25:0607(46)NG - Columbia Power Trades Council and Bonneville Power Administration -- 1987 FLRAdec NG
[ v25 p607 ]
25:0607(46)NG
The decision of the Authority follows:
25 FLRA No. 46
COLUMBIA POWER TRADES COUNCIL
Union
and
BONNEVILLE POWER ADMINISTRATION
Agency
Case No. 0-NG-1247
DECISION AND ORDER ON NEGOTIABILITY ISSUE
I. Statement of the Case
This case is before the Authority because of 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 one proposal. The proposal, set forth in the Appendix
to this decision, would grant a wage increase for employees of the
Bonneville Power Administration, represented by the Columbia Power
Trades Council. For the reasons set forth below, we find that the
proposal is nonnegotiable.
II. Positions of the Parties
The Agency contends that the proposal is nonnegotiable because it is
contrary to a statutorily imposed "pay cap" on wage increases for
prevailing rate employees. The Union disagrees and contends that, based
on language in the parties' contract, an exception to the "pay cap"
applies and the proposal is therefore negotiable.
III. Analysis and Conclusion
It is undisputed that the employees to whom this proposal would apply
are prevailing rate employees who are covered by section 9(b) of Public
Law No. 92-392. As we discussed in International Brotherhood of
Electrical Workers, AFL-CIO, Local Union 1245 and Department of the
Interior, Bureau of Reclamation, 25 FLRA No. 15 (1987), under section
704 of the Civil Service Reform Act of 1978, Pub. L. No. 94-454, 92
Stat. 1111, 1218, matters pertaining to pay and pay practices of these
"section 9(b)" employees are subject to negotiation. /*/ Public Law No.
99-190, 99 Stat. 1185 (1985), which made continuing appropriations for
fiscal year 1986, extended pay restrictions placed on General Schedule
employees to the pay of section 9(b) employees. It is undisputed that
the wage increase set forth in the Union's proposal exceeds that "pay
cap." However, certain exceptions were allowed to this "pay cap" for
section 9(0) employees. Specifically, the "pay cap" did not apply where
an adjustment to wage rates was "required by the terms of a contract"
entered into before October 1, 1985. Federal Personnel Manual (FPM)
Bulletin 532-68 (April 2, 1986).
The Office of Personnel Management (OPM) is charged by Congress with
administering the statutory "pay cap" for section 9(b) employees. See,
for example, Public Law 99-190, Section 101(h), which incorporated among
other things section 613 of Title VI of H.R. 3036; and Public Law
99-591, section 613 of Title VI of the Act making appropriations for the
Treasury Department and other agencies. As interpreted by OPM in FPM
Bulletin 532-68, the condition for being excepted from the "pay cap" is
met when either of the following criteria is met:
(a) the contract dictates specific rates of pay, or specific
monetary or percentage increases; or
(b) the contract dictates a fixed pay-setting procedure which
results in a specific increase; however, none of the elements of
the pay-setting procedure may be subject to further negotiation by
the parties ("elements" are defined as, but not limited to,
formulas, names of companies, wage data to be used, etc.). Thus,
the pay-setting procedure must automatically result in specific
rates of pay, or specific monetary or percentage increases.
In order to rule on the negotiability of the proposal, we must decide
whether the parties' contract fulfills either of these criteria. The
relevant contract provisions are as follows:
Article 8. Negotiation
8.01 Rates of pay and working conditions affecting the
employees covered by this Agreement shall be determined through
the process of collective bargaining between the Council and the
Administrator. . . .
8.02 When rates of pay are to be negotiated, the Executive
Secretary of the Council and the Labor Relations Officer of the
Administration, assisted by additional staff as required, shall
act as a joint fact-finding committee. The committee will obtain
relevant facts bearing on the determinations of the rates of pay
established by collective bargaining for work of a similar nature
performed under similar circumstances prevailing in the territory
in which the Administration operates. Due consideration shall be
given by the Administrator and the Council in their negotiations
to any facts so established.
13-1 of Supplementary Agreement No. 13
13-1 Wage Agreement
Effective dates: The wage adjustment effective dates shall be
as follows: (F)or 1986 March 9, 1986.
General wage adjustment: The 1984 adjustment shall constitute
a 2.55 percent increase. The 1985 adjustment shall constitute a 2
percent increase. The 1986 adjustment shall be negotiated.
(Emphasis added.)
The Union asserts that section 8.02 of the Parties' contract
establishes a fixed-pay setting procedure for wage rates; that the
evidence demonstrates that the parties have consistently applied this
procedure for nearly 30 years; and that in light of such contractual
procedure the 1986 "pay cap" is not applicable because the contract
language falls within the exemption of section (b) of FPM Bulletin
532-68.
We disagree with the Union's assertions. Section 8.02 sets forth a
procedure whereby the Union and the Agency jointly conduct a survey of
the wages paid by certain utilities within the Agency's service area
whose employees perform similar work under circumstances similar to the
Agency's employees. The contract expressly states that "(d)ue
consideration (of such survey) shall be given by the parties in their
negotiations" of the wage rates. Thus, the survey, by the terms of the
contract, is to be given due consideration by the parties in their
upcoming negotiations concerning wage rates. The procedure followed by
the parties pursuant to section 8.02 does not automatically result in a
specific rate of pay, or specific monetary or percentage increase as
required by section (b) of FPM Bulletin 532.68. Rather, as previously
mentioned, the survey is considered by the parties in their negotiations
of wage rates. See Exhibit 1 of the Union's Response to the Agency's
Position Statement, at 2 (statement of Union witness that "all of our
wage settlements . . . have been within a few cents of the average rate
of the . . . surveyed utilities").
Further, we note that section 13-1 of the parties' supplemental
agreement specifically states that "(t)he 1986 (wage) adjustment shall
be negotiated." Thus section 8.02 must be read in conjunction with this
section. Considering these two sections together, it is clear that the
procedure described in section 8.02 does not automatically result in a
specific wage adjustment, as previously mentioned, but rather the data
obtained from such procedure is considered by the parties in their
negotiations of the 1986 wage adjustment. This contractual requirement
for further negotiations is contrary to section (b) of FPM Bulletin
532.68 which specifically states that "none of the elements of the
(contractual) pay-setting procedure may be subject to further
negotiation by the parties ('elements' are defined as, but not limited
to, formulas, names of companies, wage date to be used, etc.)."
Consequently, we conclude that the contract itself dictates neither a
wage rate nor a pay-setting procedure which will automatically result in
a specific pay rate. Thus, we cannot conclude that the pay increase
contained in the proposal is one which is "required" by the contract
within the meaning of FPM Bulletin 532-68 so as to be excepted from the
"pay cap" established by Public Law 99-190. We find, rather, that the
Union's proposal conflicts with the statutory "pay cap." It is therefore
inconsistent with Federal law and is nonnegotiable.
IV. Order
The Union's petition for review is dismissed. Issued, Washington,
D.C. February 6, 1987.
Jerry L. Calhoun, Chairman
Henry B. Frazier III, Member
Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/*/ See Columbia Power Trades Council and United States Department of
Energy, Bonneville Power Administration, 22 FLRA No. 100 (1986) for a
discussion of this provision.
APPENDIX
Union Proposal
The CPTC submits to the BPA, the wage increase for 1986 should be one
and one-half percent (1-1/2%).
The increase was determined by the following wage calculations:
Projected
Hourly Rates Current Hourly Rates
Washington
Water Power --
$16.63
Chelan County PUD $16.75
Grant County PUD 16.75
Puget Power & Light 17.15
Seattle City Light 17.21
Pacific Power & Light 16.80
Portland General Elec. 16.79
*Tacoma City Light 17.71
Washington Water Power 16.15
Total $135.31
Average $ 16.91
Projected rate changes for:
Washington Water Power + 3.0%
Tacoma City Light Freeze
Using projected Washington Water
Power and Tacoma City Light
Rates: Total $ 16.97
Average 135.79
The $16.97 hourly wage rate is the Journeyman Lineman's rate and all
other wages should be adjusted accordingly.
*Adjusted for median rate (Base plus 2%).