---

46 FLRA No. 2

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

WASHINGTON, D.C.

and

BUREAU OF RECLAMATION

MID-PACIFIC REGIONAL OFFICE

SACRAMENTO, CALIFORNIA

(Respondents)

and

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

(Charging Party/Union)

and

INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS

LOCAL 1245

(Intervenor/Union)

3-CA-00633

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

WASHINGTON, D.C.

and

BUREAU OF RECLAMATION

GRAND COULEE PROJECT OFFICE

GRAND COULEE, WASHINGTON

(Respondents)

and

COLUMBIA BASIN TRADES COUNCIL, AFL-CIO

(Charging Party/Union)

39-CA-00697

DECISION AND ORDER

October 5, 1992

Before Chairman McKee and Members Talkin and Armendariz.⁽¹⁾

I. Statement of the Case

This consolidated unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Rules and Regulations, based on the parties' stipulation of facts. The General Counsel, the Respondents, the Charging Parties, and the Intervenor filed briefs with the Authority.

The complaint in Case No. 3-CA-00633 alleges that Respondent Bureau of Reclamation, Mid-Pacific Regional Office, Sacramento, California (Respondent Mid-Pacific) violated section 7116(a)(1), (5) and (8) of the Federal Service Labor-Management Relations Statute (the Statute) by: (1) withdrawing its recognition of the International Brotherhood of Electrical Workers (IBEW), Local 1245 as the exclusive bargaining representative of employees in the Local's mixed unit of supervisory and nonsupervisory employees classified as Working Foreman (Foreman II) and Foreman (Foreman III); (2) refusing to comply with section 7115(a) of the Statute by discontinuing dues withholding for employees in Foreman II and III positions; (3) placing employees in Foreman II and III positions on an administrative pay scale; and (4) ceasing to apply to employees in Foreman II and III positions the terms and conditions of IBEW's collective bargaining agreement with Respondent U.S. Department of the Interior, Bureau of Reclamation, Washington, D.C. (Respondent Reclamation) and Respondent Mid-Pacific. The complaint also alleges that Respondent Reclamation violated section 7116(a)(1), (5) and (8) of the Statute by interfering with the bargaining relationship of the parties at the level of exclusive recognition when it directed Respondent Mid-Pacific to engage in the conduct described above.

The complaint in Case No. 39-CA-00697 alleges that Respondent Bureau of Reclamation, Grand Coulee Project Office, Grand Coulee, Washington (Respondent Grand Coulee) violated section 7116(a)(1), (5) and (8) of the Statute by: (1) withdrawing its recognition of the Columbia Basin Trades Council, AFL-CIO (CBTC) as the exclusive bargaining representative of employees in the CBTC's mixed unit of supervisory and nonsupervisory employees classified as Foreman II and III; (2) refusing to comply with section 7115(a) of the Statute by discontinuing dues withholding for employees in Foreman II and III positions; (3) placing employees in Foreman II and III positions on an administrative pay scale; and (4) ceasing to apply to employees in Foreman II and III positions, and to unit employees who have been temporarily upgraded to Foreman II and Foreman III, the terms and conditions of CBTC's collective bargaining agreement with Respondent Reclamation and Respondent Grand Coulee. The complaint also alleges that Respondent Reclamation violated section 7116(a)(1), (5) and (8) of the Statute by interfering with the bargaining relationship of the parties at the level of exclusive recognition when it directed Respondent Grande Coulee to engage in the conduct described above.

For the reasons set forth below, we find that Respondent Reclamation violated the Statute as alleged in the complaints in Case No. 3-CA-00633 and Case No. 39-CA-00697. The other allegations of the complaints will be dismissed.

II. Background

Respondent Reclamation employs certain supervisory and nonsupervisory prevailing rate employees. Respondent Mid-Pacific and Respondent Grand Coulee are subordinate activities of Respondent Reclamation. Pursuant to section 9(b) of the Prevailing Rate Systems Act of 1972 (PRSA), Pub. L. No. 92-392, codified at 5 U.S.C. § 5343 (Amendments, note) and 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. § 5343 (Amendments), Respondent Mid-Pacific and Respondent Grand Coulee negotiate the wage rates of prevailing rate employees in bargaining units represented by IBEW Local 1245 and CBTC, respectively.⁽²⁾ Prior to the Respondents' actions which resulted in the filing of the unfair labor practice complaints at issue in this consolidated case, the units were mixed units, including both supervisory and nonsupervisory prevailing rate employees. Respondent Reclamation had historically negotiated on and agreed to the inclusion of supervisory employees in Foreman II and III positions in mixed bargaining units under a succession of agreements. See Department of the Interior, Bureau of Reclamation, Yuma Projects Office, Yuma, Arizona, 8 A/SLMR 1247, 1248 (1978).

In 1977, Respondent Reclamation transferred certain prevailing rate employees, including supervisory prevailing rate employees classified as Foreman II and III, to the Department of Energy, Western Area Power Administration (WAPA). See Department of Energy, Western Area Power Administration, 3 FLRA 77, 78 (1980) (WAPA 1).⁽³⁾ The instant consolidated case involves only employees in Foreman II and III positions who remained in the Department of the Interior, not employees who were transferred to the Department of Energy.

Based on the decision of the United States Court of Appeals for the Tenth Circuit in United States Department of Energy, Western Area Power Administration, Golden, Colorado v. FLRA, 880 F.2d 1163, 1170 (10th Cir. 1989) (WAPA v. FLRA), Respondent Reclamation directed Respondent Mid-Pacific and Respondent Grand Coulee to remove the employees in Foreman II and III positions from their respective bargaining units. Following the Respondents' actions, the Unions filed the unfair labor practice charges that are the bases of the complaints in the instant consolidated case.

III. Facts

A. Case No. 3-CA-00633

The parties stipulated that IBEW Local 1245 "has been the exclusive representative of a mixed unit of supervisory and nonsupervisory [prevailing rate] employees for collective bargaining" at Respondent Mid-Pacific's Central Valley Project. Stipulation, paragraph 6. See Attachment to Joint Exhibit 1 (Old Agreement at 2, 6). Those supervisory employees include employees classified as Foreman II and III, who are "supervisors within the meaning of section 7103(a)(10) of the Statute." Stipulation, paragraph 9. Employees classified as Foreman II and III "had been included in the [mixed] unit . . . from 1963 to on or about January 29, 1990. During this time (1963 - January 29, 1990), [IBEW] Local 1245 negotiated the pay, pay practices, and other conditions of employment of the [employees classified as Foreman II and III]." Stipulation, paragraph 9.

Since on or about January 29, 1990, and continuing to date, "at the direction of" Respondent Reclamation, Respondent Mid-Pacific: (1) withdrew its recognition of IBEW Local 1245 as the exclusive collective bargaining representative of the supervisory employees classified as Foreman II and III, "after giving notice of its intent to do so during negotiations on December 21, 1989"; (2) discontinued IBEW's dues withholdings of employees in Foreman II and III positions; (3) placed employees in Foreman II and III positions on an administrative pay scale pursuant to its request for Office of Personnel Management (OPM) authority and subsequent OPM approval; and (4) ceased applying the terms and conditions of IBEW's collective bargaining agreement with Respondent Reclamation and Respondent Mid-Pacific to employees in Foreman II and III positions. Stipulation, paragraphs 7-8.

By letters dated February 14, 1990, and April 2, 1990, IBEW, through its International President, requested that Respondent Reclamation continue its existing practice of "collective bargaining in mixed units of employees at the Bureau of Reclamation." Stipulation, paragraph 10.

B. Case No. 39-CA-00697

Respondent Grand Coulee admits that CBTC "was recognized as the exclusive representative of [the] mixed unit of [prevailing rate] supervisory . . . and nonsupervisory employees for collective bargaining at [Respondent Grand Coulee] in 1949." Case No. 39-CA-00697, Joint Exhibit 3. This "voluntary recognition" served as the foundation of the collective bargaining relationship between CBTC and Respondent Grand Coulee. See Stipulation, paragraph 6. The parties stipulated that "[t]here has been no break in continuity of the voluntary recognition or the continuity of labor agreements [between CBTC and Respondent Grand Coulee]." See id. Those supervisory employees included in the unit include employees classified as Foreman II and III who are "supervisors within the meaning of section 7103(a)(10) of the Statute." See id., paragraph 9. "Since 1949, [CBTC] and the Respondents have negotiated pay, pay practices, and other conditions of employment for employees in the unit . . . and have executed successive collective bargaining agreements containing the outcome of collective bargaining negotiations" which continued the mixed unit status of the supervisory foremen in the unit. See id. However, since on or about June 3, 1990 such negotiations have ended with regard to [Foreman II] and [Foreman III.]" Stipulation, paragraph 9.

Further, since on or about June 3, 1990, and continuing to date, "at the direction of" Respondent Reclamation, Respondent Grand Coulee: (1) withdrew its recognition of CBTC as the exclusive collective bargaining representative of the supervisory employees classified as Foreman II and III "after giving notice of its intent to do so at the onset of negotiations on April 30, 1990 and again, by letter of May 21, 1990"; (2) discontinued CBTC's dues withholdings of employees in Foreman II and III positions; (3) placed employees in Foreman II and III positions on an administrative pay scale pursuant to its request for OPM authority and subsequent OPM approval; and (4) ceased applying the terms and conditions of CBTC's collective bargaining agreement with Respondent Reclamation and Respondent Grand Coulee to employees in Foreman II and III positions in accordance with its May 21, 1990, letter and to unit employees temporarily upgraded to Foreman II and III positions. Stipulation, paragraphs 7-8.

IV. Positions of the Parties

A. General Counsel

The General Counsel contends that the Authority "may reject the Tenth Circuit's rule[,]" as set forth in WAPA v. FLRA, "in the instant case." General Counsel's Brief at 6 (emphasis omitted). The General Counsel asserts that the Authority should exercise "its 'discretion to determine whether to adopt [a circuit court's] ruling in subsequent cases raising the same issue . . . when, as here, those cases may be subject to review in other circuits.'" Id. at 9 (quoting U.S. Department of the Navy, Portsmouth Naval Shipyard, Portsmouth, New Hampshire, 37 FLRA 515, 523 (1990), enforcement denied as to other matters, 941 F.2d 49 (1st Cir. 1991) (alteration supplied by General Counsel)). The General Counsel contends that the Authority should reject the Tenth Circuit's decision in WAPA v. FLRA, and should "reaffirm its interpretation of section 704 [of the CSRA] which [the Authority] has previously set forth" in WAPA 1, WAPA 2, WAPA 3, and WAPA 4. Id. at 6, 12.

The General Counsel asserts that the Authority's decisions in WAPA 1, WAPA 2, WAPA 3, and WAPA 4 contain the proper interpretation of the application of section 704 of the CSRA as it applies to the foremen involved in these cases. Specifically, the General Counsel states that "[t]he foremen at issue in the instant cases are prevailing rate employees within the meaning of section 704" of the CSRA. Id. at 10 (emphasis omitted). Further, the General Counsel states that while it is "undisputed that the foremen at issue are supervisors within the meaning of [s]ection 7103(a)(10) of the Statute[,]" it is also "undisputed that exclusive representatives representing these foremen had historically negotiated pay, pay practices, and other conditions of employment as part of 'mixed units'." Id. (footnote omitted). The General Counsel urges the Authority to allow these foremen to continue as part of a mixed unit.

Accordingly, the General Counsel requests the Authority to find that the "Respondents' withdrawal of the section 704 rights of the foremen in the instant cases is violative of the Statute." Id. at 11 (emphasis omitted). Further, the General Counsel requests that the Authority find that by directing Respondent Mid-Pacific and Respondent Grand Coulee to engage in the violative conduct, Respondent Reclamation violated the Statute. Finally, the General Counsel requests that the Authority "issue an order, fully remedial of all unlawful conduct." Id. at 13.

B. Unions

1. IBEW and Local 1245 ⁽⁴⁾

IBEW states that the employees involved in Case No. 3-CA-00633 are located "in the State of California, outside the geographic jurisdiction of the U.S. Court of Appeals for the Tenth Circuit." IBEW's Brief at 2. In this regard, IBEW asserts that the issues presented in WAPA v. FLRA have not been ruled on by any court other than the Tenth Circuit and contends that the Tenth Circuit's decision in WAPA v. FLRA, "which presents no reasons that had not already been presented by the [a]gency and rejected by the Authority, is erroneous as a matter of law on several grounds[.]" Id. at 4.

As an initial matter, IBEW claims that the court improperly failed to give deference to the Authority's interpretation of section 704 of the CSRA "on the fallacious ground that [s]ection 704 'is not part of the [Statute,]' but 'is set forth as a note to [s]ection 5343 of the [PRSA]' which . . . is under the enforcement and interpretation purview" of OPM. Id. at 11 (citing WAPA v. FLRA, 880 F.2d at 1166 & n.4). IBEW states that the Statute is Title VII of the CSRA and includes section 704 of the CSRA.

Further, IBEW contends that in WAPA v. FLRA the court misinterpreted section 7135(a) of the Statute.⁽⁵⁾ First, IBEW claims that the court erroneously interpreted subsection (2) of section 7135(a). Second, IBEW claims that, although the court recognized that section 24 of Executive Order 11491--which contains language almost identical to section 7135(a) of the Statute--was interpreted by the Assistant Secretary of Labor for Labor-Management Relations differently from the court's interpretation of section 7135(a), the court ignored the fact that the Assistant Secretary relied on section 24 of the Executive Order "in its entirety, including [s]ection 24(1) which was identical, in material respects, to [s]ection 7135(a)(1)" of the Statute. Id. at 13. IBEW asserts that, in rejecting the Assistant Secretary's interpretation of what is now, in essence, section 7135(a), the court failed to take into consideration the fact that section 7135(a)(1) "provides an independent legal basis for the preservation of historic mixed units." Id.

Finally, IBEW contends that the court "commits its most grievous error" in its interpretation of section 704 of the CSRA. Id. at 13 (citing WAPA v. FLRA, 880 F.2d at 1168, 1170). IBEW asserts that the court erred as a matter of law in holding that the rights set forth in section 704 are "subject to the consent of the employer." Id. at 14.

Accordingly, asserting that the Authority "has full discretion to determine whether to follow" WAPA v. FLRA, IBEW requests that the Authority "not acquiesce" to the Tenth Circuit's decision in WAPA v. FLRA, but rather "adhere to its own previous decisions on the important underlying issue presented by the instant case." Id. at 11, 15. IBEW contends that the Authority should determine that Respondent Mid-Pacific and Respondent Reclamation committed the unfair labor practices as alleged. Further, as a remedy, IBEW requests that the Authority "provide the type of relief granted by [the Authority] in [WAPA 3]." Id. at 16. Additionally, IBEW requests "appropriate relief" to remedy Respondent Reclamation's improper direction to Respondent Mid-Pacific to "engage in the acts and conduct determined to be unlawful." Id.

2. CBTC

CBTC argues that in enacting section 704 of the CSRA and section 7135(a)(1) of the Statute, Congress "preserved the right of supervisors covered by section 9(b) of the Prevailing Rate Systems Act to [belong] to recognized units and to renew labor contracts." CBTC's Brief at 3 (emphasis omitted). Therefore, CBTC asserts that Respondent Reclamation and Respondent Grand Coulee were "barred from unilaterally removing [the] foreman positions[, which are within the scope of section 9(b),] from the unit." Id. (emphasis omitted).

CBTC states that the Tenth Circuit's decision in WAPA v. FLRA "is inconsistent with the plain meaning of [s]ection 704 [of the CSRA] and should not be followed." Id. at 13. CBTC contends that the court's decision in WAPA v. FLRA, "[i]n the guise of interpreting the statute, . . . destroyed the very rights the statute was designed to protect." Id. CBTC argues that "[c]ontrary to the Tenth Circuit's reasoning, an agency has the duty to bargain over employment terms with [s]ection 9(b) supervisors in mixed units even though it is not obliged to carry forward any particular contract provision." Id. at 16. Further, CBTC asserts that the Authority's application of section 704 to the "mixed unit" issue in WAPA 3 "was correct." Id. at 15.

Finally, CBTC contends that section 7135(a)(1) of the Statute "was not relied upon by the Authority in the WAPA litigation and was not discussed by the Tenth Circuit." Id. at 21. According to CBTC, section 7135(a)(1) "provides an independent basis for ruling that the mixed unit is lawful." Id.

CBTC asserts that the Authority is "not required to defer to circuit court authority in later cases raising the same legal issues" and urges the Authority not to defer to the Tenth Circuit's view of the issues raised in Case No. 39-CA-00697. Id. at 13. Further, CBTC notes that it was not a party to the Tenth Circuit's decision in WAPA v. FLRA and that "the situs of its dispute [is not] within the territorial jurisdiction of the Tenth Circuit." Id. at 14. Accordingly, CBTC argues that it "should be permitted its 'day in court.'" Id.

In conclusion, CBTC contends that Respondent Grand Coulee's and Respondent Reclamation's unilateral withdrawal of recognition of the foremen involved in Case No. 39-CA-00697 violates section 7116(a)(1) and (5) of the Statute. CBTC requests that, in addition to the usual cease and desist orders, the Authority specifically address the following two remedial issues:

First, the [Respondent Reclamation] should be directed specifically to remedy those actions summarized in paragraph 7(a)-(e) of the stipulation [in Case No. 39-CA-00697]. Second, the Authority should order a retroactive remedy as it did in [WAPA 3]. The retroactive date should extend to June 3, 1990, the effective date of [Respondent Grand Coulee's and Respondent Reclamation's] unlawful action.

Id. at 27.

C. Respondents

Relying on the Tenth Circuit's decision in WAPA v. FLRA and the Authority's subsequent decisions in WAPA 5 and WAPA 6, the Respondents contend that they did not commit the unfair labor practices alleged in the complaints in this consolidated case.

The Respondents state that in WAPA v. FLRA, the Tenth Circuit construed the Statute "as prohibiting the inclusion of supervisors in mixed units" and section 9(b) of the PRSA and section 704 of the CSRA "as not preserving mixed bargaining units." Respondents' Brief at 9 (emphasis omitted). The Respondents contend that "[s]ince the facts of these consolidated cases are similar to those in WAPA[ v. FLRA], . . . WAPA[ v. FLRA] is dispositive of these cases." Id. at 14. The Respondents note that the court held that, "at most, section 704 permits the recognition of supervisors in mixed units only if the agency agrees." Id. The Respondents state that "[h]ere, as in WAPA[ v. FLRA], Respondents elected not to agree to continue to bargain with supervisors in mixed units and so advised the [IBEW Local 1245 and CBTC] at the outset of negotiations." Id. (footnote omitted). The Respondents argue that "since Respondents clearly exercised their right [not to] agree to the continuation of mixed bargaining units by notifying the [IBEW Local 1245 and CBTC], respectively, at the outset of renegotiations of their respective collective bargaining agreements, Respondents cannot be found guilty of an unfair labor practice for refusing to bargain with mixed units of supervisory and nonsupervisory employees." Id. at 15 (citing WAPA v. FLRA, 880 F.2d at 1172).

Further, the Respondents assert that in WAPA 5 and WAPA 6, the Authority concluded that, consistent with WAPA v. FLRA, the bargaining unit involved in those cases did "not include supervisory employees because [WAPA] refused to recognize them in the unit." Id. Accordingly, the Respondents state that in WAPA 5 and WAPA 6 the Authority found that "the agency had no duty to bargain with the [IBEW Local 1245 and CBTC] on behalf of such employees on pay or conditions of employment." Id. at 15-16. The Respondent contends that "the same decision must be reached in these cases because the facts and principles of law are similar." Id. at 16. Accordingly, the Respondents claim that because they elected not to recognize the supervisors, they had "no obligation to bargain with the [IBEW Local 1245 and CBTC] on behalf of the [employees in Foreman II and III positions] once Respondents exercised their elective right [not to] agree to mixed bargaining units when the agreements came up for renewal or renegotiations." Id.

In conclusion, the Respondents request that the unfair labor practice complaints in this consolidated case be dismissed.

V. Analysis and Conclusions

Resolution of this case requires us to consider section 9(b) of the PRSA, section 704 of the CSRA, and the Statute. Upon consideration of these statutory provisions and the entire record in this case, we conclude that the Respondent Reclamation violated the Statute as alleged in the complaints in Case No. 3-CA-00633 and Case No. 39-CA-00697. The other allegations of the complaints will be dismissed.

A. Section 9(b) of the PRSA

In enacting section 9(b) of the PRSA, Congress intended to preserve the scope and substance of collective bargaining agreements between representatives of certain prevailing rate employees and Federal agencies entered into by the parties that were in effect on the date of the enactment of the PRSA. In addressing the intended effect of section 9(b), the House report stated that:

Section 9(b) . . . provides that amendments made by the [PRSA] shall not be construed to affect the provisions of an existing contract which resulted from negotiations between agencies and employee organizations. This amendment strengthens the language of section 9(b) of the introduced bill and adds two new paragraphs. The new paragraph (2) provides that the provisions of the contracts which were in effect on the date of enactment of the Act may be renewed, extended, modified or improved through negotiation after the enactment date of this Act. The new paragraph (3) provides that the Act shall not affect any existing agreement between agencies and employee organizations regarding the various items which are negotiable, nor shall the Act preclude the inclusion of new items in connection with the renegotiation of any contract.

H.R. Rep. No. 339, 92d Cong., 1st Sess. 5 (1971). The report further stated:

The provisions of section 9(b) are directed at those groups of Federal employees whose wages and other terms or benefits of employment are fixed in accordance with contracts resulting from the negotiations between their agencies and employee organizations. . . . It is not this committee's intent to affect, in any way, the status of such contracts or to impair the authority of the parties concerned to renegotiate existing contracts or enter into new agreements.

Id. at 22. Additionally, the Senate report stated as follows: "Section 9(b) is a savings clause to prevent the disruption or modification of existing wage board bargaining agreements now in effect." S. Rep. No. 791, 92d Cong., 2d Sess. 6 (1972).

B. Section 704 of the CSRA

Section 704 of the CSRA establishes certain bargaining rights for prevailing rate employees "to whom section 9(b) of Public Law 92-392 applies." Section 704 provides, in relevant part, that the terms and conditions of employment and other employment benefits of these prevailing rate employees that were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, shall be negotiated after the enactment of the CSRA without regard to the provisions of the Statute.⁽⁶⁾ The terms of sections 704 and 9(b), supported by the legislative history of those provisions, authorize parties who had negotiated over a subject matter prior to August 19, 1972, to continue existing contractual terms concerning that subject matter or to modify or improve them when negotiating a new agreement, without regard to any restrictions contained in the Statute. Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA 998 (1986) (Bonneville Power Administration). See National Federation of Federal Employees, Local 341 and U.S. Department of the Interior, Bureau of Indian Affairs, Wapato Irrigation Project, Wapato, Washington, 39 FLRA 1272, 1273, reconsideration as to other matters denied, 40 FLRA 1009 (1991). See also United States Information Agency, Voice of America v. FLRA, 895 F.2d 1449, 1453 (D.C. Cir. 1990).

In particular, the legislative history of section 704 demonstrates that Congress intended to preserve certain collective bargaining relationships that had developed over many years and were protected under section 9(b) of the PRSA. The House Report stated that:

[Section 704] is intended to preserve the existing right of certain Federal prevailing rate employees to negotiate terms and conditions of employment. The committee intends that this subsection preserve unchanged the scope and substance of the existing collective bargaining relationship between the employees' representatives and the agencies involved. The subsection excludes these employees from the restrictions on the scope of collective bargaining under chapter 71, and grants them authority to negotiate pay and pay practices without regard to any provisions of chapters 51, 53, and 55 of title 5, or other provisions relating to rates of pay or pay practices with respect to Federal employees.

H.R. Rep. No. 1403, 95th Cong., 2d Sess. 61-62 (1978), reprinted in Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978 (Comm. Print 1979), at 675, 707-08 (Legislative History).

The Conference Committee, in adopting an amended version of the House provision of section 704, stated that:

[Section 704] provides specific statutory authorization for the negotiation of wages, terms and conditions of employment and other employment benefits traditionally negotiated by these employees in accordance with prevailing practices in the private sector of the economy. [Section 704] authorizes and requires agencies to negotiate on any terms and conditions of employment which were the subject of negotiations prior to August 19, 1972, the date of enactment of Public Law 92-392 [the PSRA]. [Section 704(a)] may not be construed to nullify, curtail, or otherwise impair the right or duty of any party to negotiate for the renewal, extension, modification, or improvements of benefits negotiated.

Conf. Rep. No. 1717, 95th Cong. 2d Sess. 159 (1978) (also printed as S. Rep. No. 95-1272, dated Oct. 4, 1978), reprinted in Legislative History at 793, 827.

C. The Application of Section 9(b) of the PSRA and Section 704 of the CSRA to this Case

By enacting section 9(b) and section 704, Congress intended to authorize and require affected agencies that had negotiated, in accordance with prevailing practices, terms and conditions of employment and other employment benefits prior to August 19, 1972, to continue to negotiate with the exclusive representatives of their employees on those matters. See Mid-Pacific, 43 FLRA at 1156-57. Section 9(b) and section 704 gave agencies and unions specific authorization to modify or improve previously agreed upon matters when negotiating a new agreement, without regard to any restrictions contained in the Statute. See id. As pointed out above, the legislative history of section 9(b) indicates that Congress intended neither "to affect, in any way, the status of . . . contracts [affecting these units,] . . . to impair the authority of the parties concerned to renegotiate existing contracts or enter into new agreements[,]" nor to "disrupt[ ] or modif[y] . . . existing wage board agreements" which were in effect prior to the enactment of the PRSA. H.R. Rep. No. 339, 92d Cong., 1st Sess. 22; S. Rep. No. 791, 92d Cong. 2d Sess. 6.

In our view, the wording of the savings clauses enacted by Congress was broad and included matters relating to employees' unit status, and benefits derived from that unit status, before section 9(b) of the PRSA was enacted. We conclude that Congress intended section 9(b) to include all matters that had been negotiated prior to August 19, 1972, rather than to restrict bargaining by excluding from the scope of the obligation to bargain some matters that had been negotiated previously. Stated otherwise, Congress' use of the phrase "terms and conditions of employment and other employment benefits" was simply a way of describing all matters that parties had negotiated, and was not a limitation designed to exclude some matters from negotiation.

Further, inasmuch as section 704(a) merely carries forward section 9(b), without mandating the exclusion of provisions of the contract or employment benefits that relate to unit status, there is no basis on which to conclude that Congress intended to preclude negotiations over previously negotiated benefits associated with the composition of the bargaining unit. As emphasized above, the pertinent legislative history indicates that section 704 was intended to "preserve unchanged the scope and substance of the existing collective bargaining relationship between [certain prevailing rate] employees' representatives and the agencies involved" that had developed historically under section 9(b) and to not only exclude these employees from generally applicable wage-fixing policies, but also to "exclude[ ] these employees from the restrictions on the scope of collective bargaining under [the Statute.]" Legislative History at 707-08. Additionally, the pertinent legislative history demonstrates that Congress considered the affected parties' mutual rights and obligations in this regard to be mandatory and so specified by stating that section 704 "authorizes and requires agencies to negotiate on any terms and conditions of employment that were the subject of negotiations prior to August 19, 1972[.]" Id. at 827.

In our view, nothing in the plain wording or the legislative history of section 9(b) and section 704 demonstrates that Congress made a distinction among subject matters preserved for negotiation under these sections when the conditions for negotiations are met. Thus, noting particularly Congress' use of the phrase "other employment benefits" in section 704, we conclude that Congress did not intend to exclude a matter from negotiations simply because it concerned a subject that was not a traditional subject of private sector negotiations under the National Labor Relations Act or Federal sector negotiations under the Statute. Additionally, we find no basis in section 9(b) and section 704 for concluding that some subjects preserved for negotiation may be negotiated only if the agency involved consents to such negotiations. In other words, there is no basis to conclude that traditional subjects of negotiation were to be considered mandatory, while nontraditional subjects of negotiation, such as the composition of the bargaining unit, were to be considered permissive. Rather, by enacting section 9(b) and section 704, Congress sought to require agencies to which those provisions applied to negotiate on request on any matters that were the subject of negotiations prior to August 19, 1972. Therefore, we conclude that any subjects preserved for negotiation under section 9(b) and section 704 are mandatory subjects of bargaining.

D. Duty to Bargain

It is undisputed that employees in Foreman II and III positions involved in this consolidated case are prevailing rate employees covered by section 9(b) of the PRSA and section 704 of the CSRA. It is also undisputed that employees in Foreman II and III positions are supervisors within the meaning of section 7103(a)(10) of the Statute. Moreover, the parties' collective bargaining history demonstrates that employees in Foreman II and III positions were included by agreement of the parties in units of prevailing rate employees represented by IBEW Local 1245 and CBTC prior to August 19, 1972. Further, it is undisputed that IBEW Local 1245 and CBTC negotiated the pay, pay practices, and other conditions of employment of employees in Foreman II and III positions prior to August 19, 1972.

It is also undisputed in this case that since 1949 and 1963 CBTC and IBEW, respectively, have represented units of Respondents' employees that included the Foreman II and III positions. Therefore, based on the record before us in this consolidated case, we find that the parties in this case historically negotiated and agreed to the composition of the units at issue in this case. In addition, since those dates, CBTC and IBEW have represented employees in the Foreman II and III positions in negotiations with the Respondents over those employees' "pay, pay practices, and other conditions of employment[.]" Stipulations, paragraph 9. In our view, consistent with our discussion above concerning section 9(b) of the PRSA and section 704 of the CSRA, if the inclusion of employees in Foreman II and III positions in those units was a subject of negotiation between the parties before August 19, 1972, Respondent Mid-Pacific and Respondent Grand Coulee were obligated to bargain with IBEW Local 1245 and CBTC, respectively, concerning that matter, notwithstanding the fact that inclusion of employees in Foreman II and III positions in those units would conflict with section 7112 of the Statute.

Based on the stipulations in this case, we find that the inclusion of employees in Foreman II and III positions in the respective IBEW Local 1245 and CBTC bargaining units was a subject of negotiation between the parties prior to August 19, 1972. Further, we find that the inclusion of those employees in those units concerns a term and condition of employment or other employment benefit of the employees within the meaning of section 9(b) of the PRSA and section 704 of the CSRA. We find, therefore, that, under section 9(b) of the PRSA and section 704 of the CSRA, the inclusion of employees in Foreman II and III positions in the respective bargaining units is a mandatory subject of bargaining.

Consequently, we conclude that Respondent Mid-Pacific and Respondent Grand Coulee were obligated to bargain with IBEW Local 1245 and CBTC, respectively, over the substance of the decision to remove employees in Foreman II and III positions from their respective bargaining units, notwithstanding the fact that mixed units are precluded under sections 7105(a)(2)(A) and 7112 of the Statute. See, for example, Bonneville Power Administration, 22 FLRA at 1006 (the agency was required to negotiate on provisions that pertained to terms and conditions of employment of unit employees within the meaning of section 704 which were subject to negotiations between the agency and union prior to August 19, 1972, notwithstanding their possible conflict with the Statute). See also U.S. Department of the Interior, Bureau of Reclamation, Great Plains Region and International Brotherhood of Electrical Workers, Local 1759, 42 FLRA 902, 916-18 (1991), reconsideration denied, 43 FLRA 314 (1991).

E. WAPA v. FLRA

The Respondents contend that its exclusion of employees in Foreman II and III positions from the units at issue in this case is warranted under the court's decision in WAPA v. FLRA. It is not clear to us that the court's decision in WAPA v. FLRA either must or should be read to permit the unilateral exclusion of the Foreman II and III positions from the units at issue in the circumstances of the consolidated case before us. In any event, to the extent that the decision in WAPA v. FLRA holds that section 704 of the CSRA does not permit negotiations over the continuation of mixed units under any circumstances or that such negotiations may occur only if consented to by an agency, we respectfully disagree for the reasons stated above. As demonstrated in our discussion of the intent of Congress in enacting section 9(b) of the PRSA and section 704 of the CSRA, Congress intended to require agencies to bargain on request on matters that were the subject of negotiation before August 19, 1972. Moreover, by its terms, section 704 applies regardless of any inconsistency with the Statute. Accordingly, we respectfully disagree with the court's determination in WAPA v. FLRA that section 704 of the CSRA does not constitute an exception to section 7112 of the Statute.

F. Violations of the Statute

Because the Respondents had bargained on and agreed to the inclusion of employees in Foreman II and III positions in the units represented by IBEW Local 1245 and CBTC prior to August 19, 1972, the inclusion of those employees in those units was a mandatory subject of bargaining under section 704 and the Respondents were obligated to bargain on any decision to exclude those employees from the respective units. See, for example, U.S. Department of the Interior, Bureau of Reclamation, Missouri Basin Region and International Brotherhood of Electrical Workers, Local 1759, 42 FLRA 820, 831 (1991) (an agency was not justified in unilaterally terminating a provision, which was established in accordance with section 704, in the parties' existing agreement before it completed bargaining over the subject matter of the provision as required under the parties' collective bargaining agreement), reconsideration denied, 43 FLRA 380 (1991), petition for review filed, No. 92-9503 (D.C. Cir. Jan. 23, 1992). Consequently, the Respondents were precluded from unilaterally withdrawing their agreed-upon recognition of the Unions as the exclusive representative of employees in Foreman II and III positions.

Moreover, we note that the Respondents also had negotiated on and agreed to the terms and conditions of employment and other employment benefits of those employees in Foreman II and III positions in the respective bargaining units. Specifically, we note that from 1963 (with respect to Respondent Mid-Pacific and IBEW Local 1245) and from 1949 (with respect to Respondent Grand Coulee and CBTC) until the Respondents' unilateral withdrawal of recognition from the Unions as the exclusive representatives of employees in Foreman II and III positions, the Unions negotiated collective bargaining agreements with the Respondents establishing the terms and conditions of employment, including pay and pay practices, of employees in the Foreman II and III positions in their respective mixed units. Just as the Respondents could not unilaterally terminate their recognition of the Unions as the exclusive representatives of employees in Foreman II and III positions in their respective units in the circumstances of these cases, the Respondents also could not unilaterally terminate, under these circumstances, the application of the parties' collective bargaining agreements to employees in Foreman II and III positions.

We find, therefore, that in these cicumstances, Respondent Mid-Pacific and Respondent Grand Coulee had an obligation to: (1) continue their recognition of IBEW Local 1245 and CBTC, respectively, as the exclusive bargaining representatives of employees in Foreman II and III positions in their units of exclusive recognition; (2) apply the parties' respective collective bargaining agreements to employees in those positions; and (3) pay employees in those positions under the pay scale that had been negotiated for those positions under the parties' respective collective bargaining agreements. Further, we find, with respect to Respondent Grand Coulee, that it had an obligation to continue to apply the parties' collective bargaining agreement to employees temporarily upgraded to the positions of Foreman II and III.

However, Respondent Mid-Pacific and Respondent Grand Coulee unilaterally withdrew their recognition of the Unions as the exclusive representatives of employees in Foreman II and III positions and unilaterally terminated the application of the parties' collective bargaining agreements, including the wage provisions, to employees in those positions. We find that Respondent Mid-Pacific's and Respondent Grand Coulee's unilateral withdrawal of recognition from IBEW Local 1245 and CBTC as the exclusive representatives of employees in Foreman II and III positions, and the accompanying refusal to apply the parties' collective bargaining agreements to those employees, constituted a repudiation of the parties' respective collective bargaining agreements and violates the good-faith bargaining obligation under section 7116(a)(1) and (5) of the Statute. See Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211, 1218-20 (1991) ("Where the nature and scope of the breach [of an agreement] amount to a repudiation of an obligation imposed by the agreement's terms, we will find that an unfair labor practice has occurred in violation of the Statute."); United States Department of Agriculture, Washington, D.C. and United States Department of Agriculture, Farmers Home Administration, Little Rock, Arkansas, 24 FLRA 682, 686 (1986) (FHA, Little Rock) (the repudiation of a provision of the parties' agreement was inconsistent with the activity's good-faith bargaining obligation in violation of the Statute).

Specifically, we find that Respondent Mid-Pacific's and Respondent Grand Coulee's unilateral withdrawal of recognition from the Unions as the exclusive representatives of employees in Foreman II and III positions constituted a total repudiation of the Respondents' obligations to employees in those positions under the parties' respective collective bargaining agreements. Consequently, we conclude that the Respondents' conduct in this regard amounts to a complete rejection of the statutory requirement to bargain in good faith. The nature and scope of the Respondent Mid-Pacific's and Respondent Grand Coulee's refusal went to the heart of the agreement and the collective bargaining relationship itself and, therefore, amounted to a repudiation of the obligation imposed by the terms of the parties' respective agreements in violation of section 7116(a)(1) and (5) of the Statute. See Department of the Interior, Water and Power Resources Service, Grand Coulee Project, Grand Coulee, Washington, 9 FLRA 385 (1982) (Grand Coulee Project).

Further, we find that Respondent Mid-Pacific's and Respondent Grand Coulee's unilateral discontinuance of dues withholding for employees in Foreman II and III positions in their respective units constituted a refusal to comply with section 7115(a) of the Statute, in violation of section 7116(a)(1) and (8) of the Statute. See, for example, U.S. Department of the Treasury, U.S. Mint, 35 FLRA 1095 (1990) (U.S. Mint) (respondent's failure to comply with the requirements of section 7115(a) to honor the assignments from employees in an appropriate unit and to make appropriate allotments pursuant to the assignments violated section 7116(a)(1) and (8) of the Statute).

In light of our findings, we need not address CBTC's contention that section 7135(a)(1) of the Statute "provides an independent basis for ruling that the mixed unit is lawful." See CBTC's Brief at 21.

G. Responsibility for Violations of the Statute

The parties stipulated that Respondent Mid-Pacific and Respondent Grand Coulee engaged in the above-described conduct at the direction of Respondent Reclamation. When management at a higher level in an agency directs or requires management at a subordinate level of exclusive recognition to act in a manner that is inconsistent with the subordinate level's bargaining obligations under the Statute, the higher-level management entity violates section 7116(a)(1) and (5) of the Statute. See, for example, FHA, Little Rock, 24 FLRA at 686; Grand Coulee Project.

Accordingly, because Respondent Reclamation directed Respondent Mid-Pacific and Respondent Grand Coulee to engage in conduct that violated their obligation to bargain with the Unions as the exclusive representatives of employees in Foreman II and III positions, we find that Respondent Reclamation violated section 7116(a)(1) and (5) of the Statute by interfering with the bargaining relationship of the parties at the level of exclusive recognition. We further conclude that in directing Respondent Mid-Pacific and Respondent Grand Coulee to discontinue the dues withholding of employees in Foreman II and III positions, Respondent Reclamation committed a violation of section 7116(a)(1) and (8) of the Statute.

Moreover, because it is undisputed that the decision to engage in the above-described conduct was based on directions received from Respondent Reclamation, we find that Respondent Mid-Pacific and Respondent Grand Coulee were acting in a ministerial capacity and without discretion when they engaged in the above-described conduct. Consequently, we conclude that Respondent Mid-Pacific and Respondent Grand Coulee did not commit the unfair labor practices alleged in the complaints. See, for example, Ogden Air Logistics Center, Hill Air Force Base, Utah and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 39 FLRA 1381, 1392 (1991); FHA, Little Rock; 24 FLRA at 686-87. Consequently, we will dismiss the complaints as to Respondent Mid-Pacific and Respondent Grand Coulee.

VI. Remedy

The General Counsel, Charging Parties, and the Intervenor have requested that we issue an order that fully remedies all unlawful conduct. In addition, CBTC has requested that the order be retroactive to the effective date of the unlawful action. We interpret CBTC's request as a request that we return the parties to the status quo at the time of the Respondents' unlawful action.

Where management changes a condition of employment without fulfilling its obligation to bargain over the change, the Authority grants a status quo ante remedy in the absence of special circumstances. See, for example, Federal Deposit Insurance Corporation, 41 FLRA 272, 279 (1991); U.S. Department of Labor, Washington, D.C., 38 FLRA 899, 913 (1990). See also National Treasury Employees Union v. FLRA, 910 F.2d 964, 969 (D.C. Cir. 1990). We note that no special circumstances are alleged in this case and none are apparent to us. Accordingly, we find that a return to the status quo ante is appropriate to remedy the Respondents' unfair labor practices.

Consequently, we will order Respondent Reclamation to direct Respondent Mid-Pacific and Respondent Grand Coulee to restore their recognition of IBEW Local 1245 and CBTC, respectively, as the exclusive representatives of units that include employees in Foreman II and III positions, and to apply the parties' collective bargaining agreements, including the wage and benefits provisions, to employees in those positions. The respective collective bargaining agreements shall be applied retroactively to the effective date of the Respondents' unlawful change in conditions of employment. If the parties have enacted a new agreement with respect to the bargaining unit, the Respondents will apply the terms of the new agreement as of its effective date.

Moreover, from the time that the Respondents withdrew employees in Foreman II and III positions from the coverage of the parties' collective bargaining agreements, employees in those positions were deprived of access to the negotiated grievance procedure. Consequently, the Respondents should retroactively waive the time limits for filing grievances under their collective bargaining agreement to allow employees in Foreman II and III positions to grieve matters that they would otherwise have been able to grieve had they been covered by the agreement. See Panama Canal Commission, Balboa, Republic of Panama, 43 FLRA 1483 (1992), request for reconsideration denied, 45 FLRA No. 109.

Further, where, during this period, the parties bargained on and agreed to new terms and conditions of employment for employees in the Unions' respective units that would otherwise have applied to employees in Foreman II and III positions, the Respondents shall apply those terms and conditions to employees who were in those positions, including affording them the right to grieve those matters. To the extent that additional bargaining is required to determine how those terms and conditions of employment should be applied to employees in Foreman II and III positions--for example, the appropriate wage increment for employees in those positions in relation to the wage rates for other unit employees--or to address other matters relevant to Foreman II and III positions, the Respondents must bargain with the Unions and apply any agreements reached retroactively to the date of the new agreement covering the bargaining unit.

We will also order Respondent Reclamation to direct Respondent Mid-Pacific and Respondent Grand Coulee to reinstate dues withholdings for employees in Foreman II and III positions. Under section 7115(a), once an employee is included in a bargaining unit, an agency is obligated to honor a dues assignment from that employee and make an appropriate allotment. The stipulation in this case states that Respondent Mid-Pacific and Respondent Grand Coulee, at the direction of Respondent Reclamation, refused to honor such assignments from employees in Foreman II and III positions or to make any appropriate allotments to IBEW Local 1245 and CBTC, respectively. We find that, in the circumstances of this consolidated case, the Unions are entitled to moneys that should have been withheld from employees had dues withholding been in force. Accordingly, we conclude that a remedy ordering reimbursement to the Unions for the dues that they would have received if Respondent Mid-Pacific and Respondent Grand Coulee had not unlawfully discontinued the dues withholding of employees in Foremen II and III positions in the Unions' respective units is authorized under the Statute. See U.S. Mint, 35 FLRA at 1100 ("The remedy for failing to comply with section 7115(a) properly includes a requirement that an agency reimburse a union for the dues it would have received but did not as a result of the unlawful conduct.").

Finally, we conclude that backpay is an appropriate remedy to make whole any employee who suffered a withdrawal or reduction in pay, allowances, or differentials as a result of the Respondents' unlawful actions. In U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland and U.S. Department of Health and Human Services, Social Security Administration, Hartford District Office, Hartford, Connecticut, 37 FLRA 278 (1990) (DHHS, SSA), we set forth an approach for determining when, in addition to a status quo ante award, backpay would be appropriate in "cases involving changes in conditions of employment resulting from unlawful refusals to bargain, regardless of whether the status quo ante award stems from a refusal to bargain over [the substance of] a decision or from an analysis conducted under Federal Correctional [Institution, 8 FLRA 604 (1982)] concerning a failure to engage in impact and implementation bargaining." DHHS, SSA, 37 FLRA at 291. We stated that in such cases, if we determine that "the agency's actions resulted in a withdrawal or reduction in pay, allowances or differentials of identifiable employees, we will then order the agency to make such employees whole for that withdrawal or reduction." Id. at 292. We further stated that we would "leave to the compliance stage any questions as to the actual amount to be paid." Id. (footnote omitted).

We conclude that the Respondents' refusal to apply the terms and conditions of the Unions' collective bargaining agreements with the Respondents to the employees in Foreman II and Foreman III positions resulted in a withdrawal or reduction in pay, allowances, or differentials which the employees in Foreman II and Foreman III positions had been receiving prior to the change. For example, the record shows that after the Respondents withdrew employees in Foreman II and III positions from coverage under the pay provisions of the parties' collective bargaining agreements, the Respondents paid those employees under an administrative pay scale which was subject to premium pay and pay increase limitations not previously applicable to employees in Foreman II and III positions. See Case No. 3-CA-00633, Joint Exhibit No. 6; Case No. 39-CA-00697, Joint Exhibit No. 7. Therefore, the causal nexus required by the Back Pay Act, 5 U.S.C. § 5596, has been established. See DHHS, SSA, 37 FLRA at 289-90.

Accordingly, we will order Respondent Reclamation to direct Respondent Mid-Pacific and Respondent Grand Coulee to return to the status quo ante and to make employees in the Foreman II and Foreman III positions whole for any withdrawal or reduction in pay, allowances, or differentials as a result of the Respondents' unlawful actions. Specifically, Respondents shall pay employees in Foreman II and III positions who were in those positions during the period of the repudiation the difference between what they were paid under the administrative pay scale and what they would otherwise have been paid under the collective bargaining agreements applicable to those employees. The amount of the backpay owed each employee will be a matter for compliance. DHHS, SSA, 37 FLRA at 291-93.

VII. Order

        A. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the U.S. Department of the Interior, Bureau of Reclamation, Washington, D.C. shall:

    1. Cease and desist from:

        (a) Interfering with the bargaining relationship of the Bureau of Reclamation, Mid-Pacific Regional Office, Sacramento, California (Mid-Pacific) and the International Brotherhood of Electrical Workers (IBEW), Local 1245 at the level of exclusive recognition by directing Mid-Pacific to: (1) withdraw its recognition of IBEW Local 1245 as the exclusive bargaining representative of employees in the Local's mixed unit of supervisory and nonsupervisory employees classified as Working Foreman and Foreman (Foreman II and III) and thereby fail to bargain in good faith with IBEW Local 1245; (2) refuse to comply with section 7115(a) of the Statute by discontinuing dues withholding for these foremen; (3) place the foremen on an administrative pay scale; and (4) not comply with the terms and conditions of IBEW's collective bargaining agreement with the U.S. Department of the Interior, Bureau of Reclamation, Washington, D.C. and Mid-Pacific in repudiation of its agreement with IBEW as it relates to the Foreman II and III.

        (b) Interfering with the bargaining relationship of Mid-Pacific and IBEW Local 1245 at the level of exclusive recognition by directing Mid-Pacific to refuse to recognize employees in Foreman II and III positions as being included in an appropriate mixed bargaining unit of supervisory and nonsupervisory prevailing rate employees.

        (c) Directing Mid-Pacific to refuse to comply with the provisions of section 7115(a) of the Statute by refusing to honor valid written dues assignments from bargaining unit employees in Foreman II and III positions for the payment of regular and periodic dues to IBEW Local 1245 as the exclusive bargaining representative of employees in the Local's mixed unit of supervisory and nonsupervisory employees.

        (d) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

    2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

        (a) Inform Mid-Pacific and IBEW Local 1245, in writing, that Mid-Pacific shall reinstate its recognition of IBEW Local 1245 as the exclusive bargaining representative of employees in the Local's mixed unit of supervisory and nonsupervisory employees classified as Foreman II and III and apply the parties' collective bargaining agreement, including wage and benefit provisions, to the employees in those positions. The collective bargaining agreement shall be applied retroactively to the effective date of the Mid-Pacific's unlawful change in conditions of employment. If the parties have enacted a new agreement with respect to the bargaining unit, Mid-Pacific will apply the terms of the new agreement as of its effective date.

        (b) Direct Mid-Pacific to recognize employees in Foreman II and III positions as being included in an appropriate mixed bargaining unit of supervisory and nonsupervisory prevailing rate employees represented by IBEW Local 1245, their exclusive bargaining representative.

        (c) Direct Mid-Pacific to reinstate, retroactive to the date of Mid-Pacific's unlawful change in conditions of employment, the right of employees in Foreman II and III positions to appeal adverse actions through the administrative appeals procedures as required by its collective bargaining agreement with IBEW Local 1245. Mid-Pacific shall be directed to waive the time limits for filing grievances under the parties' agreement to allow employees in Foreman II and III positions to grieve matters that they would otherwise have been able to grieve had they been covered by the agreement.

        (d) In accordance with the Back Pay Act, 5 U.S.C. § 5596, direct Mid-Pacific to make whole affected employees in the Foreman II and III positions for any withdrawal or reduction in pay, allowances, or differentials that resulted from Mid-Pacific's repudiation of its collective bargaining agreement with IBEW Local 1245 with respect to employees in Foreman II and III positions. The employees who were in the Foreman II and III positions during the period of repudiation shall be paid the difference between what they were paid under the administrative pay scale and what they would otherwise have been paid under the collective bargaining agreement between Mid-Pacific and IBEW Local 1245 applicable to the affected employees.

        (e) Direct Mid-Pacific to reimburse the exclusive representative, IBEW Local 1245, an amount equal to the regular and periodic dues it would have received, but did not, from unit employees in Foreman II and III positions who had their dues withholdings unlawfully discontinued as a result of the unlawful refusal to honor the employees' valid written dues assignment for such purposes.

        (f) Direct Mid-Pacific to deduct, commencing with the first pay period after the date of this Order, regular and periodic dues from the pay of: (1) bargaining unit employees in Foreman II and III positions who had their dues assignments unlawfully discontinued; and (2) any other unit employee in Foreman II and III positions who may in the future complete a valid written dues assignment for such purpose and make an appropriate allotment of such dues to the exclusive representative, IBEW Local 1245.

        (g) Post at its facilities at Mid-Pacific, where bargaining unit employees represented IBEW Local 1245 are located, copies of the attached Notice A on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director, Bureau of Reclamation, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

        (h) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

        B. Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor Management Relations Statute, the U.S. Department of the Interior, Bureau of Reclamation, Washington, D.C. shall:

    1. Cease and desist from:

        (a) Interfering with the bargaining relationship of the Bureau of Reclamation, Grand Coulee Project Office, Grand Coulee, Washington (Grand Coulee) and the Columbia Basin Trades Council, AFL-CIO (CBTC), at the level of exclusive recognition by directing Grand Coulee to: (1) withdraw its recognition of CBTC as the exclusive bargaining representative of employees in CBTC's mixed unit of supervisory and nonsupervisory employees classified as Working Foreman and Foreman (Foreman II and III) and thereby fail to bargain in good faith with CBTC; (2) refuse to comply with section 7115(a) of the Statute by discontinuing dues withholding for these foremen; (3) place the foremen on an administrative pay scale; and (4) not comply with the terms and conditions of CBTC's collective bargaining agreement with the U.S. Department of the Interior, Bureau of Reclamation, Washington, D.C. and Grand Coulee in repudiation of its agreement with CBTC as it relates to Foreman II and III.

        (b) Interfering with the bargaining relationship of Grand Coulee and CBTC at the level of exclusive recognition by directing Grand Coulee to refuse to recognize employees in Foreman II and III positions as being included in an appropriate mixed bargaining unit of supervisory and nonsupervisory prevailing rate employees.

        (c) Directing Grand Coulee to refuse to comply with the provisions of section 7115(a) of the Statute by refusing to honor valid written dues assignments from bargaining unit employees in Foreman II and III positions for the payment of regular and periodic dues to CBTC as the exclusive bargaining representative of employees in the CBTC's mixed unit of supervisory and nonsupervisory employees.

        (d) In any like or related manner interfering with, restraining or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

    2. Take the following affirmative action in order to effectuate the purposes and policies of the Statute:

        (a) Inform Grand Coulee and CBTC, in writing, that Grand Coulee shall reinstate its recognition of CBTC as the exclusive bargaining representative of employees in CBTC's mixed unit of supervisory and nonsupervisory employees classified as Foreman II and III and apply the parties' collective bargaining agreement, including wage and benefit provisions, to the employees in those positions. The collective bargaining agreement shall be applied retroactively to the effective date of the Grand Coulee's unlawful change in conditions of employment. If the parties have enacted a new agreement with respect to the bargaining unit, Grand Coulee will apply the terms of the new agreement as of its effective date.

        (b) Direct Grand Coulee to recognize employees in Foreman II and III positions as being included in an appropriate mixed bargaining unit of supervisory and nonsupervisory prevailing rate employees represented by CBTC, their exclusive bargaining representative.

        (c) Direct Grand Coulee to reinstate, retroactive to the date of Grand Coulee's unlawful change in conditions of employment, the right of employees in Foreman II and III positions to appeal adverse actions through the administrative appeals procedures as required by its collective bargaining agreement with CBTC. Grand Coulee shall be directed to waive the time limits for filing grievances under the parties' agreement to allow employees in Foreman II and III positions to grieve matters that they would otherwise have been able to grieve had they been covered by the agreement.

        (d) In accordance with the Back Pay Act, 5 U.S.C. § 5596, direct Grand Coulee to make whole affected employees in the Foreman II and III positions for any withdrawal or reduction in pay, allowances, or differentials as a result of Grand Coulee's total repudiation of its collective bargaining agreement with CBTC. The employees who were in the Foreman II and III positions during the period of repudiation shall be paid the difference between what they were paid under the administrative pay scale and what they would otherwise have been paid under the collective bargaining agreement between Grand Coulee and CBTC applicable to the affected employees.

        (e) Direct Grand Coulee to reimburse the exclusive representative, CBTC, in an amount equal to the regular and periodic dues it would have received, but did not, from unit employees in Foreman II and III positions who had their dues withholdings unlawfully discontinued as a result of the unlawful refusal to honor the employees' valid written dues assignment for such purposes.

        (f) Direct Grand Coulee to deduct, commencing with the first pay period after the date of this Order, regular and periodic dues from the pay of: (1) bargaining unit employees in Foreman II and III positions who had their dues assignments unlawfully discontinued; and (2) any other uni employee in Foreman II and III positions who may in the future complete a valid written dues assignment for such purpose and make an appropriate allotment of such dues to the exclusive representative, CBTC.

        (g) Post at its facilities at Grand Coulee, where bargaining unit employees represented CBTC are located, copies of the attached Notice B on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Director, Bureau of Reclamation, and shall be posted and maintained for 60 consecutive days thereafter, in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted. Reasonable steps shall be taken to ensure that such Notices are not altered, defaced, or covered by any other material.

        (h) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Washington, D.C. Regional Office, Federal Labor Relations Authority, in writing, within 30 days from the date of this Order, as to what steps have been taken to comply.

    C. It is further ordered that the complaints in this consolidated case against the Bureau of Reclamation, Mid-Pacific Regional Office, Sacramento, California and the Bureau of Reclamation, Grand Coulee Project Office, Grand Coulee, Washington be dismissed.

NOTICE A

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT interfere with the bargaining relationship of the Bureau of Reclamation, Mid-Pacific Regional Office, Sacramento, California (Mid-Pacific) and the International Brotherhood of Electrical Workers (IBEW), Local 1245 at the level of exclusive recognition by directing Mid-Pacific to: (1) withdraw its recognition of IBEW Local 1245 as the exclusive bargaining representative of employees in the Local's mixed unit of supervisory and nonsupervisory employees classified as Working Foreman and Foreman (Foreman II and III) and thereby fail to bargain in good faith with IBEW Local 1245; (2) refuse to comply with section 7115(a) of the Statute by discontinuing dues withholding for these foremen; (3) place the foremen on an administrative pay scale; and (4) not comply with the terms and conditions of IBEW's collective bargaining agreement with the U.S. Department of the Interior, Bureau of Reclamation, Washington, D.C. and Mid-Pacific in repudiation of its agreement with IBEW as it relates to the Foreman II and III.

WE WILL NOT interfere with the bargaining relationship of Mid-Pacific and IBEW Local 1245 at the level of exclusive recognition by directing Mid-Pacific to refuse to recognize employees in Foreman II and III positions as being included in an appropriate mixed bargaining unit of supervisory and nonsupervisory prevailing rate employees.

WE WILL NOT direct Mid-Pacific to refuse to comply with the provisions of section 7115(a) of the Statute by refusing to honor valid written dues assignments from bargaining unit employees in Foreman II and III positions for the payment of regular and periodic dues to IBEW Local 1245 as the exclusive bargaining representative of employees in the Local's mixed unit of supervisory and nonsupervisory employees.

WE WILL NOT, in any like or related manner, interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL inform Mid-Pacific and IBEW Local 1245, in writing, that Mid-Pacific shall reinstate its recognition of IBEW Local 1245 as the exclusive bargaining representative of employees in the Local's mixed unit of supervisory and nonsupervisory employees classified as Foreman II and III and apply the parties' collective bargaining agreement, including wage and benefit provisions, to the employees in those positions. The collective bargaining agreement shall be applied retroactively to the effective date of Mid-Pacific's unlawful change in conditions of employment. If the parties have enacted a new agreement with respect to the bargaining unit, Mid-Pacific will apply the terms of the new agreement as of its effective date.

WE WILL direct Mid-Pacific to recognize employees in Foreman II and III positions as being included in an appropriate mixed bargaining unit of supervisory and nonsupervisory prevailing rate employees represented by IBEW Local 1245, their exclusive bargaining representative.

WE WILL direct Mid-Pacific to reinstate, retroactive to the date of Mid-Pacific's unlawful change in conditions of employment, the right of employees in Foreman II and III positions to appeal adverse actions through the administrative appeals procedures as required by its collective bargaining agreement with IBEW Local 1245. We will direct Mid-Pacific to waive the time limits for filing grievances under the parties' agreement to allow employees in Foreman II and III positions to grieve matters that they would otherwise have been able to grieve had they been covered by the agreement.

WE WILL, in accordance with the Back Pay Act, 5 U.S.C. § 5596, direct Mid-Pacific to make whole affected employees in the Foreman II and III positions for any withdrawal or reduction in pay, allowances, or differentials that resulted from Mid-Pacific's repudiation of its collective bargaining agreement with IBEW Local 1245 with respect to employees in Foreman II and III positions. The employees who were in the Foreman II and III positions during the period of repudiation shall be paid the difference between what they were paid under the administrative pay scale and what they would otherwise have been paid under the collective bargaining agreement between Mid-Pacific and IBEW Local 1245.

WE WILL direct Mid-Pacific to reimburse the exclusive representative, IBEW Local 1245, an amount equal to the regular and periodic dues it would have received, but did not, from unit employees in Foreman II and III positions who had their dues withholdings unlawfully discontinued as a

result of the unlawful refusal to honor the employees' valid written dues assignment for such purposes.

WE WILL direct Mid-Pacific to deduct, commencing with the first pay period after the date of this Order, regular and periodic dues from the pay of: (1) bargaining unit employees in Foreman II and III positions who had their dues assignments unlawfully discontinued; and (2) any other unit employee in Foreman II and III positions who may in the future complete a valid written dues assignment for such purpose and make an appropriate allotment of such dues to the exclusive representative, IBEW Local 1245.

________________________________
(Agency)

Dated:____________ By:______________________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Washington, D.C. Regional Office, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500.

NOTICE B

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT interfere with the bargaining relationship of the Bureau of Reclamation, Grand Coulee Project Office, Grand Coulee, Washington (Grand Coulee) and the Columbia Basin Trades Council, AFL-CIO (CBTC), at the level of exclusive recognition by directing Grand Coulee to: (1) withdraw its recognition of CBTC as the exclusive bargaining representative of employees in CBTC's mixed unit of supervisory and nonsupervisory employees classified as Working Foreman and Foreman (Foreman II and III) and thereby fail to bargain in good faith with CBTC; (2) refuse to comply with section 7115(a) of the Statute by discontinuing dues withholding for these foremen; (3) place the foremen on an administrative pay scale; and (4) not comply with the terms and conditions of CBTC's collective bargaining agreement with the U.S. Department of the Interior, Bureau of Reclamation, Washington, D.C. and Grand Coulee in repudiation of its agreement with CBTC as it relates to the Foreman II and III.

WE WILL NOT interfere with the bargaining relationship of Grand Coulee and CBTC at the level of exclusive recognition by directing Grand Coulee to refuse to recognize employees in Foreman II and III positions as being included in an appropriate mixed bargaining unit of supervisory and nonsupervisory prevailing rate employees.

WE WILL NOT direct Grand Coulee to refuse to comply with the provisions of section 7115(a) of the Statute by refusing to honor valid written dues assignments from bargaining unit employees in Foreman II and III positions for the payment of regular and periodic dues to CBTC as the exclusive bargaining representative of employees in the CBTC's mixed unit of supervisory and nonsupervisory employees.

WE WILL NOT, in any like or related manner, interfere with, restrain or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL inform Grand Coulee and CBTC, in writing, that Grand Coulee shall reinstate its recognition of CBTC as the exclusive bargaining representative of employees in CBTC's mixed unit of supervisory and nonsupervisory employees classified as Foreman II and III and apply the parties' collective bargaining agreement, including wage and benefit provisions, to the employees in those positions. The collective bargaining agreement shall be applied retroactively to the effective date of Grand Coulee's unlawful change in conditions of employment. If the parties have enacted a new agreement with respect to the bargaining unit, Grand Coulee will apply the terms of the new agreement as of its effective date.

WE WILL direct Grand Coulee to recognize employees in Foreman II and III positions as being included in an appropriate mixed bargaining unit of supervisory and nonsupervisory prevailing rate employees represented by CBTC, their exclusive bargaining representative.

WE WILL direct Grand Coulee to reinstate, retroactive to the date of Grand Coulee's unlawful change in conditions of employment, the right of employees in Foreman II and III positions to appeal adverse actions through the administrative appeals procedures as required by its collective bargaining agreement with CBTC. We will direct Grand Coulee to waive the time limits for filing grievances under the parties' agreement to allow employees in Foreman II and III positions to grieve matters that they would otherwise have been able to grieve had they been covered by the agreement.

WE WILL, in accordance with the Back Pay Act, 5 U.S.C. § 5596, direct Grand Coulee to make whole affected employees in the Foreman II and III positions for any withdrawal or reduction in pay, allowances, or differentials as a result of Grand Coulee's total repudiation of its collective bargaining agreement with CBTC. The employees who were in the Foreman II and III positions during the period of repudiation shall be paid the difference between what they were paid under the administrative pay scale and what they would otherwise have been paid under the collective bargaining agreement between Grand Coulee and CBTC applicable to the affected employees.

WE WILL direct Grand Coulee to reimburse the exclusive representative, CBTC, in an amount equal to the regular and

periodic dues it would have received, but did not, from unit employees in Foreman II and III positions who had their dues withholdings unlawfully discontinued as a result of the unlawful refusal to honor the employees' valid written dues assignment for such purposes.

WE WILL direct Grand Coulee to deduct, commencing with the first pay period after the date of this Order, regular and periodic dues from the pay of: (1) bargaining unit employees in Foreman II and III positions who had their dues assignments unlawfully discontinued; and (2) any other unit employee in Foreman II and III positions who may in the future complete a valid written dues assignment for such purpose and make an appropriate allotment of such dues to the exclusive representative, CBTC.

(Agency)

Dated:__________ By:___________________

(Signature) (Title)

This Notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material.

If employees have any questions concerning this Notice or compliance with its provisions, they may communicate directly with the Regional Director, Washington, D.C. Regional Office, San Francisco Regional Office, Federal Labor Relations Authority, whose address is: 1111 18th Street, N.W., 7th Floor, P.O. Box 33758, Washington, D.C. 20033-0758 and whose telephone number is: (202) 653-8500.

Opinion of Member Talkin, Dissenting

I am persuaded that the United States Court of Appeals for the Tenth Circuit in United States Department of Energy, Western Area Power Administration, Golden, Colorado v. FLRA, 880 F.2d 1163 (10th Cir. 1989) (WAPA v. FLRA) correctly interpreted section 7112 of the Statute as it relates to section 9(b) of the Prevailing Rate Systems Act and section 704 of the Civil Service Reform Act. Accordingly, I respectfully dissent.

In WAPA v. FLRA, the court refused to defer to the Authority's interpretation of section 704, the same interpretation to which the majority continues to adhere. The court found that, like here, the employees at issue were "entitled to the application of [s]ection 704." WAPA v. FLRA at 1169. However, the court stated that the Authority had not "explained how a previously voluntary bargaining relationship [had] been converted into a vested right for [those] supervisory employees to be included in a particular bargaining unit when one party . . . does not agree." Id. at 1170. I do not believe that the majority has given an adequate explanation for such a finding here.

Contrary to the Authority's position, the court concluded that section 704 does not "trump[] the prohibition on supervisors in [s]ection 7112" and that the section 7112 prohibition on finding a mixed bargaining unit appropriate is consistent with section 704. Id. at 1169. In this regard the court specifically rejected the Authority's argument, repeated by the majority here, that the scope of the bargaining unit is included within the phrase "terms and conditions of employment" found in section 704. I agree with the court's conclusions. For the same reasons, neither do I believe, contrary to my colleagues, that the inclusion of supervisors in a bargaining unit can be viewed as "[an]other employment benefit[]" under section 704.

It is my view that the court was correct when it concluded that section 9(b) of the Prevailing Rate Systems Act "merely protects certain collective bargaining contracts and the rights of parties to renegotiate them from the effect of the Prevailing Rate Systems Act; it does not provide an exception to the prohibition of supervisors in bargaining units contained in the Civil Service Reform Act." Id. I would find that where, as here, the scope of the bargaining unit was a subject of bargaining between the parties prior to 1972, "the policy behind [s]ection 704, which purports to preserve historical subjects of negotiation, would appear to be applicable to negotiations regarding the appropriate bargaining unit." Id. at 1170.

Therefore, in agreement with the court, I would conclude that "[s]ection 704, in conjunction with [s]ection 9(b), does not establish any vested right in the supervisors to be part of a bargaining unit. Rather, it merely preserves the negotiability of historical subjects of negotiation." Id. (emphasis in original). At most, section 9(b) "allows employees to continue to negotiate as part of a mixed unit" if the parties agree. Id. at 1172. Therefore, even if the continued inclusion of supervisors in the bargaining unit is a subject of negotiation permitted by section 704 and, therefore, upon agreement of the parties, a mixed unit would be allowed as an exception to the prohibition found in section 7112 of the Statute, the employing agencies in this case are "under no obligation to agree to a mixed unit. At most, [s]ection 704 authorizes mixed units if [they] consent[]." Id. at 1170.

Because there has been no agreement between the parties to continue negotiating over the terms and conditions of the employees at issue as part of mixed bargaining units, the unlawful refusal to bargain, as alleged, cannot be found. While there may be a viable theory here of a violation of the Statute, none was alleged or argued. Accordingly, I would dismiss the complaints.

APPENDIX

Section 9(b) of the Prevailing Rate Systems Act of 1972, Pub. L. No. 92-392, codified at 5 U.S.C. § 5343 (Amendments, note), provides that:

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 [Aug. 19, 1972] 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 [Aug. 19, 1972] 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 [Aug. 19, 1972] any agreement, arrangement, or understanding in effect on such date [Aug. 19, 1972] with respect to the various items of subject matter of the negotiations on which any such contract in effect on such date [Aug. 19, 1972] 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 [Aug. 19, 1972].

Section 704 of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat. 1111, 1218, codified at 5 U.S.C. § 5343 (Amendments), provides that:

      (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 [Oct. 13, 1978] in accordance with the provisions of section 9(b) of Public Law 92-392 without regard to any provision 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.

Section 7135(a) of the Statute provides the following:

§ 7135. Continuation of existing laws, recognitions, agreements, and procedures

        (a) Nothing contained in this chapter shall preclude--

        (1) the renewal or continuation of an exclusive recognition, certification of an exclusive representative, or a lawful agreement between an agency and an exclusive representative of its employees which is entered into before the effective date of this chapter; or

        (2) the renewal, continuation, or initial according of recognition for units of management officials or supervisors represented by labor organizations which historically or traditionally represent management officials or supervisors in private industry and which hold exclusive recognition for units of such officials or supervisors in any agency on the effective date of this chapter.

---

---

---

FOOTNOTES:
(If blank, the decision does not have footnotes.)

1. Member Talkin's dissenting opinion is set forth after the majority opinion.

2. The provisions of section 9(b) of the PRSA and section 704 of the CSRA are found in the Appendix to this decision.

3. A dispute subsequently arose between WAPA and IBEW over the unit status of employees in Foreman II and III positions who were transferred in 1977 from the Department of the Interior to the Department of Energy. The history of that dispute is set forth in the Authority's decisions in WAPA 1; Department of Energy, Western Area Power Administration, Golden, Colorado, Case No. 7-CU-24 (Feb. 17, 1981) (WAPA 2); U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 22 FLRA 758 (1986) (WAPA 3), rev'd, 880 F.2d 1163 (10th Cir. 1989); U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 27 FLRA 268 (1987) (WAPA 4), rev'd, No. 87-2062 (10th Cir. Nov. 15, 1989) (order); U.S. Department of Energy, Washington, D.C. and Western Area Power Administration, Golden, Colorado, 34 FLRA 361 (1990) (WAPA 5); U.S. Department of Energy, Washington, D.C. and Western Area Power Administration, Golden, Colorado, 34 FLRA 368 (1990) (WAPA 6); and U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 38 FLRA 935 (1990) (WAPA 7). During the course of the dispute, transferred employees in Foreman II and III positions were reclassified by WAPA as Supervisory Craftsmen. See WAPA 2 and WAPA 3. Noting that the parties and the issue before it were the same parties and issue that were before the court in WAPA v. FLRA, the Authority concluded in WAPA 5 and WAPA 6 that the transferred employees in Foreman II and III positions reclassified by WAPA as Supervisory Craftsmen were not included in the unit of prevailing rate employees represented by the union in those cases.

4. The positions of IBEW and Local 1245 are set forth in the same brief and, for convenience, will be referred to as IBEW's position.

5. Section 7135(a) is set forth in the Appendix to this decision.

6. Section 704(b) provides that terms and conditions of employment described as "pay and pay practices" may be negotiated only in accordance with current prevailing rates and practices in the industry.

---