[ v26 p211 ]
26:0211(27)NG
The decision of the Authority follows:
26 FLRA No. 27
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, AFL-CIO
Union
and
WESTERN AREA POWER ADMINISTRATION
DEPARTMENT OF ENERGY
Agency
Case No. 0-NG-1345
DECISION AND ORDER ON NEGOTIABILITY ISSUE
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 one proposal. For the reasons set forth below, we find
that the petition must be dismissed.
II. Proposal
(The) union is requesting . . . a 4% across-the-board general
wage increase to be granted to all classifications listed in
Supplemental Labor Agreement (SLA) #3, Wage Schedules to be
effective on the first day of the first pay period of October 1986
as provided for in the Basic Agreement, Article 17, Section 17.5.
III. Positions of the Parties
In responding to the Union's initial request to bargain, the Agency
declared the proposal nonnegotiable because it was contrary to a
statutorily imposed pay limitation of three percent on wage increases
for fiscal year 1987. The Union contends that read together, the
parties' basic agreement, section 17.5 and SLA #3 create an "absolute
lock-step agreement" which excepts the wage increase in this case from
the statutorily imposed pay limitation. /1/
IV. Analysis and Conclusion
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. As we discussed in International Brotherhood of
Electrical Workers, AFL-CIO, Local Union 1245 and Department of the
Interior, Bureau of Reclamation, 25 FLRA No. 15 (1987), under section
704 of the Civil Service Reform Act of 1978, Public Law No. 95-454, 92
Stat. 1111, 1218, matters pertaining to pay and pay practices of these
"section 9(b)" employees are subject to negotiation. 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.
Section 101(m) of Public Law No. 99-591 (approved October 30, 1986),
which made continuing appropriations for fiscal year 1987, incorporated
section 613 of Title VI of the Act making appropriations for the
Treasury Department and other agencies. Under section 613, wage
increases for prevailing rate employees covered by section 9(b) may not
exceed the three percent increase provided for General Schedule (GS)
employees, and must be delayed for 90 days, except where the increases
in wage schedules or rates are "required by the terms of a contract"
entered into before the date of enactment of Public Law 99-591. See
Federal Personnel Manual (FPM) Bulletin 532-75 (January 23, 1987). More
specifically, any contract falling under this exception must have been
entered into before October 18, 1986. Id.
The Office of Personnel Management (OPM) is charged by Congress with
administering the pay limitation concerning prevailing rate employees
who are covered under section 9(b). See Public Law No. 99-591. As
interpreted by OPM in FPM Bulletin 532-75, the condition for being
excepted from the pay limitation 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 of companies, wage data to be used, etc.). Thus,
the pay-setting procedure must automatically compute specific
rates of pay, or specific monetary or percentage increases.
Concerning the effective date for implementation of any wage
increase, OPM stated in FPM Bulletin 532-75 that:
If the increases are exempt from the statutory limitation, they
will be effective on the date determined under the provisions of
the contract.
If the increases are subject to the statutory limitation, they
will be placed into effect no sooner than ninety days after the
increase would otherwise become effective or, when no effective
date is specified in the contract, the increases will be placed
into effect:
(a) on the anniversary date of the last increase if that
increase was delayed 90 days by law; or
(b) ninety days after the anniversary date of the last increase
if that increase was not delayed by law.
It is undisputed that the wage increase set forth in the Union's
proposal exceeds that provided for GS employees for fiscal year 1987.
Therefore, in order to rule on the negotiability of the proposal it is
necessary to determine whether the parties' contract fulfills the
criteria for being excepted from the pay limitation. The relevant
contract provisions are as follows:
Section 17.5, Basic Labor Agreement
Supplementary wage adjustments shall become effective upon
approval or on the first day of the first pay period of October,
whichever is later, unless agreed otherwise by the parties.
(Modified October 1, 1984)
Existing rates of pay shall remain in effect until supplanted
by new rates negotiated pursuant to this section.
All rates must be established as nearly as is consistent with
prevailing rates in the private sector within the geographic area
of Western.
SLA #3 (in pertinent part)
Three-Year Agreement
This Agreement has a three-year duration period, from October
1, 1984 to October 1, 1987. Salary adjustments reflected by the
enclosed pay schedule will be implemented effective September 16,
1984, and January 20, 1985. For the scheduled October 1985 salary
adjustment, the parties will conduct a joint telephone survey to
update the job match information in the 1984 Wage Survey which
will be used to negotiate a new pay schedule. Only wage rates
will be open for negotiation for the duration of this agreement.
An additional wage adjustment will be due in October 1986. At the
expiration of this three-year agreement, October 1987, the entire
agreement may be reopened as provided in the Basic Agreement,
Article 19. (Modified October 1, 1984)
The Union asserts, as mentioned above, that certain provisions in the
parties' contract except the wage increase in this case from the
statutorily imposed pay limitation. We disagree with this assertion.
Section 17.5 of the parties' contract states that "existing rates of pay
shall remain in effect until supplemented by new rates negotiated
pursuant to this section" (emphasis added). SLA #3 refers to a specific
pay schedule for salary adjustments to be implemented September 16, 1984
and January 20, 1985. For the October 1985 salary adjustment, it
requires the parties jointly to conduct a job wage survey and to use the
results of the survey to negotiate a new pay schedule. No specific pay
schedule is mentioned for fiscal year 1987. Reading SLA #3 together
with Section 17.5, it is our view that with respect to fiscal year 1987,
the contract does not dictate a specific rate of pay, or specific
monetary or percentage increase, but rather provides for negotiation of
wage rates for years following the salary adjustments effective on
January 20, 1985.
Our conclusion in this regard is supported by other material in the
record. In particular, the attachments to the Union's Petition for
Review, dated September 11 and November 7, 1986, show that: (1) The
wage increase for prevailing rate employees was to be effective on the
first day of the first pay period of October 1986; (2) the 4% wage
figure was arrived at through a joint union and management survey
conducted pursuant to the parties' contract; (3) the Union considered
the "4% wage figure (as) a specific proposal, a matter proposed to be
bargained;" (4) the Union "requested that the parties open bargaining
for wages;" and (5) the Agency declared the proposal nonnegotiable
because in its view the proposal was contrary to the pay limitation
imposed for fiscal year 1987.
From a review of this material, it is apparent that the Union was
seeking to negotiate a wage increase for fiscal year 1987 in keeping
with the parties' contract. Negotiation of a wage increase is contrary
to section (b) of FPM Bulletin 532-75, which specifically states that
"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 of companies, wage data to be used, etc.)."
The proposal explicitly seeks negotiations on the amount of the wage
increase. Consequently, we conclude that the contract dictates neither
a wage rate nor a pay-setting procedure which will automatically result
in a specific rate. Thus, we cannot conclude that the wage increase
contained in the proposal is one which is "required" by the contract
within the meaning of FPM Bulletin 532-75 so as to be excepted from the
pay limitation imposed by Public Law No. 99-591. The proposal is
therefore inconsistent with Federal law and is nonnegotiable. /2/
V. Order
The Union's petition for review is dismissed.
Issued, Washington, D.C., March 17, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The Union claims that the Agency's Statement of Position was not
timely filed and should not be considered by the Authority. Under the
Authority's Rules and Regulations, it appears that the Agency's
Statement of Position is untimely. 5 C.F.R. Section 2424.6. Therefore,
we have not considered it in this decision. The Agency's declaration of
nonnegotiability, as mentioned above, was submitted by the Union as an
attachment to its Petition for Review.
(2) In its request to negotiate the wage increase, the Union also
requested that the 4% wage increase be granted to all classifications
listed in Supplementary Labor Agreement #3, wage schedules retroactive
to October 13, 1985. This request effectively seeks a 4% wage increase
for fiscal year 1986, and is therefore similar to the proposal in
International Brotherhood of Electrical Workers, AFL-CIO, and Western
Area Power Administration, Department of Energy, 26 FLRA No. 25 (1987).
For the reasons stated in that case, we also find this proposal to be
nonnegotiable.