Abell v. United States

• Decision Date: 25 June 1975
• Docket Number: No. 261-72,371-73.,261-72
• Citation: 518 F.2d 1369
• Parties: Leroy W. ABELL et al. v. The UNITED STATES. Jack R. BARGER et al. v. The UNITED STATES.
• Court: U.S. Claims Court

518 F.2d 1369

Leroy W. ABELL et al. v. The UNITED STATES.

Jack R. BARGER et al. v. The UNITED STATES.

Nos. 261-72, 371-73.

United States Court of Claims.

June 25, 1975.

David Minton, Washington, D. C., for plaintiff; Robert A. Saltzstein, Washington, D. C., atty. of record. Wyatt, Saltzstein, Minton and Howard, Washington, D. C., Paul G. Olsen, Jones, Olsen & Christensen, Billings, Mont., and Arnold Olsen, of counsel.

Francis H. Clabaugh, Washington, D. C., with whom was Asst. Atty. Gen. Carla A. Hills, for defendant; Lawrence Cox, Portland, Or., of counsel.

Before DAVIS, SKELTON and KASHIWA, Judges.

ON PLAINTIFFS' MOTION AND DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT

KASHIWA, Judge.

Plaintiffs, wage board employees of the Bonneville Power Administration of the Department of the Interior (hereinafter Bonneville), claim in this suit that they are being denied 25 per cent Sunday premium pay required by Section 405(f) of the Federal Employees Salary Act of 1966 (5 U.S.C. § 5544(a)) and alternatively that if they are not entitled to 25 per cent Sunday premium pay under this act, they are nonetheless entitled to it because "the prevailing rates in the industry provide for premium pay for Sunday work" and Bonneville is required to fix compensation for plaintiffs in accordance with the prevailing rates in the public electrical utilities industry in the Pacific Northwest.

This is a consolidation of the cases of Barger et al. v. United States, Ct.Cl. No. 371-73, and Abell et al. v. United States, Ct.Cl. No. 261-72. There is no genuine issue as to any material fact. Essential facts have been stipulated. Parties have filed cross motions for summary judgment. We hold for the defendant in both cases, allowing defendant's motion for summary judgment and denying plaintiffs' motion for summary judgment.

The stipulated facts are as follows. Bonneville was started and established under the Act of August 20, 1937 (50 Stat. 731, as amended, 16 U.S.C. §§ 832-832l (1970)), within the Department of the Interior. It is required and charged by statute, Executive order, and orders of the Secretary of the Interior with responsibility for marketing electric power generated from Federal hydroelectric projects in the Pacific Northwest (Bonneville Project Act, Act of August 20, 1937, 50 Stat. 731, as amended, 16 U.S.C. §§ 832-832l (1970); § 2 River and Harbor Act of 1945, Act of March 2, 1945, 59 Stat. 10, 22; § 5 Flood Control Act of 1944, Act of December 22, 1944, 58 Stat. 887, 890; Executive Order No. 8526, 5 Fed.Reg. 3390 (1940); Secretarial Order No. 2860, as amended, 27 Fed.Reg. 591 (1962), 28 Fed.Reg. 5273 (1963), 31 Fed.Reg. 13560 (1966)). To fulfill these responsibilities, Bonneville, has constructed, operates and maintains a major electrical transmission system which exceeds 12,000 miles. It has also constructed appropriate load dispatching centers and substations throughout the states of Oregon, Washington, Idaho and Montana, the geographic area of its system. The transmission lines and related electric facilities represent an investment of more than $1.2 billion. Investment in electrical generation facilities for which Bonneville has the repayment obligation is an additional $1.9 billion. Total system revenues for 1973 exceeded $177.4 million.

Bonneville employs about 3,828 employees, 1,400 of whom are hourly employees whose compensation is fixed through collective bargaining, to operate and maintain this vast system which includes more than 200 load dispatching centers or substations, 50 of which are manned by dispatchers, operators and relief operators seven days a week throughout the year. Over one-half of these are manned continuously, 24 hours a day. These dispatchers, operators and relief operators are hourly employees whose rates of compensation are fixed through contract negotiation between Bonneville and the Columbia Power Trades Council (hereinafter the union), a council composed of 16 unions including the International Brotherhood of Electrical Workers.

Bonneville's hourly employees are appointed in accordance with the Civil Service laws of the United States and for purposes of retirement, sick leave, annual leave, severance pay, workmen's compensation and other benefits are treated substantially the same as annual employees. Only in the significant area of compensation do these employees differ markedly. Since 1945 their compensation has been arrived at by collective bargaining and fixed without regard to any other law, rule or regulation of the United States. The initial authority for Bonneville to undertake collective bargaining and to fix the compensation of its hourly employees in this fashion is contained in the 1945 amendments to the Bonneville Project Act (Act of October 23, 1945, 59 Stat. 546, 547), and defendant claims that the authority has remained unchanged.

Between 1937 and 1945 the laborers, mechanics and workmen employed by Bonneville were true wage board employees. They were excluded from coverage of the 1923 Classification Act. Their rates of pay were fixed by administrative action. After 1945, pursuant to the above-referenced amendments, their compensation was fixed through collective bargaining. To develop a base for negotiations Bonneville surveyed utilities within the Pacific Northwest, employing similar crafts. At some time subsequent to 1945, Bonneville and the union representing Bonneville's hourly employees adopted the practice of making a joint survey. Representatives of Bonneville and the union cooperate in preparing this survey. Originally, only six utilities were surveyed; however, when the joint survey was expanded to include the United States Bureau of Reclamation and the Corps of Engineers, the number of utilities was increased to eight. These include the four largest private electric utilities in the Pacific North-west — Pacific Power & Light Company, Portland General Eelectric Company, Puget Sound Power & Light Company and the Washington Water Power Company; two large public utility districts (hereinafter PUD) which have significant electrical generation — Grant County PUD and Chelan County PUD; and the two largest municipally owned electric utilities — Seattle City Light and Tacoma City Light.

The Bureau of Reclamation uses this survey to negotiate wage rates for employees employed at Grand Coulee, Washington; and the Corps of Engineers submits this survey data to a wage-fixing authority in Washington, D. C., which establishes wage rates for the Northwest.

The current collective bargaining agreement between the union, which is the exclusive representative for the class which includes all plaintiffs, does not provide for Sunday premium pay for Bonneville's hourly employees. Agreements have been negotiated each year since the enactment of Section 405(f) of the Federal Salary and Fringe Benefits Act of 1966 (80 Stat. 288) (now codified as 5 U.S.C. § 5544(a) (1966)), establishing the Sunday premium. The benefit which plaintiffs claim has never been included in any negotiated agreement. It was specifically requested by the union during the 1967 annual contract negotiations between Bonneville and the union and rejected by Bonneville on the ground that the current wage survey indicated it was not a prevailing rate. Since that date the union has not requested this Sunday premium pay in its annual negotiations.

During all of the period of employment set forth in plaintiffs' petition, plaintiffs were paid on the basis of a 40-hour week at hourly rates of pay. None of the plaintiffs received any premium compensation for Sunday work as that term is used in the Federal Salary and Fringe Benefits Act of 1966, enacted July 18, 1966.

The normal schedule of those plaintiffs who work rotating shifts in positions which are manned around the clock, seven days per week, requires that each work approximately 39 Sundays per year from July 18, 1966.

The normal schedule for those plaintiffs who occupy positions at 24-hour call stations requires that each work approximately 26 Sundays per year from July 18, 1966.

Plaintiffs originally filed their petition alleging that Public Law 89-504, 5 U.S.C. § 5544(a) (1966), required payment to them by Bonneville of 25 per cent premium pay for Sunday work. By amendment dated December 6, 1972, plaintiffs further allege that if 5 U.S.C. § 5544(a) is not applicable to them, they are nonetheless entitled to 25 per cent Sunday premium pay "because the prevailing rates in the industry provide for premium pay for Sunday work" and Bonneville is required to fix the compensation for plaintiffs in accordance with the prevailing rates in the electrical utility industry. Defendant's answer, denying plaintiffs' allegations, was filed on August 23, 1972. Plaintiffs' motion for summary judgment was filed March 27, 1974. Defendant's cross motion for summary judgment was filed September 10, 1974.

We shall now turn to the first and primary issue in this case: Whether plaintiffs who are wage board employees of Bonneville, are entitled to 25 per cent premium pay for working on Sunday pursuant to Public Law 89-504, 5 U.S.C. § 5544(a), enacted July 18, 1966.

In order to fully understand the statutory construction problem presented in this case, it is necessary to have a clear picture of the creation of Bonneville in 1937 and of the events which took place thereafter until the passage of the Act of October 23, 1945 (hereinafter the 1945 Act). These facts are well summarized in the defendant's brief and since plaintiffs do not dispute these basic facts, we shall quote from Defendant's Cross Motion for Summary Judgment, at pp. 9a-14 (footnotes and emphasis omitted):

Bonneville's organic legislation, enacted in 1937, orginally provided:

"Sec. 10. The Administrator, the Secretary Of War, and the Federal Power Commission, respectively, shall appoint such attorneys, engineers, and other experts as may be necessary for carrying out the direction sic: functions entrusted

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