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51 FLRA No. 57

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 1978

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

LOWER COLORADO REGIONAL OFFICE

BOULDER CITY, NEVADA

(Agency)

0-NG-1986

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

December 21, 1995

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Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of four proposals.⁽¹⁾

All of the proposals under consideration concern pay and pay practices. Proposal 1 requires the Agency to pay a 25 percent differential over the base rate to employees who perform emergency firefighting duties. See Section III, infra. Proposal 2 requires the Agency to: (1) establish a new job classification entitled "leadman" in any occupation as needed; (2) pay a leadman 5 percent above his or her own rate; and (3) appoint leadmen as equally as possible from all those employees within the crew who have demonstrated their ability to supervise other employees. See Section IV, infra. Proposals 3 and 4 provide for pay retention when an employee is selected for an apprentice position or is subject to a reduction in force (RIF), respectively. See Section V, infra.

For the reasons that follow, we conclude that Proposal 1 is not within the duty to bargain under section 704(b) of the Civil Service Reform Act of 1978 (CSRA), 5 U.S.C. § 5343 note (section 704).⁽²⁾ We conclude that Proposal 2 is not within the duty to bargain because it concerns a matter that is not a condition of employment under section 7103(a)(14)(B) of the Statute and is not preserved for bargaining under section 704(a) of the CSRA. Finally, we conclude that Proposals 3 and 4 are within the duty to bargain under the Statute.

II. Background

The parties, the Bureau of Reclamation, Lower Colorado Regional Office and the American Federation of Government Employees, Local 1978, have historically bargained terms and conditions of employment, including pay and pay practices, in accordance with section 9(b) of the Prevailing Rate Systems Act of 1972 (PRSA),⁽³⁾ 5 U.S.C. § 5343 note (section 9(b)), and section 704 of the CSRA. See Petition for Review (Petition) at 1; Agency's Statement of Position (Statement) at 1.⁽⁴⁾

In a recent decision the Authority clarified the framework for analyzing cases that arise under section 704. Boulder City, 51 FLRA at 231-37. In such cases, both the Statute in the first instance, and section 704 thereafter, are relevant in determining whether a disputed proposal is within the duty to bargain. Id. at 232. If a disputed proposal is within the duty to bargain under the Statute, there is no reason to analyze it under section 704 because "'section 704 does not limit bargaining rights under the Statute.'" Id. (quoting U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, Local 1487, 41 FLRA 3, 15 (1991)). On the other hand, where we determine that such a proposal is not within the duty to bargain under the Statute, the proposal must be analyzed to determine if it is preserved for bargaining under section 704. Id.

In performing our analysis under section 704, we will examine the proposal under section 704(a) and, when applicable, section 704(b). The parties bear the burden of creating a record upon which the Authority can make a determination over whether the matter is preserved for bargaining under section 704, and act at their peril if they fail to meet this burden. Id. at 233.

III. Proposal 1

FIREFIGHTING. A 25 percent differential over the base rate will be paid to employees serving as emergency members of firefighting crews while actually engaged in fighting fires on Government equipment, installations, or buildings.

A. Positions of the Parties

1. Agency

The Agency asserts that Proposal 1 is outside the duty to bargain under section 704 because: (1) the parties did not negotiate on the specific pay practice of a differential for emergency firefighting work prior to August 19, 1972; (2) a differential for firefighting work was not a prevailing practice in the industry surveyed prior to 1972; and (3) a differential for firefighting work is not a currently prevailing pay practice in the industries used by the parties to determine prevailing rates and practices.

2. Union

The Union argues that Proposal 1 is within the duty to bargain under section 704(a) because it is a "condition of employment" and under section 704(b) because it is a "pay or pay practice." Union's Response (Response) at 7. According to the Union, the parties previously negotiated the "section 704(b) pay practice" described in Proposal 1 and it is a current prevailing practice in the relevant portion of the industry. Union's Supplemental Statement (Union Supplement) at 13.

B. Analysis and Conclusions

Both the Union's Petition and Supplement, as well as the Agency's Statement and Supplemental Statement (Agency Supplement), center on whether Proposal 1 is within the duty to bargain under section 704, not under the Statute.⁽⁵⁾ Accordingly, we analyze the proposal only to determine if it is preserved for bargaining under section 704. See Boulder City, 51 FLRA at 238 n.9.

Proposal 1 provides for the payment of a differential to certain employees and, therefore, clearly pertains to pay practices. See id. at 236. The Union has submitted evidence suggesting that such differentials were paid to firefighters prior to August 19, 1972. Petition, exhibits 1A, 1B. However, for a proposal to be within the duty to bargain under section 704, in addition to having previously been the subject of negotiation, it must also, inter alia, be in accordance with the current prevailing rates and practices as required by section 704(b). See Boulder City, 51 FLRA at 236.⁽⁶⁾ The parties disagree over whether a differential for firefighting work is a currently prevailing pay practice in the relevant industries. It is the Union's burden to establish that it is. Id. at 233. The Union has not established that a 25 percent differential for emergency members of firefighting crews is in accord with the current pay practices in the industry. Accordingly, we find that the Union has failed to meet its burden of demonstrating that Proposal 1 is in accordance with current prevailing rates and pay practices. See id. Consequently, without determining whether Proposal 1 meets the requirements of section 704(a), we find that Proposal 1 is outside the duty to bargain under section 704(b).⁽⁷⁾

IV. Proposal 2

The Project will establish [a] leadman classification in any occupation as needed. Leadman shall receive 5 percent above his or her own rate. Appointment of leadmen will be made as equally as possible from all those employees within the crew who have demonstrated their ability to supervise other employees.

A. Positions of the Parties

1. Agency

The Agency contends that the first sentence of Proposal 2 is outside the duty to bargain under the Statute because it: (1) requires the Agency to establish the classification of leadman, and the classification of a position is excluded from the definition of "conditions of employment" under section 7103(a)(14)(B); and (2) violates management's rights to establish positions pursuant to section 7106(a)(1) and assign work pursuant to section 7106(a)(2)(B). The Agency also argues that the first sentence of Proposal 2 is outside the duty to bargain under section 704(a) because the parties had not negotiated on the content of any position or the assignment of work prior to August 19, 1972.

The Agency further contends that the second sentence of Proposal 2, which establishes a 5 percent pay differential for the leadman classification, is outside the duty to bargain under section 704 because: (1) the pay for a leadman classification had not been negotiated by the parties prior to August 19, 1972, in accordance with prevailing rates and practices; and (2) pay for a leadman classification is not a currently prevailing pay practice in the industry surveyed.

2. Union

The Union contends that Proposal 2, in its entirety, is "negotiable under § 7106" because the agency's management rights that are implicated "remain unaffected by the [proposal]." Response at 12-13. Alternatively, the Union asserts the proposal is within the duty to bargain as an appropriate arrangement under section 7106(b)(3) of the Statute. The Union also contends that the second sentence of the proposal is within the duty to bargain under section 7106 because it merely requires that the Agency compensate employees at a rate commensurate with the level of work they are assigned to perform. The Union contends that the third sentence is within the duty to bargain because it constitutes a procedure by which the Agency will determine which employee will be directed to perform the leadman work which may be assigned.

With respect to section 704, the Union asserts that it negotiated with the Agency before August 19, 1972, "concerning the 'matter[]' of pay for work outside the position." Response at 11. The Union contends that Proposal 2 is an attempt to include the matter in the current agreement and, thereby, preserve the Union's right to negotiate that matter under section 704 "even though a particular position may be different in content or title than those which were in existence when the 'matter' . . . was first negotiated." Id.

B. Analysis and Conclusions

1. Proposal 2 Is Outside the Duty to Bargain Under the Statute

Under the Statute, a matter proposed to be bargained is outside the duty to bargain if it does not concern conditions of employment of bargaining unit employees.⁽⁸⁾ Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236 (1986). The term "conditions of employment" is defined in section 7103(a)(14) as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions," which are not excepted under subsections 7103(a)(14)(A), (B) or (C). As relevant here, subsection (B) excepts from the definition of "conditions of employment" matters relating to the classification of any position.⁽⁹⁾

The Union claims that the subject matter of Proposal 2 is "pay for work outside the employee's occupation (not the creation of a leadman position or the classification of any position)[.]" Response at 10. However, the proposal does not merely provide for employees' compensation. By its plain wording, Proposal 2 requires the Agency to: (1) establish a new job classification entitled "leadman" in any occupation as needed; (2) pay a leadman 5 percent above his or her own rate; and (3) appoint leadmen as equally as possible from all those employees within the crew who have demonstrated their ability to supervise other employees. Because the Union's statement of meaning is inconsistent with this plain wording, we will not base our determination on the Union's statement. See, for example, American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1431 (1992).

By requiring the Agency to "establish" a particular "classification," the first sentence of Proposal 2 clearly concerns the classification of a position, within the meaning of section 7103(a)(14)(B) of the Statute, and, therefore, is excluded from the definition of "conditions of employment" under the Statute. Accordingly, we conclude that the first sentence of Proposal 2 is not within the duty to bargain under section 7117 of the Statute.

The second and third sentences are inextricably intertwined with the first sentence of Proposal 2 in that the second sentence sets the pay for the leadman classification created by the first sentence and the third sentence establishes conditions for appointment to a leadman position. Therefore, the negotiability of the second and third sentences is dependent on the negotiability of the first sentence, which creates the leadman classification. Because we find that the first sentence of Proposal 2 is not within the duty to bargain, we conclude that the second and third sentences are also not within the duty to bargain under the Statute.⁽¹⁰⁾ See, e.g., National Association of Government Employees, Local R4-26 and Department of the Air Force, Langley Air Force Base, Virginia, 40 FLRA 118, 152 (1991) (Langley AFB).

2. Proposal 2 Is Not Preserved for Bargaining Under Section 704

Section 704(a) preserves for bargaining " [t]hose terms and conditions of employment and other employment benefits with respect to Government prevailing rate employees to whom section 9(b) . . . applies which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972." 5 U.S.C. § 5343 note. Under this section, a union must establish that a proposal was the subject of negotiation prior to August 19, 1972. See Boulder City, 51 FLRA at 235; 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 1155, 1156 (1992).

The Union has not established that Proposal 2 was the subject of negotiation prior to August 19, 1972. The Union argues that its prior negotiations concerning "pay for work outside the position description" satisfy this requirement of section 704(a). Response at 11; see also Union Supplement at 14. We reject this argument because "pay for work outside the position description" is not the same specific matter as the classification of a position. In determining whether a specific matter was previously the subject of negotiation, courts of appeals have narrowly construed this provision of section 704(a). See Boulder City, 51 FLRA at 234. Consequently, the Union has not demonstrated that Proposal 2 concerns a matter that was a subject of negotiation prior to August 19, 1972, within the meaning of section 704(a). See NFFE and VOA, 49 FLRA at 1290-91. Accordingly, the first sentence of Proposal 2 is not preserved for bargaining under section 704 and is not within the duty to bargain.

As explained above, the second and third sentences are inextricably intertwined with, and their negotiability is dependent on the negotiability of, the first sentence. Because we find that the first sentence of Proposal 2 is not within the duty to bargain, we reach the same conclusion as to the second and third sentences. See, e.g., Langley AFB, 40 FLRA at 152.

Accordingly, Proposal 2, in its entirety, is not within the duty to bargain under section 704(a).

V. Proposals 3 and 4

Proposal 3

When employees are selected for an apprentice position, their current rate will be frozen (if it is greater than the rate of the new position) until normal adjustment and/or step increase equal[s] or exceeds their normal rate.

Proposal 4

Employees subject to a Project reduction-in- force will retain their pay, and thereafter, he or she will receive 50 percent of the cents per hour increase of the position assigned until the rates equalize.

A. Positions of the Parties

1. Agency

The Agency contends that Proposals 3 and 4 are outside the duty to bargain because: (1) "save pay or retained pay, for whatever circumstances, had not been the subject of negotiation between the parties in accordance with prevailing rates and practices prior to August 19, 1972, as required by section 704(a)" (Agency Supplement at 13); and (2) "neither save pay [n]or retained pay is a currently prevailing pay practice in the industry surveyed by the parties under § 704(b)." Id.

2. Union

The Union contends that Proposal 3 is within the duty to bargain under the Statute because it provides the same benefits as those to which employees are entitled under law and Government-wide regulation, and because it is an appropriate arrangement under section 7106(b)(3) of the Statute. The Union maintains that "saved pay" in a RIF situation, as provided under Proposal 4, is available to employees under law and regulation. The Union also contends that Proposal 4 is within the duty to bargain under section 704(a) as a condition of employment because the parties negotiated "saved pay" in a RIF situation prior to August 19, 1972.

B. Analysis and Conclusions

The parties dispute whether Proposals 3 and 4 are within the duty to bargain under the Statute. The Agency has the burden to provide record support and demonstrate in the first instance that Proposals 3 and 4 are outside the duty to bargain under the Statute. Boulder City, 51 FLRA at 232; see also Department of Health and Human Services, Social Security Administration, Northeastern Program Service Center and American Federation of Government Employees, National Council of Social Security Administration, Payment Center Locals, Local 1760, 36 FLRA 466, 475 (1990). The Agency has not met its burden to demonstrate that the proposals are inconsistent with law, rule, or regulation under section 7117 of the Statute. In fact, the Agency has not claimed that the retention of pay is inconsistent with law, rule, or regulation in the circumstances described in the proposals.⁽¹¹⁾

Because there is no basis in the record for finding that Proposals 3 and 4 are not within the duty to bargain under the Statute, we conclude that the proposals are within the duty to bargain under the Statute.⁽¹²⁾

VI. Order

The petition for review as to Proposals 1 and 2 is dismissed. The Agency shall upon request, or as otherwise agreed to by the parties, negotiate concerning Proposals 3 and 4.⁽¹³⁾

APPENDIX

Section 704 of the CSRA, codified at 5 U.S.C. § 5343 note (Amendments), provides that:

(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 (Oct. 13, 1978) 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 that 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. No. 92-392, codified at 5 U.S.C. § 5343 note (Amendments), provides that:

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 [Aug. 19, 1972] 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 [Aug. 19, 1972] 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 [Aug. 19, 1972] any agreement, arrangement, or understanding in effect on such date [Aug. 19, 1972] with respect to the various items of subject matter of the negotiations on which any such contract in effect on such date [Aug. 19, 1972] 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 [Aug. 19, 1972].

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

1. The Authority requested, and the Agency and the Union submitted, supplemental statements concerning the applicability of United States Information Agency, Voice of America v. FLRA, 960 F.2d 165 (D.C. Cir. 1992) (USIA II) to this negotiability appeal. Subsequently, the Authority deferred processing of the appeal pending the issuance of National Federation of Federal Employees, Local 1418 and United States Information Agency, Voice of America and American Federation of Government Employees, Local 1812, 49 FLRA 1262 (1994) (NFFE and VOA).

2. The text of section 704 of the CSRA, 5 U.S.C. § 5343 note, is set forth in the Appendix to this decision.

3. The text of section 9(b) of the PRSA is set forth in the Appendix to this decision.

4. Section 9(b) and section 704 authorize parties who negotiated over a subject matter prior to August 19, 1972, to continue existing contractual terms concerning that subject matter or to modify or improve those terms when negotiating a new agreement, without regard to any restrictions contained in the Statute. See American Federation of Government Employees, Local 2062 and U.S. Department of the Interior, National Park Service, Lake Mead National Recreation Area, Boulder City, Nevada, 51 FLRA 229 (1995) (Boulder City). See also United States Information Agency v. FLRA, 895 F.2d 1449, 1453 (D.C. Cir. 1990) (USIA I).

5. In several of its filings the Union states generally that "no disputed proposal conflicts with a cognizable management right as set forth in" section 7106 of the Statute. Response at 3 (emphasis in original); see also Petition at 1. However, unlike its arguments concerning Proposals 3 and 4 (Section V., infra), the Union does not assert in its arguments concerning Proposal 1 that this matter is within the duty to bargain under the Statute or is consistent with applicable law and regulation. Compare Response at 13-14 (discussing Proposals 3 and 4) with Response at 4-10 (discussing Proposal 1). As a result, we do not construe this general argument as an assertion that Proposal 1 is within the duty to bargain under the Statute, and we do not construe the existence of a dispute between the parties on this point.

6. To the extent that the Union is contending that a proposal that concerns pay or a pay practice may be within the duty to bargain under section 704(a) without regard to the requirements of section 704(b), we reject such a contention. As we stated in Boulder City, 51 FLRA at 236, "[p]ay and pay practice proposals must not only meet the section 704(a) requirements, but must also be in accord with the current prevailing rates and practices[]" requirement set forth in section 704(b). Accord USIA I, 895 F.2d at 1455.

7. In considering pay practice proposals under section 704, we generally begin our analysis with subsection 704(a) and then only proceed to section 704(b) if the proposal meets the requirements of section 704(a). Boulder City, 51 FLRA at 233. However, because pay practice proposals must satisfy the requirements of both section 704(a) and section 704(b) (see note 6, supra), it is unnecessary to analyze the proposal under each subsection if it is outside the duty to bargain under either.

8. A bargaining proposal that concerns a condition of employment must also satisfy other requirements to be within the duty to bargain under the Statute: for example, it may not be inconsistent with Federal law, including the Statute, and Government-wide regulations, or an agency regulation for which a compelling need exists. 5 U.S.C. § 7117.

9. The prevailing rate employees involved in this case occupy "blue-collar" positions. The legislative history of the Statute demonstrates that section 7103(a)(14)(B) was intended to except from the definition of "conditions of employment" matters relating to the classification of any position, including "blue-collar" positions. See 95th Congress, 2d Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act at 924 ("The term 'classification of any position' encompasses all positions and jobs, including white-collar and blue-collar.").

10. Because we have found that Proposal 2, in its entirety, does not concern "conditions of employment" within the meaning of section 7103(a)(14), we do not address the parties' arguments concerning section 7106.

11. The Agency also does not contend that the prevailing rate employees in this case are not entitled to pay retention under 5 U.S.C. § 5363 and 5 C.F.R., chapter 1, Part 536 or that Proposals 3 and 4 are inconsistent with those provisions. Moreover, the Agency does not contend that the proposals affect the exercise of a management right within the meaning of section 7106 of the Statute. Accordingly, we do not address the Union's assertion that the proposals are within the duty to bargain under section 7106(b)(3) of the Statute.

12. In view of our determination that Proposals 3 and 4 are within the duty to bargain because the Agency has not asserted any basis for concluding that the proposals are otherwise outside the duty to bargain under section 7117 of the Statute, we do not analyze whether the proposals are preserved for bargaining under section 704.

13. In finding Proposals 3 and 4 to be within the duty to bargain, we make no judgment as to their merits.

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