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57 FLRA No. 185
NATIONAL ASSOCIATION OF GOVERNMENT
EMPLOYEES, LOCAL R14-143
DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
YUMA AREA OFFICE, YUMA, ARIZONA
(56 FLRA 372 (2000))
DECISION AND ORDER ON REMAND
June 19, 2002
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1]
I. Statement of the Case
This case is before the Authority on remand from the United States Court of Appeals for the Ninth Circuit. United States Department of the Interior, Bureau of Reclamation, Yuma Area Office v. FLRA, 279 F.3d 762 (9th Cir. 2002) (Yuma Area Office v. FLRA). In that case, the court reversed the Authority's finding that the proposal in dispute in National Association of Government Employees, Local R14-143, 56 FLRA 372 (2000) (then Member Cabaniss dissenting) (Local R14-109) was negotiable. The court remanded the case to the Authority for proceedings consistent with its opinion.
In Local R14-109, the disputed proposal concerned a wage differential for non-overtime work on Sunday (Sunday differential). [n2] The Authority concluded that the proposal was within the duty to bargain. As relevant herein, the Authority rejected the Agency's claim that the matter of a Sunday differential for unit employees had not been negotiated prior to August 19, 1972, as required by § 704. The Authority found that the phrase "subject of negotiation," as used in § 704(a), referred to the process of reaching an agreement on a particular matter, not to the result that was reached by the give-and-take of negotiating the parameters of the contractual entitlement. In this regard, the Authority also found, as a matter of fact, that by bargaining on, and agreeing to, a provision in their 1968 agreement that incorporated certain statutory benefits, including a Sunday differential, the parties had negotiated on that subject. Consequently, the Authority found that the parties had negotiated on a Sunday differential prior to August 19, 1972, within the meaning of § 704(a), and, because the proposal also met the other requirements of § 704, concluded that the matter was preserved for bargaining under that section.
On review, the court found that the Authority "erred in reaching its conclusion." Yuma Area Office v. FLRA, 279 F.3d at 766. Specifically, the court found that a Sunday differential "was not the subject of negotiation prior to August 19, 1972, and, therefore, does not meet the requirements of § 704(a)[.]" Id. at 767. The court disagreed with the Authority's use of the dictionary definition of the term "negotiation." According to the court, "[w]hile the term negotiation does refer to the process of negotiation, the verb negotiate includes within its definition the acts of communication and/or discussion between the parties in reaching a compromise." Id. at 766. In this regard, the court found that "[t]he parties simply discussed where to place Sunday premium pay in the agreement," and concluded that "[t]his act does not rise to the level of negotiation." The court also stated that "[t]he inclusion of Sunday differential pay along with other nonnegotiable entitlement benefits for federal employees is further evidence that the parties regarded Sunday differential pay as a nonnegotiable benefit." Id. The court reversed the Authority's decision and remanded it to the Authority "for further proceedings consistent with this opinion." Id. at 767.
III. Analysis and Conclusions
We adopt, as the law of the case, the court's conclusion in Yuma Area Office v. FLRA that the disputed proposal in this case was not "subject of negotiation" prior to August 19, 1972, as required by § 704(a). Consequently, without addressing the other requirements of § 704, which the court also did not do, we conclude that the proposal is not preserved for bargaining under § 704 and, thus, is not within the duty to bargain. Accordingly, consistent with the court's opinion, we dismiss the Union's petition for review. See, e.g., MSPB Professional Association, 38 FLRA 354, 355 (1990); NFFE, Local 1418, 37 FLRA 1385, 1399 (1990).
The petition for review is dismissed. [n3]
Footnote # 1 for 57 FLRA No. 185
Footnote # 2 for 57 FLRA No. 185
Footnote # 3 for 57 FLRA No. 185
Chairman Cabaniss agrees that the petition for review in this case should be dismissed. However, she would adopt the court's rationale and conclusion that the disputed proposal in Yuma Area Office v. FLRA was not a "subject of negotiation" prior to August 19, 1972, as required by § 704(a).