the provisions of such contract or for the replacement of such contract with a new contract; or
(3) nullify, change, or otherwise affect in any way after such date of enactment any agreement, arrangement, or understanding in effect on such date with respect to the various items of subject matter of the negotiations on which any such contract in effect on such date is based or prevent the inclusion of such items of subject matter in connection with the renegotiation of any such contract, or the replacement of such contract with a new contract, after such date.

2. Section 704 of the Civil Service Reform Act of 1978 provides as follows:

Sec. 704. (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 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. [ v55 p159 ]
(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.

3. The Wage Alignment Contract, as set forth in Joint Exhibit 7, provides, in relevant part, as follows:

. . . .
B. Within thirty (days) after the signing of this agreement, a bilateral committee consisting of two representative[s] designated by management and two representatives designated by the union, shall collect wage data from these identified prevailing rate employers: Washington State Highway, Roza Irrigation District, Yakima County Roads, City of Yakima, Sunnyside Irrigation District and Pacific Power and Light. The job references to be surveyed (for which a match exists) are: Welder, Repairman, Warehouseman, Maintenanceman, Laborer, Heavy Duty Mechanic, Garage Service Assistant, Equipment Operator II, Ditchrider I and III, Caretaker, Auto Mechanic and (PP & L only) Pump [and] Power Operator.
The committee shall determine the weighted (by number of employees) average hourly pay for each prevailing rate job reference and shall increase the hourly wage of the represented Agency references to this amount on Schedule A. The committee shall then determine the hourly wage for all remaining categories by use of the formulae in Schedule A. These wage adjustments shall become effective on the first full pay period after the thirty (30) day period.
C. During the thirty (30) day period prior to the anniversary of the effective date of this agreement, a bilateral committee, consisting of two representatives designated by management and two representative[s] designated by the union, will meet to collect current wage data from the preselected prevailing rate employers. In addition to these employers, either management or union may unilaterally add up to two new employers to the list of surveyed employers. The new employers must be unionized, employ more than twenty employees and be located in the Greater Yakima-Toppanish area.
The committee shall apply the same procedure referred to in section B above to determine the wage changes to Schedule A. These wage changes shall become effective the first full pay period after the anniversary date of this agreement.
. . . .
F. Duration: This supplementary agreement shall remain in effect for five (5) years from the date that it is approved by the Deputy Assistant Secretary of Indian Affairs or his designee. Negotiations to amend or modify this agreement must be requested between sixty (60) and one hundred five (105) days prior to the second anniversary date. If neither party requests such negotiations, the agreement will automatically renew for one (1) year. In the event that the Deputy Assistant Secretary of Indian Affairs or his designee has not acted on the agreement within the thirty (30) [] period after signing by the Parties, this agreement shall take effect and be binding.

4. The Wage Alignment Contract, as set forth in Management Exhibit 3, provides, in relevant part, as follows:

. . . .
B. Within thirty (30) days after the signing of this Agreement, a bilateral committee consisting of two representatives designated by NFFE Local 341 and two representatives designated by management, shall collect wage data from these identified prevailing rate employers: Washington State Highways, Roza Irrigation District, Yakima County Roads, City of Yakima, Sunnyside Irrigation District and Pacific Power and Light. The job references to be surveyed (for which a match exists) are: Welder, Repairman, Warehouseman, Maintenanceman, Laborer, Heavy Duty Mechanic, Garage Service Assistant, Equipment Operator II, Ditchrider II, Caretaker, Auto Mechanic and Pump and Power Operator. [ v55 p160 ]
The committee shall determine the weighted (by number of employees) average hourly pay for each available prevailing rate job reference and shall increase the hourly wage of the represented agency references to this amount on Schedule A. The committee shall then apply the applicable wage formula to those categories where there are no specific prevailing rate matches to complete Schedule A. These wage adjustments shall become effective on the first full pay period after the thirty (30) day period.
C. During the thirty (30) day period prior to the anniversary of the effective date of this agreement, a committee of two (2) of NFFE Local 341 and two (2) representatives of Management, will meet to collect current rate wage data from the preselected prevailing rate employers. In addition to these identified employers, each committee may unilaterally add up to two new employers to the surveyed employers. The new employers must be unionized, employ more than twenty employees and be located in the Greater Yakima-Toppanish area.
The committee shall apply the same procedures referred to in section (B) above to determine the wage changes to Schedule A. These rate changes shall become effective the first full pay period after the anniversary date of this agreement.
. . . .
F. Duration: This supplementary agreement shall remain in effect for two (2) years from the date that it is approved by the Deputy to the Assistant Secretary - Indian Affairs (Operations) or his/ her designee. Negotiations to amend or modify this agreement must be requested between (60) and one hundred five (105) days prior to the second anniversary date. If neither party requests such negotiations, the agreement will automatically renew for one (1) year. In the event that the Deputy to the Assistant Secretary - Indian Affairs (Operations) or his/her designee has not acted on the agreement within the thirty (30) day period, the agreement shall take effect and be binding.
(The underlined portions of Management Exhibit 3 represent the portions wherein Management Exhibit 3 differ from Joint Exhibit 7.)

5. Section 7117(a)(1) of the Statute provides as follows:

(a)(1) Subject to paragraph (2) of this subsection, the duty to bargain in good faith shall, to the extent not inconsistent with any Federal law or any Government-wide rule or regulation, extend to matters which are the subject of any rule or regulation only if the rule or regulation is not a Government-wide rule or regulation.

6. Section 7117(c)(1) of the Statute provides as follows:

(c)(1) Except in any case to which subsection (b) of this section applies, if an agency involved in collective bargaining with an exclusive representative alleges that the duty to bargain in good faith does not extend to any matter, the exclusive representative may appeal the allegation to the Authority in accordance with the provisions of this subsection.

7. Section 7114(b)(1) and (3) of the Statute provide as follows:

(b) The duty of an agency and an exclusive representative to negotiate in good faith under subsection (a) of this section shall include the obligation--
(1) to approach the negotiations with a sincere resolve to reach a collective bargaining agreement;
. . . .
(3) to meet at reasonable times and convenient places as frequently as may be necessary, and to avoid unnecessary delays[.]

8. 5 U.S.C. § 5343(a) and (b) provide as follows:

§ 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-- [ v55 p161 ]
(A) with respect to prevailing rate employees other than 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 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 territories and possessions of the United States, and the Trust Territory of the Pacific Islands.
(b) The Office of Personnel Management shall schedule full-scale surveys every 2 years and shall schedule interim surveys to be conducted between each 2 consecutive full-scale wage surveys. The Office may schedule more frequent surveys when conditions so suggest.

9. 5 U.S.C. § 5596(b)(2)(B)(ii) provides as follows:

§ 5596. Back pay due to unjustified personnel action
. . . .
(2)(A) An amount payable under paragraph (1)(A)(i) of this subsection [establishing entitlement to back pay] shall be payable with interest.
(B) Such interest--
. . . .
(ii) shall be computed at the rate or rates in effect under section 6621(a)(1) of the Internal Revenue Code of 1986 during the period described in clause (i); and
(iii) shall be compounded daily.

10. Section 6621(a)(1) of the Internal Revenue Code of 1986 provides as follows:

§ 6621. Determination of rate of interest
(a) General rule.--
(1) Overpayment rate.--The overpayment rate established under this section shall be the sum of--
(A) the Federal short-term rate determined under subsection (b), plus
(B) 2 percentage points.

11. 5 C.F.R. § 550.806(d) provides as follows:

§ 550.806(d) Interest computations.
. . . .
(d) The rate or rates used to compute the interest payment shall be the annual percentage rate or rates established by the Secretary of the Treasury as the overpayment rate under section 6621(a)(1) of title 26, United States Code (or its predecessor statute), for the period or periods of time for which interest is payable.





Footnote # 1 for 55 FLRA No. 25

   The text of section 9(b) and section 704 is set forth in the Appendix to this decision.


Footnote # 2 for 55 FLRA No. 25

   Two different versions of the Wage Alignment Contract were introduced in evidence before the Arbitrator. Joint Exhibit 7, undated and without signatures, was relied on by the Union and quoted by the Arbitrator in his award. Award at 2- 4. Third Attachment to Agency's Exceptions. Management Exhibit 3, dated November 16, 1989 and signed by the parties, was introduced by the Agency. Fourth Attachment to the Agency's Exceptions. The text of relevant portions of the version of the Wage Alignment Contract introduced as Joint Exhibit 7 and the version introduced as Management Exhibit 3 is set forth in the Appendix to this decision.


Footnote # 3 for 55 FLRA No. 25

   Although the Arbitrator made no specific finding in this regard, it appears from the record that the survey was conducted in January 1996. Transcript of Arbitration Hearing (Transcript) at 48; Second Attachment to Agency's Exceptions.


Footnote # 4 for 55 FLRA No. 25

   It