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26:0390(48)NG
The decision of the Authority follows:
26 FLRA No. 48
DISTRICT NO. 1, PACIFIC COAST
DISTRICT, MARINE ENGINEERS
BENEFICIAL ASSOCIATION
Union
and
PANAMA CANAL COMMISSION
Agency
Case No. 0-NG-716
DECISION AND ORDER ON NEGOTIABILITY ISSUES
I. Statement of the Case
This case comes before the Authority because of a negotiability
appeal filed under section 7105(a)(2)(E) of the Federal Service
labor-Management Relations Statute (the Statute) and presents issues as
to the negotiability of two parts, sections 3 and 5, of a proposal. The
Authority finds that section 3 of the proposal is negotiable and section
5 is not.
II. Proposal
Article
Adjustment of Marine Engineers wage and work rules to conform
to wage practices in the maritime industry.
1. Legal Basis: Section 5102(c)(8), Title 5 U.S. Code exempts
from coverage of Chapter 51 (Classification) of Title 5 U.S. Code
"officers and members of crews of vessels." Section 5348, Title 5,
U.S. Code provides that . . . vessel employees of the Panama Canal
Commission may be paid in accordance with wage practices of the
maritime industry.
2. Scope: This article applies to all licensed marine
positions aboard vessels of the Panama Canal Commission including
tugs, dredges and cranes.
3. Applicability: In accordance with the legal basis for this
article, licensed marine engineer members of the bargaining unit
shall be paid in accordance with wage practices of the maritime
industry.
4. Related Subjects: The subjects of pay, subsistence and
quarters, hours of work, and premium pay, will be treated in
separate articles.
5. Policy: Certain traditionally defined positions are
recognized throughout the Maritime Industry as necessary to the
safe and efficient operation of floating equipment. As nearly as
is consistent with the public interest the Panama Canal Commission
will establish and use positions similar to those in the industry
so that applicable wage practices may be applied.
6. Prevailing Maritime Practice: The established policies,
methods, and procedures of the Maritime Industry pertaining to
positions and compensation of marine personnel. (Only Sections 3
and 5 of the proposal are in dispute).
III. Section 3
The Members of the Authority disagree over the negotiability of
section 3. The Decision and Order as to that section, and Chairman
Calhoun's dissent appear below.
IV. Section 5
A. Positions of the Parties
The Agency contends that section 5 concerns the numbers, types and
grades of positions assigned to the organization under section
7106(b)(1) of the Statute, a matter over which it has elected not to
bargain. The Union does not controvert the Agency's contention.
B. Analysis and Conclusion
In agreement with the Agency's uncontroverted contention, we find
that section 5 would require the Agency to establish and use certain
specific positions, that is, those traditionally defined and recognized
throughout the maritime industry. Thus, section 5 of the Union's
proposal concerns the numbers, types and grades of employees assigned as
provided under section 7106(b)(1) of the Statute, and is negotiable only
at the election of the Agency. See American Federation of Government
Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air
Force Base, Ohio, 2 FLRA 604 (1980) (Proposal X), enforced as to other
matters 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 (1982). Since
the Agency has elected not to bargain, this portion of the proposal is
outside the duty to bargain.
We therefore conclude that section 5 concerns the numbers, types, and
grades of employees or positions assigned to an organization element,
and therefore, under section 7106(b)(1) of the Statute, is negotiable
only at the Agency's election. Since the Agency has elected not to
bargain on that section, it is nonnegotiable.
C. Order
The Union's petition of review of section 5 is dismissed.
Issued, Washington, D.C., March 27, 1987.
/s/ Jerry L. Calhoun, Chairman
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
DECISION AND ORDER ON SECTION 3
Section 3
3. Applicability: In accordance with the legal basis for this
article, licensed marine engineer members of the bargaining unit
shall be paid in accordance with wage practices of the maritime
industry.
A. Positions of the Parties
The Agency claims that section 3 of the proposal is nonnegotiable
because: (1) it is contrary to a Government-wide regulation; (2) the
basis upon which wage rates are determined is a matter beyond the scope
of its authority to bargain; and (3) negotiations over wages and fringe
benefits is barred by the Statute.
The Union points out that the Agency has discretion under 5 U.S.C.
Section 5348(b) to pay its vessel employees "in accordance with the wage
practices of the maritime industry." Consequently, according to the
Union, the Agency is obliged to bargain on section 3 to the extent of
its discretion. The Union contends that the proposal does not conflict
with requirements of the regulations cited by the Agency. Finally, the
Union denies that section 3 involves bargaining over pay rates,
contending that it would only establish the procedure to be followed in
the process of determining rates of pay.
B. Analysis
1. Statutory Considerations
In American Federation of Government Employees, AFL-CIO, Local 1897
and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA
No. 41 (1986), appeal docketed sub nom. Department of the Air Force,
Eglin Air Force Base, Florida v. FLRA, No. 87-3073 (11th Cir. Feb. 2,
1987), we held that nothing in either the Statute or its legislative
history bars negotiating over proposals related to pay and fringe
benefits insofar as: (1) the matters proposed are not specifically
provided for by law and are within the discretion of the agency
involved; and (2) the proposals do not otherwise conflict with law,
Government-wide rule or regulation or an agency regulation for which a
compelling need exists. Based on the analytical framework established
there, we held that the proposal in Eglin Air Force Base, requiring the
agency to pay up to 75 percent of the premium cost of health insurance
for non-appropriated fund employees, was within the duty to bargain.
See also American Federation of Government Employees, AFL-CIO, Local 997
and Department of the Air Force, Maxwell Air Force Base, Alabama, 24
FLRA No. 51 (1986).
In the present case, the matter sought to be negotiated in section 3
is not provided for by law. Rather, 5 U.S.C. Section 5348(b) states:
"Vessel employees of the Panama Canal Commission may be paid in
accordance with the wage practices of the maritime industry." Thus, the
law in question merely provides guidance on how to determine the pay of
vessel employees of the Agency -- guidance which the Agency has
heretofore decided not to follow. Section 3, therefore, only calls upon
management to exercise its statutory discretion in precisely the manner
suggested by the law. The Authority has consistently held that, where
an agency has discretion over a matter affecting conditions of
employment, the agency is obliged under the Statute to exercise that
discretion by means of bargaining, unless the governing law or
regulations specifically limit the exercise of discretion to the agency.
National Treasury Employees Union, Chapter 6 and Internal Revenue
Service, New Orleans District, 3 FLRA 748, 759-60 (1980). Here, because
no such inhibition on discretion has been identified, section 3 is
within the Agency's duty to bargain to the extent not otherwise
inconsistent with applicable regulations.
2. Regulatory Considerations
The Agency's claim that negotiation on section 3 is foreclosed by an
asserted Government-wide regulation is unpersuasive. The Agency
specifically relies on 35 CFR Section 251.13, governing "Establishment
of basic wages" under the Panama Canal Employment System. /1/ That
regulation was promulgated under the authority of 22 U.S.C. Section
3652, establishing the Panama Canal Employment System. The question of
whether regulations issued under the same statutory authority were
Government-wide in nature was answered in the negative by the Authority
in International Organization of Masters, Mates and Pilots and Panama
Canal Commission, 13 FLRA 508 (1983) (Proposal 16). In finding that the
regulations in question were not Government-wide, it was noted that they
were statutorily applicable only to employees of the Agency. 22 U.S.C.
Section 3652(b)(1). Other agencies were given the choice of including
their employees working in the Republic of Panama under coverage of the
Panama Canal Employment System. 22 U.S.C. Section 3652(b)(2). The same
considerations resulting in the finding that the regulations in the
cited case were not Government-wide are applicable to the regulation
cited here. Consequently, we conclude that 35 CFR Section 251.13 is not
a Government-wide regulation under section 7117(a) of the Statute
because it is not generally applicable throughout the Federal
Government, The Agency, moreover, has not alleged, nor has it made any
showing, that a compelling need exists for its regulation. The
regulation therefore cannot bar negotiations on section 3.
3. Matters within the Agency's Authority to Bargain
It is well established that the duty of an agency under the Statute
is to negotiate with an exclusive representative of an appropriate unit
of its employees concerning conditions of employment affecting them to
the extent of its discretion, that is, except as provided otherwise by
Federal law including the Statute, or by Government-wide rule or
regulation or by an agency regulation for which a compelling need
exists. For example, see National Treasury Employees Union and
Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769
(1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 508
F.2d 553 (D.C. Cir. 1982).
It is likewise well established that an agency may not prevent
bargaining on an otherwise negotiable matter by delegating authority
over that matter to an organizational level within the agency other than
the one at which recognition exists. Rather, under section 7114(b)(2)
of the Statute, an agency must provide representatives empowered to
negotiate and enter into agreement on all matters within the statutorily
prescribed scope of bargaining. American Federation of Government
Employees, AFL-CIO, Local 3525 and U.S. Department of Justice, Board of
Immigration Appeals, 10 FLRA 61 (1982) (Proposal 1). Hence, the
Agency's claim that it is without authority to bargain over the basis
for fixing the pay of its vessel employees because approval of Agency
wage practices resides outside the Agency cannot be sustained. See
American Federation of Government Employees, AFL-CIO, Local 1409 and
U.S. Adjutant General Publications Center, Baltimore, Maryland, 18 FLRA
508 (1985).
D. Conclusion
The Agency has not established, nor is it otherwise evident, that
section 3 of the proposal is: (1) statutorily excluded from the
definition in section 7103(a)(14) of the Statute of "conditions of
employment;" or (2) removed from the bargaining obligation by applicable
law or regulation. Consequently, this section of the proposal is within
the duty to bargain.
E. Order
The Agency must upon request, or as otherwise agreed to by the
parties, bargain over section 3 of the proposal. /2/
Issued, Washington, D.C., March 27, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun
In my opinion in American Federation of Government Employees,
AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force
Base, Florida, 24 FLRA No. 41 (1986), petition for review filed sub nom.
Department of the Air Force, Eglin Air Force Base, Florida v. FLRA, No.
87-3073 (11th Cir. February 2, 1987), I stated that in the absence of a
clear expression of Congressional intent to make wages and money-related
fringe benefits negotiable, I would find that these matters are not
within the duty to bargain under the Statute. As I stated in my opinion
in District No. 1, Pacific Coast District, Marine Engineers Beneficial
Association and Panama Canal Commission, 26 FLRA No. 8 (1987), I find no
such expression of Congressional intent in the Panama Canal Act of 1979
or its legislative history. Therefore, I do not join the majority
decision concerning section 3 of the Union's proposal in this case,
which would require negotiations over the method used by the Agency to
determine the wages of marine engineers.
Issued, Washington, D.C., March 27, 1987.
/s/ Jerry L. Calhoun, Chairman
--------------- FOOTNOTES$ ---------------
(1) 35 CFR Section 251.13 provides:
Section 251.13 Establishment of basic wages.
Agencies that participate in the Panama Canal Employment System
shall consult with each other concerning basic pay for employees
and shall refer their recommendations for basic pay to the Panama
Area Personnel Board. Upon approval by the Secretary of the Army
or his designee of basic wage rates, the rates shall be adopted by
the agencies.
(2) In finding section 3 of the proposal to be negotiable, we make no
judgment on its merits.