National Association of Government Employees, Local R14-143 (Union) and United States Department of the Interior, Bureau of Reclamation, Yuma Area Office, Yuma, Arizona (Agency)

[ v57 p879 ]

57 FLRA No. 185

NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-143
(Union)

and

UNITED STATES
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
YUMA AREA OFFICE, YUMA, ARIZONA
(Agency)

0-NG-2380
(56 FLRA 372 (2000))

_____

DECISION AND ORDER ON REMAND

June 19, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This case is before the Authority on remand from the United States Court of Appeals for the Ninth Circuit. United States Department of the Interior, Bureau of Reclamation, Yuma Area Office v. FLRA, 279 F.3d 762 (9th Cir. 2002) (Yuma Area Office v. FLRA). In that case, the court reversed the Authority's finding that the proposal in dispute in National Association of Government Employees, Local R14-143, 56 FLRA 372 (2000) (then Member Cabaniss dissenting) (Local R14-109) was negotiable. The court remanded the case to the Authority for proceedings consistent with its opinion.

II.     Background

      In Local R14-109, the disputed proposal concerned a wage differential for non-overtime work on Sunday (Sunday differential). [n2]  The Authority concluded that the proposal was within the duty to bargain. As relevant herein, the Authority rejected the Agency's claim that the matter of a Sunday differential for unit employees had not been negotiated prior to August 19, 1972, as required by § 704. The Authority found that the phrase "subject of negotiation," as used in § 704(a), referred to the process of reaching an agreement on a particular matter, not to the result that was reached by the give-and-take of negotiating the parameters of the contractual entitlement. In this regard, the Authority also found, as a matter of fact, that by bargaining on, and agreeing to, a provision in their 1968 agreement that incorporated certain statutory benefits, including a Sunday differential, the parties had negotiated on that subject. Consequently, the Authority found that the parties had negotiated on a Sunday differential prior to August 19, 1972, within the meaning of § 704(a), and, because the proposal also met the other requirements of § 704, concluded that the matter was preserved for bargaining under that section.

      On review, the court found that the Authority "erred in reaching its conclusion." Yuma Area Office v. FLRA, 279 F.3d at 766. Specifically, the court found that a Sunday differential "was not the subject of negotiation prior to August 19, 1972, and, therefore, does not meet the requirements of § 704(a)[.]" Id. at 767. The court disagreed with the Authority's use of the dictionary definition of the term "negotiation." According to the court, "[w]hile the term negotiation does refer to the process of negotiation, the verb negotiate includes within its definition the acts of communication and/or discussion between the parties in reaching a compromise." Id. at 766. In this regard, the court found that "[t]he parties simply discussed where to place Sunday premium pay in the agreement," and concluded that "[t]his act does not rise to the level of negotiation." The court also stated tha