OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second
Washington, D.C. 20540-1999
International Brotherhood of
Electrical Workers, Local 26,
Case No. 01-LMR-02
Office of the Architect
of the Capitol,
Before the Board of Directors; Susan S. Robfogel,
Chair; Barbara L. Camens; Alan V. Friedman; Roberta L. Holzwarth;
Barbara Childs Wallace, Members.
DECISION OF THE BOARD OF
I. Statement of the Case
This case requires that we examine the negotiability
of two proposals to provide premium pay for work on holidays and
on Sundays, respectively. The matter is before the Board pursuant
to §7105(a)(2)(E) of the Federal Service Labor Management Relations
Statute ("FSLMRS"), 5 U.S.C. §7105(a)(2)(E), as applied by
§220(c)(1) of the Congressional Accountability Act ("CAA"),
2 U.S.C. §1351(c)(1).
The petitioner International Brotherhood of Electrical
Workers, Local 26 ("IBEW Local 26" or "Union") is the certified
representative of a unit of electricians employed in the Construction
Management Division of the Office of the Architect of the Capitol
("Employing Office" or "AOC"). These employees are employed on an
"as-needed" basis for various construction projects undertaken by
the Employing Office. The parties are negotiating for an initial
collective bargaining agreement that will cover terms and conditions
of employment, including pay.
The Union has submitted a proposal that would
require covered employees who work on holidays to be paid not less
than two times the straight-time rate for all time worked. Under
a separate proposal, the employees who undertake a tour of duty
including worktime on a Sunday would receive in addition to their
basic rate of pay a premium of 25% of the basic hourly rate, or
a greater rate if provided by applicable law. The Employing Office
contends that these proposals are nonnegotiable.
As framed by the arguments of AOC, this case
raises the identical legal issues that are presented in Plumbers
Local 5, United Association of Journeymen and Apprentices of the
Plumbing and Pipe Fitting Industry of the United States and Canada
and Office of the Architect of the Capitol ("Plumbers Local
5"), 01-LRM-01, also decided this day. In that case, the
negotiability of a holiday premium pay proposal offered by Plumbers
Local 5 is disputed. The AOC advanced essentially the same arguments
there that it presented here. The Board has ruled today in Plumbers
Local 5 that the grounds asserted by AOC for nonnegotiability
are not well founded. For the same reasons articulated in that decision,
we likewise conclude here that the premium pay proposals of IBEW
Local 26 are negotiable.
II. Proposals In Dispute
"Article XV (Holidays)
"If Employees are needed to work on a federal holiday prescribed
by current or future law or a special holiday designated by the
President of the United States, the Employer will first seek qualified
volunteers. . . . An Employee who works on a holiday shall
be paid at a rate not less than two (2) times the straight-time
rate for all hours work.
"Article XII (Wages)
"Section 3. Any Employee whose regular work schedule includes
an (8) hour period of work a part of which is on Sunday is entitled
to pay for all hours worked during each period at his basic rate
of pay plus a premium of 25% of his basic hour wage rate, or
a greater rate if provided by law."
The italicized portions are in dispute.
III. Positions of the Parties
A. Employing Office
The Employing Office argues that the premium
pay proposals would create an inconsistency with Federal law and
hence are nonnegotiable under §7117(a) of the FSLMRS, 5 U.S.C.
§7117(a), as applied by §220(c)(1) of the CAA, 2 U.S.C.
§1351(c)(1). It rests this argument on three statutory grounds.
The Employing Office argues that the electricians are paid at prevailing
wage rates established pursuant to the Davis-Bacon Act, 40 U.S.C.
§276a et seq., and to the Prevailing Rate Systems Act (PRSA),
5 U.S.C. §5349(c), and that such statutes do not authorize
the payment of premium pay. Secondly, AOC argues that the unit employees,
as "prevailing rate employees," are not entitled to holiday pay
by virtue of a definitional exclusion in the premium pay statute
that allows certain Federal employees to earn a wage premium for
working on Sundays and holidays. See 5 U.S.C. §5541(2)(C)(xi).
(1) Payment of a holiday premium to the electricians would
supposedly be "inconsistent" with this exclusion. A third "inconsistency"
would be created, according to the AOC, citing 31 U.S.C. §3101(a),
were it to agree to expend appropriated funds for holiday premium
pay. Under this section, "appropriations shall be applied only to
the objects for which the appropriations were made except as otherwise
provided by law." The AOC contends that the exclusion of prevailing
wage employees under 5 U.S.C. §5541(a)(2)(C)(xi) removes holiday
premium pay as a lawful object for which the Employing Office would
be allowed to spend appropriated money.
Finally, the AOC insists that because the pay
for the electricians here is established through the prevailing
wage rate determinations by the Department of Labor under the Davis-Bacon
Act, (2) the Employing Office is
left with no discretion or control in the setting of such compensation.
According to AOC, under case law interpreting FSLMRS, matters beyond
the control and discretion of an employing agency are outside the
duty to bargain.
IBEW Local 26 counters that its premium pay proposals
are in no way inconsistent with law so as to bar negotiations under
5 U.S.C. §7117(a), as applied by the CAA. The arguments advanced
by the Union closely parallel those that were urged by the petitioning
union in Plumbers Local 5, and therefore need only be summarized
here: First, neither the Davis-Bacon Act nor the PRSA limits the
authority and discretion of the AOC to negotiate holiday premium
pay. Second, the holiday premium proposals are not inconsistent
with the definitional provision in 5 U.S.C. §5541(2)(C)(xi)
that excludes "prevailing rate employees" from the Premium Pay chapter
of the United States Code. 5 U.S.C. §5541 et seq. Third, the
proposals are not inconsistent with the limitation in 31 U.S.C.
§3101(a) that appropriations may only be expended for an authorized
object. Finally, the Union argues that, by having discretion to
negotiate wage benefits of its prevailing rate employees, the Employing
Office must negotiate over proposals to provide holiday and Sunday
IV. Analysis and Conclusions
As indicated above, we believe that the rationale
of Plumbers Local 5 fully supports a finding that the proposals
here are negotiable. To summarize, we believe that the holiday premium
proposals here, like the one in Plumbers Local 5, involve
bargainable conditions of employment under §7114(a)(4) and
§7102 of the FSLMRS, as applied by the CAA, and within the
contours established by 5 U.S.C. §5349 of the PRSA governing
the Office of the Architect of the Capitol. See U.S. Department
of Treasury, Bureau of Engraving and Printing and International
Association of Machinists, Lodge 2135, 50 FLRA 677 (1995), enf'd,
88 F.3d 1279 (D.C. Cir. 1996)(Table), 1996 WL 311465 (unpublished
opinion); AFGE, AFL-CIO, Local 1897, and Department of
the Air Force, Eglin Air Force Base ("Eglin AFB"), 24
FLRA 377 (1986). While wage determinations made by the Labor Department
under the Davis-Bacon Act may serve as a basis on which the prevailing
rate of basic pay is calculated, that Act does not limit the authority
and discretion of the AOC under the FSLMRS, as applied by the CAA,
and under the 5 USC §5349(a) to negotiate holiday premium pay.
Therefore, Davis-Bacon is not a law with which holiday premium pay
would create an inconsistency. Similarly, the definitional exclusion
in 5 U.S.C. §5541(2)(C)(xi) is not a prohibition on prevailing
rate employees receiving holiday pay and therefore creates no inconsistency
with law. Lastly, the limitation contained in 31 U.S.C. §3101
that restricts the expenditure of funds beyond an approved object
does not restrict payments for holiday premium pay, which would
otherwise be authorized as an element of salaries in the appropriations
act that funds the AOC.
The AOC, in this case, urged that United
Power Trades Organization and U.S. Army Corps of Engineers, North
Pacific Division ("North Pacific Division"), 30 FLRA
639 (1987), supports its position that the Davis-Bacon Act provides
the exclusive authority and procedures for pay matters, even though
compensation for AOC's trades and craft employees are governed by
5 U.S.C. §5349(a) of the Prevailing Rate Systems Act. However,
that case is readily distinguishable.
In North Pacific Division, the wages of
certain bargaining unit employees of the Corps of Engineers were
governed by 5 U.S.C. §5343 of the PRSA, pursuant to which the
Department of Defense Wage Fixing Authority (DOD WFA) was vested
with responsibility for making prevailing rate determinations. However,
the Supplemental Appropriations Act of 1982, P.L. 97-257, 96 Stat.
832, circumscribed DOD WFA's authority by mandating that wages for
the affected Engineering Corps employees be fixed in accordance
with wages paid to employees of the Departments of Interior and
Energy who perform similar work in the same geographic area. In
implementing this legislative directive, DOD WFA issued a wage determination
that eliminated the shift differential premium that had previously
been allowed under pre-1982 wage determinations. When the union
sought to negotiate the restoration of the shift differential and
the addition of other wage premiums, FLRA held that the proposals
were nonnegotiable as inconsistent with the Supplemental Appropriations
The AOC argues that the Davis-Bacon Act here
supersedes the PRSA in the same manner that the 1982 Supplemental
Appropriations Act did in North Pacific Division, and because
the wage determinations by the Labor Department do not include premium
pay, wage proposals for such premiums are nonnegotiable. As the
Union correctly observes, under 5 U.S.C. §5349(a), the AOC
is the pay-fixing authority here and there is nothing in the Davis-Bacon
Act that displaces or modifies that statutory authority. Davis-Bacon
in no sense supplants the PRSA.
As we concluded in Plumbers Local 5, decided
today, simply because the parties have opted to rely upon Davis-Bacon
wage determinations of the Labor Department to fix basic rates of
pay, it does not follow that AOC is ousted from negotiating further
elements of the pay package under 5 U.S.C. §5349(a). The situation
here stands in stark contrast to North Pacific Division,
where Congress clearly intended through the 1982 Supplemental Appropriations
Act to redefine the standard by which DOD WFA calculated the wages
of the Corps of Engineering employees.
The Employing Office shall, upon request, or
as otherwise agreed to by the parties, bargain on the proposals
concerning holiday premium pay. (3)
Issued, Washington, D.C., December 3, 2001.