[ v30 p783 ]
The decision of the Authority follows:
30 FLRA NO. 91 30 FLRA 783 31 DEC 1987 NATIONAL FEDERATION OF FEDERAL EMPLOYEES, LOCAL 341 union and U.S. DEPARTMENT OF THE INTERIOR BUREAU OF INDIAN AFFAIRS YAKIMA AGENCY AND THE WAPATO IRRIGATION PROJECT Agency Case No. O-NG-1367 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). This case involves the negotiability of two parts of a proposal regarding increases in wage rates and schedules for prevailing wage rate employees. For reasons more fully set forth below, we find that the portion of the proposal concerning wage increases does not conflict with law because by its terms it would not become effective unless and until existing "pay cap" restrictions expire. The portion of the proposal providing that employees' pay shall not be reduced (the "save pay" provision) is negotiable as well because it relates to the same subject matter as provisions previously negotiated and does not conflict with law. II. The Proposal The proposal, which would provide a system for setting wages for the affected prevailing rate wage employees of the Agency, is set forth in full in Appendix A attached to this decision. III. Positions of the Parties 1 The Agency asserts that the Union's proposal is not negotiable because it would require an increase in wages beyond that permitted by the current pay cap provision found in section 101(m) of Public Law 99-500. In support of this argument, the Agency relies on the Authority's decision in International Brotherhood of Electrical Workers, AFL - CIO, Local Union 1245 and Department of the Interior, Bureau of Reclamation, 25 FLRA 201 (1987). The Agency further argues that the "save pay" portion of section (E) of the proposal is inconsistent with Section 704 of the Civil Service Reform Act of 1978 (Pub. L. No. 95-454, 92 Stat. 1111, 1218, codified at 5 U.S.C. §§ 5343 (Amendments)(1982 ed.)). 2 The Agency claims that section 704 requires that only matters which were the subject of bargaining prior to August 19, 1972, or which are shown to be a prevailing practice may be the subject of negotiations. The Agency asserts that the "save pay" clause meets neither of these requirements. A decision of the Comptroller General is relied on in support of this position, specifically, Grand Coulee Project Office, 60 Comp. Gen. 668, 673-74 (1981). According to the Agency, the "save pay" portion of the proposal is inconsistent with the principles of the prevailing rate system, as the "save pay" proposal might inhibit the setting of lower wage rates even where a prevailing rate survey established the prevalence of lower rates. IV. Analysis and Conclusions A. Background The parties did not dispute that the employees to whom this proposal would apply are prevailing rate employees who are covered by section 9(b) of Public Law 92-392, codified at 5 U.S.C. §§ 5343 (Amendments, note) (1982 ed.). 3 As we discussed in Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA 998 (1986), section 704 of the Civil Service Reform Act of 1978 provides, in essence, that matters pertaining to terms and conditions of employment and pay and pay practices which were subject to bargaining by prevailing rate employees covered under section 9(b) of Pub. L. No. 92-392 prior to August 19, 1972, shall continue to be subject to bargaining without regard to the provisions of chapter 71 (the Statute), subchapter IV of chapter 53 (prevailing wage rate system), and subchapter V of chapter 55 (premium pay), of title 5 of the United States Code. B. Pay Cap Restrictions Public Law No. 99-591, 100 Stat. 3341-330 (1986), continued appropriations for the Department of the Interior and other agencies. Section 613 of the statute extended prior restrictions on wage schedules and rates for prevailing wage rate employees, among others, until the end of the 1988 fiscal year, September 30, 1988. Under section 613, wage increases for prevailing rate employees covered by section 9(b) may not exceed the 3 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). Accordingly, any contract falling under this exception must have been entered into before October 18, 1986. We agree with the Agency that this proposal will not qualify as a contract entered into before October 18, 1986. Only contracts entered into before that date are exempt from the pay cap restrictions. Public Law 99-591, 613 (b), 100 Stat. 3341-330. However, this proposal expressly recognizes the limitations imposed by the "pay cap" included in the continuing resolution for fiscal years 1987 and 1988. Section A of the proposal specifically provides that "any limitations on pay increases imposed by Statute prior to the effective date of this Article will apply to the wage rates herein negotiated." Therefore, we find that this proposal and any contract which contained the proposal would have no effect until and unless the pay cap restrictions contained in Public Law 99-591 expire. The proposal recognizes the applicability and effect of the pay cap for fiscal years 1987 and 1988. Furthermore, the proposal does not conflict with any existing statute because it would not be implemented until fiscal year 1989. Accordingly, we conclude that the proposal is not inconsistent with Federal law. Thus, Bureau of Reclamation, relied upon by the Agency, is distinguishable. That case concerned the question of whether the proposal in dispute met the exceptions permitted under the pay caps for fiscal years 1987 and 1988. This proposal, however, is not intended to be implemented until the provisions of the present pay cap have expired. Thus, it does not provide for wage increases in excess of the limit set out in the pay cap. We make no determination as to whether this proposal would permit wage increases in excess or in contravention of any future pay cap legislation, since that determination would depend on the language of future legislation. C. "Save Pay" The Agency asserts that the "save pay" clause found in section (E) of the proposal is contrary to the requirements of section 704 of the Civil Service Reform Act. This assertion cannot be sustained. The Agency argues that section 704 requires bargaining only on matters which were the subject of negotiation for prevailing rate employees prior to August 19, 1972, and that a save pay provision had never been a subject of negotiation at that time. In Bonneville Power Administration the Authority reviewed section 704 and section 9(b) as well as the legislative history of these sections. The Authority determined that Congress did not intend to preclude prevailing rate employees from negotiating changes in the provisions of agreements in existence prior to August 19, 1972. In addition, the Authority found nothing to prevent adding to or increasing the rights already negotiated for such employees, even if such rights had not been included previously in negotiated agreements. It is not controverted that the parties in this case previously have negotiated over pay and pay practices. The "save pay" provision clearly relates to the same subject matter, pay and pay practices, which have been negotiated previously. We, therefore, conclude that the negotiation of section (E) of the proposal is not inconsistent with section 704 of the Civil Service Reform Act of 1978, based on Bonneville Power Administration. The Agency cites the Comptroller General's decision in Grand Coulee Project Office in support of its conclusion that unions may not negotiate regarding matters which had not been negotiated prior to August 19, 1972. The Authority, however, has rejected the applicability of this decision of the Comptroller General to cases such as this one. The Authority has stated that section 9(b) and section 704 permit negotiation on the extension, modification and improvement of the benefits which these employees historically had received even where such benefits are not applicable in the local area. International Brotherhood of Electrical Workers, Local Union No. 611, AFL - CIO and U.S. Department of the Interior Bureau of Reclamation, Rio Grande Project, 26 FLRA 906 (1987), petition for review filed sub non. Department of the Interior, Bureau of Reclamation, Rio Grande Project v. FLRA, No. 87-2483 (10th Cir. October 8, 1987) Unlike Bureau of Reclamation, there is nothing in the record in this case to show that a "save pay" provision has ever been included in a collective bargaining agreement between the parties. Nevertheless, we conclude that the proposal is negotiable because it relates to the same subject matter as previously negotiated agreements. We reject the Agency's assertion that the proposal is nonnegotiable because the Union failed to demonstrate that a "save pay" provision is a prevailing practice in the local area. We recognize that section 704 provides that pay practices shall be negotiated in accordance with prevailing practices. We find, however, that the purposes of section 704 and section 9 (b) are best served when disputes--often factual--over those prevailing practices are resolved through the negotiation process. That is, we do not believe that it is appropriate or necessary for the Authority to determine the precise nature of prevailing practices in order to make negotiability determinations. Rather, those determinations are more appropriately resolved through the negotiated process by which local prevailing practices are surveyed and through subsequent bargaining. V. Order The Agency must, upon request, or as otherwise agreed to by the parties, bargain on the proposal. 4 Issued, Washington, D.C., December 31, 1987. Jerry L. Calhoun, Chairman Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY APPENDIX A Proposal I (A) In accordance with P.L. 92-392 and P.L. 95-454, wages for employees will be determined by the process of collective bargaining, based on P.L. 92-392, 9(b), 86 Stat. 573, 5343, and Section 704 of P.L. 95-454 (5 USC 5343). It is understood by the Parties that any limitations on pay increases imposed by Statute prior to the effective date of this Article will apply to the wage rates herein negotiated. (B) In January after the effective date of this Agreement, each affected employee of the Wapato Irrigation Project and the Yakima Agency shall be converted in pay to the lowest step in their job category of Schedule A (see attached) which exceeds their rate of pay prior to the conversion. However, this conversion and the wage adjustments referred to in part (C) shall not become effective until the first full pay period in February. (C) During the second week in January in each year after the effective date of this Agreement, a committee of three (3) representatives of NFFE Local 341 and three (3) representatives of Management will meet to collect current rate wage data from preselected prevailing rate employers. Employers to be surveyed are: Washington State Highway; Roza Irrigation District; Yakima County Roads; City of Yakima; Sunnyside Irrigation District; Yakima Cement Products; Superior Asphalt; Bureau of Reclamation; Associated Grocery; Yakima Firing Center. The committee shall determine the weighted (by number of employees) average pay increase for each available job reference and shall increase the wage categories of the references by this amount. The committee shall then determine the weighted average increase of all of the job references and increase the remaining categories (for which no exact reference exits) by this amount. After the wage categories have been increased, then the 'Comparable Increases' (referred to in Section D) shall be added to given categories. These rate changes shall become effective the first full pay period in February. (D) Comparability Increases. To achieve a greater comparability between the wages paid to its employees and the employees in the wage survey area, Management agrees to pay comparability increases to certain categories of workers in addition to any increases in the prevailing rate or increases through ordinary progression through the grade steps. Management shall increase the scale paid for the following workers by a comparability increase of $.50 per hour per year: Ditchrider I, Canal Maintenanceman, Ditchrider II and Ditchrider III. Management shall increase the scale paid for the following workers by a comparability increase of $.33 per year: P&P;Attendant; P&P Operator, Jr; P&P Operator Assistant; P&P Operator Associate; P&P Operator: P&P Operator, Sr. and Foreman, P& P. (E) However, no employee shall suffer a reduction in pay as a result of either a change in the prevailing rate or through the application of schedule A. (F) Each grade of regular wage schedule for non-supervisory wage bargain unit employees shall have three or four steps as determined by Schedule A. A prevailing rate employee under a wage bargaining schedule who has a work performance rating of satisfactory or better, as determined by the Project Engineer, or his designee, shall advance automatically to the next higher step within the schedule at the beginning of the first applicable pay period following his completion of no less than six (6) months, but not to exceed more than one (1) year of probationary period, from the step currently held by the employee. (G) Shift Differential: Employees assigned to regularly work the second shift will receive a 7.5% differential added to their basic rate of pay. Employee assigned to regularly work the third shift will receive a 10% differential added to their basic rate of pay. (H) Duration: This supplementary agreement shall remain in effect for three (3) years from the date that it is approved by the Deputy Assistant Secretary of Indian Affairs or his designee. Negotiations to amend or modify this agreement must be requested between sixty (60) and one hundred and five (105) days prior to the fourth anniversary date. If neither party requests such negotiations, the agreement will automatically renew for two (2) years. In the event that the Deputy Assistant Secretary of Indian Affairs or his designee has not acted on the agreement within the thirty (30) day period, the agreement shall take effect and be binding. SCHEDULE A POSITION Step 1 Step 2 Step 3 Step 4 LABORER 6.86 7.26 7.66 CARETAKER 6.86 7.26 7.66 DITCHRIDER I 6.86 7.26 7.66 P&P ATTENDANT 6.86 7.26 7.66 CANAL MAINTENANCEMAN 8.10 8.50 8.90 9.30 WAREHOUSEMAN 8.10 8.50 8.90 9.30 GARAGE SERVICE ASST 8.10 8.50 8.90 9.30 DITCHRIDER II 9.34 9.74 10.14 10.54 GARAGE SERVICE/PARTS 9.34 9.74 10.14 10.54 REPAIRMAN 9.34 9.74 10.14 10.54 EQUIPMENT OPERATOR I 9.34 P&P OPERATOR JR 10.25 DITCHRIDER III 10.59 10.99 11.39 WELDER II 9.34 9.74 10.14 10.54 BODY/FENDER REPAIRMAN 9.76 10.16 10.56 10.96 EQUIPMENT OPERATOR II 9.76 10.16 10.56 10.96 AUTO MECHANIC 9.76 10.16 10.56 MAINTENANCEMAN 9.34 9.74 10.14 10.54 P&P OPERATOR ASST 11.04 EQUIP. OPERATOR III 10.59 10.99 11.39 HEAVY-DUTY MECHANIC 10.59 10.99 11.39 WELDER 10.59 10.99 11.39 FOREMAN, MIXED GANG 10.97 P&P OPERATOR ASSOC 11.96 P&P OPERATOR 12.75 FOREMAN# SHOP 13.14 P&P OPERATOR SR 13.55 FOREMAN, P&P 14.28 APPENDIX B Section 704 of the Civil Service Reform Act of 1978 (CSRA) provides: Sec. 704. (a) Those terms and conditions of employment and other employment benefits with respect to Government prevailing rate employees to whom section 9(b) of Public Law 92-392 applies which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, shall be negotiated on and after the date of the enactment of this Act in accordance with the provisions of section 9(b) of Public Law 92-392 without regard to any provision of chapter 71 of title 5, United States Code (as amended by this title), to the extent that any such provision is inconsistent with this paragraph. (b) The pay and pay practices relating to employees referred to in paragraph (1) of this subsection shall be negotiated in accordance with prevailing rates and pay practices without regard to any provision of-- (A) chapter 71 of title 5, United States Code (as amended by this title), to the extent any such provision is inconsistent with this paragraph; (B) subchapter IV of chapter 53 and subchapter V of chapter 55 of title 5, United States Code; or (C) any rule, regulation, decision or order relating to rates of pay or pay practices under subchapter IV of chapter 53 or subchapter V of chapter 55 of title 5, United States Code. Section 9(b) of Pub. L. 92-392 provides as follows: Sec. 9. (b) The amendments made by this Act shall not be construed to-- (1) abrogate, modify, or otherwise affect in any way the provisions of any contract in effect on the date of enactment of this Act pertaining to the wages, the terms and conditions of employment, and other employment benefits, or any of the foregoing matters, for Government prevailing rate employees and resulting from negotiations between Government agencies and organizations of Government employees; (2) nullify, curtail, or otherwise impair in any way the right of any party to such contract to enter into negotiations after the date of enactment of this Act for the renewal, extension, modification, or improvement of the provisions of such contract or for the replacement of such contract with a new contract; or (3) nullify, change, or otherwise affect in any way after such date of enactment any agreement, arrangement, or understanding in effect on such date with respect to the various items of subject matter of the negotiations on which any such contract in effect on such date is based or prevent the inclusion of such items of subject matter in connection with the renegotiation of any such contract, or the replacement of such contract with a new contract, after such date. - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - FOOTNOTES - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Footnote 1 The Agency claims that the Union's response to the Agency's statement of position was untimely filed and should not be considered. We find that the Union's response was untimely filed pursuant to section 2426.6(a) of our Rules and Regulations, and, therefore, we have not considered it. Footnote 2 For the text of section 704 of the Civil Service Reform Act of 1978, see Appendix B attached to this decision. Footnote 3 For the text of section 9(b) of Pub. L. No. 92-392, see Appendix B attached to this decision. Footnote 4 in finding the proposal to be within the duty to bargain, we make no judgment as to its merits.