United Power Trades Organization and U.S. Army Corps of Engineers, North Pacific Division (Authority decision, December 29, 1987)

Final FLRA decision. The Authority finds all four union proposals outside the duty to bargain and dismisses the petition for review. An aggrieved person may seek judicial review by filing a petition in an appropriate United States court of appeals within 60 days after issuance under 5 U.S.C. § 7123(a).

Plain-English summary

United Power Trades sought to bargain over shift differentials, premium pay, environmental pay, and limits on employees' personal financial liability at the Army Corps of Engineers' North Pacific Division. The Authority found that the first three proposals would use pay procedures different from those required by the Supplemental Appropriations Act of 1982 and the Department of Defense Wage Fixing Authority's determinations. It rejected the union's argument that those determinations were agency regulations subject to a compelling need test. The fourth proposal would eliminate employee financial liability, interfering with management's right to set internal security practices. The Authority found all four proposals outside the duty to bargain and dismissed the petition.

Decision snapshot

• Authority: Negotiability review under 5 U.S.C. § 7105(a)(2)(E) and internal security practices under § 7106(a)(1).
• Outcome: All four proposals outside the duty to bargain; petition dismissed.
• Key point: The union could not negotiate pay procedures that displaced the statutory wage process or bar employee financial liability altogether.

Full text (FLRA public release)

[ v30 p639 ]

30:0639(77)NG

The decision of the Authority follows:

30 FLRA NO. 77
30 FLRA 639

29 DEC 1987

UNITED POWER TRADES ORGANIZATION

Union

and

U.S. ARMY CORPS OF ENGINEERS
NORTH PACIFIC DIVISION

Agency

Case No. 0-NG-1396

DECISION AND ORDER ON NEGOTIABILITY ISSUES

I. Statement of the Case

This case is before the Authority because of a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor - Management Relations Statute (the Statute) and concerns the negotiability of four proposals. Three of the proposals involve various aspects of pay and are outside the duty to bargain because they are contrary to law. The fourth proposal seeks to limit an employee's pecuniary liability and is also outside the duty to bargain because it conflicts with management's right to establish internal security practices.

II. Proposals 1-3

Proposal 1

Article 19.6

Payment of shift differential will be in accordance with Article 19.8 below.

Proposal 2

Article 19.8

Provisions of this Article will be paid in accordance with FPM Supplement 532-1, S8-4.

Proposal 3

Article 20- Environmental Pay

20.1- The Union and the Division recognize the environmental and safety hazards specified in Appendix A of this contract. The parties further recognize that the percentages set in the appendices are appropriate for the matters concerned.

20.2- Either the affected employees or the Project representative will bring to the supervisor's attention those instances which he believes to be situations warranting environmental pay.

20.3- The supervisor will immediately bring the matter to the attention of the Project Manager for review. If the Project Manager finds the matter warranting such pay, it shall be forwarded to the District Personnel Officer for evaluation within five (5) working days. If the District agrees that pay is warranted, then the matter will be referred to the Division office for final action within ten (10) working days.

20.4- If either the immediate supervisor, the Project Manager, the District Office or the Division deny the appropriateness of environmental pay, the matter may be subject to the grievance procedure at the level which it was denied. If a new condition develops which is hazardous, the Union will bring this to management's attention and the matter will be discussed and if appropriate, a differential will be set.

20.5- An employee subjected to one or more conditions covered by this Article, shall be paid for the exposure which results in the highest pay differential.

A. Positions of the Parties

The Agency contends that payment of shift differentials, premium pay and environmental pay for Corps of Engineers employees in the North Pacific Division is governed exclusively by the procedures mandated by the Supplemental Appropriations Act of 1982, (Pub. L. No. 97-257, 96 Stat. 832). In support, the Agency relies on United Power Trades Council and United States Army Corps of Engineers, North Pacific Division, 21 FLRA 501 (1986), petition for review dismissed for lack of jurisdiction sub nom. United Power Trades Organization v. FLRA, No. 86-7375 (9th Cir. Nov. 24, 1986). The Agency concludes that since these proposals would require the payments at issue to be based on procedures other than those required by the Supplemental Appropriations Act of 1982, the proposals are inconsistent with the Supplemental Appropriations Act of 1982.

The Union contends that neither the Prevailing Rate Systems Act of 1972 nor the Supplemental Appropriations Act of 1982 specifically prohibit the payment of shift differentials, premium pay or environmental pay.

The Union further asserts that the Authority's decision in North Pacific Division is distinguishable from this case. The Union claims that North Pacific Division was based on a finding that a determination by the Department of Defense Wage Fixing Authority (DOD WFA) effectively prohibited the payment of shift differentials. According to the Union, no argument was raised and no determination was made in North Pacific Division as to whether the DOD WFA's determination is an agency regulation which is subject to the compelling need test set forth at section 2424.11 of the Authority's Regulations.

The Union claims that the DOD WFA's determination is subject to the compelling need test. Thus, while the Union agrees that its proposals are inconsistent with determinations of the DOD WFA, it contends that since the Agency has made no showing that there is a compelling need for DOD WFA determinations, the proposals are negotiable.

The Union also argues with respect to Proposals 2 and 3, that neither the question of premium pay matters other than shift differential nor the question of environmental pay was specifically addressed in North Pacific Division. Finally, as to Proposal 3, the Union also argues that the DOD WFA has made incorrect determinations as to which positions in the North Pacific Division are entitled to environmental pay.

B. Analysis and Conclusions

At the onset, we note that North Pacific Division and this case involve the same union and agency. In North Pacific Division the agency had discontinued payment of shift differentials notwithstanding a provision in the parties' collective bargaining agreement requiring payment of such differentials. The union filed a grievance. An arbitrator concluded that the agency had violated the parties' collective bargaining agreement by discontinuing payment of shift differentials and ordered the agency to reinstate the shift differentials with an award of backpay.

In setting aside the arbitrator's award, the Authority determined that the wages of the bargaining unit employees were governed by the Prevailing Rate Systems Act of 1972, 5 U.S.C. 5341-5349. The Authority also found that the Supplemental Appropriations Act of 1982 applied to these employees and that the Act required that they be paid wages as determined by the DOD WFA to be consistent with the wages of employees of the Departments of Interior and Energy who perform similar work in the same geographic area.

The record in that case established that the DOD WFA had determined that employees at Interior and Energy facilities in the region were not paid a shift differential. Therefore, the DOD WFA had issued a wage schedule for Corps of Engineers employees in the North Pacific Division which excluded shift differential pay.

The Authority concluded in North Pacific Division that the DOD WFA was exclusively authorized to establish wage schedules for Corps of Engineers prevailing rate employees under the Supplemental Appropriations Act of 1982. Since the DOD WFA had determined that the North Pacific Division employees were not entitled to the shift differentials, such differentials could not be paid. Consequently, the Authority set aside the arbitrator's award which required the North Pacific Division to reinstate the payment of a shift differential with appropriate back pay

In seeking to negotiate proposals providing for the payment of shift differentials, premium pay and environmental pay, the Union concedes that these proposals would require payments not authorized by the DOD WFA. See Reply Brief at 3.

According to the Union, the parties previously had agreed to procedures concerning the payment of shift differentials, premium pay and environmental pay. However, subsequent to the passage of the Supplemental Appropriations Act of 1982, the DOD WFA issued wage schedules which either did not include such payments or provided for payments different from those which would have been obtained by application of the collective bargaining agreement. After issuance of the DOD WFA salary schedules, the parties removed from their collective bargaining agreement the provisions which provided for the payment of shift differentials, premium pay and environmental pay. The Union now seeks to require the Agency to reestablish procedures for the payment of shift differentials, premium pay and environmental pay which would be consistent with the provisions which were removed from the parties' collective bargaining agreement which preceded the passage of the Supplemental Appropriations Act of 1982. See Petition for Review at Paragraphs 1, 2 and 3 of Exhibit B-1.

In North Pacific Division the Authority held that the Supplemental Appropriations Act of 1982 requires that prevailing rate employees of the Corps of Engineers 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 same geographic area.

Proposals 1, 2 and 3, however, require the Agency to use procedures for the payment of shift differentials, premium pay and environmental pay different from those mandated by the Supplemental Appropriations Act of 1982. Consequently, based on North Pacific Division, we conclude that since Proposals 1, 2 and 3 require negotiations regarding pay matters for which the Supplemental Appropriations Act of 1982 establishes an exclusive procedure, the proposals are contrary to law.

Further, we reject the Union's claim that Proposals 1, 2 and 3 are negotiable because the Agency has not established that a compelling need exists for the DOD WFA wage and salary determinations. In our view the DOD WFA wage and salary determinations are not agency rules or regulations within the meaning of section 7117(a)(2) of the Statute. That is, these determinations do not concern matters within the Agency's discretion to regulate or not to regulate. Rather, such determinations are issued under specific statutory authority. Thus, such wage and salary determinations of the DOD WFA are not subject to the compelling need test set out in section 2424.11 of our Rules and Regulations.

We also reject the Union's claim that the DOD WFA improperly has determined which bargaining unit employees are entitled to environmental pay. Such claims are not appropriate for resolution in a negotiability determination, but rather, are more properly raised before the DOD WFA.

In conclusion, we find Proposals 1, 2 and 3 to be outside the duty to bargain because they are contrary to law.

III. Proposal 4

The provisions of AR 735-11 regarding pecuniary liability shall not apply to any bargaining unit members. Further, there shall be no pecuniary liability on any bargaining unit members during the term of this agreement.

A. Positions of the Parties

The Agency asserts that a proposal seeking to limit an employee's pecuniary liability interferes with its right to determine its internal security practices under section 7106(a)(1) of the Statute. In support, the Agency relies on National Federation of Federal Employee; Local 29 and Department of the Army, Kansas City District, U.S. Army Corps of Engineers, Kansas City, Missouri, 21 FLRA 233 (1986).

The Union argues that the Authority does not have a consistent position regarding the negotiability of proposals involving pecuniary liability. Thus, the Union claims that such proposals are negotiable. In support, the Union relies on the fact that the court remanded Kansas City District to the Authority in National Federation of Federal Employees Local 29 v. Federal Labor Relations Authority, 812 F.2d 746 (D.C. Cir. 1987) because the court found that the Authority's holdings regarding two of the proposals involving pecuniary liability were inconsistent.

B. Analysis and Conclusion

In our Decision on Remand in National Federation of Federal Employees, Local 29 and Department of the Army, Kansas City District, U.S. Army Corps of Engineers, Kansas City, Missouri, 27 FLRA 404 (1987) we resolved the apparent inconsistency in our original decision. We held that proposals which limit the extent of an employee's pecuniary liability or which foreclose pecuniary liability under certain circumstances are inconsistent with the Agency's right under section 7106(a)(1) of the Statute to determine the substance of its internal security practices, that is, whether and to what extent to impose pecuniary liability.

Proposal 4 expressly forecloses any pecuniary liability for bargaining unit employees. Thus, based on our Decision on Remand in Kansas City District, we conclude that Proposal 4 violates the Agency's right to establish its internal security practices pursuant to section 7106(a)(1) and therefore, it is outside the duty to bargain.

IV. Order

The petition for review is dismissed.

Issued, Washington, D.C., December 29, 1987

Jerry L. Calhoun, Chairman

Jean McKee, Member

FEDERAL LABOR RELATIONS AUTHORITY