National Association of Government, Employees, Local R14-143, (Union) and U.S. Department of the Interior, Bureau of Reclamation, Yuma Area Office, Yuma, Arizona, (Agency) (Authority decision, May 5, 2000)

Final FLRA decision. This is a final order of the Federal Labor Relations Authority in a negotiability proceeding. 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). Filing a petition does not stay the Authority's order unless the court orders a stay under 5 U.S.C. § 7123(c).

Plain-English summary

The union proposed a 25-percent pay differential for non-overtime Sunday work. The Authority majority found bargaining preserved under section 704 of the Civil Service Reform Act because the parties negotiated the subject in their 1968 agreement and it had a place in current pay practices. The agency’s asserted mistaken belief in a statutory entitlement did not negate the earlier negotiations, and the majority did not require proof of pre-1972 prevailing practices. The Corps of Engineers’ statutory Sunday differential sufficed because the parties had expressly included it in their agreed survey group, even though the other two surveyed employers did not establish the same practice. The Authority ordered bargaining. Member Cabaniss dissented on both the earlier-negotiation requirement and reliance on another federal agency’s statutory entitlement.

Decision snapshot

• Authority: Section 704 preservation of prevailing-rate bargaining and an agreed pay-survey group.
• Outcome: Agency ordered to bargain over the Sunday differential proposal.
• Key point: A qualifying practice of one agreed survey employer supported bargaining over the historically negotiated subject.

Full text (FLRA public release)

[ v56 p372 ]

56 FLRA No. 51

NATIONAL ASSOCIATION OF GOVERNMENT

EMPLOYEES, LOCAL R14-143

(Union)

and

U.S. DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

YUMA AREA OFFICE, YUMA, ARIZONA

(Agency)

0-NG-2380

_____

DECISION AND ORDER ON

NEGOTIABILITY ISSUE

May 5, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members. [n1]

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 Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal. [n2] The proposal requires the Agency to pay a differential equal to 25 percent of an employee's base wage for non-overtime work on Sunday. The Agency filed a Statement of Position [n3] and the Union filed a Response. [ v56 p373 ]

For the reasons that follow, we find that the proposal is within the duty to bargain and order the Agency to bargain.

II. Proposal

SUNDAY DIFFERENTIAL PAY: For all non[-]overtime work on Sundays, the employee will be paid twenty five percent (25%) of their base wage, will be paid [sic] in addition to the employee[']s base wage.

III. Positions of the Parties

A. Agency

The Agency claims that the subject of the proposal (hereinafter Sunday differential) was not a matter that was negotiated prior to August 19, 1972, as required by section 704(a) of the Civil Service Reform Act of 1978, 5 U.S.C. § 5343 note (set forth at 2. of the Appendix). Although the Agency acknowledges that a "Sunday Differential" was included in the "General Benefits" provision of the parties' Supplementary Labor Agreement No. 1, approved November 13, 1968, (hereinafter the 1968 agreement), the Agency contends that it was included in the agreement only because "management mistakenly believed" that unit employees were entitled by law to a Sunday differential. Statement of Position at 14. The Agency asserts:

Since Sunday Differential was in the 1968 agreement only because of management's mistaken belief that the employees were entitled to Sunday Differential, it must be concluded that Sunday Differential . . . was not "negotiated" by the parties in accordance with prevailing pay practices prior to August 19, 1972, under section 704(a).

Id. at 15. In this connection, the Agency relies on United States Department of the Interior, Bureau of Reclamation, Rio Grande Project v. FLRA, 908 F.2d 570, 576 (10th Cir. 1990) (Rio Grande Project), reversing International Brotherhood of Electrical Workers, Local 611, AFL-CIO and U.S. Department of the Interior, Bureau of Reclamation, Rio Grande Project, 26 FLRA 906 (1987).

The Agency also claims that a Sunday differential was not a prevailing practice prior to August 19, 1972, and is not a prevailing practice today. With respect to pre-1972 practices, the Agency claims that "none of the entities surveyed prior to 1972 reflect a differential for non-overtime work on Sundays when Sundays are a part of the regularly scheduled workweek." Statement of Position at 16.

With respect to current practices, the Agency claims that the evidence offered by the Union as to current practices pertains to overtime for Sunday work, which is different from the proposed differential for non-overtime work on Sunday. The Agency also asserts that only one out of the three entities in the parties' agreed-upon survey group pays a Sunday differential for regularly scheduled work, [n4] and that the one entity (the Corps of Engineers) pays a Sunday differential because it is required by 5 U.S.C. § 5544. According to the Agency, the Corps of Engineers' practice is not sufficient to establish a current prevailing practice because: (1) one employer out of three cannot establish a "prevailing" practice, within the dictionary definition of the term; and (2) the "congressional intent of section 704 is to negotiate on the basis of prevailing rates and practices in private industry." Id. at 17-18.

B. Union

The Union claims that the subject matter of the proposal was "negotiated," within the meaning of section 704(a), prior to August 19, 1972. The Union relies, in this connection, on notations to the 1968 agreement which, it claims, establish that the provision resulted from the "process of negotiation." Response at 6 (citing Exhibit 13). Citing contract provisions from employers who were part of the survey group at the time of the 1968 agreement, the Union also claims that the Sunday differential contained in that agreement was consistent with prevailing practices prior to August 19, 1972.

As evidence that the proposal is consistent with current prevailing practices, the Union references contract provisions from two of the three entities in the parties' agreed-upon survey group. Those provisions require payment computed at twice the basic wage rate for work performed on Sunday. [n5] The Union claims that these provisions apply to all work performed on Sunday, not just overtime work. The Union also notes that the Corps of Engineers, the third entity in the survey group, [ v56 p374 ] pays a Sunday differential in accordance with 5 U.S.C. § 5544 (set forth at 3. in the Appendix).

The Union contends that this case is distinguishable from Rio Grande Project because, according to the Union, it was undisputed in that case that a Sunday differential was not the subject of negotiations prior to 1972, and was not a current prevailing practice. The Union claims that the opposite is true in this case.

IV. Analysis and Conclusions

A. Meaning of the Proposal

By its plain terms, and as interpreted by the parties, the proposal establishes a wage differential of 25 percent of an employee's basic wage rate for all non-overtime work performed on a Sunday.

B. The Negotiability of Proposals Under Section 704

The framework for analyzing the negotiability of proposals under section 704 and section 9(b) of the Prevailing Rate Systems Act (PRSA), 5 U.S.C. § 5343 note (set forth at 1. of the Appendix), was clarified by the Authority in American Federation of Government Employees, Local 3062 and U.S. Department of the Interior, National Park Service, Lake Mead National Recreation Area, Boulder City, Nevada, 51 FLRA 229 (1995) (Boulder City). The Authority held that section 704 constitutes an exception to bargaining limitations of the Statute and, as such, "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." Boulder City, 51 FLRA at 232.

In this case, there is no dispute that the proposal is outside the duty to bargain under the Statute. Thus, we address whether the proposal is preserved for bargaining under section 704. Because the proposal concerns pay rates and practices, the requirements of both section 704(a) and 704(b) must be satisfied for the proposal to be bargainable. Id. at 233.

As relevant here, section 704(a) requires us to determine whether the proposal concerns a matter that was the "'subject of negotiation' in accordance with prevailing rates and practices" prior to August 19, 1972. [n6] Boulder City, 51 FLRA at 233. In addition, section 704(b) requires a determination of whether the proposal is consistent with current prevailing rates and pay practices. See id. at 236 (1995), quoting United States Information Agency v. FLRA, 895 F.2d 1449, 1455 (D.C. Cir. 1990) (USIA). In this connection, "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. However, if the pay practice "has some place in current industry practice, then the parties must negotiate over the subject . . . ." Id. (emphasis in original). See also Columbia Power Trades Council and U.S. Department of Energy, Bonneville Power Administration, Portland, Oregon, 54 FLRA 189, 201 (1998) (Member Cabaniss dissenting) (BPA, Portland).

The Union bears the burden of demonstrating that a proposal is consistent with current prevailing rates and practices. See, e.g., Boulder City, 51 FLRA at 233. See also BPA, Portland, 54 FLRA at 201. The parties may negotiate a methodology for determining current prevailing rates and pay practices, including a survey of agreed-upon employers. See, e.g., Bonneville, 54 FLRA at 201; Boulder City, 51 FLRA at 236-37 (citation omitted).

C. The Proposal Satisfies the Requirements of Section 704(a)

There is no dispute in this case that the specific subject matter of the proposal -- a Sunday differential for non-overtime work -- was contained in an agreement between the parties prior to August 19, 1972. Statement of Position at 13. The issues raised by the parties' arguments are whether: (1) the relevant provision in that agreement was the result of "negotiation" within the meaning of section 704(a); and (2) the provision was consistent with prevailing rates and practices at that time.

1. A Sunday differential was negotiated by the parties prior to 1972.

We conclude, for the following reasons, that a Sunday differential was "negotiated" by the parties prior to 1972.

First, neither section 9(b) nor section 704 defines the term "negotiation" or any related term, such as "negotiate." In the absence of a statutory definition, it is appropriate to refer to a dictionary definition. See, e.g., BPA, Portland, 54 FLRA at 193. In this connection, Webster's Third New International Dictionary, Unabridged, 1986, defines the term "negotiation" as "the action or process of negotiating or of being negotiated." Applying this dictionary definition, the term [ v56 p375 ] "negotiation" is properly construed as referring to the process of reaching an agreement and not to the subject of, or result of, that process. Consistent with this dictionary definition, we note that the phrase "collective bargaining" in the Statute is defined, in section 7103(a)(12), as the obligation to "bargain in a good faith effort to reach agreement with respect to conditions of employment" and to "execute, if requested by either party, a written document incorporating any collective bargaining agreement reached[.]" Like the dictionary definition of "negotiation" this Statutory definition of "collective bargaining" relates to the process of bargaining, and makes no distinction based on the subject matter of provisions that are bargained.

Second, the basis of the Agency's claim that the 1968 agreement regarding Sunday differential did not result from negotiations is its claim that, at that time, it "mistakenly believed" that unit employees were entitled to Sunday differential by law. Statement of Position at 14. That is, the Agency asks the Authority to find that negotiations did not occur based on the Agency's explanation of its reasons for agreeing to Sunday differential. Assuming that the Agency is correct that it was mistaken in 1968, no basis is provided for finding that such mistake is relevant to the issue whether negotiations occurred. In this connection, parties may agree to include provisions in collective bargaining agreements for a wide variety of reasons. Such reasons are difficult, if not impossible, to ascertain. In our view, they have no place in determining whether "negotiations" have taken place.

Third and finally, even if the Agency mistakenly believed in 1968 that there was a requirement to pay unit employees a Sunday differential, there is nothing in the record indicating that either party believed (mistakenly or not) that there was a requirement to include a provision to that effect in the parties' 1968 agreement. Indeed, there is ample evidence that the parties specifically discussed whether Sunday differential should be included in the 1968 agreement. The Union proposed, in this connection, that premium pay items, including Sunday differential, be "integrate[d]" into a different agreement, the parties' Wage Schedule agreement. Exhibit 6 to Union Response. Prior to approving the 1968 agreement, the Agency responded to what it characterized as the Union's "proposals" as follows:

After our meeting . . . we decided that perhaps it's best to continue and leave those pay practices, Shift Work, Traveltime, Meal Conditions, Working in Other Classification, and Sunday Differential, in the [1968 agreement], if O.K. with you? By agreeing to this the WB employees will continue to benefit also.

Id. While the Agency stated that, "perhaps," the cited pay practices could be moved to the Wage Schedule agreement at a later time, it specifically found it "best" to include Sunday differential in the 1968 agreement. Id.

Based on the foregoing, we conclude that a Sunday differential was the subject of negotiation between the parties prior to August 19, 1972, within the meaning of section 704(a). In this regard, the Agency's, and the dissent's, reliance on Rio Grande Project is misplaced. The court in that case did not hold that negotiations to include statutory entitlements in a collective bargaining agreement are not "negotiations," within the meaning of section 704(a). Rather, the court held, specifically, that "negotiations premised on a perceived statutory entitlement to Sunday premium pay do not constitute negotiations in accordance with prevailing practices." 908 F.2d at 576 (emphasis added). Read in context, we find it clear that the court's statement merely summarized its earlier holding regarding prevailing rates and practices, and nothing more. [n7] The court's opinion does not support a conclusion that the inclusion of Sunday differential in the parties' 1968 agreement did not result from "negotiations," within the meaning of section 704(a).

2. The Authority Need Not Determine Prevailing Rates and Practices Prior to August 19, 1972

We reject the Agency's argument that a proposal must concern a matter that was "in accordance with prevailing rates and practices" prior to August 19, 1972. [ v56 p376 ] We do so based on the court's analysis of section 704(a) in USIA, as well as our construction of section 704(a) in the context of section 9(b).

With respect to the former, the court stated in USIA that, in applying section 704(a), the Authority "need only determine which subjects were negotiated prior to August 19, 1972." USIA, 895 F.2d at 1454. That is, according to the court, the Authority's inquiry under section 704(a) is limited to determining the specific subjects that the parties negotiated prior to August 19, 1972. Among other things, the court relied on legislative history regarding section 704(a), establishing that Congress intended that section 704(a) would "authorize[] and require[] the agencies to negotiate on any terms and conditions of employment which were the subject of negotiations prior to August 19, 1972[.]" Id. (citing H.R. Rep. 95-1717, 95th Cong., 2nd sess. 159 (1978), 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 (emphasis added) (Legislative History)). The court's analysis of section 704(a) in USIA was adopted by the Authority in Department of the Interior, Bureau of Reclamation, Washington, D.C., 36 FLRA 3, 7 (1990). Applying the reasoning of the court in USIA, we conclude that it is not necessary to determine whether subjects that were negotiated by parties prior to August 19, 1972 were consistent with prevailing rates and practices before that date. See also United States Department of the Interior, Bureau of Reclamation v. FLRA, 23 F.3d 518, 523 (D.C. Cir. 1994) ("section 704(a) preserve[s] the bargainability of all pre-PRSA subjects of negotiation[.]").

With respect to the latter, section 704(a) requires bargaining in accordance with section 9(b), which was enacted as part of the PRSA in 1972. As relevant here, section 9(b) preserved for bargaining, then and now, the terms of collective bargaining agreements in effect on August 19, 1972. Section 9(b) contains no reference to consistency between the terms of these agreements and prevailing rates and practices. That is, nothing in section 9(b) can be construed as limiting the contract terms that are preserved for bargaining to those that were consistent with then-prevailing rates and practices. Thus, read in conjunction with section 9(b), we conclude that section 704(a) does not require a determination of prevailing rates and practices prior to 1972. We note that in view of the fact that at the time section 9(b) was enacted no determination was required as to then-existing prevailing rates and practices, it is not reasonable to expect that parties to pre-1972 agreements would have retained information regarding those rates and practices.

In sum, we conclude that the proposal in this case satisfies the requirements of section 704(a).

D. The Proposal Satisfies The Requirements of Section 704(b)

There is no dispute that the proposal concerns a matter pertaining to pay rates and practices and, as a result, is subject to section 704(b). The issue is whether a Sunday differential is in accordance with current prevailing pay rates and practices within the meaning of section 704(b). See, e.g., USIA, 895 F.2d at 1454 ("When the subject for negotiation is 'pay and pay practices,' rather than 'terms and conditions of employment,' negotiability may depend on current prevailing practices in the industry.")

The Union presents evidence as to premium pay for Sunday work derived from all three of the employers which the parties have agreed to survey. However, the Union's claim that provisions in the Salt River Project and Dredging Contractors contracts apply to all work performed on Sunday, whether overtime or non-overtime, is not supported by the record.

Specifically, the sentence cited by the Union from the Salt River Project contract defines "Sunday" as a day off, Article III, Section 4.(A), and defines the regular work week as extending from Monday through Friday, Article II, Section 4.(A). See note 5, supra, quoting Exhibit 12 to Union's Response. In light of these definitional provisions, work on Sunday would constitute overtime under the Salt River Project contract. Consequently, that agreement does not establish that a differential for non-overtime work on Sunday is a current prevailing rate or pay practice within the meaning of section 704(b).

As to the Dredgers contract, we find that, as Article XII, Section C addresses overtime, the provision could be construed as applying only to overtime work performed on Sunday. See Exhibit 11 to Union's Response. However, as the provision expressly applies to "all employee hours worked on Sunday," it also could be construed as applying to both overtime and non-overtime work performed on Sunday. See id., quoted at note 5, supra. As such, and in any event, the Union has not met its burden of establishing that the Dredgers contract provides a Sunday differential for non-overtime work. In this connection, while the Union states its belief that the contract provides a Sunday differential for all Sunday work, it does not argue that its conclusion is a more [ v56 p377 ] plausible interpretation than one finding that all work performed on Sunday constitutes overtime.

The third employer in the parties' survey group is the Corps of Engineers. See Exhibit 10 to Union's Response. It is undisputed that Corps of Engineers' employees are prevailing rate employees. It is also undisputed that they receive Sunday differential for non-overtime work performed on Sunday as an entitlement under 5 U.S.C. § 5544. See Statement of Position at 17; Response at 7. The issues presented by the parties' arguments are whether: (1) a statutory pay entitlement of other Federal employees -- here the Corps of Engineers -- can constitute a prevailing rate or pay practice within the meaning of section 704(b); and (2) the rates and practices of only one of the three surveyed employers can establish a prevailing rate or pay practice for purposes of section 704(b).

1. The Corps of Engineers agreement can establish a prevailing pay rate or practice.

As to the first question, we conclude that the fact that Corps of Engineers employees receive a Sunday differential as a matter of statutory entitlement does not preclude that differential from consideration as a prevailing rate or pay practice within the meaning of section 704(b). Our finding is based on the nature of the prevailing rate system in general, and the relationship of sections 9(b) and 704 to that system in particular.

The PRSA establishes the principle that pay rates and practices of Federal prevailing rate employees shall be comparable to those prevailing in the industry within which they work. See, e.g., USIA, 895 F.2d at 1451. The PRSA also creates a survey mechanism for determining those prevailing rates and practices. See id. Sections 9(b) and 704 protect the right of unions representing employees covered by those sections, within the limits prescribed therein and consistent with the principle of comparability, to bargain on the mechanism by which comparability is determined as well as pay rates and practices themselves. See id.

As noted above, it is undisputed that unit employees and Corps of Engineers employees are prevailing rate employees. It is also undisputed that the parties agreed to include the Corps of Engineers in their survey group. See Exhibit 10 to Union's Response ("The Parties agree to tie future annual pay adjustments and pay practices to . . . Corps of Engineers, St. Paul MI . . . ."). That is, consistent with the fact that unit employees and Corps of Engineers employees perform comparable work, the Agency in this case specifically agreed that the Corps of Engineers pay rates and practices were relevant to determining prevailing pay rates and practices. In fact, the parties agreed to a particular formula for "tying pay adjustments" to the Corps of Engineers. See id. ("Corps of Engineers equates to XF Grade 11, Step 2."). The parties agreed that the formula, effective June 12, 1996, would "be used through two 3-year contract terms." Id.

Refusing to consider the Corps of Engineers provisions would require us to find unenforceable, or otherwise nullify, the parties' agreement to use the Corps of Engineers agreement, based on a specific formula, for establishing prevailing rates and practices. No basis to do so is presented in the record of this case. In particular, nothing in sections 9(b) or 704 precludes employees covered by those sections from including other Federal employees in the same industry among those surveyed to determine industry comparability. Moreover, those provisions do not preclude the use of statutory pay entitlements of other such Federal prevailing rate employees as comparable pay practices. Because those provisions contain no prohibition against the inclusion of Federal employees in survey groups for determining prevailing practices, we find, contrary to our dissenting colleague, that there is no need to resort to legislative history for our interpretation. See, e.g., Association of Civilian Technicians, Inc. Rhode Island Chapter and U.S. Department of Defense, Rhode Island National Guard, Providence, Rhode Island, et al., 55 FLRA 420, 423 (1999) (citing Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-43 (1984) (if Congressional intent is clear from the face of the statute, no further inquiry is necessary).

Even if we examine the legislative history relied on in the dissent, however, we find nothing therein supporting a conclusion that we must nullify the parties' agreement to include the Corps of Engineers in the relevant survey group. In this regard, the dissent points out that, in describing section 704, Congress stated its intent to "provide[] certain savings clauses for employees . . . who have traditionally negotiated contracts in accordance with prevailing rates in the private sector . . . ." Legislative History at 827 (emphasis added). The reference to the "private sector" in this statement functions solely as a description of how the parties "traditionally negotiated contracts[.]" Id. It does not, explicitly or implicitly, describe a limitation on the parties' ability to determine their relevant industry group.

The same is true for Congressman Ford's statement that permitting Federal employees to negotiate provisions comparable to those found in the private sector had "enabled the Federal Government to procure and retain qualified craft employees who otherwise might [ v56 p378 ] choose employment in private industry, by ensuring that they will enjoy comparable terms and conditions of employment." 124 Cong. Rec. H8468-69 (daily ed. Aug. 11, 1978). This description of a benefit to the Federal Government, vis a vis "private industry," cannot reasonably be read as precluding parties from agreeing to include, or requiring us to nullify the parties' agreement to include, another Federal entity in a relevant survey group.

Consequently, we find that the Sunday differential paid Corps of Engineers employees pursuant to section 5544 can constitute a relevant rate and pay practice within the meaning of section 704(b) for purposes of determining whether the proposal is in accordance with current prevailing rates and practices.

2. The pay rates and practices of a single employer can establish a prevailing rate or practice.

Neither the PRSA nor section 704 contains a criterion for determining whether a pay rate or practice is "prevailing." In particular, neither the PRSA nor section 704 requires that a particular number of employers be surveyed or that a certain percentage of those employers pay a particular rate or use a particular pay practice in order to establish "prevailing rates and practices." Rather, under section 704(b), where there is a range of rates and practices in the group surveyed, that range "functions as a restriction on the permissible outcome of negotiations." USIA, 895 F.2d at 1455.

As stated above, "if a pay practice is not among the current practices in the industry, the parties may not negotiate over that subject." Id. However, if the pay practice "has some place in current industry practice, then the parties must negotiate over the subject . . . ." Id. (emphasis in original). The fact that the Corps of Engineers pays a Sunday differential establishes that such a differential has some place in the industry that the parties specifically agreed was relevant to determining prevailing rates and practices. See, e.g., Boulder City, 51 FLRA at 242 (fact that the employer utilized by parties to establish the relevant industry paid particular overtime rates sufficient to establish those rates as current prevailing rates and practices). Consequently, the proposal satisfies the requirements of section 704(b).

E. Summary

The subject of the Union's proposal -- Sunday differential for non-overtime work -- was a subject of negotiation prior to August 19, 1972, within the meaning of section 704(a). In addition, the proposal is in accordance with current prevailing practices under section 704(b). Accordingly, we conclude that the proposal is preserved for bargaining under section 704.

V. Order

The Agency shall, upon request, or as otherwise agreed to by the parties, negotiate on the proposal.

File 1: Authority's Decision in 56 FLRA No.
51

File 2: Opinion of Member Cabaniss and Appendix

Footnote # 1 for
56 FLRA No. 51

• Authority's Opinion

Member Cabaniss' dissenting opinion is set forth at the end of this decision.

Footnote # 2 for
56 FLRA No. 51

• Authority's Opinion

The Petition for Review originally included two other proposals. Subsequently, the Union withdrew those proposals from its appeal, and they will not be considered further.

Footnote # 3 for
56 FLRA No. 51

• Authority's Opinion

The Authority's regulations governing negotiability appeals have been revised effective April 1, 1999. See Fed. Reg. 66,413 (1998). The revised regulations apply to petitions filed after April 1, 1999. As the Petition for Review in this case was filed before that date, we apply the prior regulations. Applying section 2424.6(a) of the Authority's prior regulations, we reject the Union's claim that the Agency's Statement of Position was untimely filed. The Agency's Statement of Position was filed within 30 days of the Agency's receipt of the Union's Petition for Review and, as such, was timely. See, e.g., American Federation of Government Employees, Local 1770 and U.S. Department of the Army, Headquarters XVIII Airborne Corps and Fort Bragg, Fort Bragg, North Carolina, 38 FLRA 626, 627 (1990).

Footnote # 4 for
56 FLRA No. 51

• Authority's Opinion

The agreed-upon entities are the Salt River Project; the Dredging Contractors Association of California (Dredging Contractors); and the Corps of Engineers, St. Paul, Minnesota (Corps of Engineers). See Attachment 10 to Union's Response.

Footnote # 5 for
56 FLRA No. 51

• Authority's Opinion

The provision in the Dredging Contractors agreement (Article XII, Section C) states: "All employee hours worked on Sundays, either dredging or repairing, shall be paid for at two (2) times the regular rates." Exhibit 11 to Union's Response. The provision in the Salt River Project agreement (Article III, Section 4(A)) states: "Work performed on Sundays and Holidays shall be paid at the rate of two (2) times BHR." Article III, Section 4(A). Exhibit 12 to Union's Response. Consistent with the record, we construe "BHR" to mean "basic hourly rate." See Union Response at 7.

Footnote # 6 for
56 FLRA No. 51

• Authority's Opinion

In addition, section 704(a) requires findings that affected unit employees are Government prevailing rate employees covered by section 9(b), and that the disputed proposal pertains to "terms and conditions of employment or other employment benefits." There is no dispute that these requirements are met in this case.

Footnote # 7 for
56 FLRA No. 51

• Authority's Opinion

The court's statement relied upon by the dissent was expressly a "summary" of its earlier discussion of this issue, which follows in its entirety:

There is a further flaw in the FLRA's position because Section 704(a) requires more than just a showing that a particular subject was a matter of negotiations between the parties prior to August 19, 1972. It defines the kind of negotiations that had to have taken place. The negotiations must have been "in accordance with prevailing rates and practices prior to August 19, 1972." Here, there is no such showing, and indeed the record is to the contrary. By admission of the parties, the subject of Sunday premium pay was not specifically negotiated prior to August 19, 1972, because the parties apparently felt that the employees had a statutory right to receive Sunday premium pay and thus [the employer] paid the employees Sunday premium pay without regard to whether it was a local prevailing practice.

Rio Grande Project, 908 F.2d at 575-76 (emphasis in original).

[ v56 p378 ]

Dissenting Opinion of Member Cabaniss:

I dissent from my colleagues on the issues of whether Sunday premium pay has "some place" [n1] in current prevailing rates and practices, and whether the parties had negotiated Sunday premium pay prior to 1972.

As to whether Sunday premium pay has "some place" in current prevailing rates and practices, the only evidence of record allegedly reflecting this fact is a collective bargaining agreement for a group of federal employees working for the Army Corps of Engineers. In that regard, neither party disputes that this employee group receives Sunday premium pay as a matter of statutory right under 5 U.S.C. § 5544, rather than as a contractual benefit negotiated in accordance with prevailing rates and practices. And, the record is silent as to why the parties agreed to consider a collective bargaining agreement for federal employees, in addition to two private sector agreements, in its survey group to determine what matters have "some place" in current prevailing rates and practices.

I question the ability to rely on a federal sector collective bargaining agreement, reflecting a statutory entitlement to Sunday premium pay, to show that Sunday premium pay is a current prevailing rate and practice. The legislative history of section 704 of the Civil Service Reform Act of 1978 (section 704) notes that Congress intended to "provide[] certain savings clauses for employees . . . who have traditionally negotiated contracts in accordance with prevailing rates in the private sector . . . ." H.R. Rep. 95-1717, 95th Cong., 2nd sess. 159 (1978), 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 (Legislative History) (emphasis added).

Congressman Ford, who authored section 704, noted that one of the benefits the federal government derived from permitting federal employees to negotiate [ v56 p379 ] provisions comparable to those found in the private sector (and hence one reason for retaining that system) was that it had "enabled the Federal Government to procure and retain qualified craft employees who otherwise might choose employment in private industry, by ensuring that they will enjoy comparable terms and conditions of employment." 124 Cong. Rec. H8468-69 (daily ed. Aug. 11, 1978).

It is clear that in enacting section 704, Congress intended, as relevant here, to continue existing bargaining for employees covered by section 9(b) of the Prevailing Rates and Systems Act over pay rates and practices consistent with those same practices in the comparable private sector industry, to enable the Federal Government to attract and retain those employees who would otherwise be lost to those private sector competitor employers. As a result, the analysis of what constitutes current "prevailing rates and practices" needs to look at the rates and pay practices of those private sector competitor employers.

That requirement is not met here by looking at another federal agency that provides the same pay benefit in questions as a matter of statutory right rather than negotiation. While it might be possible consider a federal sector contract where the parties negotiated a pay benefit that is based on rates and pay practices in the private sector, that does not appear to be the case here. Accordingly, I would not rely on the Corps of Engineers contract to conclude that Sunday premium pay has "some place" in current prevailing rates and practices.

I also do not conclude that the parties negotiated Sunday premium pay prior to 1972. The parties' 1968 agreement, cited as evidence of whether Sunday premium pay was negotiated prior to 1972, does not reflect that such premium pay was subject to negotiation in accordance with prevailing rates and practices. Rather, the provision cited to lists Sunday premium pay as one of several employee entitlements received pursuant to "applicable Statutes, Civil Service rules and regulations, Departmental and Bureau rules and instructions, or other authority."

In United States Department of the Interior, Bureau of Reclamation, Rio Grande Project v. FLRA, 908 F.2d 570 (10th Cir. 1990) (Rio Grande Project), the court overturned an Authority decision dealing with the payment of Sunday premium pay. As relevant here, the court found that "an agreement stating that [a] contract would not interfere with a statutory right under 5 U.S.C. § 5544 [regarding Sunday premium pay] does not constitute negotiating' over the subject of Sunday premium payin accordance with prevailing rates and practices.'" Id. at 576, n.8.

I am aware that the Authority has accepted Rio Grande Project only as the law of the case. See International Brotherhood of Electrical Workers, Local 611 and U.S. Department of the Interior, Bureau of Reclamation, Rio Grande Project, 37 FLRA 670, 674 (1990). However, the disagreement with Rio Grande Project had to do with whether section 704 preserved for negotiation matters which were the subject of negotiation in accordance with prevailing rates and practices prior to August 19, 1972, or just matters which had been incorporated in a collective bargaining agreement. See National Federation of Federal Employees, Local 1418 and United States Information Agency, Voice of America, 37 FLRA 1385, 1393, 1399-1400 (1990) (VOA), citing to United States Information Agency, Voice of America v. FLRA, 895 F.2d 1449, 1453 (D.C. Cir. 1990). The court's noted holding in Rio Grande Project as to what is or is not "negotiated" is not affected by VOA in that it is not tied to whether one examines what has been memorialized in a collective bargaining agreement or otherwise negotiated by the parties: under either test, the subject must have been negotiated, and (as the Rio Grande Project decision points out) no negotiations took place here. Accordingly, I would find that the subject of Sunday premium pay was not "negotiated" by the parties in accordance with prevailing rates and practices.

Consistent with either or both of my holdings, I would find no duty to bargain over the Union proposal at issue. [ v56 p380 ]

APPENDIX

1. Section 9(b) of the PRSA provides as follows:

Sec. 9(b) 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 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 negotiating 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 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 any agreement, arrangement, or understanding in effect on such date with respect to the various items of subject matter of the negotiations on which any such contract in effect on such date 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.

2. Section 704 of the CSRA provides as follows:

Sec. 704. (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 enactment of this Act 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.

3. 5 U.S.C. § 5544(a) provides, in relevant part:

§ 5544. Wage-board overtime and Sunday rates; computation

An employee subject to this subsection whose regular work schedule includes an 8-hour period of service a part of which is on Sunday is entitled to additional pay at the rate of 25 percent of his hourly rate of basic pay for each hour of work performed during that 8-hour period of service. . . .

4. 5 U.S.C. § 5343 provides, in relevant part:

§ 5343. Prevailing rate determinations; wage schedules; night differentials.

(a) The pay of prevailing rate employees shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates. . . . To carry out this subsection--

(1) the Office of Personnel Management shall define, as appropriate--

(A) with respect to prevailing rate employees other than prevailing rate employees under paragraphs (B) and (C) of section 5342(a)(2) of this title, the boundaries of--

(i) individual local wage areas for prevailing rate employees having regular wage schedules and rates; and

(ii) wage areas for prevailing rate employees having special wage schedules and rates; [ v56 p381 ]

(B) with respect to prevailing rate employees under paragraphs (B) and (C) of section 5342(a)(2) of this title, the boundaries of--

(i) individual local wage areas for prevailing rate employees under such paragraphs having regular wage schedules and rates (but such boundaries shall not extend beyond the immediate locality in which the particular prevailing rate employees are employed); and

(ii) wage areas for prevailing rate employees under such paragraphs having special wage schedules and rates;

(2) the Office of Personnel Management shall designate a lead agency for each wage area;

(3) . . . a lead agency shall conduct wage surveys, analyze wage survey data, and develop and establish appropriate wage schedules and rates for prevailing rate employees;

(4) the head of each agency having prevailing rate employees in a wage area shall apply, to the prevailing rate employees of that agency in that area, the wage schedules and rates established by the lead agency, or by the Office of Personnel Management, as appropriate, for prevailing rate employees in that area . . . .

File 1: Authority's Decision in 56 FLRA No. 51

File 2: Opinion of Member Cabaniss and Appendix

Footnote # 1 for
56 FLRA No. 51

• Opinion of Member Cabaniss

See American Federation of Government Employees, Local 3062 and U.S. Department of the Interior, National Park Service, Lake Mead National Recreation Area, Boulder City, Nevada, 51 FLRA 229, 242 (1995).