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35:0262(31)NG - - NFFE Local 341 and DOI, Bureau of Indian Affairs, Yakima Agency and the Wapato Irrigation Project - - 1990 FLRAdec NG - - v35 p262

[ v35 p262 ]
The decision of the Authority follows:

35 FLRA No. 31













(30 FLRA 783)


March 27, 1990

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on remand from the United States Court of Appeals for the Ninth Circuit in United States Department of Interior, Bureau of Indian Affairs, Yakima Agency and the Wapato Irrigation Project v. FLRA, 870 F.2d 554, amended, 887 F.2d 172 (9th Cir. 1989) (Department of Interior). The court reversed the Authority's decision in National Federation of Federal Employees, Local 341 and U.S. Department of the Interior, Bureau of Indian Affairs, Yakima Agency and Wapato Irrigation Project, 30 FLRA 783 (1987) (BIA), that section E of the proposal in dispute, providing that employees' pay would not be reduced because of a change in prevailing rates or implementation of the negotiated pay schedule, was negotiable. The court remanded the case to the Authority for proceedings consistent with its opinion. Consistent with that opinion, we will dismiss the Union's petition for review as it relates to section E of the proposal.

II. Background

On December 31, l987, the Authority issued its decision in BIA. Among the disputed matters in BIA was section E of the proposal, identified as the "save pay" provision, providing that "no employee shall suffer a reduction in pay as a result of either a change in the prevailing rate or through the application of [the negotiated pay schedule]." Id. at 790.

The Authority found that the "save pay" provision was negotiable based on its prior decision in Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA 998 (1986) (Bonneville). The Authority noted its determination in Bonneville that, in enacting section 704 of the Civil Service Reform Act (section 704), Congress did not intend to prevent covered prevailing rate employees from negotiating changes to the provisions of negotiated agreements which were in existence prior to August 19, 1972. The Authority stated that although there was nothing in the record of the case to show that a "save pay" provision had ever been included in a collective bargaining agreement between the parties, the provision was negotiable because it related to pay and pay practices, a subject matter over which the parties previously had negotiated.

The Authority rejected the Agency's contention that the "save pay" provision was nonnegotiable because the Union had not shown that such a provision was a prevailing practice. The Authority stated that it was not "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." BIA, 30 FLRA at 787.

In Department of Interior, the court concluded that the Authority's interpretation of section 704 was not in accordance with law. The court stated:

What is critical is the kind of wages that were the subject of previous bargaining. Save pay provisions were not such a subject for these parties. For this reason, the Authority's order was arbitrary and not in accordance with the law.

887 F.2d at 176. In addition, the court found that "the Authority acted contrary to law in determining the parties were to negotiate what the prevailing rates are." Id. The court stated that prevailing rates and practices "are a matter of factual inquiry." Id.

The court reversed and remanded the case "for proceedings consistent with [the] opinion." Id.

III. Analysis and Conclusion

We adopt, as the law of the case, the court's conclusion in Department of Interior that section E of the disputed proposal is nonnegotiable because a "save pay" provision was not the subject of previous bargaining between the parties. It is, therefore, unnecessary to determine whether "save pay" is a prevailing practice. Even if "save pay" is a prevailing practice, section E of the disputed proposal would be nonnegotiable because that subject had not previously been negotiated by the parties. Accordingly, consistent with the court's opinion, we will order dismissal of the Union's petition for review as it relates to section E of the proposal.

IV. Order

The Union's petition for review as to section E of the proposal is dismissed.

(If blank, the decision does not have footnotes.)