U.S. Office of Personnel Management - Ensuring the Federal Government has an effective civilian workforce

Department of the Interior, Bureau of Reclamation, Yuma Area Office v. Federal Labor Relations Authority, No. 00-70862 (9th Cir. January 30, 2002).

In disagreeing with the Authority's holding in 56 FLRA No. 51, the 9th Circuit held that agreement on where to locate a reference to Sunday differential pay in the contract does not constitute evidence that Sunday differential pay was a "subject of negotiation" in accordance with prevailing rates and practices. Negotiation, at least for the purposes of section 704(a), is more than a process: it is about something.

In Bureau of Reclamation, 56 FLRA No. 51, the Authority, Member Cabaniss dissenting, found negotiable a proposal requiring the agency to pay a differential of 25% of an employee's base wage for non-overtime work on Sunday. FLRA found, among other things, that the matter of Sunday differential pay had been the subject of negotiation prior to August 19, 1972, within the meaning of section 704(a), given that it appeared in the 1968 agreement between the parties. It rejected the agency's claim that the 1968 agreement's reference to a Sunday differential was not the result of "negotiation," but rather the result of a mistaken belief that unit employees were entitled to such a differential as a matter of law. In FLRA's view, "the term 'negotiation' is properly construed as referring to the process of reaching an agreement and not to the subject of, or result of, that process."

On appeal, the Ninth Circuit disagreed.

In holding that Sunday premium pay had been negotiated, the FLRA noted that the dictionary definition of negotiation suggestions that "negotiation" means the "process of reaching an agreement and not to the subject of, or result of, that process." Therefore, the FLRA concluded that the parties' discussion of where to include Sunday differential pay and the fact that Sunday differential pay was listed in the agreement was evidence that the parties engaged in the negotiation "process."

The FLRA erred in reaching its conclusion. While the term negotiation does refer to the process of negotiation, the verb negotiate includes within its definition the acts of communication and/or discussion between the parties in reaching a compromise. The term "negotiate" is defined in the dictionary as follows: "to communicate or confer with another so as to arrive at the settlement of some matter: meet with another so as to arrive through discussion at some kind of agreement or compromise about something." Webster's Third New International Dictionary, Unabridged, 1986. The only evidence that the parties "negotiated" Sunday premium pay is a letter that states that the parties discussed whether to list Sunday premium pay in the Supplementary Wage Schedule Agreement or retain it in the Supplementary Agreement No. 1. The discussion did not center on particular terms or whether to pay the Sunday premium. The parties simply discussed where to place Sunday premium pay in the agreement. This act does not rise to the level of negotiation.

The court further found that the inclusion of Sunday differential pay in a list of various nonnegotiable entitlement benefits--such as leave, retirement benefits, injury compensation, group life and health insurance--in a separate document entitled "General Benefits" was further evidence that the parties regarded Sunday differential pay as a nonnegotiable benefit.

Finding that the requirements of section 704(a) were not met because no terms or conditions of the Sunday premium pay were discussed or bargained between the parties prior to August 19, 1972, the court reversed the Authority and remanded the case to it for further proceedings consistent with the court's opinion.