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U.S. Federal Labor Relations Authority

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25:0201(15)NG - IBEW, Local Union 1245 and Interior, Bureau of Reclamation -- 1987 FLRAdec NG

[ v25 p201 ]
The decision of the Authority follows:

 25 FLRA No. 15
                                            Case No. 0-NG-1207
                         I.  Statement of the Case
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of three proposals.  Based on the following, we find that
 the petition should be dismissed.
                           II.  Union Proposal 1
          Union proposes that the Bureau will not implement the 1985
       Reduction In Force provision of part 351 of title 5 of the Code of
       Federal Regulations (5 CFR Part 351), and further described in FPM
       Chapter 351.
    A.  Positions of the Parties
    The Agency argues that this proposal is not sufficiently specific and
 delimited and does not meet the conditions for review set forth in the
 Authority's Rules and Regulations.  It argues that the petition is
 further deficient because the Union has not submitted copies of 5 CFR
 Part 351 and FPM Chapter 351.  Substantively, the Agency asserts that
 the proposal conflicts with a Government-wide rule or regulation.  The
 Union states that the Agency had previously agreed that the proposal was
 sufficiently specific and that a contrary claim now should not be
 entertained.  It also asserts that the subject of the proposal --
 reduction-in-force (RIF) procedures -- historically has been a mandatory
 subject for bargaining.
    B.  Analysis and Conclusion
    1.  The Petition Does Not Warrant Dismissal Based on Procedural
    Although there may be some questions as to which version of 5 CFR,
 Part 351, the Union is referring to in this proposal, we find that the
 proposal is sufficiently specific and delimited to allow us to reach a
 conclusion as to its negotiability.  Also, the Union's failure to
 provide copies of 5 CFR, Part 351, and FPM Chapter 351 is not
 prejudicial in view of the fact the copies of these authorities are
 generally available in the Federal sector.
    2.  The Proposal Either Is Moot or Is Nonnegotiable Because It
 Conflicts With Government-wide Rules or Regulations
    Regulations governing RIF actions which are issued by the Office of
 Personnel Management (OPM) are codified at 5 CFR, Part 351.  They are
 binding on agencies with respect to RIF actions to which they apply.
 See 5 CFR Sections 351.201(a)(2), 351.202 and 351.204.  Hence they are
 Government-wide regulations which bar negotiation of conflicting
    On July 3, 1985, revised RIF regulations which had previously been
 published on October 25, 1983 at 48 Federal Register 49462 et seq. went
 into effect.  However, OPM provided an exception for agencies to delay
 implementation of these RIF regulations if RIF plans were underway as of
 July 3, 1985, and the RIF would take effect on or before December 31,
 1985.  50 Fed. Reg. 35506 (1985).  Subsequently, OPM issued further
 revised RIF regulations which became effective and were required to be
 implemented on February 3, 1986.  51 Fed. Reg. 318-326 (1986) (codified
 at 5 CFR, Part 351).  The permissible delay in implementing the July 3,
 1985 revised regulations was not extended beyond December 31, 1985.  51
 Fed. Reg. 318, 319 (1986).
    The proposal refers to the "1985" RIF provisions, and the Union does
 not explain precisely which version of the RIF regulations its proposal
 refers to.  For the following reasons we conclude that if we assume for
 purposes of this decision that the proposal refers to those RIF
 regulations which became effective on July 3, 1985, the proposal is
 moot.  If, on the other hand, we assume for purposes of decision that
 the regulations involved are those effective on February 3, 1986, which
 currently remain in effect, the proposal is inconsistent with
 Government-wide regulations and is nonnegotiable.  As to the July 3,
 1985 regulations, they were superseded by the February 3, 1986
 regulations.  Therefore, insofar as the proposal may have been intended
 to prevent or delay their implementation, it is moot.  /1/
    As to the February 3, 1986 regulations, which are currently in
 effect, insofar as the proposal is intended to prevent or delay their
 implementation, it conflicts with them.  Since they are Government-wide
 regulations, Union Proposal 1 is, if so intended to be applied, outside
 the duty to bargain.  National Treasury Employees Union, NTEU Chapter
 202 and Department of the Treasury, Bureau of Government Financial
 Operations, 22 FLRA No. 58 (1986).
                          III.  Union Proposal 2
          Union proposes the elimination of Reclamation Instruction Part
       365-5 and R930.1.
          Sections:  930.1.5 Last Sentence 930.1.6B (1) 930.1.6C
       (2)(a)(c) 930.1.6C (3) & (7) 930.1.6E 930.1.7A First Sentence
       Third Paragraph 930.1.7C & D 930.1.7D 930.1.8D
    A.  Positions of the Parties
    The Agency asserts that the petition as to this proposal should be
 dismissed because the proposal is not sufficiently specific and
 delimited and because the Union has failed to submit copies of those
 regulatory provisions which it proposes to eliminate.  Substantively,
 the Agency argues that the proposal which concerns its regulations about
 motor vehicle and mobile equipment operators, interferes with its
 management rights to take disciplinary actions against employees and to
 assign work.  The Union contends that the Agency's regulation is subject
 to the duty to bargain and that the Agency had previously agreed that
 the proposal was sufficiently specific and delimited for purposes of
    B.  Analysis and Conclusion
    In our view the proposal which seeks elimination of specified
 portions of the Agency's regulations is sufficiently clear as to
 constitute a specific and delimited proposal for purposes of a
 negotiability appeal.  See National Federation of Federal Employees,
 Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA
 68 (1980), remanded as to other matters sub nom. Department of Defense,
 Department of the Army v. FLRA, 685 F.2d 641 (D.C. Cir. 1982).  However,
 we agree with the Agency's other point -- in the absence of submission
 by the Union of copies of the provisions which the proposal seeks to
 eliminate, we can make no assessment as to the relationship of the
 proposal to the Agency's management rights.  It is the responsibility of
 the parties to create the record upon which we will resolve
 negotiability disputes.  National Federation of Federal Employees, Local
 1167 v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir.
 1982).  A party failing to assume this burden acts at its peril.  In a
 negotiability appeal it is the responsibility of the party filing the
 appeal to provide the express language of the disputed proposal as well
 as a copy of all pertinent material.  Section 2424.4 of the Authority's
 Rules and Regulations.  In this case the Union has failed to submit
 material which is critical to its petition and to the Authority's
 ability to rule on the dispute.  Unlike provisions contained in, for
 example, the Code of Federal Regulations and the Federal Personnel
 Manual, internal agency regulations are not generally available
 throughout the Federal sector.  Thus, we are entirely dependent upon the
 parties to provide such documents.  We, therefore, find that the
 petition for review as to this proposal must be dismissed.
                           IV.  Union Proposal 3
          U.S.B.R. will grant a 10.4% general wage increase to all
       classifications listed in the wage schedule (SLA #3) effective the
       beginning of the last full pay period of December, 1985.
          The 10.4% figure was arrived at by conducting a survey of those
       properties in the "Gould 9" group.
          A 10.4% wage increase would bring the wage rate up to the
       prevailing wage rates in the territory in which the Project's
       activities are carried on, as provided for in the basic agreement
       Article IV Section 1.
    A.  Positions of the Parties
    The Agency asserts that the proposal is nonnegotiable because it is
 contrary to a statutorily imposed "pay cap" on wage increases for
 prevailing rate employees.  The Union contends that, based on language
 in the parties' contract, an exception to the "pay cap" applies and the
 proposal is, therefore, negotiable.
    B.  Analysis and Conclusions
    It is undisputed that the employees to whom this proposal would apply
 are prevailing rate employees who are covered by section 9(b) of Public
 Law No. 92-392.  Under section 704 of the Civil Service Reform Act of
 1978, Pub. L. No. 95-454. 92 Stat. 1111, 1218, matters pertaining to,
 among other things, their pay and pay practices, are subject to
 negotiation.  /2/ Public Law No. 99-190, 99 Stat. 1185 (1985), which
 made continuing appropriations for fiscal year 1986, extended
 restrictions placed on General Schedule pay to the wage rates and
 schedules of prevailing rate employees including those covered by
 section 9(b) and section 704.  It is undisputed that the wage increase
 proposed exceeds that "pay cap."
    However, certain exceptions were allowed to this "pay cap" insofar as
 employees covered under section 9(b) were concerned.  Specifically the
 "pay cap" did not apply where an adjustment to wage rates was "required
 by terms of a contract" entered into before October 1, 1985.
    The Office of Personnel Management (OPM) is charged by Congress with
 administering the statutory "pay cap" insofar as prevailing rate
 employees who are covered under section 9(b) are concerned.  See, for
 example, Public Law 99-190, Section 101(h), which incorporated among
 other things section 613 of title VI of H.R. 3036;  Public Law 99-591,
 section 613 of Title VI of the Act making appropriations for the
 Treasury Department and other agencies;  and FPM Bulletin 532-60.  As
 interpreted by OPM in FPM Bulletins 532-60 and 532-68 the condition for
 being excepted from the "pay cap" is met when either of the following
 criteria is met:
          (a) the contract dictates specific rates of pay, or specific
       monetary or percentage increases;  or
          (b) the contract dictates a fixed pay-setting procedure which
       results in a specific increase;  however, none of the elements of
       the pay-setting procedure may be subject to further negotiation by
       the parties ("elements" are defined as, but not limited to,
       formulas, names companies, wage data to be used, etc.).  Thus,
       application of the pay-setting procedure must automatically result
       in specific rates of pay, or specific monetary or percentage
    In order to rule on the negotiability of the proposal, we must decide
 whether the parties' contract fulfills either of these criteria.  The
 relevant contract language is as follows:
                                Article IV
          Section 1.  The rates of pay to be paid to the employees
       covered by this Agreement shall be determined through the process
       of collective bargaining between the Parties.  They will include
       basic hourly, overtime, and holiday work rates and, when and as
       needed shift differentials, call-back time, penalty rates for
       changes in regular work schedules, and similar pay items.  All
       rates must be established as nearly as is consistent with the
       public interest in accordance with prevailing rates in the
       territory in which the Project's activities are carried on.  Once
       each calendar year but not more often, Management or the Union may
       notify the other in writing that a conference is desired to
       consider the need for revising any or all existing rates of pay.
       Such notice shall be acknowledged within ten days and a date set
       for holding the conference which date shall be within thirty days
       of the date of the notice.  Unless it is mutually determined that
       negotiations are not necessary the date for starting the
       negotiations for the purpose of revising rates of pay shall be
       within 30 days of the close of the preliminary conference.  In
       addition to the negotiating committees of the Parties who shall
       participate in the negotiations at the joint conference,
       representatives of the Union and representatives of Management may
       be permitted to attend the conference.
          Prior to such negotiations, the Parties shall set up a joint
       fact-finding committee and appropriate sub-committees . . . for
       the purpose of establishing any relevant facts pertaining to rates
       of pay, classifications, and conditions of employment.  The
       committee may go outside the Project for the purpose of
       establishing such relevant facts.  Consideration shall be given by
       the Parties in their negotiations to any facts so established.
    The Union asserts that, under this contract language as interpreted
 by two arbitrators, the wage-setting process is "automatic." The Union
 describes the two arbitrators' decisions as construing the contract to
 require that wage rates must be established "as nearly as is consistent
 with the public interest in accordance with prevailing rates" in the
 territory in which the Agency's activities are carried on.  /3/
 Additionally, one of the arbitrators' decisions specified which
 employers were to be surveyed for purposes of establishing relevant
 facts as to pay rates and practices to be considered in the negotiations
 of rates of pay under the above-quoted article.  The Union argues that,
 in view of these decisions, adoption of the prevailing rates is mandated
 and that determination of the prevailing rate is a ministerial task of
 matching comparable jobs.
    The Union's argument is flawed.  First, accepting the
 characterization of the contract as requiring wage rates to be
 established as nearly as is consistent with the public interest in
 accordance with prevailing rates in the area, does not result in a
 conclusion that specific wage rates are mandated.  The requirement that
 prevailing rates be adopted is qualified by the criteria that such
 adoption be done as nearly as is consistent with the public interest.
 This leaves discretion as to what specific wages rates will actually be
 adopted.  /4/ Second, even if the parties are limited to surveying the
 wage rates and practices of specific employers, such a survey is, by the
 terms of the contract, for purposes of producing facts for consideration
 by the parties in ensuing negotiations as to what wage rates should be.
 Consequently, we conclude that the contract itself neither dictates a
 wage rate nor a pay-setting procedure application of which will
 automatically result in a specific pay rate.  Thus, we cannot conclude
 that the proposed pay increase is one which is "required" by the
 contract within the meaning of FPM Bulletin 532-68 so as to be excepted
 from the "pay cap" established by Public Law 99-190.  /5/ We find,
 rather, that the Union's proposal conflicts with the statutory "pay
 cap." It is therefore inconsistent with Federal law and is
 nonnegotiable.  /6/
    Finally, we note that the Union's claim that the contract effectively
 mandates the adoption of certain wage rates seems inconsistent with its
 request to bargain wage rates.  Rather, the appropriate means for
 pursuing such claim would appear to be through those proceedings
 available for administering the contract, such as grievance and
 arbitration procedures.
                                 V.  Order
    The Union's petition for review is dismissed.
    Issued, Washington, D.C., January 15, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
                ---------------  FOOTNOTES$ ---------------
    (1) Even if those regulations had not been superseded, the delay of
 implementation permitted with respect to them, if it applied at all,
 could not in any event have extended beyond December 31, 1985.  After
 that date the proposal would have been in conflict with those
 Government-wide regulations and nonnegotiable.  In fact, the exception
 probably would not have applied.  The Agency states and the Union
 tacitly concedes that no RIF occurred during the period which could have
 triggered the exception.  Agency Statement of Position at 2.
    (2) See Columbia Power Trades Council and United States Department of
 Energy, Bonneville Power Administration, 22 FLRA No. 100 (1986) for a
 discussion of this provision.
    (3) The Union failed to supply copies or specific citation to either
 arbitrator's decision.  However, as discussed further herein, even if we
 accept the Union's characterization of the arbitrators' findings we
 cannot conclude that the contract provides an exception to the "pay
    (4) See also National Maritime Union of America, AFL-CIO v. United
 States, 682 F.2d 944, 949-50 (Ct. Cl. 1982) in which the court examined
 the language "pay . . . shall be fixed and adjusted . . . as nearly as
 is consistent with the public interest in accordance with prevailing
 rates and practices . . ." which appears at 5 U.S.C. Section 5348(a) and
 found that "discretion inheres" in the phrase, "as nearly as is
 consistent with the public interest."
    (5) See also International Brotherhood of Electical Workers v. James
 Watt, No. 83-F-972 (D. Colo. Nov. 15, 1984).
    (6) We note that the "pay cap" has been continued through fiscal year
 1987.  Pub. L. No. 99-591.