43:1469(118)NG - - AFGE Local 1916 and Interior, Bureau of Mines, Pittsburgh Research Center, Pittsburgh, PA - - 1992 FLRAdec NG - - v43 p1469

[ v43 p1469 ]
The decision of the Authority follows:

43 FLRA No. 118




LOCAL 1916










February 10, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7106(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one proposal providing for a 6 percent across-the-board pay increase under a five-step pay scale. For the following reasons, we find that the proposal is nonnegotiable.

II. Background

The bargaining unit involved in this case consists of employees who negotiate over pay and pay practices 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 (PRSA or the Act), Pub. L. No. 92-392, codified at 5 U.S.C. § 5343 (Amendments note) (1988 ed.).

Section 704(a) establishes certain bargaining rights for employees "to whom section 9(b) of [the PRSA] applies." In particular, section 704(a) authorizes parties who negotiated over a term and condition of employment prior to August 19, 1972, to continue existing contractual terms concerning that term or condition of employment or to modify or improve it when negotiating a new agreement, without regard to restrictions in the Statute. See, for example, International Brotherhood of Electrical Workers, Local 1245 and U.S. Department of the Interior, Bureau of Reclamation, Mid-Pacific Regional Office, Sacramento, California, 43 FLRA No. 94 (1992) (IBEW). 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, order denying motion for reconsideration,42 FLRA 76 (1991) (Parker and Davis Dams).

Under section 704(b), the scope of bargaining established in section 704(a) is modified 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. Under section 704(b), employees who negotiated over pay and pay practices in accordance with prevailing rates and practices prior to August 19, 1972, may continue to negotiate over pay and pay practices only in accordance with current prevailing rates and practices. Id. at 128. That is, under section 704(b), current prevailing practices determine whether, and the extent to which, a specific pay practice is negotiable. Id.

For the purposes of section 704(b), the term "pay" encompasses 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). The term "pay practices" encompasses matters historically considered part of an employee's compensation package, including: (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 were entered into and became a part of the employee's total compensation package. Id. at 861.

III. Proposal

6% across the board (5 steps) raise in wages on total pay scale.

IV. Positions of the Parties

A. The Agency

The Agency argues that although a five-step pay schedule was negotiated prior to August 19, 1972, the proposal is nonnegotiable under section 704(b) of the CSRA because neither the five-step pay scale nor the 6 percent across-the-board pay increase is a current prevailing pay practice. According to the Agency, a survey it conducted indicates that: (1) "a multiple five step pay scale with automatic step increases, . . . is not a currently prevailing practice in the local industry but, rather, a single base rate is currently prevailing for each occupation[;]" and (2) "the 6 % increase across the board . . . is likewise not a prevailing practice in that the percentage adjustment needed to pay at prevailing rates varies from occupation to occupation." Statement of Position at 7. The Agency states that the proposal is nonnegotiable because "the Union failed to show, by current factual data, that the proposed five step pay scale and the 6% across the board increase are current prevailing practices in the local industry, and the Agency['s] . . . current survey shows that the multiple step pay scale and 6% across the board pay increase are not currently prevailing . . . ." Id. at 9.

B. The Union

The Union asserts that the Agency has "negotiated and agreed to the 5-step schedule for over 20 years." Reply Brief at 6. The Union also asserts that "the prevailing practice of the contracts since 1972, and the instant proposal, all reflect federal pay practice." Id. at 8 (footnote omitted). The Union argues that, because the Agency "has negotiated on the 5-step system, the [A]gency must . . . bear the burden of showing that the 5-step schedule is no longer the prevailing practice." Id. at 7.

The Union maintains that the Agency's survey is "worthless" because the Agency has not described its methodology or the businesses surveyed. Id. at 9. Moreover, the Union claims that its proposed pay scale "is similar to the general private industry pay structures which have two or more steps within e