American Federation of Government Employees, AFL-CIO, Council of Federal Grain Inspection Locals (Union) and United States Department of Agriculture, Federal Grain Inspection Service, Washington, DC (Activity) 

 3 FLRA No. 85
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, AFL-CIO, COUNCIL OF FEDERAL
 GRAIN INSPECTION LOCALS
 (Union)
 
 and
 
 UNITED STATES DEPARTMENT
 OF AGRICULTURE, FEDERAL
 GRAIN INSPECTION SERVICE,
 WASHINGTON, D.C.
 (Activity)
 
                                            Case No. 0-NG-126
 
                      DECISION ON NEGOTIABILITY ISSUE
 
    THIS CASE COMES BEFORE THE FEDERAL LABOR RELATIONS AUTHORITY (THE
 AUTHORITY) PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE
 LABOR-MANAGEMENT RELATIONS STATUTE (5 U.S.C. 7101 ET SEQ.).
 
                              UNION PROPOSAL
 
    ALL WORK IN EXCESS OF 40 HOURS PER WEEK PERFORMED ON A SUNDAY SHALL
 BE PAID AT TWICE THE BASIC RATE OF PAY.
 
                    QUESTION HERE BEFORE THE AUTHORITY
 
    THE QUESTION IS WHETHER THE UNION'S PROPOSAL IS OUTSIDE THE AGENCY'S
 DUTY TO BARGAIN UNDER SECTION 7117 OF THE STATUTE BECAUSE IT CONCERNS A
 MATTER THAT IS EXCLUDED FROM "CONDITIONS OF EMPLOYMENT" AS DEFINED IN
 SECTION 7103(A)(14) OF THE STATUTE.  /1/
 
                                  OPINION
 
    CONCLUSION:  THE UNION'S PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN
 UNDER THE STATUTE.  ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE
 AUTHORITY'S RULES AND REGULATIONS, 45 FED. REG. 3513(1980), THE AGENCY'S
 ALLEGATION THAT THE DISPUTED PROPOSAL IS NOT WITHIN THE DUTY TO BARGAIN
 IS SUSTAINED.
 
    REASONS:  THE DUTY TO BARGAIN UNDER THE STATUTE EXTENDS TO THE
 CONDITION OF EMPLOYMENT OF BARGAINING UNIT EMPLOYEES.  MATTERS
 "SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE" HOWEVER, ARE EXPRESSLY
 EXCLUDED FROM THE DEFINITION OF "CONDITIONS OF EMPLOYMENT" IN SECTION
 7103(A)(14)(C) (NOTE 1, SUPRA) AND, HENCE, ARE NOT WITHIN THE SCOPE OF
 THE DUTY TO BARGAIN.  THE UNION'S PROPOSAL IN THE INSTANT CASE CONCERNS
 THE RATE OF PAY FOR BARGAINING UNIT EMPLOYEES WHO PERFORM OVERTIME WORK
 ON A SUNDAY.  THE BASIC PAY PROVISIONS APPLICABLE TO FEDERAL EMPLOYEES,
 INCLUDING PROVISIONS REGARDING OVERTIME PAY FOR HOURS WORKED IN EXCESS
 OF 40 PER WEEK OR 8 IN ONE DAY, ARE SET FORTH IN 5 U.S.C. 5542(A) WHICH
 PROVIDES, IN PERTINENT PART, AS FOLLOWS:
 
    SECTION 5542.  OVERTIME RATES;  COMPUTATION
 
    FOR FULL-TIME, PART-TIME AND INTERMITTENT TOURS OF DUTY, HOURS OF
 WORK OFFICIALLY ORDERED
 
    OR APPROVED IN EXCESS OF 40 HOURS IN AN ADMINISTRATIVE WORKWEEK, OR
 (WITH THE EXCEPTION OF AN
 
    EMPLOYEE ENGAGED IN PROFESSIONAL OR TECHNICAL ENGINEERING OR
 SCIENTIFIC ACTIVITIES FOR WHOM
 
    THE FIRST 40 HOURS OF DUTY IN AN ADMINISTRATIVE WORKWEEK IS THE BASIC
 WORKWEEK AND AN EMPLOYEE
 
    WHOSE BASIC PAY EXCEEDS THE MINIMUM RATE FOR GS-10 FOR WHOM THE FIRST
 40 HOURS OF DUTY IN AN
 
    ADMINISTRATIVE WORKWEEK IS THE BASIC WORKWEEK) IN EXCESS OF 8 HOURS
 IN A DAY, PERFORMED BY AN
 
    EMPLOYEE ARE OVERTIME WORK AND SHALL BE PAID FOR, EXCEPT AS OTHERWISE
 PROVIDED BY THIS
 
    SUBCHAPTER, AT THE FOLLOWING RATES:
 
    (1) FOR AN EMPLOYEE WHOSE BASIC PAY IS AT A RATE WHICH DOES NOT
 EXCEED THE MINIMUM RATE OF
 
    BASIC PAY FOR GS-10, THE OVERTIME HOURLY RATE OF PAY IS AN AMOUNT
 EQUAL TO ONE AND ONE-HALF
 
    TIMES THE HOURLY RATE OF BASIC PAY OF THE EMPLOYEE, AND ALL THAT
 AMOUNT IS PREMIUM PAY.
 
    (2) FOR AN EMPLOYEE WHOSE BASIC PAY IS AT A RATE WHICH EXCEEDS THE
 MINIMUM RATE OF BASIC
 
    PAY FOR GS-10, THE OVERTIME HOURLY RATE OF PAY IS AN AMOUNT EQUAL TO
 ONE AND ONE-HALF TIMES
 
    THE HOURLY RATE OF THE MINIMUM RATE OF BASIC PAY FOR GS-10, AND ALL
 THAT AMOUNT IS PREMIUM
 
    PAY.
 
    WHILE THERE ARE STATUTORY PROVISIONS WHICH SPECIFICALLY PERMIT THE
 NEGOTIATION OF PREMIUM PAY FOR CERTAIN CATEGORIES OF FEDERAL EMPLOYEES,
 NO SUCH SPECIFIC STATUTORY AUTHORIZATION FOR THE BARGAINING UNIT
 EMPLOYEES OF THE FEDERAL GRAIN INSPECTION SERVICE INVOLVED HEREIN HAS
 BEEN CITED BY THE UNION OR FOUND BY THE AUTHORITY.  ACCORDINGLY, IN THE
 INSTANT CASE, AS STATED IN THE HOUSE COMMITTEE REPORT ACCOMPANYING H.R.
 11280 FROM WHICH SECTION 7103(A)(14)(C) OF THE STATUTE DERIVED WITHOUT
 CHANGE, "(R)ATES OF OVERTIME PAY ARE NOT BARGAINABLE, BECAUSE THEY ARE
 SPECIFICALLY PROVIDED FOR BY STATUTE." /2/
 
    THE UNION CONTENDS, HOWEVER, THAT 5 U.S.C. 5542(A), WHICH PROVIDES
 THAT OVERTIME SHALL BE PAID AT "ONE AND ONE-HALF TIMES THE (EMPLOYEE'S)
 HOURLY RATE," IS INCONSISTENT WITH SECTION 7(A)(1) OF THE FAIR LABOR
 STANDARDS ACT (FLSA) WHICH REQUIRES OVERTIME COMPENSATION AT "NOT LESS
 THAN" ONE AND ONE-HALF TIMES THE REGULAR RATE.  SECTION 7(A)(1) OF THE
 FAIR LABOR STANDARDS ACT (29 U.S.C. 207(A)(1)) PROVIDES:
 
    EXCEPT AS OTHERWISE PROVIDED IN THIS SECTION, NO EMPLOYER SHALL
 EMPLOY ANY OF HIS EMPLOYEES
 
    WHO IN ANY WORKWEEK IS ENGAGED IN COMMERCE OR IN THE PRODUCTION OF
 GOODS FOR COMMERCE, OR IS
 
    EMPLOYED IN AN ENTERPRISE ENGAGED IN COMMERCE OR IN THE PRODUCTION OF
 GOODS FOR COMMERCE, FOR
 
    A WORKWEEK LONGER THAN FORTY HOURS UNLESS SUCH EMPLOYEE RECEIVES
 COMPENSATION FOR HIS
 
    EMPLOYMENT IN EXCESS OF THE HOURS ABOVE SPECIFIED AT A RATE NOT LESS
 THAN ONE AND ONE-HALF
 
    TIMES THE REGULAR RATE AT WHICH HE IS EMPLOYED.
 
    THE UNION TAKES THE POSITION THAT CONGRESS, IN EXTENDING COVERAGE OF
 THE FLSA TO FEDERAL EMPLOYEES IN 1974, /3/ EXPRESSLY INDICATED THAT THE
 LATTER PROVISION SHOULD GOVERN WHERE THE TWO STATUTES ON PREMIUM PAY ARE
 INCONSISTENT;  /4/ AND HENCE THAT THE DISPUTED PROPOSAL WHICH SEEKS TO
 ESTABLISH OVERTIME PAY GREATER THAN ONE AND ONE-HALF TIMES THE REGULAR
 HOURLY RATE IS WITHIN THE DUTY TO BARGAIN.  IN SUPPORT OF ITS ASSERTION
 THAT THE TWO PREMIUM PAY PROVISIONS ARE "INCONSISTENT", THE UNION REFERS
 TO CERTAIN LANGUAGE IN THE CONFERENCE COMMITTEE REPORT CONCERNING
 SECTION 704 OF THE CIVIL SERVICE REFORM ACT OF 1978 (92 STAT. 1218) /5/
 IN WHICH CONGRESS EXPRESSLY OVERRULED A NUMBER OF THE COMPTROLLER
 GENERAL'S DECISIONS INTERPRETING "NOT LESS THAN" IN 5 U.S.C. 5544
 PERTAINING TO OVERTIME PAY FOR PREVAILING RATE EMPLOYEES AS NO
 AUTHORIZATION FOR AGENCIES TO ESTABLISH OVERTIME PAY RATES GREATER THAN
 ONE AND ONE-HALF TIMES THE BASIC HOURLY PAY RATE FOR SUCH PREVAILING
 RATE EMPLOYEES.  /6/
 
    THE AGENCY DID NOT FILE A TIMELY STATEMENT OF POSITION HEREIN
 PURSUANT TO SECTION 7117(C)(3) OF THE STATUTE, BUT REQUESTED PERMISSION,
 IN EFFECT, TO FILE A SUBMISSION IN RESPONSE TO THE UNION' ARGUMENTS SET
 FORTH ABOVE.  THE UNION OBJECTED TO THAT REQUEST.  CONSISTENT WITH THE
 AUTHORITY'S POLICY NOT TO CONSIDER SUBMISSIONS IN NEGOTIABILITY CASES
 OTHER THAN THOSE PRESCRIBED IN THE STATUTE AND THE AUTHORITY'S RULES,
 UNLESS ADDITIONAL INFORMATION IS DEEMED NECESSARY, (SEE AMERICAN
 FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, LOCAL 695 AND DEPARTMENT OF
 THE TREASURY, U.S. MINT, DENVER, COLORADO, CASE NO. O-NG-114, 3 FLRA NO.
 7 (APRIL 14, 1980)), THE AGENCY'S REQUEST IS HEREBY DENIED, AND NOTHING
 SUBMITTED WITH THAT REQUEST HAS BEEN CONSIDERED BY THE AUTHORITY IN
 REACHING ITS DECISION HEREIN.  HOWEVER, THE OFFICE OF PERSONNEL
 MANAGEMENT (OPM), IN ITS BRIEF AMICUS CURIAE, FILED PURSUANT TO
 PERMISSION GRANTED BY THE AUTHORITY UNDER SECTION 2429.9 OF THE
 AUTHORITY'S RULES AND REGULATIONS, 45 FED. REG. 3518, SPECIFICALLY
 RESPONDED TO THE UNION'S ARGUMENT BY QUOTING ALL OF THE CONFERENCE
 COMMITTEE LANGUAGE CONCERNING SECTION 704 (SEE NOTE 5, SUPRA) UPON WHICH
 THE UNION RELIES.  SUCH LEGISLATIVE HISTORY INDICATES THAT CONGRESS, IN
 OVERRULING THE AFOREMENTIONED DECISIONS OF THE COMPTROLLER GENERAL BY
 VIRTUE OF SECTION 704, INTENDED TO AUTHORIZE ONLY THOSE PREVAILING RATE
 EMPLOYEES WHO ARE EXPRESSLY EMPOWERED TO NEGOTIATE THEIR WAGES IN
 ACCORDANCE WITH PREVAILING RATES IN THE PRIVATE SECTOR UNDER SECTION
 9(B) OF P.L. 92-392(1972) TO NEGOTIATE THEIR OVERTIME PAY WITHOUT REGARD
 TO 5 U.S.C. 5544, BUT WAS NOT DEALING GENERALLY WITH RATES OF OVERTIME
 PAY FOR ALL FEDERAL EMPLOYEES.  /7/ ACCORDINGLY, THE UNION'S CONTENTION
 THAT SECTION 7(A)(1) OF THE FAIR LABOR STANDARDS ACT IS INCONSISTENT
 WITH 5 U.S.C. 5542(A) MUST BE REJECTED, AND THE AGENCY'S ALLEGATION THAT
 THE DISPUTED PROPOSAL IS OUTSIDE THE DUTY TO BARGAIN UNDER THE STATUTE
 IS SUSTAINED.
 
    ISSUED, WASHINGTON, D.C., JUNE 27, 1980
 
                       RONALD W. HAUGHTON, CHAIRMAN
 
                       HENRY B. FRAZIER III, MEMBER
 
                        LEON B. APPLEWHAITE, MEMBER
 
                     FEDERAL LABOR RELATIONS AUTHORITY
 
    /1/ SECTION 7117(A)(1) OF THE STATUTE PROVIDES AS FOLLOWS:
 
    SECTION 7117.  DUTY TO BARGAIN IN GOOD FAITH;  COMPELLING NEED;  DUTY
 TO CONSULT
 
    (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.
 
    THE TERM "MATTERS" AS USED IN SECTION 7117(A)(1) IS EXPLAINED BY
 REFERENCE TO THE DEFINITION OF "COLLECTIVE BARGAINING" IN SECTION
 7103(A)(12) AND "CONDITIONS OF EMPLOYMENT" IN SECTION 7103(A)(14) OF THE
 STATUTE:
 
    SECTION 7103.  DEFINITIONS;  APPLICATION
 
   .          .          .          .
 
 
    (12) "COLLECTIVE BARGAINING" MEANS THE PERFORMANCE OF THE MUTUAL
 OBLIGATION OF THE
 
    REPRESENTATIVE OF AN AGENCY AND THE EXCLUSIVE REPRESENTATIVE OF
 EMPLOYEES IN AN APPROPRIATE
 
    UNIT IN THE AGENCY TO MEET AT REASONABLE TIMES AND TO CONSULT AND
 BARGAIN IN A GOOD-FAITH
 
    EFFORT TO REACH AGREEMENT WITH RESPECT TO THE CONDITIONS OF
 EMPLOYMENT EFFECTING SUCH
 
    EMPLOYEES. . . . .
 
   .          .          .          .
 
 
    (14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES,
 AND MATTERS, WHETHER
 
    ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING
 CONDITIONS, EXCEPT THAT SUCH
 
    TERM DOES NOT INCLUDE POLICIES, PRACTICES AND MATTERS--
 
   .          .          .          .
 
 
    (C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY
 FEDERAL STATUTE.
 
    /2/ H.R. REP. NO. 95-1403, 95TH CONG., 2D SESS. 44(1978).
 
    /3/ PUB. L. NO. 93-259, 88 STAT. 55 (APRIL 8, 1974).
 
    /4/ THE UNION CITES H.R. REP. NO. 93-913, 93RD CONG., 27-28(1974),
 AND FPM LETTER 551-1, ATTACHMENT 5.
 
    /5/ SEE S. REP. NO. 95-1272, 95TH CONG. 2D SESS. 159(1978).
 
    /6/ THE COMPTROLLER GENERAL DECISIONS EXPRESSLY OVERRULED WERE
 B-189782, 57 COMP. GEN. 259)1978) AND B-191520 (JUNE 6, 1978).
 
    /7/ SEE THE COMPTROLLER GENERAL'S DECISION IN B-189782, 58 COMP.
 GEN. 198(1979).