30:0639(77)NG - United Power Trades Organization and Army Corps of Engineers, North Pacific Division -- 1987 FLRAdec NG

[ v30 p639 ]
The decision of the Authority follows:

30 FLRA NO. 77
 30 FLRA 639

29 DEC 1987






Case No. 0-NG-1396


     I. Statement of the Case

     This case is before the Authority because of a negotiability
appeal filed by the Union under section 7105(a)(2)(E) of the
Federal Service Labor - Management Relations Statute (the
Statute) and concerns the negotiability of four proposals. Three
of the proposals involve various aspects of pay and are outside
the duty to bargain because they are contrary to law. The fourth
proposal seeks to limit an employee's pecuniary liability and is
also outside the duty to bargain because it conflicts with
management's right to establish internal security practices.

     II. Proposals 1-3

     Proposal 1

     Article 19.6

     Payment of shift differential will be in accordance with
Article 19.8 below.

     Proposal 2

     Article 19.8

     Provisions of this Article will be paid in accordance with
FPM Supplement 532-1, S8-4. 

     Proposal 3

     Article 20- Environmental Pay

     20.1- The Union and the Division recognize the environmental
and safety hazards specified in Appendix A of this contract. The
parties further recognize that the percentages set in the
appendices are appropriate for the matters concerned.

     20.2- Either the affected employees or the Project
representative will bring to the supervisor's attention those
instances which he believes to be situations warranting
environmental pay.

     20.3- The supervisor will immediately bring the matter to
the attention of the Project Manager for review. If the Project
Manager finds the matter warranting such pay, it shall be
forwarded to the District Personnel Officer for evaluation within
five (5) working days. If the District agrees that pay is
warranted, then the matter will be referred to the Division
office for final action within ten (10) working days.

     20.4- If either the immediate supervisor, the Project
Manager, the District Office or the Division deny the
appropriateness of environmental pay, the matter may be subject
to the grievance procedure at the level which it was denied. If a
new condition develops which is hazardous, the Union will bring
this to management's attention and the matter will be discussed
and if appropriate, a differential will be set.

     20.5- An employee subjected to one or more conditions
covered by this Article, shall be paid for the exposure which
results in the highest pay differential.

     A. Positions of the Parties

     The Agency contends that payment of shift differentials,
premium pay and environmental pay for Corps of Engineers
employees in the North Pacific Division is governed exclusively
by the procedures mandated by the Supplemental Appropriations Act
of 1982, (Pub. L. No. 97-257, 96 Stat. 832). In support, the
Agency relies on United Power Trades Council and United States
Army Corps of Engineers, North Pacific Division, 21 FLRA  501
(1986), petition for review dismissed for lack of
jurisdiction sub nom. United Power Trades Organization v. FLRA, 
No. 86-7375 (9th Cir. Nov. 24, 1986). The Agency concludes that
since these proposals would require the payments at issue to be
based on procedures other than those required by the Supplemental
Appropriations Act of 1982, the proposals are inconsistent with
the Supplemental Appropriations Act of 1982.

     The Union contends that neither the Prevailing Rate Systems
Act of 1972 nor the Supplemental Appropriations Act of 1982
specifically prohibit the payment of shift differentials, premium
pay or environmental pay.

     The Union further asserts that the Authority's decision in
North Pacific Division is distinguishable from this case. The
Union claims that North Pacific Division was based on a finding
that a determination by the Department of Defense Wage Fixing
Authority (DOD WFA) effectively prohibited the payment of shift
differentials. According to the Union, no argument was raised and
no determination was made in North Pacific Division as to whether
the DOD WFA's determination is an agency regulation which is
subject to the compelling need test set forth at section 2424.11
of the Authority's Regulations.

     The Union claims that the DOD WFA's determination is subject
to the compelling need test. Thus, while the Union agrees that
its proposals are inconsistent with determinations of the DOD
WFA, it contends that since the Agency has made no showing that
there is a compelling need for DOD WFA determinations, the
proposals are negotiable.

     The Union also argues with respect to Proposals 2 and 3,
that neither the question of premium pay matters other than shift
differential nor the question of environmental pay was
specifically addressed in North Pacific Division. Finally, as to
Proposal 3, the Union also argues that the DOD WFA has made
incorrect determinations as to which positions in the North
Pacific Division are entitled to environmental pay.

     B. Analysis and Conclusions

     At the onset, we note that North Pacific Division and this
case involve the same union and agency. In North Pacific Division
the agency had discontinued payment of shift differentials
notwithstanding a provision in the parties' collective bargaining
agreement requiring payment of such differentials. The union
filed a grievance. An arbitrator concluded that the agency had
violated the parties' collective bargaining agreement by
discontinuing payment of shift differentials and ordered the
agency to reinstate the shift differentials with an award of

     In setting aside the arbitrator's award, the Authority
determined that the wages of the bargaining unit employees were
governed by the Prevailing Rate Systems Act of 1972, 5 U.S.C.
5341-5349. The Authority also found that the Supplemental
Appropriations Act of 1982 applied to these employees and that
the Act required that they be paid wages as determined by the DOD
WFA to be consistent with the wages of employees of the
Departments of Interior and Energy who perform similar work in
the same geographic area.

     The record in that case established that the DOD WFA had
determined that employees at Interior and Energy facilities in
the region were not paid a shift differential. Therefore, the DOD
WFA had issued a wage schedule for Corps of Engineers employees
in the North Pacific Division which excluded shift differential

     The Authority concluded in North Pacific Division that the
DOD WFA was exclusively authorized to establish wage schedules
for Corps of Engineers prevailing rate employees under the
Supplemental Appropriations Act of 1982. Since the DOD WFA had
determined that the North Pacific Division employees were not
entitled to the shift differentials, such differentials could not
be paid. Consequently, the Authority set aside the arbitrator's
award which required the North Pacific Division to reinstate the
payment of a shift differential with appropriate back pay

     In seeking to negotiate proposals providing for the payment
of shif