---

51 FLRA No. 25

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES

LOCAL 3062

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

NATIONAL PARK SERVICE

LAKE MEAD NATIONAL RECREATION AREA

BOULDER CITY, NEVADA

(Agency)

0-NG-2031

DECISION AND ORDER ON NEGOTIABILITY ISSUES

September 30, 1995

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of four proposals.⁽¹⁾

All of the proposals under consideration concern overtime payments. Proposal 2-2d requires the Agency to pay an employee the equivalent of 2 hours at the appropriate overtime rate when scheduled overtime is canceled less than 4 hours from the end of the employee's last regularly scheduled shift. See Section IV, infra. Proposal 2-3b provides for compensation at twice the normal rate for all emergency and unscheduled overtime. See Section V, infra. Proposal 2-3c limits the application of the double time rate provision in Proposal 2-3b, by describing certain circumstances when overtime will be paid at the time-and-one half rate instead of the double time rate. See Section V, infra. Proposal 2-4b provides that when an employee is called in to work for an overtime assignment, he or she will be paid from the time the employee leaves home up until the time the employee returns home after completing the assignment. See Section VI, infra.

For the reasons that follow, we conclude that Proposals 2-2d and 2-4b are not preserved for bargaining under section 704(a) of the Civil Service Reform Act (CSRA), 5 U.S.C. § 5343 note.⁽²⁾ However, we conclude that Proposals 2-3b and 2-3c are preserved for bargaining under section 704 and, therefore, are negotiable.

II. Background

The parties, Lake Mead National Recreation Area and the American Federation of Government Employees (AFGE), Local 3062, have negotiated collective bargaining agreements since 1971. The parties have historically bargained pay and pay practices in accordance with section 9(b) of the Prevailing Rate Systems Act (PRSA),⁽³⁾ 5 U.S.C. § 5343 note, and section 704 of the CSRA.

Prior to August 19, 1972, the parties entered into a Basic Agreement (exhibit 3 to Negotiability Petition (Petition)) and numerous Supplemental Agreements (miscellaneous exhibits to Petition). Through these agreements the parties established matters such as the relevant industry for pay rates (exhibit 3), the basic workweek and hours of work (exhibit 4), and various overtime payment provisions (exhibit 6). The parties also agreed (exhibit 5 to the Petition) to adopt the pay rates, rules and practices established by the Bureau of Reclamation and AFGE, Local 1978 covering Hoover Dam employees (Reclamation agreement). However, as will be developed later (see note 13 and Section VI.B., infra), not all of the practices agreed to in the Reclamation agreements were adopted by the parties.

The record in this case evidences the parties' apparent agreement that the disputed proposals are nonnegotiable under the Statute. The Union's Petition focuses exclusively on whether the proposals at issue were the subject of negotiation prior to August 19, 1972. Similarly, the Agency's Statement, with one minor exception, also addresses only whether the disputed proposals are preserved for bargaining under section 704.

III. Analytical Framework for Determining Negotiability Under Section 704

Before addressing the proposals in this case, we clarify the framework for analyzing cases that arise under section 704. In this regard, we discuss the purpose of section 704, its interrelationship with the Statute, and the requirements of section 704(a) and section 704(b).

A. Purpose of Section 704

"[S]ection 704 was intended to 'grandfather' collective bargaining agreements between prevailing rate employees and federal employers that were in effect at the time the Civil Service Reform Act was enacted . . . [and] preserve[] for future negotiations those pay practices that had previously [prior to August 19, 1972] been the subject of negotiation . . . ." U.S. Dept. of Interior v. FLRA, 908 F.2d 570, 574 (10th Cir. 1990). See also Columbia Power Trades Council v. U.S. Dept. of Energy, 671 F.2d 325, 328 (9th Cir. 1982) (Columbia Power) ("§ 704 was aimed at any inconsistency in provisions of the [Statute] which would limit the areas about which these employees could collectively bargain"). In enacting the Civil Service Reform Act, rather than alter certain historical bargaining patterns and relationships, Congress chose, in section 704, to "provide[] certain savings clauses for employees . . . who have traditionally negotiated contracts in accordance with prevailing rates in the private sector . . . ." Conference Report, reprinted in Subcommittee on Postal Personnel and Modernization of the Committee on Post Office and Civil Service, 96th Congress, 1st Sess., Legislative History of the Federal Service Labor-Management Relations Statute, Title VII of the Civil Service Reform Act of 1978, at 827.

B. Interrelationship Between the Statute and Section 704

Section 704 does not operate to exempt prevailing rate employees from the provisions of the Statute. Rather, "[t]he collective bargaining rights of prevailing rate employees are preserved while keeping them within the framework envisioned by Congress for public employees." Columbia Power, 671 F.2d at 328 n.11. The Authority has previously concluded that section 704 permits bargaining in accordance with the Statute while preserving the right of prevailing rate employees to bargain over certain historically negotiated terms and conditions of employment even when inconsistent with the Statute or specified provisions of Title 5, United States Code. U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Region, Yuma, Arizona and National Federation of Federal Employees, Local 1487, 41 FLRA 3, 15-16 (1991) (Lower Colorado Region, Yuma) ("It would, of course, be unnecessary to provide 'grandfather' or 'savings' clauses if, in fact, affected employees were not otherwise subject to the Statute.").

As a result, both the Statute in the first instance, and, where appropriate, section 704 thereafter, must be analyzed to determine whether a proposal or provision is negotiable. In this regard, if the parties disagree concerning the negotiability of a proposal under the Statute,⁽⁴⁾ as in other negotiability cases, "the parties bear the burden of creating a factual record sufficient for the Authority to resolve the negotiability dispute." National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982). The agency must provide record support and demonstrate its assertion that the proposal is nonnegotiable. American Federation of Government Employees, National Border Patrol Council and U.S. Department of Justice, Immigration and Naturalization Service, U.S. Border Patrol Western Region, 39 FLRA 675, 688 (1991). If the disputed proposal is negotiable under the Statute, there is, of course, no reason to analyze the proposal under section 704 because "section 704 does not limit employees' bargaining rights under the Statute." Lower Colorado Region, Yuma, 41 FLRA at 15. On the other hand, where we determine, either as a result of positions of the parties or for reasons apparent to the Authority, that a proposal is not negotiable under the Statute, we will then proceed to analyze the proposal to determine if it is preserved for bargaining under section 704. United States Information Agency v. FLRA, 895 F.2d 1449, 1451 (D.C. Cir. 1990) (USIA) ("[S]ections 9(b) and 704 serve to 'grandfather-in' bargaining rights for prevailing rate employees with respect to subjects that might otherwise be non-negotiable . . . .") (emphasis in original).

In performing our analysis under section 704, we first examine the proposal under section 704(a). Those proposals meeting the requirements of section 704(a), which pertain to pay and pay practices, must thereafter be analyzed under section 704(b) to determine if the proposal is consistent with current prevailing rates and pay practices. As in negotiability cases under the Statute, the parties bear the burden of creating a record upon which the Authority can make a determination over whether the matter is preserved for bargaining under section 704, and act at their peril if they fail to meet this burden. National Association of Government Employees, Local R14-143 and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Yuma Projects Office, Yuma, Arizona, 47 FLRA 103, 105 (1993); National Federation of Federal Employees, Local 1487 and U.S. Department of the Interior, Bureau of Reclamation, Lower Colorado Regional Office, Yuma Project Office, Yuma, Arizona, 44 FLRA 945, 949 (1992). For example, the union must establish that a proposal is in accord with prevailing rates and pay practices in the relevant industry. American Federation of Government Employees, Local 1916 and U.S. Department of the Interior, Bureau of Mines, Pittsburgh Research Center, Pittsburgh, Pennsylvania, 43 FLRA 1469, 1474 (1992) (AFGE, Local 1916); 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, 1163 (1992) (Mid-Pacific Regional Office).

C. Requirements of Section 704(a)

Determining whether section 704(a) applies to preserve bargaining entails a three-part inquiry: (1) Are the unit employees Government prevailing rate employees to whom section 9(b) applies?; (2) Does the proposal in dispute pertain to "terms and conditions of employment and other employment benefits" within the meaning of section 704(a)?; and (3) Does the proposal concern a matter that was a "subject of negotiation" in accordance with prevailing rates and practices prior to August 19, 1972?⁽⁵⁾

1. Prevailing Rate Employees to Whom Section 9(b) Applies

A "prevailing rate employee" is defined as "an individual employed in or under an agency in a recognized trade or craft, or other skilled mechanical craft, or in an unskilled, semiskilled, or skilled manual labor occupation, and any other individual, . . . in a position having trade, craft, or laboring experience and knowledge as the paramount requirement." 5 U.S.C. § 5342(a)(2)(A). Wages of prevailing rate employees "are determined by the wages prevailing in the industry in which they work, pursuant to a wage survey mechanism" rather than by the Federal General Schedule. USIA, 895 F.2d at 1451 (quoting United States Dept. of Energy v. FLRA, 880 F.2d 1163, 1164 n.2 (10th Cir. 1989) (Dept. of Energy)).

2. Terms and Conditions of Employment and Other Employment Benefits

The phrase "terms and conditions of employment" in section 704(a) includes but is broader than those matters that constitute "conditions of employment" within the meaning of section 7103(a)(14) of the Statute. Dept. of Energy, 880 F.2d at 1169. In addition to "[terms and] conditions of employment," the scope of bargaining under section 704(a) encompasses "other employment benefits."

3. Subject of Negotiation in Accordance with Prevailing Rates and Practices

The third criterion of section 704(a) -- whether the proposal concerns a matter that was a "subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972" -- contains two distinct components.

a.Subject of Negotiation

Section 704(a) authorizes negotiations only over specific matters that were the subject of negotiations prior to August 19, 1972. The subject of a collective bargaining proposal or provision is the specific term and condition of employment or other employment benefit that the proposal or provision addresses. National Federation of Federal Employees, Local 1418 and United States Information Agency, Voice of America and American Federation of Government Employees, Local 1812, 49 FLRA 1262, 1290 (1994) (NFFE and VOA). Courts of Appeals have narrowly construed this provision of section 704(a) in determining whether a specific matter was previously the subject of negotiation. See U.S. Dept. of the Interior, Bureau of Reclamation, Rio Grande Project v. FLRA, 908 F.2d 570, 573-75 (10th Cir. 1990) (Bureau of Reclamation) (although premium pay had been negotiated between the parties prior to August 19, 1972, "Sunday premium pay" had not, and thus was not preserved for negotiation); U.S. Dept. of Interior, Bureau of Indian Affairs v. FLRA, 887 F.2d 172, 176 (9th Cir. 1989) (BIA) (reversing Authority's determination that a "save pay" provision, although not previously negotiated, was sufficiently related to the subject matter of wages to be preserved for bargaining).

In determining the subject that a current proposal or provision addresses, the Authority considers all pertinent factors, including, as appropriate: (1) the text of any relevant proposal or provision; (2) evidence, including bargaining history, relating to the intent of any relevant proposal or provision; (3) evidence as to the current and pre-1972 work situations of the unit (for example, the agency's structure and functions and the employees' duties); and (4) the parties' contentions as to whether Congress has expressed any intent through legislation as to the scope of a subject matter, as it did with respect to the subject matters concerning pay in Bureau of Reclamation and BIA. NFFE and VOA, 49 FLRA at 1290-91. If, based on consideration of the pertinent factors, the Authority finds that a current proposal concerns the specific matter that was the subject of negotiations prior to August 19, 1972, then the subject-matter requirement of section 704(a) will have been met.

b. In Accordance with Prevailing Rates and Practices

"The phrase 'in accordance with prevailing rates and practices'. . . defines which terms and conditions are subject to bargaining. Those terms and conditions of employment that were the subject of negotiations in accordance with prevailing rates and practices prior to August 19, 1972, shall now be negotiated in accordance with the provisions of section 9(b) of the Prevailing Rate Systems Act."⁽⁶⁾ USIA, 895 F.2d at 1453 (emphasis in original). Terms and conditions of employment negotiated prior to August 19, 1972, are preserved for bargaining irrespective of current industry practices.⁽⁷⁾ Id. at 1453-54.

D. Requirements Under Section 704(b)

"Section 704(b) modifies the scope of bargaining established in subsection 704(a) with respect to the specific category of terms and conditions of employment described as 'pay and pay practices.'" 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, 127 (1991). Pay and pay practice proposals must not only meet the section 704(a) requirements, but must also be in accord with the current prevailing rates and practices. AFGE, Local 1916, 43 FLRA at 1473. As a result, "[t]he scope of bargaining concerning pay and pay practices under section 704(b) is narrower than the scope of bargaining concerning 'terms and conditions of employment' under section 704(a)." Mid-Pacific Regional Office, 43 FLRA at 1159.

In determining if a matter, preserved for bargaining under section 704(a), is negotiable under section 704(b), the Authority determines whether: (1) the matter involves a pay or pay practice; and (2) the proposal attempts to negotiate in accordance with current prevailing rates and pay practices.

1. Pay and Pay Practices

"[T]he term 'pay' means the rate of basic pay for a position held by an employee covered by the provisions of section 704." United States Information Agency, Voice of America and National Federation of Federal Employees, Local 1418, 37 FLRA 849, 859 (1990). The term "pay practices" means "matters historically considered part of an employee's compensation package, such as: (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 entered into and became a part of the employee's total compensation package." Id. at 861.

2. Negotiation in Accordance with Current Prevailing Rates and Pay Practices

Under section 704(b) negotiations must be consistent with current industry practices: "if a pay practice is not among the current practices in the industry, the parties may not negotiate over that subject." USIA, 895 F.2d at 1455. If "a party seeks to negotiate over a pay practice that is not a current practice in the industry, the 'in accordance with prevailing rates and pay practices' clause of section 704(b)" renders the proposal nonnegotiable. Id. The parties may negotiate a methodology for determining current prevailing rates and practices and thereafter utilize and apply the factual data obtained. BIA, 887 F.2d at 176. However, when the parties disagree on this question, "and hence whether the subject is negotiable, the FLRA must decide the negotiability question . . . ." USIA, 895 F.2d at 1455. This provision in section 704(b) thus "defines the permissible range of outcomes of negotiations--not which subjects may be negotiated." Id. at 1454.

IV. Proposal 2-2d

When scheduled overtime is canceled less than four hours from the end of the last regularly scheduled shift, compensation payment equivalent to 2 hours at the appropriate overtime rate shall be paid.

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 2-2d is a "penalty pay" provision and is not negotiable under section 704(a) because it was not negotiated prior to August 19, 1972. Statement at 6. The Agency asserts that the overtime pay provisions of the contract negotiated prior to August 19, 1972, dealt "with payment of regular overtime pay at time and one-half for a minimum of two hours when an employee is actually called to work on unscheduled overtime." Id. at 5.

The Agency acknowledges that the parties agreed to adopt the prevailing rates and practices agreed to by the Bureau of Reclamation and AFGE, Local 1978. Id. at 2. However, according to the Agency, "[t]he actual bargaining history demonstrates that not all of Reclamation's pay practices were negotiated in [their] agreements." Id. In this regard, while acknowledging that the Reclamation agreement provided for penalty pay in certain situations where no work is performed, the Agency states that the parties' agreements "have not required penalty pay in those same situations . . . ." Id. at 3.

2. Union

The Union maintains that the Agency "is incorrect in suggesting that because the precise language of this proposal was not in the agreement prior to August, 1972, . . . it cannot be inserted in the agreement at this date." Petition at 3. The Union states that the subject matter of Proposal 2-2d "deals with overtime, overtime scheduling and overtime pay and clearly was covered prior to August 19, 1972." Id. The Union claims that Article IV of the parties' Supplementary Agreement No. 2 (Article IV) (exhibit 5 to the Petition)⁽⁸⁾ provides evidence that, prior to August 19, 1972, the parties negotiated over the subject matter addressed in Proposal 2-2d. Id.

B. Analysis and Conclusions ⁽⁹⁾

The parties disagree over whether any of the disputed proposals concern matters that were subjects of negotiation prior to August 19, 1972, and thus whether the proposals are preserved for negotiation under section 704.

Although Article IV and the proposal are similar in that they both address overtime, overtime scheduling, and pay for overtime work not actually performed, Article IV does not demonstrate that the parties negotiated on the specific term and condition of employment that is addressed by Proposal 2-2d. Article IV authorized overtime pay for work not actually performed when the employee was called in outside his scheduled hours to perform unscheduled overtime and could not be utilized for the full two hours. As such, Article IV did not address the specific subject of Proposal 2-2d -- payment for scheduled overtime canceled on less than 4 hours' notice.

The Union's argument that Article IV demonstrates that the parties negotiated over the subject matter of Proposal 2-2d is analogous to the arguments presented in Bureau of Reclamation and BIA. As noted earlier in section III.C.3.a., supra, the 10th and 9th Circuits rejected such arguments and held that section 704(a) required prior negotiation of the same specific subject matter. The fact that the parties in those cases had previously negotiated premium pay and wages in general, respectively, was held insufficient to preserve "Sunday premium pay" and "saved pay" for negotiation. Bureau of Reclamation, 908 F.2d at 575-76; BIA, 887 F.2d at 176.

We find that Proposal 2-2d addresses a matter that was not a subject of negotiation prior to August 19, 1972, and it is therefore not preserved for bargaining under section 704(a).

V. Proposals 2-3b and 2-3c

Proposal 2-3b

Employees shall receive, in addition to other compensation, two times their regular rate of pay for all hours worked.⁽¹⁰⁾

Proposal 2-3c

Exception to subsection 2-3(b) above: Employees who work unscheduled and/or Emergency Overtime other than Holidays, Sundays, lieu or call-ins, shall receive, in addition to other compensation, one and one half times their regular rate of pay for the first two hours of overtime that would require continued work past their normally scheduled hours of work.

A. Positions of the Parties

1. Agency

The Agency asserts that Proposal 2-3b is a "penalty provision" and is not negotiable under section 704(a) because the specific type of pay described in Proposal 2-3b "was never negotiated into any agreement between the parties as a specific pay practice prior to August 19, 1972." Statement at 7. The Agency states that the parties negotiated about overtime but never made a distinction in their prior agreements between emergency or unscheduled overtime and regularly scheduled overtime. Id. at 6. The Agency acknowledges that the parties agreed to adopt, with certain exceptions, the pay rates and practices established by the Bureau of Reclamation in its agreement with AFGE, Local 1978. Id. at 2. The Agency argues that Proposal 2-3c is nonnegotiable because it only functions as an exception to Proposal 2-3b, which, as the Agency asserts herein, is not negotiable. Id. at 7.

2. Union

The Union agrees that Proposal 2-3b "is designed to pay double hourly rates of pay for all emergency and unscheduled overtime." Petition at 3. The Union asserts that the subject matter of Proposal 2-3b was the subject of negotiation prior to August 19, 1972, and is covered in Article 2 of the parties' Supplementary Agreement No. 3 (Article 2) (exhibit 6 to Petition).⁽¹¹⁾ The Union points out that Proposal 2-3b changes that provision by increasing the rate of pay for some overtime from one-and-one half times the basic rate to two times the basic rate. Id.

The Union contends that Proposal 2-3b is consistent with current prevailing rates and practices because it is consistent with Article 2, Section 2 of the 1991 Reclamation agreement⁽¹²⁾ (exhibit 12 to Petition). Id. The Union notes that the parties agreed in their "Basic Agreement" to use the Boulder City area to determine industry practices (exhibit 3 to Petition) and specifically agreed in a Supplementary agreement to adopt the pay rates, rules, and practices of Bureau of Reclamation (exhibit 5 to Petition). Id. at 2, 4.

The Union states that proposal 2-3c is intended to limit the effect of Proposal 2-3b by allowing the Agency to pay time and one half rather than double time for emergency and unscheduled overtime hours that occur at the end of an employee's regularly scheduled shift during non-weekend or non-holiday periods. Id. at 4.

B. Analysis and Conclusions

1. Proposals 2-3b and 2-3c Are Preserved for Bargaining Under Section 704(a)

Article 2 shows that prior to August 19, 1972, the parties negotiated concerning the rate of pay for overtime and negotiated different rates for specific categories of overtime. Article IV demonstrates that the parties understood the term overtime to include both scheduled and unscheduled or emergency overtime. Contrary to the Agency's claim, Article 2 and Article IV reflect that in their Supplementary Agreements the parties did distinguish between payment for scheduled and unscheduled overtime.⁽¹³⁾

We thus find that unlike Proposal 2-2d, analyzed in section IV.B., supra, Proposals 2-3b and 2-3c address terms and conditions of employment that were the subject of negotiation prior to August 19, 1972. Accordingly, Proposals 2-3b and 2-3c are preserved for negotiation under section 704(a).

In reaching this conclusion we recognize that Proposal 2-3b operates to do two things expressly authorized by section 9b of the PRSA: First, the proposal improves the benefits that were established prior to August 19, 1972, in that the rate of pay for emergency and unscheduled overtime in Proposal 2-3b is higher than the rate of pay established in Article 2. In addition, the proposal extends the double time rate of pay, which, prior to August 19, 1972, was only paid for Sunday overtime, to emergency and unscheduled overtime. Such "improvements" and "extensions" are expressly authorized under section 9(b)(2) of the PRSA.

Second, by providing certain exceptions to Proposal 2-3b, Proposal 2-3c renews the specific terms of the parties' current agreement by maintaining the overtime rate of pay currently applicable under that agreement for the first 2 hours of overtime occurring after an employee's regularly scheduled shift. Sections 704 and 9(b) operate to permit parties to bargain over a current proposal that renews the specific matter that was the subject of negotiations prior to August 19, 1972.

2. Proposals 2-3b and 2-3c Are Negotiable Under Section 704(b)

There is no dispute that the proposals involve pay and pay practices under section 704(b). Accordingly, the sole question we must address to determine if the proposals are negotiable under section 704(b) is whether the proposals are in accordance with current pay rates and practices.

As noted earlier, the parties are entitled to negotiate over what industry to adopt in determining whether or not a proposal is in accordance with current pay rates and practices. See, Section III.D.2. These parties agreed that the Boulder City area would serve as the relevant industry (exhibit 3 to Petition). Further, and more specifically, the parties agreed to adopt the pay rates, rules, and practices established by the Bureau of Reclamation and AFGE, Local 1978 (exhibit 5 to Petition). We find that these proposals are analogous to provisions in Article 2, Section 2 of the Reclamation agreement. See note 12, supra. Accordingly, we conclude that the pay rates and practices addressed in Proposals 2-3b and 2-3c have, at a minimum, "some place in current industry practice" and, therefore, are negotiable under section 704(b). USIA, 895 F.2d at 1455 (emphasis in original).⁽¹⁴⁾

VI. Proposal 2-4b

The employee's time shall commence when the employee receives the call at his/her home or is otherwise notified, and shall conclude when the employee returns home.

A. Positions of the Parties

1. Agency

The Agency asserts that Proposal 2-4b constitutes a "'portal to portal' pay provision" because it requires that employees who are called in to work be compensated from the time they leave their residence up until the time that they return to their residence at the conclusion of their work. Statement at 7. The Agency contends that the proposal is not negotiable under section 704(a) because there is no evidence to support the Union's assertion that the subject of Proposal 2-4b was the subject of negotiation prior to August 19, 1972. Id. at 8.⁽¹⁵⁾

2. Union

The Union states that Proposal 2-4b "inserts a portal-to-portal provision into the agreement and requires that overtime pay on a call-in basis shall be from time of departure from the home to time of return to the home." Petition at 5. The Union maintains that call-in pay was the subject of negotiations between the parties prior to August 19, 1972. Id. The Union states that "[a]ll that was done differently here was to clarify or better define when call-in pay shall start and when it shall end." Id. The Union argues that Proposal 2-4b is consistent with Article 18, Section 1 of the Reclamation agreement, "which provides for one half hour prior to arrival at work and one half hour after departure from work as the operable time period for which employees shall be paid when called in from their homes for overtime purposes." Id.

B. Analysis and Conclusions

Article IV provides a minimum of 2 hours of overtime pay for an employee who is called in to work at a time outside his or her regular schedule. See note 8, supra. Article IV makes no provision for time spent driving to and from the work site. On the contrary, the Article specifically provides that "[a]n employee will be paid for all overtime required to be worked" and does not mention compensation for time spent in a travel status. Accordingly, Article IV does not demonstrate that "portal to portal" pay was a subject matter of negotiation between the parties prior to August 19, 1972.

The Union is correct that Article 18, Section 1 of the Reclamation agreement contains an analogous "portal to portal" provision. However, the Union may not rely on the 1991 Reclamation agreement to preserve this matter for negotiation under section 704(a). As we noted with respect to Proposals 2-3b and 2-3c, the 1991 Reclamation agreement does not establish the pay practice followed by the Bureau of Reclamation and AFGE, Local 1978 prior to August 19, 1972. See note 13. More importantly, and as we noted in the previous section (id.), the record does not establish that the parties adopted the Reclamation agreement concerning this particular overtime pay practice. Instead, in Article IV, the parties negotiated an overtime arrangement that is different from the provision to which the Union adverts in the 1991 Reclamation agreement. Accordingly, we find that the "portal to portal" provision in the Reclamation agreement does not preserve this subject matter for negotiation under section 704(a).

The record does not establish that the subject of Proposal 2-4b was a subject of negotiation prior to August 19, 1972. Consequently, the subject of Proposal 2-4b is not preserved for bargaining under section 704(a).

VI. Order

The petition for review as to Proposals 2-2d and 2-4b is dismissed. The Agency shall upon request, or as otherwise agreed to by the parties, negotiate concerning Proposals 2-3b and 2-3c.⁽¹⁶⁾

APPENDIX

Section 704 of the CSRA, codified at 5 U.S.C. § 5343 note (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 9(b) of Pub. L. No. 92-392, codified at 5 U.S.C. § 5343 (Amendments), 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].

---

---

---

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

1. The Agency withdrew its allegation of nonnegotiability as to Proposals 2-4a and 2-6. Statement of Position (Statement) at 1. Accordingly, those proposals will not be considered in this decision.

2. The text of section 704 of the CSRA, 5 U.S.C. § 5343 note, is set forth in the Appendix to this decision.

3. The text of section 9(b) of the PRSA is set forth in the Appendix to this decision.

4. As noted in Section II., supra, there is no argument concerning the negotiability of these proposals under the Statute. In light of the parties' evident agreement in this regard, we will not analyze the negotiability of the disputed proposals under the Statute in this case.

5. Only the third of these three criteria is in dispute in this case. See note 9, infra.

6. Pursuant to section 9(b) of the PRSA, certain provisions in contracts and agreements in effect on August 19, 1972, the date of enactment of the PRSA, are shielded from the other provisions of the PRSA.

7. However, pursuant to section 704(b), discussed in Section D., infra, those terms and conditions of employment involving "pay" or "pay practices," are only negotiable if consistent with current prevailing rates and practices.

8. Article IV provides that: "An employee is to receive at least two hours of pay at applicable overtime rates if he is called in at a time outside of his scheduled hours of work within the basic work week to work on an unscheduled overtime basis and cannot be utilized for the full two hours. An employee will be paid for all overtime required to be worked. Whenever possible overtime shall be assigned fairly and equitably among qualified employees within the work location. When emergency overtime work is required, qualified bargaining unit employees will be assigned when reasonably available."

9. As noted previously (Section II. and note 4, supra), the parties evidently agree that this and all other disputed proposals are not negotiable under the Statute. Similarly, with respect to section 704, the parties have not questioned that the employees concerned are prevailing rate employees to whom section 9(b) applies and that the proposals involve terms and conditions of employment or other employment benefits. Accordingly, our analysis of the disputed proposals will not address these questions.

10. In their submissions, both parties have construed this proposal as only concerning payment for overtime. Statement at 6; Petition at 3. We will follow this interpretation in our analysis.

11. Article 2 defines the following pertinent terms: "Overtime: One and one-half times the basic rate of compensation for all authorized work in excess of eight hours per day or 40 hours per week. Sunday Overtime: All overtime hours worked on a calendar Sunday will receive two times the basic rate of compensation. Holiday Pay: Employees required to work on a holiday designated by Federal statute or executive order falling within their regular tour of duty shall be paid for such hours of duty at one and one-half times their basic rate of pay in addition to the employee's regular pay for that day."

12. The referenced portion of the agreement between Reclamation and AFGE, Local 1978, provides: "2. Time and one-half (1 1/2x) will be paid for regularly scheduled overtime except: 3. Double time(2x) will be paid when: a. It is determined an employee will work emergency overtime. The determining period will not exceed one (1) hour. b. An employee works continuously beyond a ten (10) hour shift. c. An employee works on a Sunday or Holiday or a day in lieu of a Sunday or Holiday, if it is a scheduled day off. d. An employee is called out."

13. We note that this pay practice is also in accord with the 1991 Reclamation agreement (exhibit 12 to Petition). However, the 1991 Reclamation agreement does not establish the pay practice followed by the Bureau of Reclamation and AFGE, Local 1978 prior to August 19, 1972. Moreover, the Basic Agreement (exhibit 3 to Petition) and Supplementary Agreements (exhibits 5 and 6 to Petition) reflect that the parties negotiated their own overtime provisions in Article IV and Article 2 rather than adopt any Reclamation agreement.

14. In the preceding section where the proposals were analyzed under section 704(a), we noted the irrelevance of the 1991 Reclamation agreement, in light of the parties having negotiated their own overtime provisions and because, in any event, only a pre-August 19, 1972 Reclamation agreement could preserve a subject matter for negotiation under section 704(a). See note 13, supra. A different inquiry--which properly implicates a more recent version of the Reclamation agreement--is required for the purposes of section 704(b). Specifically, under section 704(b), we determine whether the pay practice in the disputed proposals is a current practice in the industry. We conclude, based upon negotiations adopting the Reclamation agreement as indicative of the relevant industry, that it is.

15. The Agency notes that Title 5 of the United States Code and the FLSA do not authorize the payment of overtime for travel from work to home. Statement at 8 (citing Matter of Carlos Garcia, Comp. Gen. No. B-245486 (March 18, 1992)). We construe the Agency's point to be that the proposal is inconsistent with law and Government-wide regulation and thus not negotiable under the Statute. The Union, however, does not argue that the proposal is negotiable under the Statute. Accordingly, and as noted earlier (see Section II and note 4, supra), we will not analyze the negotiability of the proposal under the Statute.

16. In finding Proposals 2-3b and 2-3c to be negotiable, we make no judgment as to their merits.

---