[ v45 p1264 ]
45:1264(127)NG
The decision of the Authority follows:
45 FLRA No. 127
Before Chairman McKee and Members Talkin and Armendariz.
I. Statement of the Case
This case is before the Authority on a negotiability appeal filed under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). It concerns three proposals, which were made in the alternative, concerning pay retention for disabled employees who are reassigned to lower-paid jobs. For the reasons that follow, we find that the proposals are negotiable.
II. Background
Under the Agency's Disabled Employees' Placement Program (DEPP) an employee who is disabled as a result of performance-of-duty (POD) injury or illness or off-the-job injury or illness and who is unable to meet the physical or medical standards of his or her current position is placed in a different position. As provided in the Agency's Personnel Manual, an employee who is reassigned to a lower-paid position under this program may be granted indefinite pay retention when "it is determined to be of mutual benefit to the [A]gency and the employee." Statement of Position, Attachment B--Panama Canal Personnel Manual, Subchapter 6, § 6-4.e.(3)(a). According to the parties, a practice has developed under which indefinite pay retention has been granted automatically.
By letter dated December 16, 1991, the Agency notified the Union that it planned to abolish the practice of automatically granting indefinite pay retention and would instead apply a "highest previous step rule[]" under which the employee would receive the highest pay step available in the new position that is closest to the employee's pay at the time disability occurred. Petition, Attachment B at 2. In the letter, the Agency stated that indefinite retained pay would be granted "only under very exceptional circumstances." Id.
According to the parties, Agency employees who suffer disability as a result of employment-related illness or injury may be eligible for compensation under either the Federal Employees Compensation Act (FECA), 5 U.S.C. § 8101 et seq., or the "Riesgos Profesionales" program of the Social Security System of the Republic of Panama. Coverage depends on the employee's nationality and date of hire with the Agency.
In this regard, as will be discussed in greater detail later, pursuant to the Panama Canal Treaty of 1977 Agency employees who are not U.S. citizens and who were employed by the Agency subsequent to October 1, 1979, are covered by the Social Security System of the Republic of Panama. According to the Agency, the disability entitlements of those employees who are covered under that system are set forth in a Panamanian law, the Panama Social Security Organic Law. Pursuant to the Panama Canal Act, an American law that implements the Panama Canal Treaty, FECA is inapplicable to any employee of the Agency who is not a citizen of the United States, whose initial appointment with the Agency occurred after October 1, 1979, and who is covered by the Social Security System of the Republic of Panama pursuant to any provision of the Panama Canal Treaty and related agreements. 22 U.S.C. § 3649.
III. Proposal 1
We propose to retain the past practice of the automatic granting of indefinite pay retention to employees who are placed in lower graded jobs through the Disabled Employees' Placement Program.
A. Positions of the Parties
1. The Agency
The Agency describes this proposal as seeking to maintain the status quo. The Agency asserts that insofar as this proposal applies to employees who are subject to FECA and whose disability results from POD injury or illness (Category 1 employees), it is nonnegotiable because it concerns a matter that is specifically provided by Federal law and because it is inconsistent with Federal law and Government-wide regulation. The Agency contends that insofar as this proposal applies to employees who are subject to the Riesgos Profesionales program and who suffer a disability as a result of a POD injury or illness (Category 2 employees) or to employees who suffer a disability as a result of an off-the-job injury or illness (Category 3 employees), it is nonnegotiable because it concerns a matter that is specifically provided for by Federal law.
With respect to Category 1 employees, the Agency argues that by requiring that it provide indefinite retained pay to Category 1 employees who have been reassigned to lower-paid positions, this proposal is "in contravention of 5 [U.S.C.] Chapter 81 and 20 [C.F.R.] Part 10, Section 10.303, a Government-wide regulation." Statement of Position at 8. The Agency contends that 5 U.S.C. §§ 8102(a) and 8106 prescribe "what the United States will pay 'if the disability is partial[]'" and that "[t]he law authorizes no other way to pay an employee" who suffers a partial disability. Id. at 9. The Agency asserts that 20 C.F.R. § 10.303, which it contends is a Government-wide regulation, prescribes how the entitlement of an employee who suffers a loss of wage-earning capacity because of partial disability will be calculated. The Agency contends that this proposal would effectively displace the procedure that is provided for by law and Government-wide regulation for the purpose of compensating employees suffering job-related partial disability as a consequence of employment-related injury or illness.
Citing the Authority's decision in National Treasury Employees Union, NTEU Chapter 51 and Internal Revenue Service, Wichita District Office, 40 FLRA 614 (1991), the Agency asserts that compensation for partial disability of employees to whom FECA applies is comprehensively dealt with by FECA and is not subject to collective bargaining. The Agency argues that the proposal requires that it pay employees who are covered by FECA "what is tantamount to compensation for loss of wage earning capacity for a POD injury . . . ." Statement of Position at 11. The Agency contends that 5 U.S.C. Chapter 81 together with implementing Government-wide regulations direct that an eligible employee whose disability is partial be paid compensation that is calculated in a specific manner and that, therefore, Proposal 1 does not meet the definition of "conditions of employment" as set forth in section 7103(a)(14) of the Statute.
The Agency argues that insofar as the proposal would apply to Category 2 employees, it "concerns a matter that is specifically provided [for] by law and international Treaty." Id. at 12. Specifically, the Agency asserts that paragraph 1(a) of Article VIII of the Agreement in Implementation of Article III of the Panama Canal Treaty provides that employees who are not U.S. citizens and who are employed after the effective date of the Treaty shall be covered by the Social Security System of the Republic of Panama. The Agency claims further that paragraph 1(c) of that Article requires that the Agency make employer/employee contributions for that coverage. According to the Agency, the Panamanian Social Security System governs the benefits to which eligible employees who suffer permanent partial disability are entitled. The Agency contends that this proposal would require it to pay what is tantamount to compensation for loss of wage-earning capacity notwithstanding the fact that an employee is entitled to benefits under the Panamanian Social Security System. The Agency argues that this proposal circumvents the Treaty, which has the force of Federal law, and results in "augmenting what the Treaty and the Panama Canal Act specifically provide for." Id. at 13. The Agency contends that consequently this proposal does not come within the definition of conditions of employment under section 7103(a)(14)(C) of the Statute.
The Agency argues that insofar as Category 3 employees are concerned, the proposal is nonnegotiable because it seeks to augment entitlements specifically provided by Federal statute. In this regard, the Agency contends that "the specific statutory scheme of Section 1209(a) of the Panama Canal Act" provides that employees who are permanently disabled as a result of a POD injury or illness are entitled to FECA benefits or to Social Security benefits from the Republic of Panama. Id. The Agency claims that under this statutory scheme nothing is provided for disability resulting from off-the-job injury or illness. The Agency asserts that "[u]nder the doctrine of expressio unius est exclusio alterius, it seems clear that off-the-job injuries which result in what is tantamount to a 'loss of wages' were not to be 'compensated' by the agency."1/ Id. at 14. The Agency contends that because Proposal 1 "would require payment in circumstances in addition to that specifically provided by statute," it does not concern conditions of employment as defined in section 7103(a)(14) of the Statute. Id.
2. The Union
In its petition the Union states that the intent of Proposal 1 is to retain the practice of granting indefinite pay retention to all disabled employees who are accommodated by reassignment to different positions.
In response to the Agency's statement of position, the Union argues that Proposal 1 does not contravene either FECA or its implementing regulations and that it does not concern a matter that is specifically provided for by Federal statute. The Union contends that, under FECA, Federal employees are entitled to payment, not from their employer but from a separate fund administered by the Secretary of Labor, if they suffer a loss of wage-earning capacity as a result of illness or injury sustained as a result of the performance of their duties. The Union asserts that if no loss of wage-earning capacity occurs as the result of an injury or illness, FECA does not apply. Thus, the Union contends that FECA does not address all employees who are injured in the performance of their duties but only those who suffer loss of wage-earning capacity.
The Union argues that FECA is not a comprehensive scheme for all matters relating to monetary or other benefits relating to injured or disabled Federal employees but is, rather, a comprehensive scheme covering the government's liability in tort for performance of duty injury or illness. The Union contends that FECA does not specifically govern all actions that an agency may take with regard to disabled employees. The Union states that Proposal 1 does not concern "compensation for an occupational illness[]" or "damages" for injury but, rather, simply concerns compensation for the work performed by the employee in a position to which he or she is reassigned to accommodate a disability. Response at 3. The Union describes the proposal as its attempt to negotiate over pay rates for employees who are reassigned by management to other positions through the Agency's DEPP. The Union contends that if the proposal is inconsistent with FECA as alleged by the Agency, the Agency has been violating FECA for the past 10 years and the Agency cannot provide retained pay in exceptional circumstances in the future as it has stated it intends to do.
The Union denies that Proposal 1 conflicts with Panamanian Social Security laws2/ or constitutes a double benefit for injury. In this regard, the Union claims that, unlike FECA, Panamanian Social Security laws do not require that a loss of wage-earning capacity occur before an employee is eligible for benefits. Additionally, the Union asserts that Panamanian Social Security laws do not constitute a Federal statute within the meaning of section 7103(a)(14) of the Statute.
The Union maintains that FECA and the Panamanian Social Security laws have no applicability to disabilities that result from off-duty illness or injury and disputes the Agency's claim that this circumstance evidences an intent on the part of Congress that no accommodation be accorded employees who have such disabilities. The Union asserts that the provision of retained pay to employees who are reassigned because of their physical disability is consistent with the Agency's responsibilities under the Rehabilitation Act.3/
B. Analysis and Conclusions
As written and explained by the Union, Proposal 1 requires that employees who are reassigned to a lower-paid position because of disability will continue to receive the level of pay that they were receiving for the positions that they occupied prior to the reassignments. Thus, the proposal concerns the rate of pay that will be given to a reassigned employee.
First, we address the Agency's claim that this proposal is inconsistent with FECA and implementing regulations that are found at 20 C.F.R. § 10.303 and that it concerns a matter that is specifically provided for by FECA.
The regulations relating to the implementation and administration of FECA, which have been issued by the Department of Labor,4/ clearly envision that an agency may accommodate a disabled employee by assigning him or her to an alternative position or to restricted or limited duties. See 20 C.F.R. §§ 10.123-10.124. FECA and those implementing regulations establish the rate of disability compensation that must be paid an employee who is unable to return to the position held at the time of injury or illness but who is not totally disabled for all gainful employment and who suffers a loss of wage-earning capacity. 5 U.S.C. § 8106; 20 C.F.R. § 10.303. However, those authorities do not address the subject of this proposal, that is, the pay that will be provided a partially disabled employee who is accommodated by reassignment to a different position. In our view, the determination of pay under those circumstances is a separate or discrete issue from that of compensation for disability. This proposal applies to a different facet of the actions that may occur with respect to, and as a consequence of, an employee's disability than those governed by FECA and its implementing regulations. Thus, Proposal 1 does not attempt to cover the same matters that are covered by FECA. Compare National Federation of Federal Employees, Local 1655 and U.S. Department of Defense, Department of Military Affairs, Springfield, Illinois, 39 FLRA 1087, 1098-1101 (1991), reversed as to other matters, No. 91-1216 (D.C. Cir. June 2, 1992) (Because Proposals 6 and 8 establish the conditions under which employees will be immune from suit for actions in the course of their employment, and the scope of that immunity, they pertain to matters that are specifically provided for by the Federal Tort Claims Act.).
Obviously, the pay accorded an accommodated employee will determine whether, and to what extent, a disabled employee suffers a loss of wage-earning capacity and his or her consequent entitlement to disability compensation for that loss. However, in our view, preventing any such loss, as this proposal seeks to do, is not incompatible or inconsistent with the procedure provided by FECA and the implementing regulations for compensating disabled employees for loss of wage-earning capacity. Thus, where an agency otherwise has discretion to determine the pay rate that will be granted an employee who is reassigned to a different position, we see nothing in either FECA or the implementing regulations that prevents the Agency from exercising its discretion to determine the pay rate that will be provided a reassigned employee who is disabled. FECA simply does not address that issue.
Just as FECA and its implementing regulations do not govern the pay that will be granted to an employee who is reassigned to a different position because of disability resulting from employment-related illness or injury, neither do they govern the pay that will be granted to an employee whose reassignment stems from disability that resulted from illness or injury that is not employment related. In this regard, while FECA may govern the issue of whether and to what extent compensation for disabilities that result from illness or injury that is not employment related may be provided, it does not govern the pay that may be provided an employee whose disability has been accommodated by reassignment to a different position.
Based on the foregoing, we reject the Agency's claims that Proposal 1 is inconsistent with FECA and 20 C.F.R. § 10.303 or that it concerns a matter that is specifically provided for by FECA.
Next, we address the Agency's claim that the proposal concerns a matter that is specifically provided for by the Panama Canal Treaty and the Panama Canal Act. Specifically, the Agency contends that under the Treaty and its implementing agreements, and the Panama Canal Act, Agency employees who are not U.S. citizens, and who were appointed subsequent to October 1, 1979, are subject to the Social Security System of the Republic of Panama for purposes of disability benefits. According to the Agency, the Treaty and the Panama Canal Act specifically provide the manner in which disability compensation will be provided to those employees.
Initially, we note that the Authority has held that the Panama Canal Treaty has the force of Federal law. For example, International Organization of Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA 508, 512-13 (1983) (Panama Canal Commission).
Under the Treaty, certain Agency employees who are not U.S. citizens are subject to the Social Security System of the Republic of Panama, which, among other things, provides for medical care and pensions in cases of employment-related accident or occupational illness.5/ However, nothing in the record of this case shows that the Panamanian Social Security System, which the Treaty applies to those employees, governs the pay that will be provided to an employee who is reassigned to a different job because of disability. The Agency submitted the applicable provisions of the Panama Social Security Organic Law, Panama's law prescribing disability entitlements, with its Statement of Position. Nothing in the excerpts from the Panama Social Security Organic Law that the Agency submitted addresses the accommodations that may be made with respect to the reassignment of disabled employees.6/ Consequently it has not been established that, where the Agency otherwise has the discretion to determine what pay will be provided an employee who is subject to the Social Security System of the Republic of Panama and who has been reassigned to a different position as an accommodation for a disability, the determination of that pay is specifically provided for by the Panama Canal Treaty.
Additionally, we reject the Agency's claim that this proposal concerns a matter that is specifically provided for by the Panama Canal Act. The Agency's claim in this regard is based on reasoning similar to that which we have rejected above that under the Treaty and its implementing documents, Category 2 employees are entitled only to the disability benefits that accrue to them under the Social Security System of the Republic of Panama. In our view section 1209(a) of the Panama Canal Act,7/ on which the Agency relies, addresses the applicability of FECA to non-citizen employees of the Agency and does not govern the issue of the pay rate that will be granted a disabled employee who has been accommodated by reassignment to a different position. As we have discussed above, we find that while the issue of the pay provided to an employee who has been reassigned to a different position because of disability is related to the issue of disability compensation, the two issues are distinct. As we also stated above, nothing in the record of this case establishes that the Social Security System of the Republic of Panama governs the pay that will be given to disabled employees who have been accommodated by reassignment to different positions. Consequently, we reject the Agency's argument that such matters are, by extension, specifically provided for by the Panama Canal Act.
We note that the Agency does not deny that it has the discretion to establish the rate of pay that will be given a disabled employee who has been reassigned under its DEPP. Moreover, the Agency makes no claim that its past practice of providing pay retention was inconsistent with Federal law. In fact, the record establishes that the Agency intends to continue the practice on a more selective basis. Based on the record in this case, we find that the Agency's practice of providing pay retention is a matter that is within its discretion and is not inconsistent with Federal law or applicable regulation.
In the absence of any other basis that has been argued or is otherwise apparent to us for reaching a different result, we conclude for the foregoing reasons that Proposal 1 is negotiable.
IV. Proposal 2
In the case of job related injury or illness, we propose to adjust the compensation received due to automatic granting of indefinite pay retention to those employees who are placed in lower graded jobs through the Disabled Employees' Placement Program (DEPP). This adjustment would be the difference between the employee's automatically granted retained pay and any compensation forthcoming under either the Federal Employees' Compensation Act (FECA) or the Panama Social Security "Riesgos Profesionales" programs.
A. Positions of the Parties
1. The Agency
The Agency argues that "by virtue of section 1209(a) [of the Panama Canal Act], 5 [U.S.C.] [§] 8106(a) provides specific authority for the United States Government to pay covered employees 'compensation' when 'disability is partial' from personal injury sustained while in the performance of duty."8/ Statement of Position at 15. The Agency contends that 5 U.S.C. § 8106(a) and the implementing regulations issued by the Department of Labor do not authorize retained pay. The Agency states that it is not clear how "compensation" under FECA could be paid where an employee is receiving retained pay and, hence, suffering no wage loss.
The Agency argues that Proposal 2 is inconsistent with law because it would require the Agency to grant retained pay to an employee "in contravention of 8106(a) which requires that compensation be paid 'when the disability is partial' . . . ." Statement of Position at 15. The Agency further contends that because Proposal 2 would require augmentation of what FECA specifically authorizes, it concerns a matter that is specifically provided for by Federal statute.
With regard to non-U.S. citizens who were appointed to the Agency subsequent to the Panama Canal Treaty, the Agency contends that Article VIII of the Agreement in Implementation of Article III of the Treaty prescribes that these employees are covered by the Social Security System of the Republic of Panama.9/ The Agency asserts that this proposal would "in effect require [the Agency] to pay [an employee] for loss of wages different from or in addition to that which was provided by the Treaty when it specifically prescribed Social Security benefits for these employees." Id.
The Agency argues that section 1209 of the Panama Canal Act intends that different benefits apply to two groups of Agency employees: (1) all United States citizen employees and non-United States citizen employees hired prior to the Treaty; and (2) all non-United States citizen employees hired after the Treaty. The Agency contends that Proposal 2 "would vitiate the difference the law intended to establish." Id. at 16. The Agency asserts that Proposal 2 is to the same effect as Proposal 21 in Panama Canal Commission, 13 FLRA at 525, in that it concerns a matter that is specifically provided for by Federal statute and thus is excluded from the definition of conditions of employment under section 7103(a)(14) of the Statute.
2. The Union
In the petition, the Union states that Proposal 2 is intended to continue indefinite pay retention and to reduce the amount of retained pay by whatever benefits an employee received from FECA or the Panamanian Social Security System, "if any such benefits are received." Petition at 4. In its Reply Brief, the Union states that it "knows of no situation in which [P]roposal 2 would apply to employees covered by FECA." Response at 5. The Union asserts that Proposal 2 "was written with reference to FECA benefits because management claimed, in its original December 16, 1991, letter to the [U]nion . . . that overcompensation has resulted from providing retained pay to employees otherwise eligible for FECA benefits." Id. The Union states that in view of the Agency's admission in its Statement of Position in this case that overcompensation does not occur with respect to employees who are eligible for FECA, Proposal 2 "should be analyzed only with respect to its effects on employees covered by the Panamanian social security laws." Id. at 6.
As to that portion of Proposal 2 that would apply to employees who are covered under the Panamanian Social Security System, the Union argues that the retained pay provided by Proposal 2 "is not compensation for the injury the employee sustains . . . but rather [is] compensation for the work performed in the reassigned position." Id. The Union contends that under the Agency's plan to apply the "highest previous step" rule to employees receiving compensation from the Panamanian Social Security System, employees reassigned under the Agency's DEPP would receive a larger total amount than they would under Proposal 2.
The Union argues that, contrary to the Agency's contention, there is no evidence that Congress intended that non-United States citizen employees who were hired subsequent to the Treaty should suffer greater economic loss as a result of partial disability than other Agency employees.
B. Analysis and Conclusions
Initially, we construe the Union's statement that this proposal should be analyzed only with respect to its effects on employees covered by the Panamanian Social Security System as a request to withdraw the portion of the proposal that refers to FECA. We grant that request, and that portion of this proposal will not be considered further.
We find that this proposal concerns the pay that will be provided to an employee who is reassigned to a different position under the Agency's DEPP. As we discussed in conjunction with Proposal 1 above, while that pay will affect disability compensation, the two issues are distinct. Nothing in the record of this case establishes that the Social Security System of the Republic or Panama, which under the scheme resulting from the Panama Canal Treaty and section 1209(a) of the Panama Canal Act applies to certain Agency employees, governs the issue of the pay rate that will be given an employee who is reassigned under the Agency's DEPP. For the reasons discussed in conjunction with Proposal 1, we reject the Agency's argument that the portion of Proposal 2 that remains before us concerns a matter that is specifically provided for by Federal statute.
We find that the circumstances involved with respect to Proposal 21 in Panama Canal Commission are distinguishable from those present here. Proposal 21 sought to establish a life insurance policy for U.S. citizen employees who were covered under chapter 87 of title 5, United States Code, which establishes a life insurance program for Federal employees. Proposal 2 addresses only retained pay for disabled employees who have been reassigned. While Proposal 2 would operate to minimize any wage loss suffered by disabled employees who are reassigned to lower-graded positions, it does not establish a disability compensation program different from or in addition to any that are specifically provided for by law. Moreover, as we have noted, nothing in the record of this case establishes that the pay that will be provided to a disabled employee who has been accommodated by reassignment to a different position is a matter that is governed by the disability compensation programs encompassed within the terms of the Treaty or the Panama Canal Act.
We reject the Agency's assertion that Proposal 2 concerns a matter that is specifically provided for by Federal statute. As no other basis has been argued or is otherwise apparent to us that would support a different result, we conclude for the foregoing reasons that the portion of Proposal 2 that remains before us is negotiable.
V. Proposal 3
In the case of a non-job related injury or illness, we propose that the parties mutually develop the criteria and the appropriate procedures that will be used to decide if indefinite pay retention would be granted for these employees who are placed in lower graded jobs through the Disabled Employees' Placement Program (DEPP). These procedures would become effective only after the parties mutually agree to them.
A. Positions of the Parties
The Agency argues that this proposal is to the same effect as Proposal 1 insofar as it concerns Category 3 employees because it seeks indefinite pay retention for an employee whose disability has resulted from injury or illness that is not employment related. The Agency contends that this proposal is nonnegotiable for the same reasons that it expressed in conjunction with that aspect of Proposal 1. That is, the Agency asserts that Proposal 3 seeks to augment entitlements that are specifically provided for by Federal statute and, therefore, does not concern conditions of employment as defined in section 7103(a)(14) of the Statute.
The Union relies on the arguments that it made in conjunction with Proposal 1 and asserts that there is no evidence that Congress intended to foreclose relief for employees who suffer partial disability due to illness or injury that is not work related. The Union contends that Proposal 3 is negotiable.
B. Analysis and Conclusions
Proposal 3 is similar to that portion of Proposal 1 that sought to provide retained pay to employees who are reassigned to a different position because of disability that stems from illness or injury that is not employment related. In conjunction with Proposal 1, we rejected the Agency's claim that the issue of the rate of pay that will be provided an employee who is reassigned to a different position under those circumstances is a matter that is specifically provided for by Federal statute. The Agency makes the same argument here and we reject it for the same reasons that we did in connection with Proposal 1. Based on the reasons expressed in conjunction with Proposal 1, we conclude that Proposal 3 is negotiable.
VI. Order
The Agency will upon request, or as otherwise agreed to by the parties, bargain on Proposals 1, 2 and 3.10/
FOOTNOTES:
(If blank, the decision does not
have footnotes.)
1/ "Expressio unius est exclusio alterius" is a maxim of statutory interpretation meaning that the expression of one thing is the exclusion of another. Black's Law Dictionary 581 (6th ed. 1990).
2/ Based on our reading of the Agency's Statement of Position, the Agency has not asserted conflict with Panamanian Social Security laws as a basis for its position that Proposal 1 is nonnegotiable. Rather it has asserted that Proposal 1 is inconsistent with or concerns a matter that is specifically provided for by FECA, the Panama Canal Treaty, and/or the Panama Canal Act.
3/ The Rehabilitation Act of 1973, 29 U.S.C. § 5701 et seq.
4/ The regulations are set forth at 20 C.F.R. Part 10.
5/ Article VIII of Agreement in Implementation of Article III of the Panama Canal Treaty provides in relevant part:
1. Concerning Social Security and retirement benefits applicable 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.
(b) Such persons who were employed prior to the entry into force of this Agreement by the Panama Canal Company or Canal Zone Government and who were covered under the Civil Service Retirement System of the United States shall continue to be covered by that system until their retirement or until the termination of their employment with the Commission for any other reason.
(c) The commission shall collect and transfer in a timely manner to the Social Security System of the Republic of Panama the employer's and employees' contributions for those of its employees who are covered by the Social Security System of the Republic of Panama.
6/ We do not suggest that this particular law constitutes a Federal statute within the meaning of section 7103(a)(14)(C). However, it does encompass the specific provisions that apply to certain Agency employees as a consequence of the terms of the Treaty and its implementing agreements.
7/ Section 1209(a) of the Panama Canal Act, which is codified at 22 U.S.C. § 3649, provides as follows:
§ 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.
8/ Section 1209(a) of the Panama Canal Act is set forth at note 7. 5 U.S.C. § 8106(a) provides as follows:
§ 8106. Partial disability
(a) If the disability is partial, the United States shall pay the employee during the disability monthly monetary compensation equal to 66 2/3 percent of the difference between his monthly pay and his monthly wage-earning capacity after the beginning of the partial disability, which is known as his basic compensation for partial disability.
9/ The relevant portion of Article VIII is set forth at note 5.
10/ In finding that these proposals are negotiable, we make no judgment as to their merits. We reiterate that, in view of the Union's request to withdraw that portion of Proposal 2 that relates to FECA, that portion of Proposal 2 is not before us.