OFFICE OF COMPLIANCE
LA 200, John Adams Building, 110 Second
Washington, D.C. 20540-1999
Plumbers Local 5, United
Association of Journeymen
and Apprentices of the Plumbing
and Pipe Fitting Industry of
the United States and Canada
Case No. 01-LMR-01
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 concerns the negotiability of a proposal
to provide premium pay for holiday work and 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 Plumbers Local 5, United Association
of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry
of the United States and Canada ("Plumbers Local 5" or "Union")
is the certified representative of a unit of journeyman plumbers
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 hourly "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 that covered employees who work on holidays, as designated
by the Architect of the Capitol, be paid at one and one-half times
their wage rate payable under the bargaining agreement. For those
employees who work on Christmas Day and New Year's Day, the pay
would be two times their wage rate payable under the bargaining
agreement. The Employing Office contends that this proposal is nonnegotiable.
Contrary to the Employing Office, we conclude that the proposal
is a negotiable subject over which the Employing Office is required
to bargain with the Union.
II. Proposal In Dispute
"Section 2. All hours worked on holidays, as
designated by the Architect of the Capitol, shall be paid at one
and one-half (1 1/2) times the employee's wage rate otherwise
payable under this Agreement.
"Section 3. All hours worked on Christmas Day
and New Year's Day shall be paid at two (2) times the employee's
wage rate otherwise payable under this Agreement."
III. Initial Positions of the Parties
A. Employing Office
The Employing Office advances several grounds
for claiming that it is not required to bargain over this proposal.
First, it maintains that the premium pay proposal is inconsistent
with Federal law in two respects and hence is 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). The Employing
Office argues that the plumbers are paid at prevailing wage rates
established pursuant to the Davis-Bacon Act, 40 U.S.C. §276a
et seq., and that such "prevailing wage rate" employees are not
entitled to holiday pay by virtue of the 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)
The Employing Office argues that payment of a holiday premium to
the plumbers would be "inconsistent" with this exclusion.
A second "inconsistency" would be created, according
to the AOC, by 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
Employing Office theorizes 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 allow to spend appropriated money.
As an alternative prong of attack, the AOC insists
that because the pay for the plumbers 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.
Plumbers Local 5 disputes each of the contentions
of the Employing Office.
1. The Davis-Bacon Act does not constrain discretion
of AOC to negotiate holiday premium pay.
Without challenging whether the Davis-Bacon Act
is directly applicable to the unit employees here, the Union asserts
that the Employing Office misinterprets the basic thrust of what
that Act requires. The Union asserts that Davis-Bacon does not lock
in a prevailing wage rate above which a covered construction employer
cannot pay, as the AOC maintains. Davis-Bacon wage determinations
by the Labor Department, says the Union, establish only the minimum
wages for construction work on federally funded projects. The Davis-Bacon
Act therefore does not preclude contractors from paying wages that
exceed the prevailing rate.
2. The proposal is not inconsistent with statutory
law governing premium pay.
The Union argues that the holiday premium pay
proposal is not inconsistent with the definitional exclusion in
5 U.S.C. §5541(2)(C)(xi). The exclusion of prevailing wage
employees from the premium pay statute should not be construed as
a blanket prohibition against the payment of holiday pay to such
employees. Rather, the effect of the statutory exclusion is to leave
this subject within the realm of "conditions of employment" not
established by Federal law (5 U.S.C. §7103(14)) and therefore
is a matter over which a covered employer is required to bargain.
See, e.g., AFGE, AFL-CIO, Local 1897, and Department of
the Air Force, Eglin Air Force Base ("Eglin AFB"), 24
FLRA 377 (1986). The Union adds that the Employing Office's argument
based on a statutory exclusion is at odds with its willingness to
negotiate over employment termination standards notwithstanding
the fact that bargaining unit employees are also excluded from the
definition of "employee" for purposes of the statutory provision
governing certain adverse personnel actions including removal. See
5 U.S.C. §§7511-7514. Finally, the Union cites a decision
of the Comptroller General as authority for the proposition that
an agency may provide prevailing wage rate employees with holiday
premium pay. (3)
3. The proposal is not inconsistent with the
statutory limitation that appropriations may only be expended for
an authorized purpose.
The Union stresses that Congress' appropriations
to the Architect of Capitol for wages is couched as a lump sum amount
for salaries. (4) There is no breakdown
as to specific authorizations for pay for regular hours, overtime
hours, holiday hours, or travel expense reimbursements. Thus, given
the general nature of the appropriations for compensation, payment
for holiday premium work creates no inconsistency in the sense that
it falls outside a purpose "for which an appropriations were made."
31 U.S.C. §1301(a).
IV. Supplemental positions of the parties
Following review of the initial submissions,
the Board requested that the parties file supplemental briefs addressing
the relevance of U.S. Department of Treasury, Bureau of Engraving
and Printing, and International Association of Machinists, Lodge
2135 ("BEP"). (5) Although
neither party had cited BEP, the Board believes that the
decision is germane to the resolution of the negotiability question.
In that case, the Federal Labor Relations Authority (FLRA) sustained
a negotiability appeal involving the duty to bargain under 5 U.S.C.
§7117 within the context of the prevailing wage requirements
under 5 U.S.C. §5349(a). (6)
The latter statutory provision is significant to the instant case
since it applies to recognized trade or craft employees (such as
the plumbers here) who are employed by certain specifically named
Federal employers including the Bureau of Engraving and Printing
and Office of the Architect of the Capitol. Pursuant to §5349(a),
their pay "shall be fixed and adjusted from time to time as nearly
as is consistent with the public interest in accordance with prevailing
rates." The FLRA held that this statutory language vested the Bureau
with a degree of discretion to ascertain the "prevailing rates"
of comparable jobs and make adjustments in "consistent with the
Because there is nothing in the statute to suggest
that this discretion is to be exercised solely or exclusively by
the Bureau, the FLRA concluded that it would not be inconsistent
with law to require bargaining over union proposals concerning the
methodology by which the "prevailing rates" are ascertained. In
view of the fact that AOC is subject to this same pay-fixing provision
as the Bureau, together with the same bargaining obligation under
5 U.S.C. §7117 as applied by the CAA, the question is obviously
presented whether the FLRA's interpretation should inform our decision
A. Employing Office
AOC largely dismisses BEP, contending
that the decision is distinguishable because it involved "different
facts, issue and controlling provisions of law."
AOC claims that the affected employees in BEP
were not paid on the basis of the Davis-Bacon Act, 40 U.S.C. §276a.
AOC further argues that the issue addressed in Bureau is not presented
here. In BEP, the question was whether the pay proposal there
was subject to the negotiability exclusion under 5 U.S.C. §7103(a)(14)(C),
which excludes from bargainable "conditions of employment" matters
"to the extent [they] are specifically provided for by Federal statute."
Here, the issue is whether the premium pay proposals are inconsistent
with other provisions of law, more specifically 5 U.S.C. §5541(2)(C)(xi).
Thus, in AOC's view, because the issues and controlling provisions
of law in BEP are different from those here, the FLRA decision
is, for the most part, irrelevant.
If BEP has any bearing at all, claims
the AOC, it is to recognize that an agency's discretion to adjust
prevailing wage rates cannot be exercised in such a way to frustrate
a congressional scheme. Here, argues the AOC, the definitional exclusion
of 5 U.S.C. §5541(2)(C)(xi) is evidence of congressional intent
to deny premium holiday pay to the plumbers and 5 U.S.C. §5349
addresses only the basic rate of pay payable to prevailing rate
The Union, on the other hand, believes that BEP
not only undermines the Employing Office's arguments but also reinforces
its own contention that its holiday premium pay proposal is negotiable.
The decision, in the Union's view, dispels the notion that the wage
determinations of the Department of Labor under the Davis-Bacon
Act have handcuffed the pay-fixing authority of AOC. Rather, the
BEP decision confirms the authority of the Architect of the
Capitol, under a plain reading of 5 U.S.C. §5349(a), to fix
and adjust the pay of employees such as the plumbers "consistent
with the public interest in accordance with the prevailing rates
. . . as the pay-fixing authority of each agency may determine."
That statutory authority grants sufficiently broad discretion to
the Architect so that under FLRA precedent the Employing Office
is required to bargain over the exercise of that discretion.
Thus, while it may be appropriate for the parties
to agree that Davis-Bacon wage determinations may be relied upon
to establish the basic rates of pay, those determinations do not
end the matter. Further negotiations over the subject of holiday
premium pay are warranted because it is in accord with the availability
of such pay to plumbers in the private sector and the Executive
branch of the Federal government and because it would be "consistent
with the public interest" as interpreted by BEP.
V. Analysis and Conclusions
A. The holiday premium pay proposal is
negotiable under the contours established by the applicable statutory
provisions of the FSLMRS and 5 U.S.C. §5349 of the Prevailing
Rate Systems Act governing the Office of the Architect of the Capitol.
We think that the AOC has misapprehended the
statutory foundations of its obligation to bargain over the wages,
including premium pay, of the unit employees here. Contrary to the
AOC's assertions, none of the statutory bases on which it relies
- the Davis-Bacon Act, the definitional exclusion in 5 U.S.C. §5541(2)(C)(xi),
or the appropriations limitation in 31 U.S.C. §1301 - presents
an obstacle to its obligation to bargain over the Union's holiday
premium pay proposal.
Whether or not the Union's holiday premium pay
proposal is negotiable hinges upon the interplay between the AOC's
general bargaining obligation under the FSLMRS, as applied by the
CAA, and its specific obligation under the Prevailing Rate Systems
Act. 5 U.S.C. §5349. Under the FSLMRS, as applied by the CAA,
the Employing Office is under a duty to negotiate in good faith
with the representative chosen by covered employees. 5 U.S.C. §7114(a)(4).
The scope of the bargaining obligation is defined in 5 U.S.C. §7102,
which confers upon such covered employees the right through their
representative "to engage in collective bargaining with respect
to conditions of employment." In turn, "conditions of employment"
are defined in 5 U.S.C. §7103(a)(14)(A)-(C) to mean in relevant
part "personnel policies, practices, and matters, whether established
by rule, regulation, or otherwise, affecting working conditions"
with exceptions made for matters that are "specifically provided
for by Federal statute" and for matters relating to certain political
activities or the classification of a job position.
(7) Also excepted from the bargaining obligation are matters
that concern conditions of employment, but are inconsistent with
law or regulation (hereinafter referred to as the "inconsistent
with law" exception). 5 U.S.C. §7117(a). See Patent Office
Professional Association and U.S. Dept. of Commerce, Patent and
Trademark Office, 53 FLRA 625, 647-50 (1997). These exceptions
to the duty to bargain reflect the fact that in establishing a collective
bargaining regime for the benefit of the Federal workforce, Congress
did not want bargaining to displace or disturb a law or regulation
that either substantively determines a condition of employment or
establishes an exclusive process for fixing a condition of employment.
Thus, the task of evaluating the negotiability of a bargaining proposal
must begin with a determination whether the proposal involves a
condition of employment, followed by the analysis whether a specific
law or regulation has effectively taken the subject "off the table."
Pay is a quintessential condition of employment
that is subject to bargaining under the FSLMRS, as the Supreme Court
has so affirmed in Fort Stewart Schools v. FLRA, 495 U.S.
641 (1990). However, a pay proposal will be found nonnegotiable
if it falls within one of the above statutory exceptions, which
is often found to be the case because the subject of pay and benefits
is so widely settled by federal law. (8)
If a pay proposal involves a matter for which a governing statute
leaves no discretion to an employing agency, the matter is
deemed "specifically provided for by Federal statute" and therefore
is excepted from bargaining. BEP, 50 FLRA at 682.
Similarly, if a governing statute vests an employing agency with
sole and exclusive discretion over a matter, a proposal
that subjects the exercise of that discretion to collective bargaining
would be "inconsistent with law." AFGE, Local 3295, and Dept.
of Treasury, Office of Thrift Supervision, 47 FLRA 884, 894
(1993). Where a proposal implicates a pay-specific statute
or regulation, a careful examination of the structure, purpose and
operation of the statute or regulation in question is typically
In the instant case, the relevant pay-specific
statute is the Prevailing Rate Systems Act (PRSA).
(9) Congress enacted this law in order to revise and codify
the compensation system for tradesmen and skilled craftsmen who
work for the Federal government but whose positions are not part
of the General Schedule of classified positions, 5 U.S.C. §§
5102(c)(7), 5104, and whose pay is not fixed pursuant to the General
Schedule pay rates. 5 U.S.C. §5332. A fundamental objective
was to assure that such employees are paid at "prevailing rates"
so as to maintain "reasonable parity between public and private
employees and to protect blue collar workers' salaries from mere
administrative whim and convenience." National Maritime Union
of America v. United States, 682 F.2d 944, 954 (Ct. Cl. 1982).
To that end, the PRSA contains detailed provisions for calculating
and adjusting the prevailing rates of pay for these blue collar
workers, mostly employed in the Executive branch, and commits to
the Office of Personnel Management the responsibility of administration.
Generally the calculation is made through a survey mechanism that
examines the wages paid to comparable jobs in a particular geographic
With respect to the Office of the Architect of
the Capitol and other specific agencies of the Legislative and Judicial
branches (as well as the Bureau of Engraving and Printing), Congress
adopted a modified approach. Because such agencies had preexisting
practices for paying their trades and skilled craft workers at prevailing
rates, which practices Congress desired not to disturb, it authorized
their continuation without mandating that these agencies be subject
to the detailed provisions of the PRSA dealing with, among other
things, pay-fixing procedures, retroactive pay, and job grading
The applicable section, 5 USC 5349, thus only
requires these agencies to fix and adjust pay "from time to time
as nearly as is consistent with the public interest in accordance
with prevailing rates and in accordance with the such [other] provisions
of the [PRSA] . . . as the pay-fixing authority of each such agency
may determine." Three elements are identifiable in this provision.
The prevailing rate element aims to pay covered employees wages
that are comparable with fellow craft or trades workers in the private
sector. The "public interest" element, which is not specifically
defined in the statute, serves as a counterbalance to this objective,
justifying wage rates below the prevailing rates if warranted, for
example, by fiscal considerations (such as the imposition of a temporary
wage cap). (10) Finally, the agencies
covered under §5349 are given the discretion to apply the other
sections of the PRSA. (11)
The FLRA's decision in BEP carefully examined
the implications of 5 U.S.C. §5349 on the Bureau of Engraving
and Printing's duty to bargain over a pay proposal concerning the
methodology for determining prevailing rates for steel and die craft
workers. As noted above, the Authority, drawing upon judicial interpretation,
held that this statute vested the covered employing offices with
broad discretion: These agencies could decide the process by which
the prevailing rates were ascertained and then could make adjustments
"consistent with the public interest." Furthermore, the Authority
found nothing in this statutory formulation suggesting that the
exercise of discretion under these two elements was committed solely
and exclusively to the employing office; hence it would not be "inconsistent
with law" under the FSLMRS to subject the exercise of that manifold
discretion to collective bargaining.
The Plumbers Local 5 argues that the AOC would
be acting well within the range of its discretion to pay a holiday
premium wage to its unit employees. The Union alleges that the parties
did agree in negotiations to utilize the wage determinations of
the Department of Labor under the Davis-Bacon Act to calculate the
basic rate of pay of unit employees. Adding a holiday premium
pay component, it urges, would be "consistent with the public interest"
and "in accordance with the prevailing rates" embodied in the practice
of private employers, as well as other governmental agencies, to
pay a holiday premium. (12)
AOC does acknowledge the relevance of 5 U.S.C.
§5349 in its Supplemental Brief but insists that it does no
more than address basic rates of pay payable to prevailing
rate employees. The implication is that because the section does
not authorize holiday premium pay, the AOC is without power to agree
to such pay.
We do not agree with this implication. The term
"pay" in §5349 is not modified by any qualifying adjective
that would limit it to basic pay. (13)
Moreover, in issuing substantive regulations under a related section
of the PRSA covering most other prevailing wage employees, 5 U.S.C.
§5343, the Office of Personnel Management has interpreted the
concept of pay for purposes of prevailing wage employees to encompass
holiday premium pay. 5 C.F.R. §532.507. Given the use of similar
terms in comparable sections of the PRSA, it is appropriate to interpret
the term "pay" in §5349 to include holiday premium pay. See
Gustafson v. Alloyd Co., 513 U.S. 561, 570 (1995).
AOC's attempt to limit the thrust of BEP
is likewise unpersuasive. Although the exact proposal in BEP
involved the methodology for surveying prevailing rates, whereas
the proposal here would both add the holiday premium to the compensation
package and fix the premium rate, the BEP opinion
clearly confirms the broad discretion of AOC to fix pay under the
elements articulated in §5349. Thus, the exercise of that discretion
may be committed to the collective bargaining process. The AOC has
not demonstrated how negotiations with the Union over holiday premium
pay would run afoul of these elements. It has not shown that the
parties are precluded from considering the prevalence of the holiday
premium pay rate in the relevant geographic locale. Nor has it been
shown such negotiations would foreclose consideration of the "public
interest" element of the statutory equation.
In sum, we conclude that the Union's pay proposal
involves a bargainable condition of employment within the contours
established by 5 U.S.C. §5349. As we explain next, the various
grounds upon which the AOC attempts to invoke the "inconsistent
with law" exception to negotiability under 5 U.S.C. §7117 are
B. While the Davis-Bacon Act may serve
as a basis on which the prevailing rate of basic pay is initially
calculated, it does not limit the authority and discretion of the
AOC under the FSLMRS and under 5 USC §5349(a) to negotiate
holiday premium pay.
The AOC's argument that the holiday premium pay
proposal is inconsistent with the Davis-Bacon Act is flawed in several
respects. First, the Davis-Bacon Act does not directly apply to
the Employing Office, as AOC seems to imply. The Act only covers
private contractors and subcontractors who contract (for over $2,000)
with the Federal government to perform construction, alterations,
or repair of public buildings or public works. 40 U.S.C. §276a.
It may be true that the AOC is engaged in construction work that
is similar to the work performed by private contractors who are
subject to Davis-Bacon. However, the mere performance of construction
work without more is insufficient to make AOC subject to the Davis-Bacon
Act. Furthermore, the AOC points to no other federal statute which
would mandate that it adhere to the wage determinations made by
the Department of Labor under Davis-Bacon.
To be sure, AOC may decide that its duty to pay
prevailing wages under 5 U.S.C. §5349 can be appropriately
satisfied by use of the wage determinations made by the Department
of Labor under the Davis-Bacon Act. And the Union has indicated
that the parties in fact have agreed to abide by the Labor Department's
determination of the basic rate of pay for plumbers in the relevant
locale. This fact, in itself, buttresses our conclusion that the
AOC does negotiate over wage rates. Still, AOC seems to be arguing
that by agreeing to abide by Davis-Bacon wage determinations of
the Labor Department, it is somehow foreclosed from negotiating
other components of pay independent of Davis-Bacon. This is erroneous.
The parties remain free, for example, to single out the issue of
holiday premium pay and negotiate over it within the parameters
established by 5 U.S.C. §5349(a). In short, Davis-Bacon is
not a straitjacket the precludes any bargaining over holiday premium
C. The definitional exclusion in 5 U.S.C.
§5541(2)(C)(xi) is not a prohibition on prevailing wage employees
receiving holiday pay and therefore creates no inconsistency with
The Employing Office contends that affording
prevailing rate employees holiday premium pay would be inconsistent
with the provisions of law governing premium pay for the federal
workforce. 5 U.S.C. §§5541-50a ("Subchapter V"). Specifically,
AOC cites the definitional exclusion of prevailing rate employees
from Subchapter V, 5 U.S.C. §§5541(2)(C)(xi), as indicative
of congressional intent to deny premium pay to such workers. However,
AOC has pointed to no authoritative interpretation sustaining that
view. As the Union correctly maintains, the definitional exclusion
is not a prohibition but may be simply interpreted as a legislative
decision generally not to subject prevailing rate employees to the
particular statutory rules of Subchapter V. The effect of this exclusion
is to leave the matter open for negotiation within the parameters
discussed in the prior section on 5 U.S.C. §5349(a). Cf. NAGE,
Local R5-82 and Dept. of Navy, Navy Exchange, 43 FLRA 25, 44-45
(1991). In short, the Employing Office has simply turned the significance
of the exclusion on its head.
D. The limitation contained in 31 U.S.C.
§3101 that appropriated funds may only be used for purposes
for which they were appropriated does not restrict payments for
holiday premium pay.
The AOC interposes 31 U.S.C. §3101 as an
alternative basis for holding the holiday premium pay proposal inconsistent
with law; expending funds to cover holiday premium pay would supposedly
be for a purpose not authorized by appropriations made to the Office
of the Architect of the Capitol. However, this argument necessarily
assumes the correctness of its above contention that holiday premium
pay for prevailing rate employees is not lawfully permitted by virtue
of the definitional exclusion in 5 U.S.C. §5541(2)(C)(xi).
Because we have concluded that this assumption is erroneous, we
likewise cannot sustain AOC's argument based on 31 U.S.C. §3101.
As the Union has pointed out, the limitation in §3101 should
pose no obstacle to the negotiability of the proposal here, since
the relevant appropriations legislation funding the AOC's operations
has authorized spending for matters falling within the broadly worded
purpose of "Salaries and Expenses." (15)
Premium pay unquestionably comes within that purpose.
The Employing Office shall, upon request, or
as otherwise agreed to by the parties, bargain on the proposal concerning
holiday premium pay. (16)
Issued, Washington, D.C., December 3, 2001.