International Brotherhood of Electrical Workers, Local 121 (Union) and U.S. Government Printing Office, Washington, D.C. (Agency)

[ v56 p609 ]

56 FLRA No. 96

INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL 121
(Union)

and

U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON, D.C.
(Agency)

0-NG-2541

_____

DECISION AND ORDER ON A
NEGOTIABILITY ISSUE

August 31, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal concerning work preservation. The Agency filed a statement of position (Statement), to which the Union filed a response, and the Agency filed a reply to the Union's response.

      For the reasons which follow, we find that the proposal is outside the duty to bargain. Accordingly, we dismiss the petition for review.

II.     Proposal

No work historically performed by IBEW Local 121 bargaining unit members shall be assigned/performed by employees of the GPO outside of the IBEW Local 121 bargaining unit unless mutually agreed by the GPO and IBEW Local 121.

III.     Post-Petition Conference Summary

      The Union stated that the proposal concerns bargaining unit electricians and is meant to require the Agency to negotiate with the Union before assigning work "historically performed" by these employees to non-bargaining unit employees. The Union stated that "historically performed" means any electrical work performed by the electricians since approximately 1960 and electrical work that has evolved over the years. The Union further explained that "evolved" means installation of all cable lines, regardless of the type of cable, such as electric lines that go from machines to power source; fiber optic lines; phone lines.

      The Agency interpreted the proposal as requiring it to negotiate with the Union prior to assigning work. The Agency stated that the proposal is not negotiable. The Union did not dispute the Agency's view that the proposal concerned a management right. The Union stated that the proposal was negotiable under section 704(a) of the Civil Service Reform Act (CSRA). The Agency stated that the proposal does not concern a section 704(a) matter because the employees are not prevailing rate employees.

      The Union requested a hearing so that it could present documentation to support its position that the subject employees are treated no differently than prevailing rate employees in other agencies. The Union stated that it had negotiated agreements that show work jurisdiction was previously negotiated by the parties. The Agency stated that a hearing was unnecessary because the Union had provided no information to show the unit employees are prevailing rate employees. The Agency also disagreed with the Union's contention that work jurisdiction was previously negotiated. The Authority representatives requested the Union to provide the Agency with whatever documents it had that supported its claim that work jurisdiction was previously negotiated and that unit employees were treated as prevailing rate employees so that the Agency could respond to these documents in its statement and the Authority could make a determination on the hearing request.

IV.     Position of the Parties

A.     Agency

      First, citing Authority precedent, including International Brotherhood of Electrical Workers, AFL-CIO, Local 121 and U.S. Government Printing Office, Washington, D.C., 8 FLRA 188 (1982) (GPO), and a decision of the General Counsel on an unfair labor practice matter involving the parties, the Agency asserts that the proposal is outside the duty to bargain because it affects management's right to assign work under section 7106(a)(2)(B) of the Statute. [n1] 

      Second, as to the Union's contention that the proposal is negotiable under section 704 of the CSRA, the [ v56 p610 ] Agency asserts that it was the intent of Congress that section 704 apply only to those Government prevailing rate employees to whom section 9(b) of the Prevailing Rate Systems Act (PRSA) applies. [n2] According to the Agency, the "employees in the instant case are not now and never have been prevailing rate employees." Statement at 3.

      The Agency cites American Federation of Government Employees, Local 3062 and U.S. Department of the Interior, National Park Service, Lake Mead National Recreation Area, Boulder City, Nevada, 51 FLRA 229 (1995) (Boulder City), which set forth a framework for analyzing Section 704 cases. In this regard, the Agency contends that "[n]ot only did the [A]gency and the [U]nion . . . not have a collective bargaining agreement prior to August 19, 1972," but "there was no collective bargaining agreement between the Agency and the Union . . . until August 20, 1990 . . . ." Agency Reply at 1. According to the Agency, the first attempt by the parties to bargain was October 7, 1975 and the parties went to impasse over the ground rules.

      Citing Boulder City, the Agency asserts that "section 704 permits bargaining in accordance with the Statute while preserving the right of prevailing rate employees to bargain over certain historically negotiated terms and conditions of employment" even when inconsistent with the Statute or specified provisions of Title 5, United States Code. Id., 51 FLRA at 232 (emphasis omitted). According to the Agency, "[t]here is nothing in this case to preserve before August 19, 1972." Reply at 2. The Agency asserts that the Union has not provided any collective bargaining agreements evidencing negotiations on the subject matter because "they do not exist[.]" Id. The Agency also states that the "one document" submitted by the Union, which it claims "is indicative of a 'history of negotiations' is a memo . . . dated April 28th 1976, 4 years after the August 19, 1972 cutoff established by Congress." Id.

      The Agency contends that the Union's claim that the employees are "'treated like' prevailing rate employees" in all respects, except the subject matter involved in this case, does not establish that the employees are prevailing rate employees. According to the Agency, it has been advised by the Office of Personnel Management (OPM), Federal Wage Systems Office, that prevailing rate employees are like all other Federal employees regarding such matters as "leave, health and life insurance[,and] retirement." Id. Therefore, according to the Agency, it is not surprising that the employees here would be treated similar to prevailing rate employees.

B.     Union

      In its petition for review, the Union states that the "proposal is meant to have the [Agency] negotiate with [the] Union prior to assigning bargaining unit work to non-bargaining unit employees." Petition, Attachment. According to the Union, historically, the Agency and the Union "have negotiated and consulted on assignment of work for more than 35 years, well before August 19, 1972." Id. The Union asserts that, "[a]s required by section 704(a) . . ., this practice must continue." Id.

      Also, the Union requests a fact finding hearing to look at the negotiation relationship between the parties, if the Agency continues to claim the proposal is nonnegotiable under section 7106(a). The Union contends that section 704(a) "is the proper cite for negotiation" of the proposal. Id.

      In its response to the Agency statement, the Union refers to the Agency's contention that the employees are not prevailing rate employees. According to the Union, unit employees negotiate pay and compensation under 44 U.S.C. § 305 (also referred to as the Kiess Act) and, except for these issues the employees are treated the same way as other prevailing rate employees. [n3] The Union asserts that the unit employees fit the definition of prevailing rate employee found in 5 U.S.C. § 5342(a)(2)(A). [n4] 

      The Union asserts that its petition was filed under section 704(a) and that its "claim is [that] the practice[s] of prevailing [rate] employees have been historically applied to members of [the Union]." Response at 1. The Union contends that "[o]ther than negotiating pay and compensation issues all other personnel practices of prevailing rate employees are applied to [unit] employees . . ." Id. Therefore, according to the Union, its "position is clear[--]" that "[p]revailing rate employee practices have been and still are applied to . . . bargaining unit members[--]" and, therefore, section 704(a) is applicable. Id.

      In support of its claim of a history of negotiations, prior to August 19, 1972, the Union submitted: [ v56 p611 ]

      (1) a memorandum dated April 28, 1976, from a manager of the Building Division and references the following statement:

Work historically performed in GPO by one craft will not be performed by another craft, except in unusual or mitigating circumstances. When work is performed by one craft under such mitigating circumstances it will not be considered as a precedent, diluting another crafts rightful claim to future work under the historical performance concept. (Emphasis in original omitted]

Id. at 2 (quoting Attachment). The Union asserts that the "reference to unusual or mitigating circumstances [in the memorandum] reinforces [its] position [that] jurisdiction of work was negotiated prior to 1976 and was meant to remain in a negotiable context with all other crafts including [the Union]." Id.

      (2) An affidavit dated July 25, 1997, from its now retired Chief Negotiator for the Agency's Electric Shop Working Agreement Committee from approximately 1965-1982, wherein the negotiator identified three documents shown to him by the Union. See Attachment to Response. The three documents were: (1) undated pages 14 and 15 of a proposal entitled Article XV--Bargaining Unit Work and Trade Jurisdiction; (2) 3 pages of a paper entitled First Clarification Session November 26, 1975; and (3) the April 28, 1976 memorandum from the Building Manager mentioned above. As to the first document, the Chief Negotiator stated that he "could not positively identify the document as there was no date on it." Id. However, he stated that the proposal "is the language we proposed in our 1967-68 and 1975-1976 negotiations." Id. With respect to the third document, he stated that the "memorandum was a compromise negotiated by [himself and the building manager]." Id.

      The Union again requests a hearing if the Authority cannot find for the Union on the basis of its submissions. [n5] 

V.     Analysis and Conclusions

A.     Meaning of the Proposal

      By its terms, and as explained by the Union, the proposal would require the Agency to negotiate with the Union before assigning any work historically performed by bargaining unit employees to non-bargaining unit employees. As further explained by the Union, bargaining unit employees means bargaining unit electricians, and "historically performed" means any electrical work performed by unit electricians since approximately 1960 and electrical work that has evolved over the years. Record of Conference at 2. The Union explained that "evolved" meant installation of all cable lines, regardless of the type of cable, such as electrical lines that go from machines to power source; fiber optic and phone lines. Id.

      Based on the language of the proposal and the Union's explanation, the proposal would require the Agency to negotiate with the Union before assigning any work historically performed by bargaining unit electricians to non-bargaining unit employees.

B.     Analytical Framework to Be Applied in Determining Whether the Proposal Is Within the Duty to Bargain

      Section 704 of the CSRA provides generally that those terms and conditions of employment and other employment benefits, with respect to prevailing rate employees to whom section 9(b) of the PRSA applies, and which were the subject of negotiations in accordance with prevailing rates and practices prior to August 19, 1972 (hereinafter pre-1972), shall be negotiated on and after October 13, 1978 in accordance with the provisions of section 9(b), without regard to the provisions of the Statute. See National Federation of Federal Employees, Local 1418 and United States Information Agency, Voice of America and American Federation of Government Employees, Local 1812, 49 FLRA 1262, 1264 (1994). The legislative history of section 704 makes it clear that section 704(a) "may not be construed to nullify, curtail, or otherwise impair the right or duty of any party to negotiate for the renewal, extension, modification, or improvements of benefits negotiated." Conf. Rep. No. 1717, 95th Cong. 2d Sess. 159 (1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute of 1978, Committee Print No. 95-1717 at 827 (1979).

      In Boulder City, 51 FLRA 229, the Authority clarified the framework for analyzing cases that arise under Section 704. In such cases, both the Statute, in the first instance, and section 704, thereafter, are relevant in [ v56 p612 ] determining whether a disputed proposal is within the duty to bargain. Id. at 232. If a disputed proposal is within the duty to bargain under the Statute, there is no reason to analyze it under section 704 because "`section 704 does not limit bargaining rights under the Statute.'" Id. (quoting U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, Local 1487, 41 FLRA 3, 15 (1991)). On the other hand, where we determine that such a proposal is not within the duty to bargain under the Statute, the proposal must be analyzed to determine if it is preserved for bargaining under section 704, including section 9(b), which is expressly incorporated therein. Id.

           Section 9(b)(2) of the PRSA expressly authorizes negotiations for the renewal, extension, modification, or improvement of provisions of a contract that were in effect prior to August 19, 1972. That section does not contemplate the negotiation of new terms and conditions of employment.

      The parties bear the burden of creating a record upon which the Authority can make a determination over whether the matter is preserved for bargaining under section 704, and act at their peril if they fail to meet this burden. Boulder City, 51 FLRA at 233.

1.     The Proposal Affects Management's Right to Assign Work

      The Agency asserts that the proposal affects management's right to assign work under section 7106(a)(2)(B) of the Statute because the proposal requires management to negotiate with the Union before assigning any work historically performed by bargaining unit electricians to non-bargaining unit employees. The Union does not dispute the Agency's contention that the proposal affects management's right to assign work. See Record of Conference at 2. The Union's petition and response focus on whether the proposal is within the duty to bargain under section 704.

      Because the proposal would require management to negotiate with the Union before it could assign any work historically performed by bargaining unit electricians to non-bargaining unit employees, the proposal would restrict management's right to assign work, and therefore is outside the duty to bargain. See, e.g., American Federation of Government Employees, AFL-CIO, National Council of SSA Field Operations Locals and Social Security Administration, 25 FLRA 622, 622-24 (1987), affirmed sub nom, American Federation of Government Employees, AFL-CIO, National Council of SSA Field Operations Locals v. FLRA, 836 F.2d 1408 (D.C. Cir. 1988) (proposal that prevented the agency from assigning work to non-bargaining unit employees if it resulted in the loss of work to unit employees restricted management's right to assign work under section 7106(a)(2)(B) of the Statute); International Brotherhood of Electrical Workers, Local 570, AFL-CIO-CLC and Department of the Army, Yuma Proving Ground, Arizona, 14 FLRA 432, 433-34 (1984) (proposal that would have prevented the agency from assigning bargaining unit work to employees outside the bargaining unit, except in emergency situations, restricted management's right to assign work).

      Accordingly, as the Union does not dispute the Agency's contention that the proposal affects management's right to assign work and as the Authority has found similar proposals outside the duty to bargain, we find that the proposal affects management's right to assign work.

2.     The Proposal Is Not Preserved for Bargaining Under Section 704(a) of the CSRA, 5 U.S.C. § 5343 note

      Determining whether section 704(a) applies to preserve bargaining entails a three-part inquiry: (1) Are the unit employees Government prevailing rate employees to whom section 9(b) applies; (2) Does the proposal in dispute pertain to "terms and conditions of employment and other employment benefits" within the meaning of section 704(a); and (3) Does the proposal concern a matter that was a "subject of negotiation" in accordance with prevailing rates and practices prior to August 19, 1972. Boulder City, 51 FLRA at 233.

      According to the Agency, the unit employees involved in this case "are not now and never have been prevailing rate employees." Statement at 3. The Union contends that, except for pay and compensation which are negotiated under 44 U.S.C. § 305, the employees "are treated" the same way as all other prevailing rate employees. Response at 1. The Union further refers to the definition of prevailing rate employee found in 5 U.S.C. § 5342(a)(2)(A) and contends that the subject employees "fit[]" the definition. Id.

      A "prevailing rate employee" is defined in 5 U.S.C. § 5342(a)(2)(A) as "an individual employed in or under an agency in a recognized trade or craft, or other skilled mechanical craft, or in an unskilled, semiskilled, or skilled manual labor occupation, and any other individual, . . . in a position having trade, craft, or laboring experience and knowledge as the paramount requirement." (Emphasis added.) For the purpose of Subchapter IV, Prevailing Rate Systems, agency "means [ v56 p613 ] an Executive Agency . . . ." 5 U.S.C. § 5342(a)(1). The GPO is not an Executive agency, but a "unit of the legislative branch." Thompson v. Sawyer, 678 F.2d 257, 264 (D.C. Cir. 1982). By their terms, therefore, 5 U.S.C. §§ 5342(a)(1) and (2), do not apply to the Agency. As 5 U.S.C. § 5342(a)(1) and (2) do not apply to the GPO, we conclude that the unit employees involved here are not prevailing rate employees within the meaning of 5 U.S.C. § 5342(a)(2)(A).

      Additional support for finding that the subject employees are not prevailing rate employees within the meaning of 5 U.S.C. § 5342(a)(2)(A) is found in 5 U.S.C. § 5342(b)(2), which provides that the entire prevailing rate systems "subchapter does not apply to employees and positions described by [5 U.S.C. §] 5102(c)," which refers expressly to "employees of the Government Printing Office whose pay is fixed under section 305 of title 44." [n6] 5 U.S.C. § 5102(c)(9). The Union acknowledges that the GPO bargaining unit employees involved in this dispute pay is fixed under 44 U.S.C. § 305. Accordingly, the subject employees are not prevailing rate employees within the meaning of 5 U.S.C. § 5342(a)(2)(A).

      We also note that 5 U.S.C. § 5349(a) of the PRSA refers to certain GPO employees described under section 5 U.S.C. § 5102(c)(7) with respect to the setting of pay pursuant to prevailing rates. However, the employees herein (whose pay is fixed under 44 U.S.C. § 305) fall under 5 U.S.C. § 5102(c)(9) (discussed supra) rather than 5 U.S.C. § 5102(c)(7), and section (b) of 5 U.S.C. § 5349 specifically provides that subsection (a) of section 5349 "does not modify or otherwise affect . . . section 305 of title 44 . . . ." 5 U.S.C. § 5349(b). Accordingly, section 5349(a) does not provide a basis for concluding that the employees are prevailing rate employees within the meaning of 5 U.S.C. § 5342(a)(2)(A).

      The Union suggests that the employees are covered by the definition in section 5342(a)(2)(A) because the employees "are treated" as other prevailing rate employees. However, as the Authority stated in 7th Infantry Division (Light), Fort Ord, California, 47 FLRA 864, 868-69 (1993):

The task of resolving a dispute over the meaning of a statutory provision "begins where all such inquiries must begin: with the language of the statute itself." United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 241(1989) (citation omitted). If the statute's language is plain, that is, if Congress' intent is apparent from the language, "it is also where the inquiry should end, for where . . . the statute's language is plain, the `sole function of the courts is to enforce it according to its terms.'" Id. (quoting Caminetti v. United States, 242 U.S. 470, 485 (1917)). See also Overseas Education Association v. FLRA, 876 F.2d 960, 974 (D.C. Cir. 1989) ("[u]nless exceptional circumstances dictate otherwise, `[w]hen we find the terms of a statute unambiguous, judicial inquiry is complete.'" (quoting Burlington Northern R.R. Co. v. Oklahoma Tax Commission, 481 U.S. 454, 461 (1987)).

      In examining 5 U.S.C. § 5342(a), there is nothing in the wording of the provision that defines a prevailing rate employee as an employee who is "treated as other prevailing rate employees." Accordingly, based on the plain wording of 5 U.S.C. § 5342, we find that 5 U.S.C. § 5342(a)(2)(A) does not cover the subject employees. Consequently, we find that the subject employees are not prevailing rate employees within the meaning of 5 U.S.C. § 5342(a)(2)(A) and, therefore, section 9(b) and section 704 are not applicable in this case. [n7] 

VI.     Order

      The petition for review is dismissed. [ v56 p614 ]


APPENDIX

1.     Section 704 of the CSRA, codified at 5 U.S.C. § 5343 note (Amendments), provides that:

      (a)     Those terms and conditions of employment and other employment benefits with respect to Government prevailing rate employees to whom section 9(b) of Public Law 92-392 applies which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, shall be negotiated on and after the date of the enactment of this Act (Oct. 13, 1978) in accordance with the provisions of section 9(b) of Public Law 92-392 without regard to any provision of chapter 71 of title 5, United States Code (as amended by this title), to the extent that any such provision is inconsistent with this paragraph.

      (b)     The pay and pay practices relating to employees referred to in paragraph (1) of this subsection shall be negotiated in accordance with prevailing rates and pay practices without regard to any provision of--

(A)     chapter 71 of title 5, United States Code (as amended by this title), to the extent that any such provision is inconsistent with this paragraph;
(B)     subchapter IV of chapter 53 and subchapter V of chapter 55 of title 5, United States Code; or
(C)     any rule, regulation, decision, or order relating to rates of pay or pay practices under subchapter IV of chapter 53 or subchapter V of chapter 55 of title 5, United States Code.

2.     Section 9(b) of Pub. L. No. 92-392, codified at 5 U.S.C. § 5343 (Amendments), provides that:

      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 [Aug. 19, 1972] 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 [Aug. 19, 1972] 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 [Aug. 19, 1972] any agreement, arrangement, or understanding in effect on such date [Aug. 19, 1972] with respect to the various items of subject matter of the negotiations on which any such contract in effect on such date [Aug. 19, 1972] 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 [Aug. 19, 1972].

3.     44 U.S.C. § 305 provides, in pertinent part, as follows:

§ 305.     Public Printer: employees; pay
(a)     The Public Printer may employ journeymen, apprentices, laborers, and other persons necessary for the work of the Government Printing Office at rates of wages and salaries, including compensation for night and overtime work, he considers for the interest of the Government and just to the persons employed, except as otherwise provided by this section. He may not employ more persons than the necessities of the public work require nor more than four hundred apprentices at one time. The minimum pay of journeymen, printers, pressmen, and bookbinders employed in the Government Printing Office shall be at the rate of 90 cents an hour for the time actually employed. Except as provided by the preceding part of this section the rate of wages, including compensation for night and overtime work, for more than ten employees of the same occupation shall be determined by a conference between the Public Printer and a committee selected by the trades affected, and the rates and compensation so agreed upon shall become effective upon approval by the Joint Committee on Printing. . . .
(b)     The Public Printer may grant an employee paid on an annual basis compensatory time off from duty instead of overtime pay for overtime work.

4.      5 U.S.C. § 5342 provides, in pertinent part, as follows:

§ 5342.     Definitions; application
(a)     For the purpose of this subchapter-
(1) "agency" means an Executive agency . . .
. . . .
(2) "prevailing rate employee" means- [ v56 p615 ]
     (A)     an individual employed in or under an agency in a recognized trade or craft, or other skilled mechanical craft, or in an unskilled, semiskilled, or skilled manual labor occupation, and any other individual, including a foreman and a supervisor, in a position having trade, craft, or laboring experience and knowledge as the paramount requirement[.]
. . . .
(b)(1) [T]his 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.
. . . .

5.      5 U.S.C. § 5102(c) provides, in pertinent part, as follows:

§ 5102. Definitions; application
. . . .
(c) This chapter does not apply to-
. . . .
(7) employees in recognized trades or crafts, or other skilled mechanical crafts, or in unskilled, semiskilled, or skilled manual-labor occupations, and other employees including foremen and supervisors in positions having trade, craft, or laboring experience and knowledge as the paramount requirement, and employees in the Bureau of Engraving and Printing whose duties are to perform or to direct manual or machine operations requiring special skill or experience, or to perform or direct the counting, examining, sorting, or other verification of the product of manual or machine operations;
. . . .
(9) employees of the Government Printing Office whose pay is fixed under section 305 of title 44[.]



Footnote # 1 for 56 FLRA No. 96

   The Agency inadvertently refers to the