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)

[ 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 practic