[ v26 p202 ]
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.