10:0222(43)NG - IBEW Local 2080 and Army, Corps of Engineers, Nashville, TN -- 1982 FLRAdec NG
[ v10 p222 ]
10:0222(43)NG
The decision of the Authority follows:
10 FLRA No. 43 INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 2080, AFL-CIO-CLC Union and DEPARTMENT OF THE ARMY, U.S. CORPS OF ENGINEERS, NASHVILLE, TENNESSEE Agency Case No. O-NG-391 DECISION AND ORDER ON NEGOTIABILITY ISSUES THE PETITION FOR REVIEW IN THIS CASE COMES BEFORE THE AUTHORITY PURSUANT TO SECTION 7105(A)(2)(E) OF THE FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE (THE STATUTE). THE ISSUE PRESENTED IS THE NEGOTIABILITY OF THE FOLLOWING THREE UNION PROPOSALS. UNION PROPOSAL 1 ARTICLE 5.8 IN CASE OF FAILURE TO COMPLY WITH THE SCHEDULING PROVISIONS (POSTED PAY PERIOD SCHEDULE) OR TO PROVIDE THE REQUIRED NOTICE SET FORTH IN 5.4 AND 5.6 OF THIS ARTICLE, THE EMPLOYEE SHALL RECEIVE A PREMIUM PAY OF TIME PLUS ONE-HALF (1 1/2) FOR ALL HOURS WORKED IN CONFLICT THEREOF. UNION PROPOSAL 2 ARTICLE 6.1 OVERTIME WORK FOR WAGE BOARD EMPLOYEES SHALL BE PAID FOR AT NOT LESS THAN TIME AND ONE-HALF (1 1/2) OF THE EMPLOYEES' HOURLY RATE AND APPROPRIATE SHIFT DIFFERENTIAL, EXCEPT THAT OVERTIME ON SUNDAY AS IS HEREIN DEFINED SHALL BE AT TWO (2) TIMES THE BASE RATE. FOR NON-SHIFT EMPLOYEES THE CALENDAR SUNDAY SHALL BE PAID AT 2 TIMES THE BASE RATE. FOR EMPLOYEES WORKING ROTATING SHIFTS, THEIR FIRST NONWORKDAY IS CONSIDERED SUNDAY. UNION PROPOSAL 3 ARTICLE 6.6 AN EMPLOYEE SHALL RECEIVE AT LEAST FOUR (4) HOURS PAY AT THE APPLICABLE OVERTIME RATE IF HE/SHE IS CALLED BACK TO WORK ON AN OVERTIME BASIS WITHIN HIS BASIC WORK WEEK, OR ON ONE OF HIS/HER SCHEDULED NON-WORK DAYS, EVEN IF HE/SHE IS NOT UTILIZED FOR THE FULL FOUR (4) HOURS, UNLESS HE RESIDES IN GOVERNMENT QUARTERS ON JOB SITE. OVERTIME WORK CONTINUOUS WITH THE STARTING OR ENDING OF A SHIFT IS NOT COVERED BY THIS SECTION. QUESTIONS BEFORE THE AUTHORITY THE FIRST QUESTION IS WHETHER THE PROPOSALS ARE WITHIN THE DUTY TO BARGAIN BY VIRTUE OF THE SAVINGS CLAUSE CONTAINED IN SECTION 9(B) OF P.L. 92-392, /1/ ENACTED ON AUGUST 19, 1972, WHICH WAS CONTINUED BY SECTION 704 OF THE CIVIL SERVICE REFORM ACT OF 1978 (CSRA). /2/ IF NOT, THE FURTHER QUESTIONS ARE WHETHER UNION PROPOSALS 1 AND 2 CONCERN MATTERS "SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE" WHICH ARE EXCLUDED FROM THE DEFINITION OF "CONDITIONS OF EMPLOYMENT" BY SECTION 7103(A)(14)(C) OF THE STATUTE; AND WHETHER UNION PROPOSAL 3 IS INCONSISTENT WITH GOVERNMENT-WIDE RULES OR REGULATIONS (5 CFR 532.503(C)(1982)). OPINION CONCLUSION AND ORDER: THE SAVINGS CLAUSE CONTAINED IN SECTION 9(B) OF P.L. 92-392, WHICH WAS CONTINUED BY SECTION 704 OF THE CSRA, IS INAPPLICABLE TO THE UNION'S PROPOSALS IN THIS CASE. FURTHERMORE, UNION PROPOSALS 1 AND 2 DO NOT CONCERN CONDITIONS OF EMPLOYMENT WITHIN THE MEANING OF THE STATUTE AND UNION PROPOSAL 3 IS INCONSISTENT WITH GOVERNMENT-WIDE REGULATIONS AT 5 CFR 532.503(C)(1982). THE UNION'S PROPOSALS ARE, THEREFORE, NOT WITHIN THE DUTY TO BARGAIN. ACCORDINGLY, PURSUANT TO SECTION 2424.10 OF THE AUTHORITY'S RULES AND REGULATIONS (5 CFR 2424.10(1982), IT IS ORDERED THAT THE UNION'S PETITION FOR REVIEW BE, AND IT HEREBY IS, DISMISSED. REASONS: THE UNION CLAIMS THAT THE PARTIES NEGOTIATED WAGES AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT SINCE THE INCEPTION OF THEIR BARGAINING RELATIONSHIP, AS EVIDENCED BY THE "CALLBACK" PROVISIONS OF ARTICLE 6.6 OF THE COLLECTIVE BARGAINING AGREEMENT. /3/ IT THEREFORE CONTENDS THAT UNDER THE SAVINGS PROVISIONS OF SECTION 9(B) OF P.L. 92-392, AND SECTION 704 OF THE CSRA, THE DUTY TO BARGAIN EXTENDS TO THE PROPOSALS IN DISPUTE WITHOUT REGARD TO THE COMPENSATION PROVISIONS OF TITLE 5, UNITED STATES CODE OR REGULATIONS ISSUED PURSUANT THERETO. FOR THE FOLLOWING REASONS, THE UNION'S POSITION CANNOT BE SUSTAINED. THE LEGISLATIVE HISTORY OF SECTION 9(B) OF P.L. 92-392 AND SECTION 704 OF THE CSRA DEMONSTRATES THAT THOSE PROVISIONS ARE APPLICABLE ONLY WHEN THE PARTIES NEGOTIATED WAGES AND OTHER TERMS AND CONDITIONS OF EMPLOYMENT PRIOR TO THE EFFECTIVE DATE OF P.L. 92-392. H.R. REP. NO. 339, 92D CONG., 1ST SESS. 22(1981); REMARKS OF REPRESENTATIVE FORD, 124 CONG.REC. H8468-69 (DAILY ED. AUG. 11, 1978). REFERENCE TO A "CALLBACK" PROVISION IN THE PARTIES' PRESENT COLLECTIVE BARGAINING AGREEMENT DOES NOT ESTABLISH THAT THE PARTIES HAD NEGOTIATED WAGES. FURTHER, THE UNION HAS NOT OFFERED, NOR DOES THE RECORD REVEAL, ANY OTHER SUPPORT FOR ITS ASSERTION THAT THE PARTIES NEGOTIATED OVER WAGES IN A MANNER WHICH WOULD RENDER SECTION 9(B) APPLICABLE. TO THE CONTRARY, ARTICLE 8 OF THE PARTIES' AGREEMENT, WHICH CONCERNS UNION PARTICIPATION IN WAGE SURVEYS, REFLECTS AN UNDERSTANDING THAT WAGES ARE TO BE SET BY THE DEPARTMENT OF DEFENSE WAGE FIXING AUTHORITY. IN THIS CONTEXT, THEN, THE "CALLBACK" PROVISION OF THE PARTIES' AGREEMENT, WHICH REFLECTS THE SUBSTANCE OF REGULATIONS NOW CONTAINED IN 5 CFR 532.503(C)(1982), DOES NOT CONSTITUTE THE NEGOTIATION OF WAGES WITHIN THE MEANING OF SECTION 9(B) OF P.L. 92-392 AND SECTION 704 OF THE CSRA. ACCORDINGLY, THE UNION'S CONTENTION THAT THE DISPUTED PROPOSALS MUST BE BARGAINED UNDER THE REFERENCED PROVISIONS OF LAW CANNOT BE SUSTAINED. THE NEXT QUESTION PRESENTED IS WHETHER PROPOSALS 1 AND 2 CONCERN MATTERS SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE AND, THEREFORE, ARE EXCLUDED FROM THE DEFINITION OF "CONDITIONS OF EMPLOYMENT" BY SECTION 7103(A)(14)(C) OF THE STATUTE. /4/ BOTH PROPOSALS CONCERN RATES OF PREMIUM PAY TO BE PAID UNDER CERTAIN CONDITIONS. HOWEVER, THE CONDITIONS UNDER WHICH PREMIUM PAY MAY BE PAID FOR PREVAILING RATE EMPLOYEES IS SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE, 5 U.S.C. 5544. /5/ ACCORDINGLY, PROPOSALS 1 AND 2 ARE EXPRESSLY EXCLUDED BY SECTION 7103(A)(14)(C) FROM THE DEFINITION OF "CONDITIONS OF EMPLOYMENT" AND, THEREFORE, ARE NOT WITHIN THE DUTY TO BARGAIN. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF FEDERAL GRAIN INSPECTION LOCALS AND UNITED STATES DEPARTMENT OF AGRICULTURE, FEDERAL GRAIN INSPECTION SERVICE, WASHINGTON, D.C., 3 FLRA 529(1980), ENFORCED SUB NOM. AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, AFL-CIO, COUNCIL OF FEDERAL GRAIN INSPECTION LOCALS V. FEDERAL LABOR RELATIONS AUTHORITY, 653 F.2D 669 (D.C. CIR. 1981). THE FINAL QUESTION PRESENTED IS WHETHER PROPOSAL 3 IS INCONSISTENT WITH THE PROVISIONS OF 5 CFR 532.503(C)(1982) GOVERNING CALLBACK OVERTIME FOR THE WAGE GRADE EMPLOYEES COVERED UNDER THE INSTANT PROPOSAL. /6/ THAT PROVISION STATES THAT IN CERTAIN CIRCUMSTANCES, CALLBACK OVERTIME WORK PERFORMED BY AN EMPLOYEE SHALL BE CONSIDERED TO BE AT LEAST TWO HOURS IN DURATION FOR THE PURPOSE OF OVERTIME PAY, REGARDLESS OF WHETHER THE EMPLOYEE PERFORMS WORK FOR THOSE TWO HOURS. THIS PROVISION PARALLELS THE STATUTORY PROVISION OF 5 U.S.C. 5542(B)(1) /7/ WHICH AUTHORIZES CALLBACK OVERTIME PAY FOR GENERAL SCHEDULE EMPLOYEES. ABSENT THAT AUTHORITY, WHICH CREATES AN EXCEPTION TO THE GENERAL RULE THAT OVERTIME PAYMENTS CAN BE MADE ONLY FOR THE ACTUAL TIME DUTY IS PERFORMED, A TWO HOUR MINIMUM PAYMENT FOR CALLBACK OVERTIME COULD NOT BE MADE. /8/ THUS, THE PROVISIONS OF 5 U.S.C. 5542(B)(1) AND 5 CFR 532.503(C) SET THE MAXIMUM TIME OF TWO HOURS THAT A GENERAL SCHEDULE OR WAGE GRADE EMPLOYEE MAY BE PAID CALLBACK OVERTIME IN THE ABSENCE OF THE PERFORMANCE OF WORK. /9/ SINCE PROPOSAL 3 WOULD ESTABLISH 4 HOURS AS THE MINIMUM AMOUNT OF CALLBACK OVERTIME, THE PROPOSAL IS CLEARLY INCONSISTENT WITH 5 CFR 532.503(C). HAVING DETERMINED THAT PROPOSAL 3 IS INCONSISTENT WITH 5 CFR 532.503(C), THE QUESTION THEN BECOMES WHETHER THAT PROVISION IS A GOVERNMENT-WIDE RULE OR REGULATION WITHIN THE MEANING OF SECTION 7117(A) OF THE STATUTE. THE PROVISION AT ISSUE HEREIN IS CODIFIED AT TITLE 5 OF THE CODE OF FEDERAL REGULATIONS BY THE OFFICE OF PERSONNEL MANAGEMENT (OPM). BY ITS TERMS, THE REGULATION APPLIES TO PREVAILING RATE EMPLOYEES AND AGENCIES COVERED BY SECTION 5342 OF TITLE 5, U.S. CODE, /10/ AND PROVIDES COMMON POLICIES, SYSTEMS, AND PRACTICES FOR UNIFORM APPLICATION BY ALL AGENCIES SUBJECT TO THAT STATUTE IN FIXING PAY FOR PREVAILING RATE EMPLOYEES IN MOST SEGMENTS OF THE EXECUTIVE BRANCH OF THE FEDERAL GOVERNMENT. /11/ THEREFORE, 5 CFR 532.503(C) IS A GOVERNMENT-WIDE RULE OR REGULATION WITHIN THE MEANING OF SECTION 7117(A)(1) OF THE STATUTE. NATIONAL TREASURY EMPLOYEES UNION, CHAPTER 6 AND INTERNAL REVENUE SERVICE, NEW ORLEANS DISTRICT, 3 FLRA 748, 754(1980). SINCE, AS PREVIOUSLY DETERMINED, PROPOSAL 3 IS INCONSISTENT WITH THAT REGULATION, PROPOSAL 3 IS, FOR THAT REASON, OUTSIDE THE DUTY TO BARGAIN. ISSUED, WASHINGTON, D.C., SEPTEMBER 30, 1982 RONALD W. HAUGHTON, CHAIRMAN HENRY B. FRAZIER III, MEMBER LEON B. APPLEWHAITE, MEMBER FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ SECTION 9(B) OF P.L. 92-392 PROVIDES: SEC. 9. . . . . (B) 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 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 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 ANY AGREEMENT, ARRANGEMENT, OR UNDERSTANDING IN EFFECT ON SUCH DATE WITH RESPECT TO THE VARIOUS ITEMS OF SUBJECT MATTER OF THE NEGOTIATIONS ON WHICH ANY SUCH CONTRACT IN EFFECT ON SUCH DATE 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. /2/ SECTION 704 OF THE CSRA PROVIDES: SEC. 704. (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 IN ACCORDANCE WITH THE PROVISIONS OF SECTION 9(B) OF PUBLIC LAW 92-392 WITHOUT REGARD TO ANY PROVISIONS 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. /3/ ARTICLE 6.6 AN EMPLOYEE SHALL RECEIVE AT LEAST TWO (2) HOURS PAY AT THE APPLICABLE OVERTIME RATE IF HE IS CALLED BACK TO WORK ON AN OVERTIME BASIS WITHIN HIS BASIC WORK WEEK, OR ON ONE OF HIS SCHEDULED NON-WORKDAYS, EVEN IF HE IS NOT UTILIZED FOR THE FULL TWO (2) HOURS, UNLESS HE RESIDES IN GOVERNMENT QUARTERS ON SITE. OVERTIME WORK CONTINUOUS WITH THE STARTING OR ENDING OF A SHIFT IS NOT COVERED BY THIS SECTION. /4/ SECTION 7103(A)(14)(C) PROVIDES AS FOLLOWS: SEC. 7103. DEFINITIONS; APPLICATION (A) FOR THE PURPOSE OF THIS CHAPTER-- . . . . (14) "CONDITIONS OF EMPLOYMENT" MEANS PERSONNEL POLICIES, PRACTICES, AND MATTERS, WHETHER ESTABLISHED BY RULE, REGULATION, OR OTHERWISE, AFFECTING WORKING CONDITIONS, EXCEPT THAT SUCH TERM DOES NOT INCLUDE POLICIES, PRACTICES, AND MATTERS-- . . . . (C) TO THE EXTENT SUCH MATTERS ARE SPECIFICALLY PROVIDED FOR BY FEDERAL STATUTE(.) /5/ 5 U.S.C. 5544 PROVIDES, IN PERTINENT PART: SEC. 5544. WAGE-BOARD OVERTIME AND SUNDAY RATES; COMPUTATION (A) AN EMPLOYEE WHOSE PAY IS FIXED AND ADJUSTED FROM TIME TO TIME IN ACCORDANCE WITH PREVAILING RATES UNDER SECTION 5343 OR 5349 OF THIS TITLE, OR BY A WAGE BOARD OR SIMILAR ADMINISTRATIVE AUTHORITY SERVING THE SAME PURPOSE, IS ENTITLED TO OVERTIME PAY FOR OVERTIME WORK IN EXCESS OF 8 HOURS A DAY OR 40 HOURS A WEEK. HOWEVER, AN EMPLOYEE SUBJECT TO THIS SUBSECTION WHO REGULARLY IS REQUIRED TO REMAIN AT OR WITHIN THE CONFINES OF HIS POST OF DUTY IN EXCESS OF 8 HOURS A DAY IN A STANDBY OR ON-CALL STATUS IS ENTITLED TO OVERTIME PAY ONLY FOR HOURS OF DUTY, EXCLUSIVE OF EATING AND SLEEPING TIME, IN EXCESS OF 40 A WEEK. THE OVERTIME HOURLY RATE OF PAY IS COMPUTED AS FOLLOWS: (1) IF THE BASIC RATE OF PAY OF THE EMPLOYEE IS FIXED ON A BASIS OTHER THAN AN ANNUAL OR MONTHLY BASIS, MULTIPLY THE BASIC HOURLY RATE OF PAY BY NOT LESS THAN ONE AND ONE-HALF. (2) IF THE BASIC RATE OF PAY OF THE EMPLOYEE IS FIXED ON AN ANNUAL BASIS, DIVIDE THE BASIC ANNUAL RATE OF PAY BY 2,080, AND MULTIPLY THE QUOTIENT BY ONE AND ONE-HALF. (3) IF THE BASIC RATE OF PAY OF THE EMPLOYEE IS FIXED ON A MONTHLY BASIS, MULTIPLY THE BASIC MONTHLY RATE OF PAY BY 12 TO DERIVE A BASIC ANNUAL RATE OF PAY, DIVIDE THE BASIC ANNUAL RATE OF PAY BY 2,080, AND MULTIPLY THE QUOTIENT BY ONE AND ONE-HALF. AN EMPLOYEE SUBJECT TO THIS SUBSECTION WHOSE REGULAR WORK SCHEDULE INCLUDES AN 8-HOUR PERIOD OF SERVICE A PART OF WHICH IS ON SUNDAY IS ENTITLED TO ADDITIONAL PAY AT THE RATE OF 25 PERCENT OF HIS HOURLY RATE OF BASIC PAY FOR EACH HOUR OF WORK PERFORMED DURING THAT 8-HOUR PERIOD OF SERVICE . . . . /6/ 5 CFR 532.503(C) PROVIDES: SEC. 532.503 OVERTIME PAY. . . . . (C) CALLBACK OVERTIME WORK. IRREGULAR OR OCCASIONAL OVERTIME WORK PERFORMED BY AN EMPLOYEE ON A DAY WHEN WORK WAS NOT REGULARLY SCHEDULED FOR THE EMPLOYEE OR FOR WHICH THE EMPLOYEE HAS BEEN REQUIRED TO RETURN TO THE PLACE OF EMPLOYMENT SHALL BE CONSIDERED TO BE AT LEAST TWO HOURS IN DURATION FOR THE PURPOSE OF OVERTIME PAY, REGARDLESS OF WHETHER THE EMPLOYEE PERFORMS WORK FOR TWO HOURS. /7/ 5 U.S.C. 5542(B)(1) PROVIDES: SEC. 5542. OVERTIME RATES; COMPUTATION . . . . (B) FOR THE PURPOSE OF THIS SUBCHAPTER-- (1) UNSCHEDULED OVERTIME WORK PERFORMED BY AN EMPLOYEE ON A DAY WHEN WORK WAS NOT SCHEDULED FOR HIM, OR FOR WHICH HE IS REQUIRED TO RETURN TO HIS PLACE OF EMPLOYMENT, IS DEEMED AT LEAST 2 HOURS IN DURATION(.) /8/ ACCORD, UNPUBLISHED DECISION OF THE COMPTROLLER GENERAL B-175452, MAY 1, 1972. /9/ ACCORD, ID. SEE ALSO UNPUBLISHED DECISION OF THE COMPTROLLER GENERAL B-189163, OCTOBER 11, 1977. /10/ 5 CFR 532.103(1982). /11/ 5 CFR 532.101(1982).