[ v25 p201 ]
25:0201(15)NG
The decision of the Authority follows:
25 FLRA No. 15
INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL-CIO,
LOCAL UNION 1245
Union
and
DEPARTMENT OF THE INTERIOR,
BUREAU OF RECLAMATION
Agency
Case No. 0-NG-1207
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case is before the Authority because of 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 three proposals. Based on the following, we find that
the petition should be dismissed.
II. Union Proposal 1
Union proposes that the Bureau will not implement the 1985
Reduction In Force provision of part 351 of title 5 of the Code of
Federal Regulations (5 CFR Part 351), and further described in FPM
Chapter 351.
A. Positions of the Parties
The Agency argues that this proposal is not sufficiently specific and
delimited and does not meet the conditions for review set forth in the
Authority's Rules and Regulations. It argues that the petition is
further deficient because the Union has not submitted copies of 5 CFR
Part 351 and FPM Chapter 351. Substantively, the Agency asserts that
the proposal conflicts with a Government-wide rule or regulation. The
Union states that the Agency had previously agreed that the proposal was
sufficiently specific and that a contrary claim now should not be
entertained. It also asserts that the subject of the proposal --
reduction-in-force (RIF) procedures -- historically has been a mandatory
subject for bargaining.
B. Analysis and Conclusion
1. The Petition Does Not Warrant Dismissal Based on Procedural
Defects
Although there may be some questions as to which version of 5 CFR,
Part 351, the Union is referring to in this proposal, we find that the
proposal is sufficiently specific and delimited to allow us to reach a
conclusion as to its negotiability. Also, the Union's failure to
provide copies of 5 CFR, Part 351, and FPM Chapter 351 is not
prejudicial in view of the fact the copies of these authorities are
generally available in the Federal sector.
2. The Proposal Either Is Moot or Is Nonnegotiable Because It
Conflicts With Government-wide Rules or Regulations
Regulations governing RIF actions which are issued by the Office of
Personnel Management (OPM) are codified at 5 CFR, Part 351. They are
binding on agencies with respect to RIF actions to which they apply.
See 5 CFR Sections 351.201(a)(2), 351.202 and 351.204. Hence they are
Government-wide regulations which bar negotiation of conflicting
proposals.
On July 3, 1985, revised RIF regulations which had previously been
published on October 25, 1983 at 48 Federal Register 49462 et seq. went
into effect. However, OPM provided an exception for agencies to delay
implementation of these RIF regulations if RIF plans were underway as of
July 3, 1985, and the RIF would take effect on or before December 31,
1985. 50 Fed. Reg. 35506 (1985). Subsequently, OPM issued further
revised RIF regulations which became effective and were required to be
implemented on February 3, 1986. 51 Fed. Reg. 318-326 (1986) (codified
at 5 CFR, Part 351). The permissible delay in implementing the July 3,
1985 revised regulations was not extended beyond December 31, 1985. 51
Fed. Reg. 318, 319 (1986).
The proposal refers to the "1985" RIF provisions, and the Union does
not explain precisely which version of the RIF regulations its proposal
refers to. For the following reasons we conclude that if we assume for
purposes of this decision that the proposal refers to those RIF
regulations which became effective on July 3, 1985, the proposal is
moot. If, on the other hand, we assume for purposes of decision that
the regulations involved are those effective on February 3, 1986, which
currently remain in effect, the proposal is inconsistent with
Government-wide regulations and is nonnegotiable. As to the July 3,
1985 regulations, they were superseded by the February 3, 1986
regulations. Therefore, insofar as the proposal may have been intended
to prevent or delay their implementation, it is moot. /1/
As to the February 3, 1986 regulations, which are currently in
effect, insofar as the proposal is intended to prevent or delay their
implementation, it conflicts with them. Since they are Government-wide
regulations, Union Proposal 1 is, if so intended to be applied, outside
the duty to bargain. National Treasury Employees Union, NTEU Chapter
202 and Department of the Treasury, Bureau of Government Financial
Operations, 22 FLRA No. 58 (1986).
III. Union Proposal 2
Union proposes the elimination of Reclamation Instruction Part
365-5 and R930.1.
Sections: 930.1.5 Last Sentence 930.1.6B (1) 930.1.6C
(2)(a)(c) 930.1.6C (3) & (7) 930.1.6E 930.1.7A First Sentence
Third Paragraph 930.1.7C & D 930.1.7D 930.1.8D
A. Positions of the Parties
The Agency asserts that the petition as to this proposal should be
dismissed because the proposal is not sufficiently specific and
delimited and because the Union has failed to submit copies of those
regulatory provisions which it proposes to eliminate. Substantively,
the Agency argues that the proposal which concerns its regulations about
motor vehicle and mobile equipment operators, interferes with its
management rights to take disciplinary actions against employees and to
assign work. The Union contends that the Agency's regulation is subject
to the duty to bargain and that the Agency had previously agreed that
the proposal was sufficiently specific and delimited for purposes of
bargaining.
B. Analysis and Conclusion
In our view the proposal which seeks elimination of specified
portions of the Agency's regulations is sufficiently clear as to
constitute a specific and delimited proposal for purposes of a
negotiability appeal. See National Federation of Federal Employees,
Local 1363 and Headquarters, U.S. Army Garrison, Yongsan, Korea, 4 FLRA
68 (1980), remanded as to other matters sub nom. Department of Defense,
Department of the Army v. FLRA, 685 F.2d 641 (D.C. Cir. 1982). However,
we agree with the Agency's other point -- in the absence of submission
by the Union of copies of the provisions which the proposal seeks to
eliminate, we can make no assessment as to the relationship of the
proposal to the Agency's management rights. It is the responsibility of
the parties to create the record upon which we will resolve
negotiability disputes. National Federation of Federal Employees, Local
1167 v. Federal Labor Relations Authority, 681 F.2d 886 (D.C. Cir.
1982). A party failing to assume this burden acts at its peril. In a
negotiability appeal it is the responsibility of the party filing the
appeal to provide the express language of the disputed proposal as well
as a copy of all pertinent material. Section 2424.4 of the Authority's
Rules and Regulations. In this case the Union has failed to submit
material which is critical to its petition and to the Authority's
ability to rule on the dispute. Unlike provisions contained in, for
example, the Code of Federal Regulations and the Federal Personnel
Manual, internal agency regulations are not generally available
throughout the Federal sector. Thus, we are entirely dependent upon the
parties to provide such documents. We, therefore, find that the
petition for review as to this proposal must be dismissed.
IV. Union Proposal 3
U.S.B.R. will grant a 10.4% general wage increase to all
classifications listed in the wage schedule (SLA #3) effective the
beginning of the last full pay period of December, 1985.
The 10.4% figure was arrived at by conducting a survey of those
properties in the "Gould 9" group.
A 10.4% wage increase would bring the wage rate up to the
prevailing wage rates in the territory in which the Project's
activities are carried on, as provided for in the basic agreement
Article IV Section 1.
A. Positions of the Parties
The Agency asserts that the proposal is nonnegotiable because it is
contrary to a statutorily imposed "pay cap" on wage increases for
prevailing rate employees. The Union contends that, based on language
in the parties' contract, an exception to the "pay cap" applies and the
proposal is, therefore, negotiable.
B. Analysis and Conclusions
It is undisputed that the employees to whom this proposal would apply
are prevailing rate employees who are covered by section 9(b) of Public
Law No. 92-392. Under section 704 of the Civil Service Reform Act of
1978, Pub. L. No. 95-454. 92 Stat. 1111, 1218, matters pertaining to,
among other things, their pay and pay practices, are subject to
negotiation. /2/ Public Law No. 99-190, 99 Stat. 1185 (1985), which
made continuing appropriations for fiscal year 1986, extended
restrictions placed on General Schedule pay to the wage rates and
schedules of prevailing rate employees including those covered by
section 9(b) and section 704. It is undisputed that the wage increase
proposed exceeds that "pay cap."
However, certain exceptions were allowed to this "pay cap" insofar as
employees covered under section 9(b) were concerned. Specifically the
"pay cap" did not apply where an adjustment to wage rates was "required
by terms of a contract" entered into before October 1, 1985.
The Office of Personnel Management (OPM) is charged by Congress with
administering the statutory "pay cap" insofar as prevailing rate
employees who are covered under section 9(b) are concerned. See, for
example, Public Law 99-190, Section 101(h), which incorporated among
other things section 613 of title VI of H.R. 3036; Public Law 99-591,
section 613 of Title VI of the Act making appropriations for the
Treasury Department and other agencies; and FPM Bulletin 532-60. As
interpreted by OPM in FPM Bulletins 532-60 and 532-68 the condition for
being excepted from the "pay cap" is met when either of the following
criteria is met:
(a) the contract dictates specific rates of pay, or specific
monetary or percentage increases; or
(b) the contract dictates a fixed pay-setting procedure which
results in a specific increase; however, none of the elements of
the pay-setting procedure may be subject to further negotiation by
the parties ("elements" are defined as, but not limited to,
formulas, names companies, wage data to be used, etc.). Thus,
application of the pay-setting procedure must automatically result
in specific rates of pay, or specific monetary or percentage
increases.
In order to rule on the negotiability of the proposal, we must decide
whether the parties' contract fulfills either of these criteria. The
relevant contract language is as follows:
Article IV
Compensation
Section 1. The rates of pay to be paid to the employees
covered by this Agreement shall be determined through the process
of collective bargaining between the Parties. They will include
basic hourly, overtime, and holiday work rates and, when and as
needed shift differentials, call-back time, penalty rates for
changes in regular work schedules, and similar pay items. All
rates must be established as nearly as is consistent with the
public interest in accordance with prevailing rates in the
territory in which the Project's activities are carried on. Once
each calendar year but not more often, Management or the Union may
notify the other in writing that a conference is desired to
consider the need for revising any or all existing rates of pay.
Such notice shall be acknowledged within ten days and a date set
for holding the conference which date shall be within thirty days
of the date of the notice. Unless it is mutually determined that
negotiations are not necessary the date for starting the
negotiations for the purpose of revising rates of pay shall be
within 30 days of the close of the preliminary conference. In
addition to the negotiating committees of the Parties who shall
participate in the negotiations at the joint conference,
representatives of the Union and representatives of Management may
be permitted to attend the conference.
Prior to such negotiations, the Parties shall set up a joint
fact-finding committee and appropriate sub-committees . . . for
the purpose of establishing any relevant facts pertaining to rates
of pay, classifications, and conditions of employment. The
committee may go outside the Project for the purpose of
establishing such relevant facts. Consideration shall be given by
the Parties in their negotiations to any facts so established.
The Union asserts that, under this contract language as interpreted
by two arbitrators, the wage-setting process is "automatic." The Union
describes the two arbitrators' decisions as construing the contract to
require that wage rates must be established "as nearly as is consistent
with the public interest in accordance with prevailing rates" in the
territory in which the Agency's activities are carried on. /3/
Additionally, one of the arbitrators' decisions specified which
employers were to be surveyed for purposes of establishing relevant
facts as to pay rates and practices to be considered in the negotiations
of rates of pay under the above-quoted article. The Union argues that,
in view of these decisions, adoption of the prevailing rates is mandated
and that determination of the prevailing rate is a ministerial task of
matching comparable jobs.
The Union's argument is flawed. First, accepting the
characterization of the contract as requiring wage rates to be
established as nearly as is consistent with the public interest in
accordance with prevailing rates in the area, does not result in a
conclusion that specific wage rates are mandated. The requirement that
prevailing rates be adopted is qualified by the criteria that such
adoption be done as nearly as is consistent with the public interest.
This leaves discretion as to what specific wages rates will actually be
adopted. /4/ Second, even if the parties are limited to surveying the
wage rates and practices of specific employers, such a survey is, by the
terms of the contract, for purposes of producing facts for consideration
by the parties in ensuing negotiations as to what wage rates should be.
Consequently, we conclude that the contract itself neither dictates a
wage rate nor a pay-setting procedure application of which will
automatically result in a specific pay rate. Thus, we cannot conclude
that the proposed pay increase is one which is "required" by the
contract within the meaning of FPM Bulletin 532-68 so as to be excepted
from the "pay cap" established by Public Law 99-190. /5/ We find,
rather, that the Union's proposal conflicts with the statutory "pay
cap." It is therefore inconsistent with Federal law and is
nonnegotiable. /6/
Finally, we note that the Union's claim that the contract effectively
mandates the adoption of certain wage rates seems inconsistent with its
request to bargain wage rates. Rather, the appropriate means for
pursuing such claim would appear to be through those proceedings
available for administering the contract, such as grievance and
arbitration procedures.
V. Order
The Union's petition for review is dismissed.
Issued, Washington, D.C., January 15, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) Even if those regulations had not been superseded, the delay of
implementation permitted with respect to them, if it applied at all,
could not in any event have extended beyond December 31, 1985. After
that date the proposal would have been in conflict with those
Government-wide regulations and nonnegotiable. In fact, the exception
probably would not have applied. The Agency states and the Union
tacitly concedes that no RIF occurred during the period which could have
triggered the exception. Agency Statement of Position at 2.
(2) See Columbia Power Trades Council and United States Department of
Energy, Bonneville Power Administration, 22 FLRA No. 100 (1986) for a
discussion of this provision.
(3) The Union failed to supply copies or specific citation to either
arbitrator's decision. However, as discussed further herein, even if we
accept the Union's characterization of the arbitrators' findings we
cannot conclude that the contract provides an exception to the "pay
cap."
(4) See also National Maritime Union of America, AFL-CIO v. United
States, 682 F.2d 944, 949-50 (Ct. Cl. 1982) in which the court examined
the language "pay . . . shall be fixed and adjusted . . . as nearly as
is consistent with the public interest in accordance with prevailing
rates and practices . . ." which appears at 5 U.S.C. Section 5348(a) and
found that "discretion inheres" in the phrase, "as nearly as is
consistent with the public interest."
(5) See also International Brotherhood of Electical Workers v. James
Watt, No. 83-F-972 (D. Colo. Nov. 15, 1984).
(6) We note that the "pay cap" has been continued through fiscal year
1987. Pub. L. No. 99-591.