United Power Trades Council and Army Corps of Engineers North Pacific Division (Authority decision, April 24, 1986)

Final FLRA decision. The Authority sets aside an arbitration award involving prevailing rate employees' night differential. Under 5 U.S.C. § 7123(a)(1), ordinary judicial review is generally unavailable for an order concerning an arbitration award unless it involves an unfair labor practice under § 7116; this decision does not decide one.

Plain-English summary

The Army Corps of Engineers stopped paying a night shift differential to certain power plant employees after a new regional power rate schedule took effect. An arbitrator ruled that the agency's labor agreement required continued payment and awarded backpay. The Authority found that the 1982 Supplemental Appropriations Act required the employees' wages to follow the Defense Department Wage Fixing Authority's determination for comparable work. That authority's schedule excluded a shift differential because comparable Interior and Energy Department employees did not receive one. The Authority held that the arbitrator could not order payment contrary to the statute and set aside the award.

Decision snapshot

• Authority: Review of arbitration exceptions under 5 U.S.C. § 7122(a); prevailing rate schedules under § 5343 and the 1982 Supplemental Appropriations Act.
• Outcome: Arbitration award set aside, including its backpay and prospective differential remedy.
• Key point: An arbitration award cannot require a wage payment that the applicable federal statute and rate determination prohibit.

Full text (FLRA public release)

[ v21 p501 ]

21:0501(66)AR

The decision of the Authority follows:

21 FLRA No. 66

UNITED POWER TRADES COUNCIL
Union

and

UNITED STATES ARMY CORPS OF
ENGINEERS, NORTH PACIFIC DIVISION
Activity

Case No. 0-AR-960

DECISION

I. STATEMENT OF THE CASE

This matter is before the Authority on exceptions to the award of Arbitrator Gary L. Axon filed on behalf of the Activity by the Department of the Army (the Agency) under section 7122(a) of the Federal Service Labor-Management Relations Statute and part 2425 of the Authority's Rules and Regulations.

II. BACKGROUND AND ARBITRATOR'S AWARD

The grievance arose when the Activity discontinued payment of night differential pay for certain power plant operational personnel who worked night shift hours. The Activity based its action on the 1983 Pacific Northwest Regional Power Rate Schedule issued by the Department of Defense Wage Fixing Authority.

The wages of the employees involved are governed by the Prevailing Rate Systems Act of 1972, which is codified at 5 U.S.C. Sections 5341-5349 and which is commonly referred to as the prevailing rate statute. /1/ Section 5341 provides that the general policy of the prevailing rate statute is that the rates of pay of prevailing rate employees are to be fixed and adjusted from time to time, as nearly as is consistent with the public interest, in accordance with the prevailing rates paid for comparable work in the local area by private sector employers. Under section 5343, which establishes the basic mechanism to carry out this policy, the Office of Personnel Management (OPM) is responsible for defining geographical wage areas and for designating a lead agency for each area. 5 U.S.C. Section 5343(a)(1) and (2). Lead agencies are responsible for conducting wage surveys, analyzing wage survey data, and developing and establishing appropriate wage schedules and rates for prevailing rate employees. 5 U.S.C. Section 5343(a)(3).

The head of each agency having prevailing rate employees in a wage area is required to apply to those employees the wage schedules and rates established by the lead agency. 5 U.S.C. Section 5343(a)(4). OPM has implemented the prevailing rate statute in 5 CFR part 532, Federal Personnel Manual (FPM) chapter 532 and FPM Supplement 532-1. Section 5343(f) of the prevailing rate statute and FPM Supp. 532-1 provide for the payment of a night differential for prevailing rate employees.

With regard to the prevailing rate employees involved in this case, OPM designated the Department of Defense Wage Fixing Authority (DOD WFA) as the lead agency to conduct wage surveys among private electric utilities in the area in which the Activity operated hydroelectric power producing plants and to develop and establish the appropriate wage schedules. DOD WFA's Pacific Northwest Power Rate Schedule established the rates of pay for the Activity's prevailing rate employees. In addition, the employees were authorized night shift differential pay as provided for in the prevailing rate statute and FPM Supp. 532-1. Moreover, the parties' collective bargaining agreement provided that night differential would be paid in accordance with FPM Supp. 532-1.

In 1982, the Supplemental Appropriations Act of 1982 was signed into law (Pub. L. No. 97-257, 96 Stat. 932). That Act provides, in part:

Without regard to any other provision of law limiting the amounts payable to prevailing wage rate employees, United States Army Corps of Engineers employees paid from Corps of Engineers Special Power Rate Schedules shall be paid, beginning the effective date of each annual wage survey in the region after the date of enactment of this Act, wages as determined by the Department of Defense Wage Fixing Authority to be consistent with wages of the Department of Energy and the Department of the Interior employees performing similar work in the corresponding area . . . .

The legislative history of the provision indicates that Congress was concerned that Corps of Engineers power plant employees were being paid less than employees of the Departments of Interior and Energy in the same geographic area who were doing comparable jobs, and that Congress intended to correct that inequity. Thus, the Senate Committee Report on the Act provides:

The Committee has been informed that certain Corps of Engineers power plant operational personnel are paid less than personnel of the agencies doing comparable jobs in nearby locations. The Committee believes that all Federal employees should receive comparable compensation for performing comparable work and has concurred with the House provision in the bill that would remove the inequity.

S. Rep. No. 97-516, 97th Cong., 2nd Sess. 80 (1982).

In 1983, DOD WFA issued the first Pacific Northwest Regional Power Rate Schedule pursuant to the Supplemental Appropriations Act, following wage surveys at Interior and Energy facilities in the region. Those surveys revealed that while Interior and Energy employees in comparable positions were compensated at higher rates than Corps of Engineers employees in some respects, such as overtime pay, they were not paid shift differential. Accordingly, DOD WFA's 1983 Rate Schedule and subsequent amendments provided for pay rates for Corps of Engineer employees consistent with the rates for Interior and Energy employees and specifically excluded shift differential pay. The Activity implemented the Rate Schedule and discontinued payment of shift differential to its prevailing rate employees. The Union then filed the grievance in this case alleging that the Activity had thereby violated the parties' agreement.

The Arbitrator determined that the parties' agreement expressly provided for payment of shift differential and that nothing in the Supplemental Appropriations Act required covered employees to forego the benefits of the agreement. Accordingly, as his award, the Arbitrator concluded that the Activity had violated the parties' agreement by discontinuing payment of shift differential. As a remedy, the Arbitrator awarded the affected employees backpay from the date the shift differential was discontinued and directed the Activity to reinstitute shift differential pay until the execution of a new agreement.

III. EXCEPTION

As one of its exceptions, the Agency contends the Arbitrator's award is contrary to the Supplemental Appropriations Act of 1982.

IV. ANALYSIS AND CONCLUSION

The Supplemental Appropriations Act of 1982 clearly and unequivocally requires that prevailing rate employees of the Corps of Engineers paid from the Corps of Engineers Special Power Rate Schedules shall be paid wages as determined by the DOD WFA to be consistent with wages of employees of the Departments of the Interior and Energy who perform similar work in the corresponding area. Further, the DOD WFA, the agency exclusively authorized to establish the appropriate wage schedules and rates for Corps of Engineers prevailing rate employees, determined that Interior and Energy employees in comparable positions were not paid a shift differential. Therefore, in view of the clear language of the Supplemental Appropriations Act and the intent of Congress as expressed in the related legislative history, shift differential could no longer be paid to the affected Corps of Engineers employees after DOD WFA made its determination. The Authority finds that because the Supplemental Appropriations Act effectively prohibited payment of a shift differential to the Activity's prevailing rate employees after DOD WFA's determination, the Arbitrator was precluded from directing otherwise. Consequently, the Authority concludes that the Arbitrator's award is deficient as contrary to the Supplemental Appropriations Act of 1982.

V. DECISION

Accordingly, for the above reasons, the Arbitrator's award is set aside. /2/

Issued, Washington, D.C., April 24, 1986.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY

FOOTNOTES

(1) Watervliet Arsenal, Department of the Army and National Association of Government Employees, Local R2-98, 10 FLRA 670 (1982).

(2) In view of this decision, the Authority has determined that it is not necessary to address the Agency's other exception to the award.