[ v26 p906 ]
The decision of the Authority follows:
26 FLRA No. 105 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION NO. 611, AFL-CIO Union and U.S. DEPARTMENT OF THE INTERIOR BUREAU OF RECLAMATION RIO GRANDE PROJECT Agency Case No. 0-NG-1161 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). It concerns the negotiability of the following proposal: Any employee whose regular work schedule includes an eight (8) hour period of service, a part or all of which is on Sunday, is entitled to additional pay at the rate of twenty-five percent (25%) of his/her hourly rate of basic pay for each hour of work performed during that eight (8) hour period of service. The proposal would apply to nonsupervisory, hourly, operations and maintenance bargaining unit employees employed at the Elephant Butte Dam and Powerplant in New Mexico. These employees negotiate their wages and premium pay provisions in accordance with section 704 of the Civil Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111, 1218, codified at 5 U.S.C. Section 5343 (Amendments) and section 9(b) of Pub. L. No. 92-392, codified at 5 U.S.C. Section 5343 (Amendments, note). We find the proposal to be negotiable. II. Background The negotiation of wages and pay practices for certain operations and maintenance employees has occurred in the Bureau of Reclamation for a long time, beginning in 1949. Agency Statement of Position at 3. In the Bureau's Southwest Region, these negotiations with the Union for unit employees have occurred since at least the mid-1960's. Agency Submission of December 17, 1984 to the Federal Service Impasses Panel, at Sheet 2, attached to the Union's Petition for Review. In 1984, the Agency took the position that the long-standing practice of providing premium pay compensation for work on a Sunday was illegal because it was not in accordance with local prevailing pay practices. Accordingly, the Agency proposed to terminate the practice. The Union opposed this change, and sought the assistance of the Federal Service Impasses Panel. Before the Panel, the Agency argued that the Panel did not have jurisdiction over the dispute because it concerns, among other things, a question of negotiability and statutory entitlement. The Union asserted that the unit employees are entitled under 5 U.S.C. Section 5544(a) to receive premium pay without regard to whether it is the prevailing practice. /1/ The Panel declined jurisdiction because it found that it was unable to resolve the impasse until threshold matters, including the negotiability of the proposal, had been resolved. Thereafter, the Union filed this negotiability appeal. III. Positions of the Parties The Agency contends that the issue of Sunday premium pay is not a negotiability dispute properly before the Authority, but rather is an issue of the employees' entitlement under 5 U.S.C. Section 5544(a). The Agency argues that because these employees are subject to section 704, they can receive Sunday premium pay only pursuant to a collective bargaining agreement and not pursuant to title 5 of the U.S. Code. Further, the Agency maintains that since the subject of Sunday premium pay was never specifically negotiated by the parties, it can not now be subject to bargaining under section 704. Finally, the Agency argues that even if the matter was previously covered in the parties' agreement, it may not be negotiated now because the payment of Sunday premium pay is not a prevailing pay practice in the local area. The Union states that under its proposal, employees who are regularly scheduled to work on Sunday would continue to receive Sunday premium pay in a prescribed amount. The Union acknowledges that Sunday premium pay (1) is not a prevailing practice in the local area under consideration; (2) has never been specifically included in any agreement between the parties; and (3) was not the subject of any negotiations until 1984. However, the Union contends that the entitlement to Sunday premium pay was incorporated by reference indirectly into the Basic Agreement, approved September 9, 1971 and still effective, and Supplementary Employee-Management Agreement No. 1, approved May 14, 1971, wherein the parties agreed that benefits provided by Federal law would continue in effect. /2/ The Union argues that where the parties have not negotiated to displace those benefits provided by Federal law, those benefits continue in effect if the parties have so agreed. Alternatively, the Union contends that the local prevailing pay and pay practices exceed those of the Agency even if Sunday premium pay is included in the computation. The Union states (at 5 of its March 22, 1983 submission to the Panel): Accordingly, even though the specific pay practice of Sunday premium pay is not prevailing, the prevailing wage rates and pay practices justify the Agency paying the Sunday premium pay. In other words in accordance with Section 704 of the Civil Service Reform Act, the unit employees are entitled to the Sunday premium pay because even with that premium pay, their pay and pay practices are less (than) the prevailing rates and pay practices in the area. In sum, the Union disagrees with the Agency's allegation that the continued payment of Sunday premium pay is inconsistent with Federal law. IV. Analysis A. The Union's Proposal Presents a Negotiability Dispute Which Is Properly Before The Authority The Agency maintains that the Union's proposal to continue the payment of 25 percent Sunday premium pay relates to whether these employees are entitled to benefits under statute. The Agency asserts that it has no obligation to make premium payments under 5 U.S.C. Section 5544(a) and that the issue must be resolved in another forum. While the Union contends that these employees are entitled to Sunday premium pay as a matter of law, the proposal itself would impose on the Agency a purely contractual obligation. As such, the question of whether the proposal concerns a negotiable subject which is within the Agency's duty to bargain is appropriately within our jurisdiction. We do not pass on the issue of whether, under 5 U.S.C. Section 5544(a), these employees are entitled to Sunday premium pay. B. The Subject of Sunday Premium Pay Is Within The Agency's Duty to Bargain Under section 704, agencies must bargain over terms amd conditions of employment, including pay and pay practices, of prevailing rate employees where those terms and conditions of employment were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972. See generally Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA No. 100 (1986). As we held in Bonneville Power Administration, section 704 does not limit its protections only to the particular terms of provisions which were specifically negotiated by the parties in their collective bargaining agreements prior to August 19, 1972. If a disputed proposal involves subject matters which had previously been negotiated by the parties, those subjects are within the Agency's duty to bargain under section 704. Additionally, parties are not confined merely to the continuation of terms of previously existing agreements. In a new agreement, the parties may change those terms or alter their rights concerning the matters involved. Id., slip op. at 10-12. Applying Bonneville Power Administration to this case, we find that the matter of Sunday premium pay for bargaining unit employees is one which is encompassed within the premium pay practices negotiated by the parties prior to August 19, 1972. As the Agency acknowledges, it has negotiated premium pay provisions in accordance with section 704 for many years, including prior to 1972. Agency Response to Union's Petition for Review at 3. Accordingly, the Union's proposal in this case concerns a term and condition of employment -- namely premium pay -- which was the subject of negotiation prior to August 19, 1972. The Agency relies on Medler v. United States, Bureau of Reclamation, Department of the Interior, 616 F.2d 450 (9th Cir. 1980) as mandating the discontinuance of the Sunday premium pay. That reliance is misplaced. In Medler, the court held that Congress excluded prevailing rate employees whose wages were determined through collective bargaining from coverage under the Prevailing Rate Systems Act (Pub. L. No. 92-392, 86 Stat. 564, codified in 5 U.S.C. Sections 5341-5349), and unless the applicable collective bargaining agreement provided for shift differential pay or longevity pay, the employees covered by the agreement were not entitled to that pay. Because that case concerned questions as to the entitlement of unit employees to certain pay differentials, it is distinguishable from this case, which concerns the negotiability of a form of premium pay. For the same reasons, the Agency's reliance on the Comptroller General's decision in Matter of Donald Cross, B-204984 (May 10, 1982), is likewise misplaced. C. Sunday Premium Pay is Negotiable Whether or Not it is a Prevailing Practice in the Local Area The Agency contends that even if the matter of premium pay was previously covered in the parties' agreement, Sunday premium pay may not be negotiated now because it is not a prevailing practice in the local area. We do not believe that result to be consistent with the purpose of the Prevailing Rate Systems Act in general or with the purpose of section 9(b) and section 704 in particular. Employees covered by the Prevailing Rate Systems Act, 5 U.S.C. Sections 5343 et seq., are entitled by law to Sunday premium pay whether or not it is a prevailing pay practice in the local wage area. See 5 U.S.C. Sections 5541(2)(xi) and 5544. Although the dollar amount of Sunday premium pay is calculated as a percentage of their base pay, which is established on the basis of the local wage area survey, entitlement to Sunday premium pay for employees covered by the Prevailing Rate Systems Act does not depend upon whether Sunday premium pay is provided locally. We do not believe that in exempting section 704 employees from the coverage of the Prevailing Rate Systems Act, Congress intended to preclude negotiations on benefits that they would otherwise have received, without regard to the prevailing practices in a given local wage area, if they had been covered by that Act. Congress intended the Prevailing Rate Systems Act, including section 9(b), to provide "equal pay for substantially equal work for all prevailing rate employees who are working under similar conditions of employment in all agencies within the same local wage area." 5 U.S.C. Section 5341(1). See also National Maritime Union of America v. United States, 682 F.2d 944, 951-52 (Ct. Cl. 1982) and National Federation of Federal Employees v. Brown, 645 F.2d 1017, 1024 (D.C. Cir. 1981). In our opinion, even if the Agency is correct that section 704(b)(B) removes any entitlement to Sunday premium pay under 5 U.S.C. Section 5544 for unit employees in this case, the principles of pay equity established by Congress require that those employees be permitted to negotiate on Sunday premium pay so as to maintain equity with those prevailing rate employees in the local area who are entitled to that pay under 5 U.S.C. 5544. In short, even if Congress excluded section 704 employees from coverage by 5 U.S.C. Section 5544, we do not believe that it intended thereby to condition those employees' right to negotiate over Sunday premium pay on whether that premium pay was a prevailing practice in the local wage area. To find otherwise would be inconsistent with the purpose of the Prevailing Rate Systems Act. Furthermore, the broad purpose of section 9(b) and section 704 was to preserve the rights of employees covered by those sections to negotiate for the continuation of benefits which they had historically received, without regard to otherwise applicable legal limitations. Those sections were not intended to deprive employees of existing benefits. In fact, section 704 was enacted in order to correct such a limiting interpretation of section 9(b) by the Comptroller General. See Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA No. 100 (1986). On the contrary, section 9(b) and section 704 permit negotiation on the extension, modification and improvement of those benefits and the legislative history of section 704 in particular suggests that such negotiations need not be tied to conditions in the local area. See Bonneville Power Administration, slip. op. at 4-7. We find, therefore, that consistent with the purpose of section 9(b) and section 704 to preserve negotiations over existing benefits, employees in this case, who had historically received Sunday premium pay, may negotiate for continued payment of the premium pay regardless of whether it is a prevailing practice in the local area. Accord Matter of W.L. Ableidinger and E.G. Walters, 60 Comp. Gen. 58, 60 (1980) and Matter of Corps of Engineers, North Pacific Division, 59 Comp. Gen. 583, 584 (1980) (prevailing rate employees not covered by section 704 who had historically received double overtime may continue to receive those benefits, despite 5 U.S.C. Section 5544, because such payment is consistent with the broad purpose of section 704 to preserve existing practices). In our view, these decisions of the Comptroller General are more relevant to the circumstances of this case than the decision in Grand Coulee Project Office, 60 Comp. Gen. 668 (1981), cited by the Agency. In sum, for the foregoing reasons, we conclude that negotiation of Sunday premium pay is consistent with the purpose of pay equity established by the Prevailing Rate Systems Act and the Congressional intent to preserve for negotiations those benefits which employees covered by section 9(b) and 704 had historically received. Finally, in light of our conclusions, we do not address the Union's contention that even if the prevailing practice in the local area did govern, the proposal would be negotiable because the total premium pay available to unit employees would still be less than the prevailing practice for total premium pay in the local area. V. Conclusion The proposal is within the duty to bargain under section 704 of the CSRA. VI. Order The Agency must upon request, or as otherwise agreed to by the parties, negotiate over the proposal. /3/ Issued, Washingtion, D.C. April 30, 1987 /s/ Jerry L. Calhoun, Chairman /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) The relevant portion of 5 U.S.C. Section 5544(a) is set forth in the Appendix to this decision. (2) The relevant provisions of the Basic Agreement and the Supplementary Employee-Management Agreement No. 1 are set forth in the Appendix to this decision. (3) In finding that this proposal is within the duty to bargain, we make no judgment as to its merits. APPENDIX 5 U.S.C. Section 5544(a) provides, in pertinent part: * * * * (a) An employee whose pay is fixed and adjusted from time to time in accordance with prevailing rates under Sec. 5343 or 5349 of this title, or by a wage board or similar administrative authority serving the same purpose, is entitled to overtime pay for overtime work in excess of 8 hours a day or 40 hours a week. * * * * As employee subject to this subsection whose regular work schedule includes an 8 hour period of service a part of which is on Sunday is entitled to additional pay at the rate of 25 percent of his hourly rate of basic pay for each hour of work performed during that 8 hour period of service. As set forth at page 2 of the Union's March 22, 1985, submission to the Federal Service Impasses Panel, attached to Petition for Review, the Basic Agreement provides, in pertinent part: Priority of Law and Regulations A. In the administration of all matters covered by the agreement, the Employer, the Union, and employees are governed by existing or future laws and regulations of appropriate authorities including policy set forth in the Federal Personnel Manual; by published Bureau and Department of the Interior policies and regulations in existence at the time the agreement was approved; and by subsequent published Bureau and Department of the Interior policies and regulations required by law or by the regulations of appropriate authorities. As set forth at page 3 of the Union's March 22, 1985 submission to the Federal Service Impasses Panel, the Supplementary Employee-Management Agreement No. 1 provides: BENEFITS The following shall be administered in accordance with applicable laws, rules, and regulations; annual leave, sick leave, leave without pay, retirements benefits, compensation for job-related injuries, holidays, unemployment benefits, social security, group life insurance, health benefits, per diem for travel away from headquarters, and other benefits as may be provided by law or regulation from time to time.