26:0202(25)NG - IBEW and Western Area Power Administration, Energy -- 1987 FLRAdec NG
[ v26 p202 ]
26:0202(25)NG
The decision of the Authority follows:
26 FLRA No. 25
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO
Union
and
WESTERN AREA POWER ADMINISTRATION
DEPARTMENT OF ENERGY
Agency
Case No. 0-NG-1185
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. For the reasons set forth below, we find
that the petition must be dismissed.
II. Proposal
(T)he union propose(s) a 4% general wage increase for all
classifications listed in Supplemental Labor Agreement #3, such
wage increase to be effective October 13, 1985 as provided for in
the Basic Agreement, Section 17.5.
III. Positions of the Parties
In responding to the Union's initial request to bargain, the Agency
declared the proposal nonnegotiable, contending that it was contrary to
the announced pay freeze for fiscal year 1986. The Union contends that
the "lock-step" provision of the parties' Supplemental Labor Agreement
#3 (SLA #3) excepts the Agency from the bargaining prohibition imposed
by law. Further, citing language from the Energy and Water Development
Appropriation Act, 1985, Public Law No. 99-141, 99 Stat. 564, 575
(1985), the Union claims that the salary wage increase granted by the
Agency to its power system dispatcher employees under that law supports
the Union's position that its proposal is negotiable because the
language contained in SLA #3 is virtually identical to the language
relied on by the Agency to grant that wage increase. /1/
IV. 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, Public Law No. 95-454, 92
Stat. 1111, 1218, matters pertaining to pay and pay practices of these
"section 9(b)" employees are subject to negotiation. 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.
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. /2/ 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(b) 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" concerning prevailing rate
employees who are covered under section 9(b). See, for example, Public
Law No. 99-190, Section 101(h), which incorporated among other things
section 613 of Title VI of H.R. 3036; Public Law No. 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 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, it is
necessary to determine whether the parties' contract fulfills either of
these criteria. The Union essentially asserts that the parties' SLA #3
excepts the Agency from the statutorily imposed "pay cap" on wage
increases for prevailing rate employees. The Union did not submit a
copy of the parties' contract or SLA #3 in this case. However, it did
submit a provision from SLA #3 in International Brotherhood of
Electrical Workers, AFL-CIO and Western Area Power Administration,
Department of Energy, 26 FLRA No. 27 (1987), which involved the same
parties and a similar issue. We note that by its terms, the SLA #3
provision submitted in that case would apply to the instant dispute and
we therefore take official notice of the provision here.
SLA #3
Three-Year Agreement
This Agreement has a three-year duration period, from October
1, 1984 to October 1, 1987. Salary adjustments reflected by the
enclosed pay schedule will be implemented effective September 16,
1984, and January 20, 1985. For the scheduled October 1985 salary
adjustment, the parties will conduct a joint telephone survey to
update the job match information in the 1984 Wage Survey which
will be used to negotiate a new pay schedule. Only wage rates
will be open for negotiation for the duration of this agreement.
An additional wage adjustment will be due in October 1986. At the
expiration of this three-year agreement, October 1987, the entire
agreement may be reopened as provided in the Basic Agreement,
Article 19. (Modified October 1, 1984)
We disagree with the Union's assertion that SLA #3 excepts the Agency
from the statutorily imposed "pay cap." The provision from SLA #3 refers
to a specific pay schedule for salary adjustments to be implemented on
September 16, 1984 and January 20, 1985. For the October 1985 (fiscal
year 1986) salary adjustment, the provision requires the parties jointly
to conduct a job wage survey and to use the results of the survey to
negotiate a new pay schedule. Thus, with respect to fiscal year 1986,
SLA #3 does not dictate a specific rate of pay, or specific monetary or
percentage increase, but rather requires that wage rates for October
1985 (fiscal year 1986) be negotiated.
Our conclusion in this regard is supported by other material in the
record. In particular, the attachments to the Union's petition for
review, dated September 11 and September 20, 1985, show that: (1) The
wage increase for prevailing rate employees was to be effective October
13, 1985; (2) the 4% wage figure was arrived at through a joint union
and management wage survey conducted pursuant to SLA #3; (3) the Union
considered the "4% wage figure (as) a specific proposal, a matter to be
bargained;" (4) the Union "requested that the parties open bargaining
for wages;" and (5) the Agency, recognizing that the parties'
"collective bargaining agreement provide(d) for fiscal year 1986
negotiations," declared the proposal nonnegotiable because in its view
the proposal was contrary to the fiscal year 1986 pay freeze.
From a review of this material, it is apparent that the Union was
seeking to negotiate a wage increase for fiscal year 1986 as provided by
the parties' contract. The contractual requirement for negotiation of a
wage increase is contrary to section (b) of FPM Bulletin 532.68, which
specifically states that "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.)." The proposal explicitly seeks
negotiations on the amount of the wage increase. Consequently, we
conclude that the contract dictates neither a wage rate nor a
pay-setting procedure which will automatically result in a specific
rate. Thus, we cannot conclude that the wage 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." The
proposal is therefore inconsistent with Federal law and is
nonnegotiable.
Further, as to the Union's contention concerning Public Law No.
99-141, that law specifically applied to a single occupation (power
system dispatcher). There is nothing in the record to show that the
employees in this case are employed in that occupation.
V. Order
The Union's petition for review is dismissed.
Issued, Washington, D.C., March 16, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Union claims that the Agency's Statement of Position was not
timely filed and should not be considered by the Authority. The Agency
acknowledges that its statement was filed after the time allotted by
section 2426.6(a) of our Rules and Regulations. We find that the
statement of position was untimely filed, and therefore we have not
considered it. The Agency's declaration of nonnegotiability, as
mentioned above, was submitted by the Union as an attachment to its
Petition for Review.
(2) The appropriations for Federal agencies for fiscal year 1986 were
made available under Pub. L. No. 99-103, 99 Stat. 471 (approved
September 30, 1985); Pub. L. No. 99-154, 99 Stat. 813 (approved
November 14, 1985), which extended Pub. L. No. 99-103; and Pub. L. No.
99-190, mentioned above.