File 2: Opinion of Member Cabaniss and Appendix
[ v56 p378 ]
Dissenting Opinion of Member Cabaniss:
I dissent from my colleagues on the issues of whether Sunday premium pay has "some place" [n1] in current prevailing rates and practices, and whether the parties had negotiated Sunday premium pay prior to 1972.
As to whether Sunday premium pay has "some place" in current prevailing rates and practices, the only evidence of record allegedly reflecting this fact is a collective bargaining agreement for a group of federal employees working for the Army Corps of Engineers. In that regard, neither party disputes that this employee group receives Sunday premium pay as a matter of statutory right under 5 U.S.C. § 5544, rather than as a contractual benefit negotiated in accordance with prevailing rates and practices. And, the record is silent as to why the parties agreed to consider a collective bargaining agreement for federal employees, in addition to two private sector agreements, in its survey group to determine what matters have "some place" in current prevailing rates and practices.
I question the ability to rely on a federal sector collective bargaining agreement, reflecting a statutory entitlement to Sunday premium pay, to show that Sunday premium pay is a current prevailing rate and practice. The legislative history of section 704 of the Civil Service Reform Act of 1978 (section 704) notes that Congress intended to "provide certain savings clauses for employees . . . who have traditionally negotiated contracts in accordance with prevailing rates in the private sector . . . ." H.R. Rep. 95-1717, 95th Cong., 2nd sess. 159 (1978), reprinted in Subcommittee on Postal Personnel and Modernization of the Committee on Post Office and Civil Service, 96th Congress, 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 827 (Legislative History) (emphasis added).
Congressman Ford, who authored section 704, noted that one of the benefits the federal government derived from permitting federal employees to negotiate [ v56 p379 ] provisions comparable to those found in the private sector (and hence one reason for retaining that system) was that it had "enabled the Federal Government to procure and retain qualified craft employees who otherwise might choose employment in private industry, by ensuring that they will enjoy comparable terms and conditions of employment." 124 Cong. Rec. H8468-69 (daily ed. Aug. 11, 1978).
It is clear that in enacting section 704, Congress intended, as relevant here, to continue existing bargaining for employees covered by section 9(b) of the Prevailing Rates and Systems Act over pay rates and practices consistent with those same practices in the comparable private sector industry, to enable the Federal Government to attract and retain those employees who would otherwise be lost to those private sector competitor employers. As a result, the analysis of what constitutes current "prevailing rates and practices" needs to look at the rates and pay practices of those private sector competitor employers.
That requirement is not met here by looking at another federal agency that provides the same pay benefit in questions as a matter of statutory right rather than negotiation. While it might be possible consider a federal sector contract where the parties negotiated a pay benefit that is based on rates and pay practices in the private sector, that does not appear to be the case here. Accordingly, I would not rely on the Corps of Engineers contract to conclude that Sunday premium pay has "some place" in current prevailing rates and practices.
I also do not conclude that the parties negotiated Sunday premium pay prior to 1972. The parties' 1968 agreement, cited as evidence of whether Sunday premium pay was negotiated prior to 1972, does not reflect that such premium pay was subject to negotiation in accordance with prevailing rates and practices. Rather, the provision cited to lists Sunday premium pay as one of several employee entitlements received pursuant to "applicable Statutes, Civil Service rules and regulations, Departmental and Bureau rules and instructions, or other authority."
In United States Department of the Interior, Bureau of Reclamation, Rio Grande Project v. FLRA, 908 F.2d 570 (10th Cir. 1990) (Rio Grande Project), the court overturned an Authority decision dealing with the payment of Sunday premium pay. As relevant here, the court found that "an agreement stating that [a] contract would not interfere with a statutory right under 5 U.S.C. § 5544 [regarding Sunday premium pay] does not constitute `negotiating' over the subject of Sunday premium pay `in accordance with prevailing rates and practices.'" Id. at 576, n.8.
I am aware that the Authority has accepted Rio Grande Project only as the law of the case. See International Brotherhood of Electrical Workers, Local 611 and U.S. Department of the Interior, Bureau of Reclamation, Rio Grande Project, 37 FLRA 670, 674 (1990). However, the disagreement with Rio Grande Project had to do with whether section 704 preserved for negotiation matters which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, or just matters which had been incorporated in a collective bargaining agreement. See National Federation of Federal Employees, Local 1418 and United States Information Agency, Voice of America, 37 FLRA 1385, 1393, 1399-1400 (1990) (VOA), citing to United States Information Agency, Voice of America v. FLRA, 895 F.2d 1449, 1453 (D.C. Cir. 1990). The court's noted holding in Rio Grande Project as to what is or is not "negotiated" is not affected by VOA in that it is not tied to whether one examines what has been memorialized in a collective bargaining agreement or otherwise negotiated by the parties: under either test, the subject must have been negotiated, and (as the Rio Grande Project decision points out) no negotiations took place here. Accordingly, I would find that the subject of Sunday premium pay was not "negotiated" by the parties in accordance with prevailing rates and practices.
Consistent with either or both of my holdings, I would find no duty to bargain over the Union proposal at issue. [ v56 p380 ]
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 negotiating 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 CSRA 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 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.
(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. 5 U.S.C. § 5544(a) provides, in relevant part:
§ 5544. Wage-board overtime and Sunday rates; computation
An employee subject to this subsection whose regular work schedule includes an 8-hour period of service a part of which is on Sunday is entitled to additional pay at the rate of 25 percent of his hourly rate of basic pay for each hour of work performed during that 8-hour period of service. . . .
4. 5 U.S.C. § 5343 provides, in relevant part:
§ 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. . . . 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) 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; [ v56 p381 ]
(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) . . . a lead agency shall conduct wage surveys, analyze wage survey data, and develop and establish appropriate wage schedules and rates for prevailing rate emp