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The decision of the Authority follows:
25 FLRA No. 46 COLUMBIA POWER TRADES COUNCIL Union and BONNEVILLE POWER ADMINISTRATION Agency Case No. 0-NG-1247 DECISION AND ORDER ON NEGOTIABILITY ISSUE 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 one proposal. The proposal, set forth in the Appendix to this decision, would grant a wage increase for employees of the Bonneville Power Administration, represented by the Columbia Power Trades Council. For the reasons set forth below, we find that the proposal is nonnegotiable. II. Positions of the Parties The Agency contends that the proposal is nonnegotiable because it is contrary to a statutorily imposed "pay cap" on wage increases for prevailing rate employees. The Union disagrees and contends that, based on language in the parties' contract, an exception to the "pay cap" applies and the proposal is therefore negotiable. III. Analysis and Conclusion 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. As we discussed in International Brotherhood of Electrical Workers, AFL-CIO, Local Union 1245 and Department of the Interior, Bureau of Reclamation, 25 FLRA No. 15 (1987), under section 704 of the Civil Service Reform Act of 1978, Pub. L. No. 94-454, 92 Stat. 1111, 1218, matters pertaining to pay and pay practices of these "section 9(b)" employees are subject to negotiation. /*/ Public Law No. 99-190, 99 Stat. 1185 (1985), which made continuing appropriations for fiscal year 1986, extended pay restrictions placed on General Schedule employees to the pay of section 9(b) employees. It is undisputed that the wage increase set forth in the Union's proposal exceeds that "pay cap." However, certain exceptions were allowed to this "pay cap" for section 9(0) employees. Specifically, the "pay cap" did not apply where an adjustment to wage rates was "required by the terms of a contract" entered into before October 1, 1985. Federal Personnel Manual (FPM) Bulletin 532-68 (April 2, 1986). The Office of Personnel Management (OPM) is charged by Congress with administering the statutory "pay cap" for section 9(b) employees. See, for example, Public Law 99-190, Section 101(h), which incorporated among other things section 613 of Title VI of H.R. 3036; and Public Law 99-591, section 613 of Title VI of the Act making appropriations for the Treasury Department and other agencies. As interpreted by OPM in FPM Bulletin 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 of companies, wage data to be used, etc.). Thus, the pay-setting procedure must automatically result in specific rates of pay, or specific monetary or percentage increases. 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 provisions are as follows: Article 8. Negotiation 8.01 Rates of pay and working conditions affecting the employees covered by this Agreement shall be determined through the process of collective bargaining between the Council and the Administrator. . . . 8.02 When rates of pay are to be negotiated, the Executive Secretary of the Council and the Labor Relations Officer of the Administration, assisted by additional staff as required, shall act as a joint fact-finding committee. The committee will obtain relevant facts bearing on the determinations of the rates of pay established by collective bargaining for work of a similar nature performed under similar circumstances prevailing in the territory in which the Administration operates. Due consideration shall be given by the Administrator and the Council in their negotiations to any facts so established. 13-1 of Supplementary Agreement No. 13 13-1 Wage Agreement Effective dates: The wage adjustment effective dates shall be as follows: (F)or 1986 March 9, 1986. General wage adjustment: The 1984 adjustment shall constitute a 2.55 percent increase. The 1985 adjustment shall constitute a 2 percent increase. The 1986 adjustment shall be negotiated. (Emphasis added.) The Union asserts that section 8.02 of the Parties' contract establishes a fixed-pay setting procedure for wage rates; that the evidence demonstrates that the parties have consistently applied this procedure for nearly 30 years; and that in light of such contractual procedure the 1986 "pay cap" is not applicable because the contract language falls within the exemption of section (b) of FPM Bulletin 532-68. We disagree with the Union's assertions. Section 8.02 sets forth a procedure whereby the Union and the Agency jointly conduct a survey of the wages paid by certain utilities within the Agency's service area whose employees perform similar work under circumstances similar to the Agency's employees. The contract expressly states that "(d)ue consideration (of such survey) shall be given by the parties in their negotiations" of the wage rates. Thus, the survey, by the terms of the contract, is to be given due consideration by the parties in their upcoming negotiations concerning wage rates. The procedure followed by the parties pursuant to section 8.02 does not automatically result in a specific rate of pay, or specific monetary or percentage increase as required by section (b) of FPM Bulletin 532.68. Rather, as previously mentioned, the survey is considered by the parties in their negotiations of wage rates. See Exhibit 1 of the Union's Response to the Agency's Position Statement, at 2 (statement of Union witness that "all of our wage settlements . . . have been within a few cents of the average rate of the . . . surveyed utilities"). Further, we note that section 13-1 of the parties' supplemental agreement specifically states that "(t)he 1986 (wage) adjustment shall be negotiated." Thus section 8.02 must be read in conjunction with this section. Considering these two sections together, it is clear that the procedure described in section 8.02 does not automatically result in a specific wage adjustment, as previously mentioned, but rather the data obtained from such procedure is considered by the parties in their negotiations of the 1986 wage adjustment. This contractual requirement for further negotiations is contrary to section (b) of FPM Bulletin 532.68 which specifically states that "none of the elements of the (contractual) pay-setting procedure may be subject to further negotiation by the parties ('elements' are defined as, but not limited to, formulas, names of companies, wage date to be used, etc.)." Consequently, we conclude that the contract itself dictates neither a wage rate nor a pay-setting procedure which will automatically result in a specific pay rate. Thus, we cannot conclude that the pay increase contained in the proposal 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. We find, rather, that the Union's proposal conflicts with the statutory "pay cap." It is therefore inconsistent with Federal law and is nonnegotiable. IV. Order The Union's petition for review is dismissed. Issued, Washington, D.C. February 6, 1987. Jerry L. Calhoun, Chairman Henry B. Frazier III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /*/ 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. APPENDIX Union Proposal The CPTC submits to the BPA, the wage increase for 1986 should be one and one-half percent (1-1/2%). The increase was determined by the following wage calculations: Projected Hourly Rates Current Hourly Rates Washington Water Power -- $16.63 Chelan County PUD $16.75 Grant County PUD 16.75 Puget Power & Light 17.15 Seattle City Light 17.21 Pacific Power & Light 16.80 Portland General Elec. 16.79 *Tacoma City Light 17.71 Washington Water Power 16.15 Total $135.31 Average $ 16.91 Projected rate changes for: Washington Water Power + 3.0% Tacoma City Light Freeze Using projected Washington Water Power and Tacoma City Light Rates: Total $ 16.97 Average 135.79 The $16.97 hourly wage rate is the Journeyman Lineman's rate and all other wages should be adjusted accordingly. *Adjusted for median rate (Base plus 2%).