[ v26 p211 ]
The decision of the Authority follows:
26 FLRA No. 27 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL-CIO Union and WESTERN AREA POWER ADMINISTRATION DEPARTMENT OF ENERGY Agency Case No. 0-NG-1345 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 (The) union is requesting . . . a 4% across-the-board general wage increase to be granted to all classifications listed in Supplemental Labor Agreement (SLA) #3, Wage Schedules to be effective on the first day of the first pay period of October 1986 as provided for in the Basic Agreement, Article 17, Section 17.5. III. Positions of the Parties In responding to the Union's initial request to bargain, the Agency declared the proposal nonnegotiable because it was contrary to a statutorily imposed pay limitation of three percent on wage increases for fiscal year 1987. The Union contends that read together, the parties' basic agreement, section 17.5 and SLA #3 create an "absolute lock-step agreement" which excepts the wage increase in this case from the statutorily imposed pay limitation. /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. Section 101(m) of Public Law No. 99-591 (approved October 30, 1986), which made continuing appropriations for fiscal year 1987, incorporated section 613 of Title VI of the Act making appropriations for the Treasury Department and other agencies. Under section 613, wage increases for prevailing rate employees covered by section 9(b) may not exceed the three percent increase provided for General Schedule (GS) employees, and must be delayed for 90 days, except where the increases in wage schedules or rates are "required by the terms of a contract" entered into before the date of enactment of Public Law 99-591. See Federal Personnel Manual (FPM) Bulletin 532-75 (January 23, 1987). More specifically, any contract falling under this exception must have been entered into before October 18, 1986. Id. The Office of Personnel Management (OPM) is charged by Congress with administering the pay limitation concerning prevailing rate employees who are covered under section 9(b). See Public Law No. 99-591. As interpreted by OPM in FPM Bulletin 532-75, the condition for being excepted from the pay limitation 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 compute specific rates of pay, or specific monetary or percentage increases. Concerning the effective date for implementation of any wage increase, OPM stated in FPM Bulletin 532-75 that: If the increases are exempt from the statutory limitation, they will be effective on the date determined under the provisions of the contract. If the increases are subject to the statutory limitation, they will be placed into effect no sooner than ninety days after the increase would otherwise become effective or, when no effective date is specified in the contract, the increases will be placed into effect: (a) on the anniversary date of the last increase if that increase was delayed 90 days by law; or (b) ninety days after the anniversary date of the last increase if that increase was not delayed by law. It is undisputed that the wage increase set forth in the Union's proposal exceeds that provided for GS employees for fiscal year 1987. Therefore, in order to rule on the negotiability of the proposal it is necessary to determine whether the parties' contract fulfills the criteria for being excepted from the pay limitation. The relevant contract provisions are as follows: Section 17.5, Basic Labor Agreement Supplementary wage adjustments shall become effective upon approval or on the first day of the first pay period of October, whichever is later, unless agreed otherwise by the parties. (Modified October 1, 1984) Existing rates of pay shall remain in effect until supplanted by new rates negotiated pursuant to this section. All rates must be established as nearly as is consistent with prevailing rates in the private sector within the geographic area of Western. SLA #3 (in pertinent part) 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) The Union asserts, as mentioned above, that certain provisions in the parties' contract except the wage increase in this case from the statutorily imposed pay limitation. We disagree with this assertion. Section 17.5 of the parties' contract states that "existing rates of pay shall remain in effect until supplemented by new rates negotiated pursuant to this section" (emphasis added). SLA #3 refers to a specific pay schedule for salary adjustments to be implemented September 16, 1984 and January 20, 1985. For the October 1985 salary adjustment, it requires the parties jointly to conduct a job wage survey and to use the results of the survey to negotiate a new pay schedule. No specific pay schedule is mentioned for fiscal year 1987. Reading SLA #3 together with Section 17.5, it is our view that with respect to fiscal year 1987, the contract does not dictate a specific rate of pay, or specific monetary or percentage increase, but rather provides for negotiation of wage rates for years following the salary adjustments effective on January 20, 1985. 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 November 7, 1986, show that: (1) The wage increase for prevailing rate employees was to be effective on the first day of the first pay period of October 1986; (2) the 4% wage figure was arrived at through a joint union and management survey conducted pursuant to the parties' contract; (3) the Union considered the "4% wage figure (as) a specific proposal, a matter proposed to be bargained;" (4) the Union "requested that the parties open bargaining for wages;" and (5) the Agency declared the proposal nonnegotiable because in its view the proposal was contrary to the pay limitation imposed for fiscal year 1987. From a review of this material, it is apparent that the Union was seeking to negotiate a wage increase for fiscal year 1987 in keeping with the parties' contract. Negotiation of a wage increase is contrary to section (b) of FPM Bulletin 532-75, 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 532-75 so as to be excepted from the pay limitation imposed by Public Law No. 99-591. The proposal is therefore inconsistent with Federal law and is nonnegotiable. /2/ V. Order The Union's petition for review is dismissed. Issued, Washington, D.C., March 17, 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. Under the Authority's Rules and Regulations, it appears that the Agency's Statement of Position is untimely. 5 C.F.R. Section 2424.6. Therefore, we have not considered it in this decision. The Agency's declaration of nonnegotiability, as mentioned above, was submitted by the Union as an attachment to its Petition for Review. (2) In its request to negotiate the wage increase, the Union also requested that the 4% wage increase be granted to all classifications listed in Supplementary Labor Agreement #3, wage schedules retroactive to October 13, 1985. This request effectively seeks a 4% wage increase for fiscal year 1986, and is therefore similar to the proposal in International Brotherhood of Electrical Workers, AFL-CIO, and Western Area Power Administration, Department of Energy, 26 FLRA No. 25 (1987). For the reasons stated in that case, we also find this proposal to be nonnegotiable.