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47 FLRA No. 5

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL ASSOCIATION OF GOVERNMENT EMPLOYEES

LOCAL R14-143

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

LOWER COLORADO REGIONAL OFFICE

YUMA PROJECTS OFFICE

YUMA, ARIZONA

(Agency)

0-NG-2086

_____

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

March 5, 1993

_____

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Labor-Management Relations Statute (the Statute). The appeal concerns the negotiability of one proposal concerning unit employees' pay. For the reasons stated below, we find that the proposal is nonnegotiable.

II. Background

The bargaining unit involved in this case encompasses employees who negotiate pursuant to 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) (1988 ed.) and 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) (1988 ed.). These provisions authorize parties who negotiated over a subject matter prior to August 19, 1972, to continue an existing contract provision concerning that subject matter or to modify or improve it when negotiating a new agreement, without regard to restrictions in the Statute. See International Brotherhood of Electrical Workers, Local 1245 and U.S. Department of the Interior, Bureau of Reclamation, Mid-Pacific Regional Office, Sacramento, California, 43 FLRA 1155, 1156 (1992) (Bureau of Reclamation). See also United States Information Agency v. FLRA, 895 F.2d 1449 (D.C. Cir. 1990) (USIA v. FLRA); U.S. Department of Interior, Bureau of Reclamation, Lower Colorado Dams Project Office, Parker and Davis Dams and International Brotherhood of Electrical Workers, Local 640, 41 FLRA 119, 126 (1991) (Parker and Davis Dams), order denying motion for reconsideration, 42 FLRA 76 (1991).

Section 704(b) establishes the scope of bargaining over the specific category of conditions of employment described as "pay and pay practices." Parker and Davis Dams, 41 FLRA at 127. Under section 704(b), employees who negotiated over pay and pay practices in accordance with prevailing rates and practices prior to August 19, 1972, may continue to do so only insofar as such matters are in accordance with current prevailing rates and practices. Id. at 128. That is, under section 704(b), current prevailing practices determine whether, and to what extent, a proposal is negotiable. Id.

For the purposes of section 704(b), the term "pay" encompasses the rate of basic pay for a position held by an employee covered by section 704. United States Information Agency, Voice of America, 37 FLRA 849, 859 (1990). The term "pay practices" encompasses matters considered part of an employee's compensation package, including: (1) adjustments to an employee's basic rate of pay; (2) matters concerning the payment of differentials, overtime, and premiums; and (3) any other general compensation policies that were entered into and became a part of the total compensation package. Id. at 861.

III. Proposal

Section 1. Dual Classification:

When employees are worked in more than one classification, they shall be paid at the rate of the higher classification for the period of time worked, provided it is one (1) or more hours.

IV. Positions of the Parties

Relying on Parker and Davis Dams, the Agency contends that "even though the parties had . . . negotiated on this particular pay practice[]" prior to August 19, 1972, they may not do so now because the proposal is not consistent with current prevailing practices. Statement of Position at 4. The Agency further contends that, during negotiations, it notified the Union that dual classification pay is not a current prevailing practice because "only one survey entity in the entire preliminary nationwide survey reported a similar pay practice[.]" Id. The Agency concludes that, as "[d]ual [c]lassification pay is not currently a prevailing pay practice in the industries surveyed by the parties to determine prevailing rates and practice[,]" the proposal is inconsistent with the requirements of section 704(b) and is not negotiable. Id. at 2-3.

The Union did not file a reply brief and has presented no arguments or information concerning the Agency's claim that these proposals are not negotiable under section 704.

V. Analysis and Conclusions

The proposal in this case concerns dual classification pay. We find that this matter falls within the definition of "pay practices" as set forth above. That is, it relates to adjustments to an employee's basic rate of pay and the payment of differentials and premiums. In order for the proposal to be negotiable under section 704(b), it must: (1) concern a matter that was bargained over in accordance with prevailing rates and practices prior to August 19, 1972; and (2) be in accordance with current prevailing rates and practices. See USIA v. FLRA, 895 F.2d at 1454; Parker and Davis Dams, 41 FLRA at 126-28.

Here, the Agency's assertion that the proposal is not in accordance with current prevailing rates and practices is undisputed. Accordingly, as there is nothing in the record establishing that the proposal is "in accordance with the current prevailing rates and practices," as required by section 704(b), we conclude that the proposal is nonnegotiable. National Federation of Federal Employees, Local 1487 and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Yuma Projects Office, Yuma, Arizona, 44 FLRA 945, 948 (1992); Bureau of Reclamation, 43 FLRA at 1159. It is well established, in this regard, that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982).

VI. Order

The Union's petition for review is dismissed.

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

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