[ v26 p906 ]
26:0906(105)NG
The decision of the Authority follows:
26 FLRA No. 105
INTERNATIONAL BROTHERHOOD OF
ELECTRICAL WORKERS, LOCAL UNION
NO. 611, AFL-CIO
Union
and
U.S. DEPARTMENT OF THE INTERIOR
BUREAU OF RECLAMATION
RIO GRANDE PROJECT
Agency
Case No. 0-NG-1161
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). It concerns the
negotiability of the following proposal:
Any employee whose regular work schedule includes an eight (8)
hour period of service, a part or all of which is on Sunday, is
entitled to additional pay at the rate of twenty-five percent
(25%) of his/her hourly rate of basic pay for each hour of work
performed during that eight (8) hour period of service.
The proposal would apply to nonsupervisory, hourly, operations and
maintenance bargaining unit employees employed at the Elephant Butte Dam
and Powerplant in New Mexico. These employees negotiate their wages and
premium pay provisions in accordance with section 704 of the Civil
Service Reform Act of 1978 (CSRA), Pub. L. No. 95-454, 92 Stat. 1111,
1218, codified at 5 U.S.C. Section 5343 (Amendments) and section 9(b) of
Pub. L. No. 92-392, codified at 5 U.S.C. Section 5343 (Amendments,
note).
We find the proposal to be negotiable.
II. Background
The negotiation of wages and pay practices for certain operations and
maintenance employees has occurred in the Bureau of Reclamation for a
long time, beginning in 1949. Agency Statement of Position at 3. In
the Bureau's Southwest Region, these negotiations with the Union for
unit employees have occurred since at least the mid-1960's. Agency
Submission of December 17, 1984 to the Federal Service Impasses Panel,
at Sheet 2, attached to the Union's Petition for Review. In 1984, the
Agency took the position that the long-standing practice of providing
premium pay compensation for work on a Sunday was illegal because it was
not in accordance with local prevailing pay practices. Accordingly, the
Agency proposed to terminate the practice. The Union opposed this
change, and sought the assistance of the Federal Service Impasses Panel.
Before the Panel, the Agency argued that the Panel did not have
jurisdiction over the dispute because it concerns, among other things, a
question of negotiability and statutory entitlement. The Union asserted
that the unit employees are entitled under 5 U.S.C. Section 5544(a) to
receive premium pay without regard to whether it is the prevailing
practice. /1/ The Panel declined jurisdiction because it found that it
was unable to resolve the impasse until threshold matters, including the
negotiability of the proposal, had been resolved. Thereafter, the Union
filed this negotiability appeal.
III. Positions of the Parties
The Agency contends that the issue of Sunday premium pay is not a
negotiability dispute properly before the Authority, but rather is an
issue of the employees' entitlement under 5 U.S.C. Section 5544(a). The
Agency argues that because these employees are subject to section 704,
they can receive Sunday premium pay only pursuant to a collective
bargaining agreement and not pursuant to title 5 of the U.S. Code.
Further, the Agency maintains that since the subject of Sunday premium
pay was never specifically negotiated by the parties, it can not now be
subject to bargaining under section 704. Finally, the Agency argues
that even if the matter was previously covered in the parties'
agreement, it may not be negotiated now because the payment of Sunday
premium pay is not a prevailing pay practice in the local area.
The Union states that under its proposal, employees who are regularly
scheduled to work on Sunday would continue to receive Sunday premium pay
in a prescribed amount. The Union acknowledges that Sunday premium pay
(1) is not a prevailing practice in the local area under consideration;
(2) has never been specifically included in any agreement between the
parties; and (3) was not the subject of any negotiations until 1984.
However, the Union contends that the entitlement to Sunday premium pay
was incorporated by reference indirectly into the Basic Agreement,
approved September 9, 1971 and still effective, and Supplementary
Employee-Management Agreement No. 1, approved May 14, 1971, wherein the
parties agreed that benefits provided by Federal law would continue in
effect. /2/ The Union argues that where the parties have not negotiated
to displace those benefits provided by Federal law, those benefits
continue in effect if the parties have so agreed.
Alternatively, the Union contends that the local prevailing pay and
pay practices exceed those of the Agency even if Sunday premium pay is
included in the computation. The Union states (at 5 of its March 22,
1983 submission to the Panel):
Accordingly, even though the specific pay practice of Sunday
premium pay is not prevailing, the prevailing wage rates and pay
practices justify the Agency paying the Sunday premium pay. In
other words in accordance with Section 704 of the Civil Service
Reform Act, the unit employees are entitled to the Sunday premium
pay because even with that premium pay, their pay and pay
practices are less (than) the prevailing rates and pay practices
in the area.
In sum, the Union disagrees with the Agency's allegation that the
continued payment of Sunday premium pay is inconsistent with Federal
law.
IV. Analysis
A. The Union's Proposal Presents a Negotiability Dispute
Which Is Properly Before The Authority
The Agency maintains that the Union's proposal to continue the
payment of 25 percent Sunday premium pay relates to whether these
employees are entitled to benefits under statute. The Agency asserts
that it has no obligation to make premium payments under 5 U.S.C.
Section 5544(a) and that the issue must be resolved in another forum.
While the Union contends that these employees are entitled to Sunday
premium pay as a matter of law, the proposal itself would impose on the
Agency a purely contractual obligation. As such, the question of
whether the proposal concerns a negotiable subject which is within the
Agency's duty to bargain is appropriately within our jurisdiction. We
do not pass on the issue of whether, under 5 U.S.C. Section 5544(a),
these employees are entitled to Sunday premium pay.
B. The Subject of Sunday Premium Pay Is Within The
Agency's Duty to Bargain
Under section 704, agencies must bargain over terms amd conditions of
employment, including pay and pay practices, of prevailing rate
employees where those terms and conditions of employment were the
subject of negotiation in accordance with prevailing rates and practices
prior to August 19, 1972. See generally Columbia Power Trades Council
and United States Department of Energy, Bonneville Power Administration,
22 FLRA No. 100 (1986). As we held in Bonneville Power Administration,
section 704 does not limit its protections only to the particular terms
of provisions which were specifically negotiated by the parties in their
collective bargaining agreements prior to August 19, 1972. If a
disputed proposal involves subject matters which had previously been
negotiated by the parties, those subjects are within the Agency's duty
to bargain under section 704. Additionally, parties are not confined
merely to the continuation of terms of previously existing agreements.
In a new agreement, the parties may change those terms or alter their
rights concerning the matters involved. Id., slip op. at 10-12.
Applying Bonneville Power Administration to this case, we find that
the matter of Sunday premium pay for bargaining unit employees is one
which is encompassed within the premium pay practices negotiated by the
parties prior to August 19, 1972. As the Agency acknowledges, it has
negotiated premium pay provisions in accordance with section 704 for
many years, including prior to 1972. Agency Response to Union's
Petition for Review at 3. Accordingly, the Union's proposal in this
case concerns a term and condition of employment -- namely premium pay
-- which was the subject of negotiation prior to August 19, 1972.
The Agency relies on Medler v. United States, Bureau of Reclamation,
Department of the Interior, 616 F.2d 450 (9th Cir. 1980) as mandating
the discontinuance of the Sunday premium pay. That reliance is
misplaced. In Medler, the court held that Congress excluded prevailing
rate employees whose wages were determined through collective bargaining
from coverage under the Prevailing Rate Systems Act (Pub. L. No. 92-392,
86 Stat. 564, codified in 5 U.S.C. Sections 5341-5349), and unless the
applicable collective bargaining agreement provided for shift
differential pay or longevity pay, the employees covered by the
agreement were not entitled to that pay. Because that case concerned
questions as to the entitlement of unit employees to certain pay
differentials, it is distinguishable from this case, which concerns the
negotiability of a form of premium pay. For the same reasons, the
Agency's reliance on the Comptroller General's decision in Matter of
Donald Cross, B-204984 (May 10, 1982), is likewise misplaced.
C. Sunday Premium Pay is Negotiable Whether or Not it is a
Prevailing Practice in the Local Area
The Agency contends that even if the matter of premium pay was
previously covered in the parties' agreement, Sunday premium pay may not
be negotiated now because it is not a prevailing practice in the local
area. We do not believe that result to be consistent with the purpose
of the Prevailing Rate Systems Act in general or with the purpose of
section 9(b) and section 704 in particular.
Employees covered by the Prevailing Rate Systems Act, 5 U.S.C.
Sections 5343 et seq., are entitled by law to Sunday premium pay whether
or not it is a prevailing pay practice in the local wage area. See 5
U.S.C. Sections 5541(2)(xi) and 5544. Although the dollar amount of
Sunday premium pay is calculated as a percentage of their base pay,
which is established on the basis of the local wage area survey,
entitlement to Sunday premium pay for employees covered by the
Prevailing Rate Systems Act does not depend upon whether Sunday premium
pay is provided locally. We do not believe that in exempting section
704 employees from the coverage of the Prevailing Rate Systems Act,
Congress intended to preclude negotiations on benefits that they would
otherwise have received, without regard to the prevailing practices in a
given local wage area, if they had been covered by that Act.
Congress intended the Prevailing Rate Systems Act, including section
9(b), to provide "equal pay for substantially equal work for all
prevailing rate employees who are working under similar conditions of
employment in all agencies within the same local wage area." 5 U.S.C.
Section 5341(1). See also National Maritime Union of America v. United
States, 682 F.2d 944, 951-52 (Ct. Cl. 1982) and National Federation of
Federal Employees v. Brown, 645 F.2d 1017, 1024 (D.C. Cir. 1981). In
our opinion, even if the Agency is correct that section 704(b)(B)
removes any entitlement to Sunday premium pay under 5 U.S.C. Section
5544 for unit employees in this case, the principles of pay equity
established by Congress require that those employees be permitted to
negotiate on Sunday premium pay so as to maintain equity with those
prevailing rate employees in the local area who are entitled to that pay
under 5 U.S.C. 5544. In short, even if Congress excluded section 704
employees from coverage by 5 U.S.C. Section 5544, we do not believe that
it intended thereby to condition those employees' right to negotiate
over Sunday premium pay on whether that premium pay was a prevailing
practice in the local wage area. To find otherwise would be
inconsistent with the purpose of the Prevailing Rate Systems Act.
Furthermore, the broad purpose of section 9(b) and section 704 was to
preserve the rights of employees covered by those sections to negotiate
for the continuation of benefits which they had historically received,
without regard to otherwise applicable legal limitations. Those
sections were not intended to deprive employees of existing benefits.
In fact, section 704 was enacted in order to correct such a limiting
interpretation of section 9(b) by the Comptroller General. See Columbia
Power Trades Council and United States Department of Energy, Bonneville
Power Administration, 22 FLRA No. 100 (1986). On the contrary, section
9(b) and section 704 permit negotiation on the extension, modification
and improvement of those benefits and the legislative history of section
704 in particular suggests that such negotiations need not be tied to
conditions in the local area. See Bonneville Power Administration,
slip. op. at 4-7.
We find, therefore, that consistent with the purpose of section 9(b)
and section 704 to preserve negotiations over existing benefits,
employees in this case, who had historically received Sunday premium
pay, may negotiate for continued payment of the premium pay regardless
of whether it is a prevailing practice in the local area. Accord Matter
of W.L. Ableidinger and E.G. Walters, 60 Comp. Gen. 58, 60 (1980) and
Matter of Corps of Engineers, North Pacific Division, 59 Comp. Gen. 583,
584 (1980) (prevailing rate employees not covered by section 704 who had
historically received double overtime may continue to receive those
benefits, despite 5 U.S.C. Section 5544, because such payment is
consistent with the broad purpose of section 704 to preserve existing
practices). In our view, these decisions of the Comptroller General are
more relevant to the circumstances of this case than the decision in
Grand Coulee Project Office, 60 Comp. Gen. 668 (1981), cited by the
Agency.
In sum, for the foregoing reasons, we conclude that negotiation of
Sunday premium pay is consistent with the purpose of pay equity
established by the Prevailing Rate Systems Act and the Congressional
intent to preserve for negotiations those benefits which employees
covered by section 9(b) and 704 had historically received.
Finally, in light of our conclusions, we do not address the Union's
contention that even if the prevailing practice in the local area did
govern, the proposal would be negotiable because the total premium pay
available to unit employees would still be less than the prevailing
practice for total premium pay in the local area.
V. Conclusion
The proposal is within the duty to bargain under section 704 of the
CSRA.
VI. Order
The Agency must upon request, or as otherwise agreed to by the
parties, negotiate over the proposal. /3/
Issued, Washingtion, D.C. April 30, 1987
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
(1) The relevant portion of 5 U.S.C. Section 5544(a) is set forth in
the Appendix to this decision.
(2) The relevant provisions of the Basic Agreement and the
Supplementary Employee-Management Agreement No. 1 are set forth in the
Appendix to this decision.
(3) In finding that this proposal is within the duty to bargain, we
make no judgment as to its merits.
APPENDIX
5 U.S.C. Section 5544(a) provides, in pertinent part:
* * * *
(a) An employee whose pay is fixed and adjusted from time to
time in accordance with prevailing rates under Sec. 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.
* * * *
As 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.
As set forth at page 2 of the Union's March 22, 1985, submission to
the Federal Service Impasses Panel, attached to Petition for Review, the
Basic Agreement provides, in pertinent part:
Priority of Law and Regulations
A. In the administration of all matters covered by the
agreement, the Employer, the Union, and employees are governed by
existing or future laws and regulations of appropriate authorities
including policy set forth in the Federal Personnel Manual; by
published Bureau and Department of the Interior policies and
regulations in existence at the time the agreement was approved;
and by subsequent published Bureau and Department of the Interior
policies and regulations required by law or by the regulations of
appropriate authorities.
As set forth at page 3 of the Union's March 22, 1985 submission to
the Federal Service Impasses Panel, the Supplementary
Employee-Management Agreement No. 1 provides:
BENEFITS
The following shall be administered in accordance with
applicable laws, rules, and regulations; annual leave, sick
leave, leave without pay, retirements benefits, compensation for
job-related injuries, holidays, unemployment benefits, social
security, group life insurance, health benefits, per diem for
travel away from headquarters, and other benefits as may be
provided by law or regulation from time to time.