[ v13 p508 ]
13:0508(87)NG
The decision of the Authority follows:
13 FLRA No. 87
INTERNATIONAL ORGANIZATION OF
MASTERS, MATES AND PILOTS
Union
and
PANAMA CANAL COMMISSION
Agency
Case No. 0-NG-337
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and raises questions
concerning the negotiability of 25 proposals. Upon careful
consideration of the entire record, including the parties' contentions,
the Authority makes the following determinations.
Union Proposal 1
The pilot duty station shall have adequate provisions for radio
transmitters capable of transmitting on Channel 12 and 16, as well
as the local harbor frequency, and shall have the capability to
simultaneously monitor one channel and transmit and receive on
another.
The Union tacitly concedes that this proposal would require the
Agency to use certain equipment in performing its work, asserting that
such equipment is the minimum needed for safe and effective performance.
In American Federation of State, County and Municipal Employees,
AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., (and the
case consolidated therewith), 7 FLRA No. 89 (1982), (Proposal IX),
affirmed as to other matters sub nom. Library of Congress v. FLRA, 699
F.2d 1280 (D.C. Cir. 1983), the Authority stated that section 7106(b)(1)
of the Statute /1/ reserves to management the determination of the
technical method used by an agency for accomplishing or furthering the
performance of the agency's work. The instant proposal would require
the Agency to furnish the pilot duty station with radio transmitters
having particular capabilities to be used in performing the Agency's
work. The proposal would, therefore, prescribe a technical method for
work performance and consequently is inconsistent with the Agency's
election, under section 7106(b)(1), to unilaterally determine the
technology of performing its work. Thus, Proposal 1 is outside the duty
to bargain.
Union Proposal 2
All launches shall be equipped with VHF radio capable of
transmission on Channel 12 and 16, in addition to the local harbor
frequency, and shall be equipped with the capacity to monitor one
channel while transmitting.
As with Proposal 1, this proposal would require the Agency to use
certain equipment in performing its work. The Union asserts that the
equipment which this proposal would require to be installed in launches
already is installed in tow boats and that launches are substituted for
tow boats when tow boats are unavailable. Therefore, the Union argues
that the proposal merely would require tow boat substitutes and tow
boats to be comparably equipped.
Nevertheless, this proposal, like Proposal 1, would require the
Agency to adopt a specific technology for performing its work in a
circumstance where the Agency has chosen not to adopt that technology.
As stated with respect to Proposal 1, the Statute gives the Agency the
right to elect to make such a determination unilaterally under section
7106(b)(1). Thus, the proposal is outside the duty to bargain.
Union Proposals 3 and 4
The employer shall establish positive harbor control in
Cristobal harbor. A Canal port captain (CPC) will be stationed at
the signal station to control the movement of all unpiloted
vessels . . . .
The record indicates that in carrying out the part of its mission
which is to provide for the orderly transit of vessels through the
Panama Canal, the Agency utilizes a "compulsory pilotage" system, where
only certain vessels maneuvering in designated Canal waters are required
to be under the control of the Agency, and exempts certain vessels from
the requirement that an Agency pilot be on board while the vessel
maneuvers within the waters under the Agency's jurisdiction. In
contrast, according to the Agency, the "positive harbor control" which
the proposal would prescribe is a system under which all vessels not
assigned a pilot would be required to remain at designated anchorages
until authorized to maneuver by the port captain.
By requiring the Agency to establish a positive harbor control system
of operation in Cristobal harbor, the first sentence of the combined
proposals would require the Agency to adopt a specific procedure or
system for performing its work. Thus, the Authority finds, in agreement
with the Agency, that the proposal would directly interfere with the
Agency's elective right under section 7106(b)(1) of the Statute, to
determine unilaterally the "methods . . . of performing work." See
National Federation of Federal Employees, Local 541 and Veterans
Administration Hospital, Long Beach, California, 12 FLRA No. 62 (1983);
National Treasury Employees Union and Internal Revenue Service, 6 FLRA
No. 98 (1981) (Proposals III, IV and V). Further, the second sentence
of the combined proposals, by dictating a specific function for the port
captain, concerns the assignment of duties to an individual who is not
in the bargaining unit. Thus, the proposal is outside the duty to
bargain because it does not concern conditions of employment of
bargaining unit employees (National Council of Field Labor Locals,
American Federation of Government Employees, AFL-CIO and U.S. Department
of Labor, Washington, D.C., 3 FLRA 290 (1980) (Proposal 1)); and
prescribes the assignment of specific duties to particular employees
which would directly interfere with management's right under section
7106(a)(2)(B) of the Statute to assign work. /2/ American Federation of
Government Employees, AFL-CIO and Air Force Logistics Command,
Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 623, 631 (1980),
enforced sub nom. Department of Defense v. FLRA, 659 F.2d 1140 (D.C.
Cir. 1981), cert denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct.
1443 1982).
Union Proposal 5
The Commission shall provide free housing, telephone and
utilities for all pilots and their families.
This proposal would require the Agency to provide housing, including
telephone and utilities, free for all pilots and their families. The
Agency's predecessor, the Panama Canal Company, owned and operated
employee housing. Article III of the Panama Canal Treaty provides for
title to all such housing to be transferred to the Panamanian Government
upon enactment of the Treaty. However, Article VI(1) (Regime of Civil
Coordination for Housing Areas) of the Agreement in Implementation of
Article III of the Panama Canal Treaty (Agreement) specifies, "(t)he
housing areas shall, however, continue to be dedicated, for the duration
of this Agreement, to the primary purpose of housing employees of the
Commission (the Agency herein) in accordance with the provisions of this
Article. /3/ These provisions as pertinent herein indicate that the
Agency controls the use, and can establish the rental rate, only of that
housing which remains dedicated to housing U.S. citizen employees and
their dependents. The Agency does not control the use, nor can it
establish the rental rate, of housing occupied by employees who are not
U.S. citizens.
Hence, the proposal, which expressly would require the Agency to
provide free housing for all employees, including those who are not U.S.
citizens, is inconsistent with Article VI of the Agreement in
Implementation of Article III of the Panama Canal Treaty. The Treaty,
of course, has the force of Federal law. /4/ Accordingly, apart from
other considerations, the proposal is outside the duty to bargain under
section 7117(a) of the Statute because it is inconsistent with Federal
law. /5/
Union Proposal 6
Should it become necessary for the pilot to move during the
year, the Commission shall pay all moving expenses for the pilot,
his family and belongings . . . .
The record reveals that the Agency pays all employee moving expenses
when the Agency transfers an employee from the northern to the southern
district in Panama and when the Agency otherwise initiates a move for
its convenience, e.g., to renovate old quarters. The record further
indicates that the intent of the proposal is to require the Agency to
pay, also, for moves initiated at employees' requests, for employees'
convenience.
The Agency essentially asserts that it is prohibited under law from
paying for such moves. In this regard, 5 U.S.C. 5724(h) states:
(h) When a transfer is made primarily for the convenience or
benefit of an employee . . . or at his request, his expenses of
travel and transportation and the expenses of transporting . . .
household goods and personal effects may not be allowed or paid
from Government funds.
Accordingly, since the record clearly indicates that the moving
expenses which this proposal would require the Agency to pay relate to
moves made primarily for the convenience or benefit of employees, the
Authority finds in agreement with the Agency that this proposal is
inconsistent with Federal law and is outside the duty to bargain under
section 7117(a) of the Statute.
Union Proposals 7 and 8
The Commission shall pay the (cash) equivalent of an allowance
for allowable travel expenses, including first-class air fare and
per diem to every pilot, for himself and his family, once per
year. Monies, including one week (40 hours) of home leave and one
week (40 hours) of travel time shall be paid or credited whether
or not the travel is effected.
While not covered by chapter 63 of title 5 of the U.S.C. governing
annual and sick leave, employees of the Panama Canal Commission who were
recruited in the U.S. (or any other U.S. territory or possession) appear
to benefit from a "home leave" program much like that authorized in 5
U.S.C. 6305(a). See Article X(6) of the Panama Canal Treaty of 1977.
Under such a program, an employee who completes a fixed period in the
Commission's service and agrees to serve another fixed period, is
provided additional leave for the purpose of visiting his or her former
place of residence, and such travel time and expenses as are necessary
to make the visit.
The Union designates Proposals 7 and 8 as providing together for
"Cash equivalent of travel expense, leave, and travel." Thus, the
proposals appear to be intended to provide employees, who do not take
home leave to which they would otherwise be entitled, with a cash
payment equivalent to the amount the Agency was prepared to spend.
Hence, the proposal would, in effect, establish supplements to such
employees' pay. Section 1215 of the Panama Canal Act of 1979 (93 Stat.
465( (22 U.S.C. 3655) establishes, however, a specific procedure for
determining the basic pay of employees. (See the discussion concerning
Union Proposal 13, infra.) Likewise, the Act provides various specific
supplements to basic pay (e.g., the tropical differential provided by 22
U.S.C. 3656, discussed in connection with Union Proposal 16, infra).
Thus, the proposed additional supplement to certain employees' pay would
alter, and is therefore inconsistent with, the comprehensive statutory
scheme established for that purpose. Thus, the proposal concerns a
matter which is specifically provided for by Federal law. Such matters
are excluded from the meaning of "conditions of employment" under
section 7103(a)(14) of the Statute and, accordingly, are outside the
duty to bargain as defined in section 7103(a)(12). /6/
Union Proposal 9
Should the employer desire chartered aircraft during peak
periods of travel, rather than normal commercial transportation,
no employee shall be required to use such chartered aircraft.
The Union's response to the Agency's statement of position indicates
that the proposal is intended to allow employees taking home leave to
travel on commercial flights rather than on aircraft chartered by the
Agency. The Agency contends the proposal is outside the duty to bargain
for two reasons.
First, the Agency argues that the decision whether to use commercial
or chartered aircraft is governed by 5 U.S.C. 5733, which states that,
"(t)he travel of an employee shall be by the most expeditious means of
transportation practicable . . . ." The Agency claims that the proposal
would conflict with this provision by allowing employees to refuse to
use chartered aircraft even when they are the "most expeditious means of
transportation."
In our view, however, the phrase requiring use of "most expeditious
means of transportation" would not ordinarily refer to the choice
between commercial or chartered aircraft because both are the same
"means" of transportation: aircraft. Furthermore, the legislative
history of section 5733 indicates that, in enacting it, Congress sought
to achieve an altogether different purpose. In this regard, the Senate
Committee stated as follows: /7/
The committee also believes that agencies should utilize the
most expeditious means of transportation practicable, commensurate
with the nature and purpose of an employee's duties. To require
an employee to ride the bus 200 or 500 or 1,000 miles to attend a
meeting simply because it is the cheapest form of transportation
is a false economy and archaic practice.
The section clearly was intended to require use of the speediest
means of transportation practicable when a slower means, although less
costly, itself, would not be more economical in overall effect. This
directive therefore would not generally apply to the use of commercial
instead of chartered aircraft.
Second, the Agency argues the proposal conflicts with Chapter 1-2.2.b
of the Federal Travel Regulations (FTR), which states:
b. Selecting method of transportation to be used. Travel on
official business shall be by the method of transportation which
will result in the greatest advantage to the Government, cost and
other factors considered. In selecting a particular method of
transportation to be used, consideration shall be given energy
conservation and to the total cost to the Government, including
costs of per diem, overtime, lost worktime, and actual
transportation costs . . . .
This FTR requirement, also, would not apply to the choice of aircraft
to be used when taking home leave. By its terms, the FTR requirement
applies only when selecting the method of transportation to be used when
on official business. However, as stated in Erickson v. United States,
105 F.Supp. 1020, 1023 (Ct.Cl. 1952): "When an employee enters upon
either sick leave, annual leave, or leave without pay he is no longer
traveling on official business for the Government unless statutory
enactment so provides." The record does not support a finding in the
present case that home leave, as a supplemental form of annual leave for
a special category of employees, is travel on official business. As a
consequence, the cited FTR requirement is inapposite.
Accordingly, since the Agency has not demonstrated that the proposal
would conflict with either law or regulations, the proposal is within
the duty to bargain.
Union Proposals 10 and 11
All pilots and their families shall be granted full privileges
in the use of all military commissaries, exchanges, retail stores,
clubs, libraries, pools, service stations, etc. for the duration
of this agreement, including any renewal or extension thereof.
All pilots and their families shall be provided Post Office
boxes free of charge with full privileges for using all services
offered by the APO Post Office, for the life of the Panama Canal
Commission.
These proposal expressly would require the Agency to provide all
pilots and their families with full privileges in the use of certain
facilities. The use of these facilities, however, is limited by treaty
to U.S. citizen employees and their dependents. Specifically, Article
XIII(3) of the Agreement in Implementation of Article III of the Panama
Canal Treaty provides:
The United States may furnish to United States citizen
employees and dependents the services provided for in Article
XVIII of the Agreement in Implementation of Article IV of the
Panama Canal Treaty signed this date, and authorize their use of
the facilities provided for in the Article X and Article XI of
that Agreement (these references list the kind of facilities
enumerated in the proposals) provided, however, that their use of
military postal services, commissaries, and military exchanges may
not be authorized after five years from the entry into force of
this Agreement.
Thus, since the Treaty only authorizes the use of the facilities in
question to be extended to U.S. citizen employees and dependents, and
since the record indicates that all pilots are not U.S. citizens, the
proposals would conflict with the quoted provisions. Accordingly, the
proposals are inconsistent with Federal law and therefore outside the
duty to bargain under section 7117(a) of the Statute. /8/
Union Proposal 12
The Commission shall reimburse any pilot or dependent for any
and all fees charged the pilot or dependent by the government of
Panama for licensing, inspection or registration, including the
cost of license plates for vehicles and trailers, including but
not limited to:
1. Vehicle operator's license
2. Motorboat license
3. Airplane license
4. Radio license
5. Firearms license
6. Vehicle and trailer registration
7. Boat registration and navigation permit
8. Radio operator's permit
The Agency states without controversion that employees are not
required as part of their jobs to acquire any of the licenses or permits
enumerated in the proposal. These licenses and permits are, instead,
for the personal use of employees. Therefore, payment for their
acquisition is not a matter subject to the duty to bargain.
The duty to bargain under the Statute extends only to "conditions of
employment," i.e., personnel policies, practices, and matters affecting
working conditions. /9/ In construing that statutory phrase, the
Authority has found proposals which concern matters directly affecting
"the work situation and employment relationship" of bargaining unit
employees to be within the duty to bargain. Conversely, proposals which
principally relate to employees involved in non-work activities while in
a non-duty status do not concern matters which are "conditions of
employment" within the meaning of section 7103(a)(14) of the Statute.
See National Federation of Federal Employees, Local 1363 and United
States Army Garrison, Yongsan, Korea, 12 FLRA No. 125 (1983) and cases
cited therein.
The Authority finds, in agreement with the Agency, that the
acquisition of the licenses and permits involved in the instant proposal
has no direct relationship to the work situation and the employment
relationship of unit employees. Rather, it concerns non-work activities
while on a non-duty status. Accordingly, it is concluded that the
proposal does not concern conditions of employment and, therefore, is
outside the duty to bargain.
Union Proposal 13
The base pay of pilots which was in effect on January 1, 1980
shall be increased by ten percent (10%).
The proposal would require a 10% increase in the base pay of pilots.
Section 1215 of the Panama Canal Act of 1979 (93 Stat. 465) (22 U.S.C.
3655) as previously indicated in connection with Union Proposals 7 and
8, herein, establishes a specific procedure for determining the basic
pay of employees. That section provides that any adjustments in the
basic rate of pay can only be made "in amounts not to exceed the amounts
of the adjustments made from time to time by or under statute in the
corresponding rates of basic pay for the same or similar work" performed
in the United States or in such areas outside the United States as may
be designated by regulation. There is no evidence in the record that
the proposal is based upon or is intended to be applied in conformity
with the statutory procedure. Accordingly, the proposal is inconsistent
with Federal law and, therefore, outside the duty to bargain under
section 7117(a) of the Statute. /10/
Union Proposal 14
Pilots receive a bonus for any work performed on Saturday,
Sunday, or United States or Panamanian legal holiday.
Section 111 of the Panama Canal Code, as enacted into Federal law by
76A Stat. 6, specifies that certain days are to be considered legal
holidays and section 112 indicates that all other days "are business
days for all purposes." This Union proposal, however, inconsistent with
section 112, would have the effect of adding, for employee pay purposes,
all Saturdays and certain Panamanian holidays to the Code's list of
holidays. Accordingly, the proposal is inconsistent with Federal law
and outside the duty to bargain.
Union Proposal 15
Ceiling Leave Bonus
In the event the pilots should suffer deductions in their wages
to conform to the Federal wage ceiling or for any other reason
such deductions (presently referred to as minus signs) shall be
credited to a special leave account of the affected pilot. This
special leave shall be computed by dividing the amount of salary
deducted from the gross pay by the hourly rate of the pilot. The
resulting figure shall be the hours of special leave earned during
the pay period. This leave shall be carried in an account
separate from any other form of leave, and no ceiling or
limitation shall be placed upon it. This leave account shall be
liquidated by cash payment in the event the pilot dies or leaves
the service for any reason.
The proposal would in effect ensure that pilots who otherwise would
lose wages insofar as they exceed an applicable Federal wage ceiling or
for any other reason would receive compensation to that extent in the
form of "special leave" of an equivalent dollar value to the lost wages.
The employee could use this leave or, upon death or leaving the
service, a cash equivalent would be paid.
The Agency argues that the proposal is inconsistent with 5 U.S.C.
5308 which states:
Pay may not be paid, by reason of any provision of this
subchapter, at a rate in excess of the rate of basic pay for level
V of the Executive Schedule.
The Agency asserts that the proposal would circumvent the pay
ceiling, and is therefore inconsistent with law and nonnegotiable. The
Union argues that 5 U.S.C. 5308 is inapplicable to the Panama Canal
Commission and, therefore, "a proposal to negotiate an alternative
method of payment of wages is not unlawful . . . ."
5 U.S.C. 5308 is part of subchapter I and chapter 53 of title 5. At
the outset, subchapter I indicates section 5308 is one of the provisions
to be used in connection with fixing and adjusting the pay rate of each
"statutory pay system." 5 U.S.C. 5301(b). Hence, it would appear that
if the Panama Canal Commission operates under a "statutory pay system,"
it is bound by the pay ceiling language contained in section 5308.
5 U.S.C. 5301(c) defines a "statutory pay system" as follows:
(c) For the purpose of this subchapter, "statutory pay
system
means a pay system under--
(1) subchapter III of this chapter, relating to the General
Schedule;
(2) subchapter IV of chapter 14 of title 22, relating to the
Foreign Service of the United States; or
(3) chapter 73 of title 38, relating to the Department of
Medicine and Surgery, Veterans' Administration.
The Panama Canal Commission is not covered by (1), (2), or (3) of
this section. In fact, under (1) the Panama Canal Commission is
specifically excluded from the the definition of an "agency," by virtue
of 5 U.S.C. 5102(a)(1)(G)(vii). Accordingly, the Panama Canal
Commission does not operate under a "statutory pay system," as defined
in 5 U.S.C. 5301(c). Therefore, as the Union asserts, the pay ceiling
language contained in section 5308 does not apply to the Agency so as to
bar negotiation of this proposal as claimed by the Agency.
Further, two other provisions of the U.S. Code are pertinent herein.
In this regard, 5 U.S.C. 5373 provides, in relevant part:
sec. 5373. Limitation on pay fixed by administrative action
Except as provided by the Government Employees Salary Reform
Act of 1964 (78 Stat. 400) and notwithstanding the provisions of
other statutes, the head of an Executive agency or military
department who is authorized to fix by administrative action the
annual rate of basic pay for a position or employee may not fix
the rate at more than the maximum rate for GS-18. This section
does not impair the authorities provided by--
(1) section 1202 of the Panama Canal Act of 1979).)
Additionally, 22 U.S.C. 3642 (section 1202 of the Panama Canal Act of
1979) provides, in relevant part:
sec. 3642. Appointment and compensation; duties
(a) In accordance with this part, the Panama Canal Commission
may appoint without regard to the provisions of Title 5, relating
to appointments in the competitive service, fix the compensation
of, and define the authority and duties of, officers, agents,
attorneys, and employees (other than the Administrator, Deputy
Administrator, and Chief Engineer) necessary for the management,
operation, and maintenance of the Panama Canal and its
complementary works, installations, and equipment.
Read together, these two provisions allow the Agency to exceed the
maximum rates for GS-18 when fixing employee pay.
Hence, noting that the Agency asserts no other basis for finding this
proposal contrary to law or controlling regulation, this proposal is
within the Agency's duty to bargain.
Union Proposal 16
As provided in the Panama Canal Treaty of 1977, the tropical
differential shall be increased to twenty-five percent (25%) to be
applied exclusive of any grade ceilings.
The Agency argues that the proposal conflicts with Government-wide
regulations which would bar negotiation pursuant to section 7117(a) of
the Statute.
Such regulations currently are contained in 35 CFR 251.31 /11/ and
govern Compensation and Allowances under the Panama Canal Employment
System. They were issued pursuant to Section 1212 of the Panama Canal
Act, 22 U.S.C. 3652. Under the law, pay practices established by the
regulations relied upon by the Agency are mandatorily applicable only to
employees of the Panama Canal Commission. While other agencies may
elect to be covered under such system when conducting operations in
Panama, under law they are not required to do so. Thus, contrary to the
Agency's argument, the Authority finds the regulations at issue are not
Government-wide rules or regulations in that they are not generally
applicable throughout the Federal Government. See, e.g., Professional
Air Traffic Controllers Organization, AFL-CIO and Department of
Transportation, Federal Aviation Administration, 4 FLRA 232 (1980)
(Union Proposal 1). In addition, the Agency has neither alleged, nor
made any showing, that its Agency regulations are supported by a
compelling need. Under these circumstances, and as established in
American Federation of Government Employees, AFL-CIO, Local 1928 and
Department of the Navy, Naval Air Development Center, Warminster,
Pennsylvania, 2 FLRA 450, 454 (1980), the cited Agency regulations
cannot bar negotiation of the proposal. /12/
Union Proposal 17
. . . newly recruited pilots shall have the additional option
of electing or continuing coverage under M.M. & P. Offshore
Pension Plan, in the manner and under the procedures applicable
for deck officers of the S.S. Cristobal.
The proposal would afford all newly recruited pilots, without
differentiation on the basis of citizenship, the option of choosing the
M.M. & P. Offshore Pension Plan as their retirement system.
The Agency argues, inter alia, that employees who are not U.S.
citizens are required under Article VIII(1)(a) of the Agreement in
Implementation of Article III of the Panama Canal Treaty of 1977 to be
covered by the Social Security System of the Republic of Panama.
Article VIII(1)(a) provides:
(1) Concerning Social Security and retirement benefits to
employees of the Commission who are not United States citizen
employees, the following provisions shall apply:
(a) Such persons who are employed by the Commission subsequent
to the entry into force of this Agreement shall, as of their date
of employment, be covered by the Social Security System of the
Republic of Panama.
Accordingly, the Agency is correct in asserting that the terms of
this provision require, with regard to newly recruited employees who are
not U.S. citizens, the Agency's retirement contribution to be made to
the Social Security System of the Republic of Panama. Since the
proposal would in effect allow such employees to elect to have the
contributions made to the M.M. & P. Plan, instead, the proposal is
inconsistent with Federal law and is outside the duty to bargain under
section 7117(a) of the Statute. /13/
Union Proposal 18
Except in an emergency, no pilot shall be required to proceed
outside the Cristobal breakwater for the purpose of boarding a
vessel. If due to an emergency it becomes necessary to board a
vessel outside the breakwater, the pilot shall be compensated for
such work by $500.00 in addition to any pay or allowance due.
This proposal would restrict the Agency from assigning certain duties
to a pilot unless there is an emergency. Thus, the proposal would
impermissibly condition management's statutory right to assign work, in
contravention of the discretion granted to management by section
7106(a)(2)(B) of the Statute. International Association of Fire
Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438 (1980).
Accordingly, the proposal is outside the duty to bargain.
Union Proposals 19 and 20
Any vessel having a beam of over 75 feet and scheduled to begin
a transit between the hours of 1600 and 2400 local time shall be
assigned (two) control pilots.
All vessels presently assigned six locomotives will be assigned
(two) qualified control pilots.
Each proposal would require that two employees be assigned to
specific jobs. The proposals, therefore, would preclude management from
assigning just one employee to these jobs. In this regard, the
proposals are materially to the same effect as the "solitary assignment"
clause of Union Proposal 6 in National Federation of Federal Employees,
Local 1167 and Department of the Air Force, Headquarters, 31st Combat
Support Group (TAC), Homestead Air Force Base, Florida, 6 FLRA No. 105
(1981), affirmed as to other matters sub nom. NFFE, Local 1167 v. FLRA,
681 F.2d 806 (D.C. Cir. 1982). In that case the Authority held that the
proposal would directly interfere with management's right under section
7106(b)(1) of the Statute to determine the number of employees assigned
to any work project or tour of duty and to negotiate such a
determination only if it elects to do so. Accordingly, as in National
Federation of Federal Employees, Local 1167, the proposals herein are
outside the duty to bargain.
Union Proposal 21
The employer agrees to cover all pilots with a life insurance
policy in a face amount equal to three years base pay, or
$150,000.00, whichever shall be less, the premiums of which are to
be paid by the Commission. The policy shall have provisions for
double indemnity.
The proposal would establish a life insurance policy for employees
other than the one provided Federal employees by statute (5 U.S.C. 8701
et seq.). The question becomes whether the the Agency's employees are
excluded or excludable from this statutory life insurance coverage; if
they are not, the Union's attempt to negotiate alternative life
insurance coverage would be nonnegotiable under section 7103(a)(14)(C),
since such coverage is specifically provided for by law.
Section 1209 of the Panama Canal Act of 1979 (22 U.S.C. 3649) states:
Sec. 3649. Inapplicability of certain benefits to certain
noncitizens
Chapter 81 of Title 5, relating to compensation for work
injuries, chapter 83 of such Title 5, relating to civil service
retirement, chapter 87 of such title 5, relating to life
insurance, and chapter 89 of such Title 5, relating to health
insurance, are inapplicable to any individual--
(1) who is not a citizen of the United States;
(2) whose initial appointment by the Commission occurs after
October 1, 1979; and
(3) who is covered by the Social Security System of the
Republic of Panama pursuant to any provision of the Panama Canal
Treaty of 1977 and related agreements.
This precise definition of which Agency employees are excluded from
coverage of the enumerated Federal employee programs is strong evidence
of Congressional intent to Include the remaining Agency employees under
those programs. Thus, as relevant herein, it is concluded that Congress
intended U.S. citizen employees to be covered by chapter 87 of title 5,
relating to life insurance.
Accordingly, since the proposal would establish a life insurance
policy for U.S. citizen employees different from or in addition to the
one specifically provided for by law, the proposal is excluded from the
definition of conditions of employment in section 7103(a)(14)(C) of the
Statute. Therefore, the proposal is outside the duty to bargain under
the Statute.
Union Proposals 22 and 23
No former pilot in a management position shall be permitted to
work as a control pilot in the Canal at any time, except as
specifically provided in the Work Rules. Temporary office
positions may be filled by retired annuitant pilots.
Union Proposal 22 would prohibit certain management officials from
doing bargaining unit work. In this regard, the proposal is materially
to the same effect as Union Proposal VI in National Association of Air
Traffic Specialists and Department of Transportation, Federal Aviation
Administration, 6 FLRA No. 106 (1981). In that case, the Authority held
the proposal to be outside the duty to bargain on two bases. First, it
interferes with the discretion reserved to management by the right to
assign work under section 7106(a)(2)(B). Second, it applies to
employees outside the bargaining unit; and the duty to bargain under
the Statute extends only to the conditions of employment of bargaining
unit employees. Hence, for the reasons stated in National Association
of Air Traffic Specialists, Proposal 22 is not within the duty to
bargain.
As to Union Proposal 23, the Union, in its response to the Agency's
statement of position, indicates the proposal neither requires the
creation of temporary office positions nor, if they are created, the
filling of these positions with retired annuitant pilots. Instead, the
Union states the proposal "merely suggests that if (the positions) are
(created), they may be filled by such persons." Based upon this
interpretation of the proposal, the Authority finds that the proposal
would impose no obligation or restriction on the Agency with respect to
any management right or any nonbargaining unit positions or personnel.
Thus, the proposal is within the duty to bargain. /14/
Union Proposal 24
It is further agreed that the Commission will, upon the
appropriate written authorization from the pilot, deduct
as directed by the written authorization contributions to the MMP
Political Fund, as well as such other deductions from pay as were
permissible prior to negotiation of this agreement.
This proposal is materially to the same effect as Union Proposal IV
in National Association of Air Traffic Specialists and Department of
Transportation, Federal Aviation Administration, 6 FLRA No. 106 (1981).
In that case, the Authority determined that a proposal which would have
required the agency to honor employee requests for payroll deductions
for a political action fund was outside the duty to bargain because the
purpose of the proposed deduction did not directly relate to personnel
policies, practices, or matters affecting working conditions.
Accordingly, for the reason set forth therein, this proposal is outside
the duty to bargain. /15/
Union Proposal 25
For pilots terminated because of disability and dependents of
pilots terminated by death, regular pay shall continue through the
end of the pay period following the pay period in which
termination occurs, and thereafter, benefits shall be payable as
herein above provided.
The proposal would require that, for employees in the unit whose
employment is terminated for reasons of disability or death, pay shall
continue at regular rates for the remainder of the pay period in which
the termination occurred and for the entire succeeding biweekly pay
period.
When an employee leaves the job due to disability, 5 U.S.C. 8118
requires that before such time as an employee receives disability
compensation, the employee, at the employee's option, either use
sick/annual leave or apply for a separate 45 day continuation of pay
when the disability was caused by job-related traumatic injury. The
proposal's continuation of pay in disability situations does not require
that the employee either use sick/annual leave or qualify for the kind
of continuation of pay provided for in 5 U.S.C. 8118 and 20 CFR
10.200-10.206. Therefore, the proposal is inconsistent with these
provisions and, accordingly, outside the duty to bargain.
When employment is terminated due to the death of an employee,
subchapter VIII of chapter 55 of title 5 U.S. Code specifies the
settlement of accounts. Specifically, 5 U.S.C. 5581(2) states that
"'money due' means the pay and allowances due on account of the services
of a deceased employee for the Government of the United States or the
government of the District of Columbia." The proposal, by providing for
pay at a time the employee could not be rendering services, i.e., the
day after the date of death through the following pay period, is
inconsistent with this provisions. /16/ Accordingly, this portion of the
proposal is also inconsistent with law and, thus, outside the duty to
bargain. /17/
ORDER
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall upon request (or as
otherwise agreed to by the parties) bargain concerning Union Proposals
9, 15, 16 and 23. /18/ IT IS FURTHER ORDERED that the Union's petition
for review as to the remaining proposals herein be, and it hereby is,
dismissed.
Issued, Washington, D.C., December 14, 1983
Barbara J. Mahone, Chairman
Ronald W. Haughton, Member
Henry B. Frazier III, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ Section 7106(b)(1) provides:
Sec. 7106. Management rights
* * * *
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
(1) at the election of the agency, on the numbers, types and
grades of employees or positions assigned to any organizational
subdivision, work project, or tour of duty, or on the technology,
methods, and means of performing work(.)
/2/ Section 7106(a)(2)(B) reads as follows:
Sec. 7106. Management rights
(a) Subject to subsection (b) of this section, nothing in this
chapter shall affect the authority of any management official of
any agency--
* * * *
(2) in accordance with applicable laws--
* * * *
(B) to assign work, to make determination with respect to
contracting out, and to determine the personnel by which agency
operations shall be conducted(.)
/3/ The Article provides as follows:
2. The Republic of Panama hereby places at the disposal of the
United States, without cost, the use of such housing, within the
housing areas, as the United States may deem necessary for United
States citizen employees and dependents throughout the duration of
this Agreement. The United States may continue to manage,
maintain, improve, rent and assign such housing for United States
citizen employees and dependents.
3. The use of housing units beyond those required by the
United States for housing United States citizen employees and
dependents at the date of entry into force of this Agreement,
shall pass to the Republic of Panama on that date . . .
4. In order to protect the interests and welfare of employees
of the United States who are not United States citizen employees
and who, on the date of entry into force of this Agreement, are
occupying housing units, the use of which is transferred to the
Republic of Panama, the Republic of Panama shall give such persons
the following special treatment:
(a) The opportunity to occupy, by lease or rental, or in the
event the Republic of Panama decides to sell, to acquire by
purchase at reasonable prices, the units which they are occupying
on the date of entry into force of this Agreement;
(b) In cases of purchase, the opportunity to obtain long-term
financing arrangements.
(c) In cases where continued occupancy of a particular housing
unit is not feasible, the opportunity to obtain other adequate
housing within such areas at reasonable cost, on a preferential or
priority basis.
/4/ U.S. CONST. art. VI, cl. 2.
/5/ In view of its disposition, the Authority finds it unnecessary to
address the Agency's additional contentions as to the nonnegotiability
of the proposal.
/6/ In view of the Authority's disposition of these proposals, it is
unnecessary to consider the Agency's additional contentions concerning
the proposals' impact on various aspects of the home leave program.
/7/ SEN. REP. NO. 801, 90th Cong., 1st Sess., reprinted in (1967)
U.S. CODE CONG. & AD. NEWS, 2258, 2288. (1967) U.S. CODE CONG. & AD.
NEWS, 2258, 2288.
/8/ In view of the disposition herein, the Authority finds it
unnecessary to consider the Agency's additional contentions as to the
nonnegotiability of these proposals.
/9/ Section 7103(a)(14) of the Statute.
/10/ In view of its disposition, the Authority finds it unnecessary
to address the Agency's other contentions concerning the
nonnegotiability of the proposal.
/11/ The Agency in its submission cited 35 CFR Part 253 which has
subsequently been superceded by 35 CFR Part 251.
/12/ It is additionally noted that under Section 1217 of the Panama
Canal Act, 22 U.S.C. 3657, agencies may establish a recruitment and
retention differential of up to 25% and are exempted from the
application of the overseas differentials and allowances portion of
title 5 of the U.S. Code. Hence, there is nothing in 22 U.S.C. 3657
which would preclude the Agency from adopting a 25% instead of 15%
tropical differential.
/13/ In view of its disposition, the Authority finds it unnecessary
to address the Agency's additional contentions as to the
nonnegotiability of the proposal.
/14/ Of course, if the proposal were intended to prohibit selection
of retired annuitant pilots to fill any positions other than temporary
office positions, the proposal would be nonnegotiable for the reasons
set forth in connection with Proposal 22. However, the record does not
establish any such intent.
/15/ In view of the Authority's disposition herein, it is unnecessary
to address the Agency's contentions concerning the nonnegotiability of
the proposal.
/16/ Accord 9 Comp.Gen. 111 (1929); 26 Comp.Gen. 366 (1945); 43
Comp.Gen. 503 (1964) (there is legal entitlement to compensation only up
to and including the date of death).
/17/ In view of its disposition herein, the Authority finds it
unnecessary to address the Agency's additional contentions concerning
the nonnegotiability of the proposal.
/18/ In deciding that these four proposals are within the duty to
bargain, the Authority makes no judgment as to their merits.