[ v43 p1155 ]
The decision of the Authority follows:
43 FLRA No. 94
FEDERAL LABOR RELATIONS AUTHORITY
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
MID-PACIFIC REGIONAL OFFICE
DECISION AND ORDER ON NEGOTIABILITY ISSUES
January 28, 1992
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority based on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns two proposals.(1) Based on the following, we conclude that Proposal 6, which concerns the performance of work that is outside of an employee's classification, is negotiable. We further conclude that Proposal 11, which would require the Agency to grant employees a 7.75 percent "inequity increase," is nonnegotiable.
The employees to whom the proposals in this case apply engage in collective bargaining pursuant to 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. § 5343 (Amendments) (1988 ed.) and section 9(b) of the Prevailing Rate Systems Act, Pub. L. No. 92-392, codified at 5 U.S.C. § 5343 (Amendments note) (1988 ed.).
Section 704 of the CSRA establishes certain bargaining rights for prevailing rate employees "to whom section 9(b) of Public Law 92-392 applies." Section 704(a) provides in relevant part that the terms and conditions of employment for these prevailing rate employees that were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, shall be negotiated after the enactment of the CSRA without regard to the provisions of the Statute. The Authority has concluded that, taken together, the language of sections 704(a) and 9(b), supported by the legislative history of those provisions, authorizes parties who had negotiated over a subject matter prior to August 19, 1972, to continue existing contractual terms concerning that subject matter or to modify or improve them when negotiating a new agreement, without regard to any restrictions contained in the Statute. See National Federation of Federal Employees, Local 1418 and United States Information Agency, Voice of America, 37 FLRA 1385 (1990), petition for review filed sub nom. United States Information Agency, Voice of America v. FLRA, No. 90-1617 (D.C. Cir. Dec. 28, 1990) (USIA I); Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA 998 (1986) (Bonneville). Under section 704(a), in order for a term or condition of employment to be negotiable, it must have been the subject of negotiations in accordance with prevailing rates and practices prior to August 19, 1972. See also United States Information Agency v. FLRA, 895 F.2d 1449 (D.C. Cir. 1990) (USIA v. FLRA); U.S. Department of Interior, Bureau of Reclamation, Lower Colorado Dams Project Office, Parker and Davis Dams and International Brotherhood of Electrical Workers, Local 640, 41 FLRA 119, 126 (1991), order denying motion for reconsideration, 42 FLRA 76 (1991) (Parker and Davis Dams), petition for review filed sub nom. U.S. Department of Interior, Bureau of Reclamation, Lower Colorado Dams Project Office, Parker and Davis Dams v. FLRA, No. 91-70686 (9th Cir. Nov. 8, 1991).
Section 704(b) modifies the scope of bargaining established in subsection 704(a) with respect to the specific category of terms and conditions of employment described as "pay and pay practices." Parker and Davis Dams, 41 FLRA at 127. Thus, section 704(b) sets the parameters for bargaining on pay and pay practices for prevailing rate employees covered by section 704. Id.
Under section 704(b), prevailing rate employees who negotiated rates of pay and pay practices in accordance with prevailing rates and practices prior to August 19, 1972, may negotiate current pay and pay practices only in accordance with current prevailing rates and practices in the industry. Id. at 128. That is, under section 704(b), current prevailing practices in the industry determine whether, and the extent to which, section 704 prevailing rate employees may bargain concerning a specific pay practice. Id.
III. Proposal 6
Amend SLA [Supplemental Labor Agreement] 1, Art. 5, Sec. 1 to read:
Employees shall not be required to perform work outside their classification, except for small amounts of related incidental work associated with the primary work assignment.
For the purposes of this section the term "related incidental" shall be defined as work not in excess of 1/2 hour.
A. Positions of the Parties
The Agency's statement of position was untimely filed. The Agency had requested, and was granted, an extension of time until February 4, 1991, in which to file its statement of position. However, the statement of position was not filed (postmarked) until February 7, 1991. The Agency's statement of position will not be considered insofar as it relates to the negotiability of this proposal. In its declaration of nonnegotiability, however, the Agency had asserted that this proposal conflicts with section 704 of the CSRA and section 7106(a)(2)(B) of the Statute.
The Union states that the parties' contract currently provides as follows:
Employees shall not be required to perform work outside of their classification except for small amounts of related and incidental work where there is no other need at the jobsite for work in the related classification.
The Union states that "[t]his provision, or its predecessors, has appeared in collective bargaining agreements between the parties since at least 1959." Union's reply brief at 8.
The Union describes Proposal 6 as seeking "only to define a term of art which the parties have long used in their collective bargaining agreement, by specifying that the expression 'a small amount of time' as historically used by the parties means half an hour or less." Id. The Union contends that the current contract language is subjective, calling for interpretation, and that the Union seeks "to articulate an objective interpretation of subjective language." Id.
The Union states that the proposal is governed by section 704(a) in that it concerns terms and conditions of employment rather than pay or pay practices and that the appropriate standard for determining its negotiability is whether the proposed subject for bargaining is a matter that was negotiated by the parties prior to August 19, 1972. The Union argues that under this standard the proposal is negotiable because the parties have negotiated limits on out-of-classification work since at least 1959.
The Union further contends that the Agency's claim that the proposal conflicts with management's right to assign work is "difficult to understand" because the proposed language merely clarifies an existing contractual provision and does not impose a new restriction. Id. at 9. The Union asserts that neither the existing language nor the proposed language "completely precludes the assignment of duties by the Agency." Id.
B. Analysis and Conclusions
As discussed above, section 704(a) applies to negotiation of terms and conditions of employment while section 704(b) applies to the more specific category of terms and conditions of employment described as pay and pay practices. The scope of bargaining concerning pay and pay practices under section 704(b) is narrower than the scope of bargaining concerning "terms and conditions of employment" under section 704(a). Therefore, we initially must determine whether this proposal concerns a matter that is governed by subsection 704(a) or (b). For purposes of section 704(b), we have defined the term "pay" as the rate of basic pay for a position held by an employee covered by the provisions of section 704 of the CSRA. United States Information Agency, Voice of America, 37 FLRA 849, 859 (1990) (USIA II). We interpret "pay practices," within the context of section 704(b), to mean matters historically considered part of an employee's compensation package, such as: (1) adjustments to an employee's basic rate of pay; (2) matters concerning the payment of differentials, overtime, and premiums; and (3) any other general compensation policies that entered into and became a part of the employee's total compensation package. Id. at 861.
Proposal 6 concerns limitations on the amount of work outside of an employee's classification that an employee can be required to perform. This proposal does not concern the employee's right to compensation or the Agency's pay practices. Therefore, we need not analyze the proposal under section 704(b). It relates to the terms and conditions of employment of employees because it concerns their work assignments. See, for example, id. at 868. The relevant standard for determining whether this proposal is negotiable under section 704(a) is whether it concerns a matter that was the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972.
According to the Union, the language contained in the first sentence, or substantially similar language, has existed in contracts between the parties since 1959. As noted above, the Agency's statement of position was untimely filed and has not been considered. In negotiability matters it is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982) (NFFE, L. 1167 v. FLRA); National Federation of Federal Employees, Local 341 and U.S. Department of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Washington, 39 FLRA 1272, 1274 (1991) (BIA, Wapato). Based on the record in this case, the Union's claim is unrebutted and we accept it as fact.
We do not interpret section 704 as limited to preserving for negotiations only matters that have been incorporated in a negotiated agreement prior to August 19, 1972, but as extending to matters that were the "subject of negotiation in accordance with prevailing rates and practices" prior to that date. USIA I, 37 FLRA at 1399-1400. Consistent with this approach, we have construed section 704 of the CSRA and section 9(b) of the Prevailing Rate Act as permitting the parties to negotiate modifications and improvements of provisions of a contract. See id.; Bonneville, 22 FLRA at 1008.
Based on the record, we conclude that a subject of negotiation prior to August 19, 1972, concerned limitations on the amount of work outside of an employee's classification that the employee can be required to perform. There is no claim in the record that those earlier negotiations were not in accordance with prevailing rates and practices prior to 1972. Therefore, we find that Proposal 6 concerns a matter that was the subject of negotiation prior to August 19, 1972, and constitutes a modification or improvement of a contractual provision that was negotiated prior to that date.
Proposals that restrict an agency's ability to assign work directly interfere with management's right to assign work under section 7106(a)(2)(B) of the Statute. See, for example, National Federation of Federal Employees, Local 1655 and Department of Military Affairs, Illinois Air National Guard, 35 FLRA 815, 816-20 (1990). However, the Authority has held that "[t]he plain meaning of [section 704(a)] is that it exempts provisions of specified collective bargaining agreements from the limitations on the scope of bargaining set forth in the Statute, including the management rights provisions of section 7106." Bonneville, 22 FLRA at 1005. Consequently, where, as here, the parties are covered by section 704 and have negotiated matters that conflict with the management rights provision of the Statute, section 704 preserves the parties' right to continue to negotiate on those matters. USIA I, 37 FLRA at 1402.
In summary, we find that the subject of limitations on the amount of work outside of an employee's classification that the employee can be required to perform was negotiated by the parties in accordance with prevailing rates and practices prior to August 19, 1972. Therefore, the subject matter is a term and condition of employment preserved for bargaining under section 704(a) and negotiation of Proposal 6 is not barred by section 7106(a)(2)(B) of the Statute. We conclude that the Agency is obligated to bargain concerning Proposal 6 under section 704(a) of the CSRA.
IV. Proposal 11
After the general wage increase, the U.S.B.R. [the Agency] will grant all bargaining unit positions a 7.75% inequity increase.
A. Positions of the Parties
1. The Union
The Union states that when the parties were unable to reach agreement on wages for 1989, the dispute was submitted to arbitration. A stipulated settlement was reached and the ensuing arbitrator's award contained the following language:
Sixth, the Parties, in their survey, in addition to separate wage data, will deal with all compensation issues, not just wages: Items such as overtime, penalty rate, shift differentials, callback, holiday pay, etc.
The survey will also deal with the question of other compensation issues which are not proper for them to bargain, such as health and welfare benefits, and pension benefits. Those are legally outside the scope of bargaining, but they do deal with the question of total compensation.
Union's reply brief at 10-11.
The Union claims that this language was included in the award at the Agency's request based, the Union surmises, on the Agency's belief that a comparison of total compensation would justify a lower wage for employees as a result of Agency employees' more generous fringe benefits. According to the Union, the ensuing survey showed that employees would need a 7.75 percent wage increase "to match the total compensation prevailing in the territory in which the Agency operates." Id. at 11. The Union describes its proposal as seeking a 7.75 percent wage increase to bring the total compensation of Agency employees into line with the prevailing rates in the area.
The Union contends that this proposal involves pay and pay practices and that the Authority's inquiry is limited to the issue of current industry practice. The Union asserts that the "concept of total compensation . . . is in keeping with accepted compensation survey principles and methodology." Id. at 12. It further contends that the total compensation approach is not unreasonable "[g]iven the prevailing practice principle under section 704[.]" Id. The Union argues that while the Agency must negotiate over the "subject of an inequity increase to reach total compensation parity," it need not agree to the proposal and that the Agency's objection to the concept of "a total-compensation inequity increase" is premature. Id. Rather, the Union contends that disagreements concerning the calculation of a wage increase are ripe for Authority consideration only after completion of the bargaining process.
2. The Agency
As noted previously, the Agency's statement of position was untimely filed and will not be considered insofar as it concerns the negotiability of this proposal. However, the Agency requested, and was granted, permission to file a supplemental submission, which addressed this proposal, among other matters.
In that submission, the Agency states that the parties collected data on other "so-called 'compensation' issues, such as vacation pay, health benefits, sick leave and retirement benefits" in compliance with the arbitrator's award. Agency's supplemental submission at 4. However, the Agency argues that these benefits do not constitute compensation but, rather, are fringe benefits, which are legally outside the scope of bargaining. The Agency contends that the proposed inequity increase does not constitute pay or a pay practice within the meaning of section 704(b) of the CSRA.
The Agency asserts that inequity pay was not negotiated into a collective bargaining agreement prior to August 19, 1972, and, consequently, is not negotiable under section 704(a). The Agency also argues that the proposed 7.75 percent inequity pay increase is not a prevailing practice in the companies surveyed and, thus, is not a currently prevailing pay practice within the meaning of section 704(b).
In response to the Agency's supplemental submission, the Union states that it does not intend to negotiate fringe benefits but, rather, seeks to adjust wages "to achieve total compensation parity." Union's response to Agency's additional submission at 4.
B. Analysis and Conclusions
We find that this proposal seeks an adjustment to the employees' basic rate of pay to compensate for a demonstrated disparity between the level of their "total compensation" and that of employees in the survey area from which the prevailing rates and practices referred to in section 704 of the CSRA are ascertained. An adjustment to basic rate of pay constitutes a "pay practice" within the meaning of section 704(b) of the CSRA. See USIA II, 37 FLRA at 861. Therefore, we find that Proposal 11 concerns "pay practices" and is governed by section 704(b).
In order for us to find that a proposal that concerns "pay practices" is negotiable under section 704(b), it must (1) concern a subject matter that was the subject of negotiations in accordance with prevailing rates and practices prior to August 19, 1972, and (2) be in accordance with the current prevailing rates and practices in the industry. See USIA v. FLRA, 895 F.2d at 1454; Parker and Davis Dams. Here, there is nothing in the record to support a conclusion that there is a current prevailing practice in industry of adjusting employees' rates of pay to afford them "total compensation" parity or that any other payments are provided to achieve such an objective. In this regard, the Union argues only that the concept of total compensation is consistent with accepted compensation survey principles and methodology as well as the principle of prevailing practices. However, it offers nothing to show that the industries in the survey area actually employ a practice of adjusting pay based on comparative levels of total compensation. As we stated earlier, the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. NFFE, L. 1167 v. FLRA; BIA, Wapato.
Because this proposal does not satisfy the requirement of section 704(b) that it be in accordance with the current industry practice, it is unnecessary to address whether it meets the additional requirement that it concern a subject matter that was the subject of negotiations prior to August 19, 1972. Based on the foregoing, we conclude that Proposal 11 does not involve a prevailing pay practice within the meaning of section 704(b) of the CSRA, and that, therefore, the proposal is nonnegotiable.
The Agency must upon request, or as otherwise agreed to by the parties, bargain concerning Proposal 6.(2) The Union's petition for review is dismissed insofar as it concerns Proposal 11.
(If blank, the decision does not have footnotes.)
1. 1 Originally there were eight proposals included in the appeal. However, the Union has withdrawn its appeal as to Proposals 2, 7 and 9; the Agency has withdrawn its allegation of nonnegotiability as to Proposals 5 and 10; and the Union states that the parties have reached an agreement to modify Proposal 1 and that it is no longer in dispute. Those six proposals will not be considered further. We note that the Agency withdrew its allegation of nonnegotiability as to Proposal 10 in its statement of position. As we find below, the Agency's statement of position was untimely and we have not considered arguments contained in that statement relating to the negotiability of the proposals. An agency may withdraw an allegation of nonnegotiability at any time, however, and the time limits set forth in section 2424.6 of our regulations do not apply to such withdrawals.
2. In finding that this proposal is negotiable, we make no judgment as to its merits.