11:0115(29)NG - International Organization of Masters, Mates, and Pilots and Panama Canal Commission -- 1983 FLRAdec NG



[ v11 p115 ]
11:0115(29)NG
The decision of the Authority follows:


 11 FLRA No. 29
 
 INTERNATIONAL ORGANIZATION OF
 MASTERS, MATES, AND PILOTS
 Union
 
 and
 
 PANAMA CANAL COMMISSION
 Agency
 
                                            Case No. O-NG-422
 
                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 six provisions of the parties' agreement
 disapproved by the Agency head under section 7114(c) of the Statute.
 Upon careful consideration of the entire record, including the parties'
 contentions, the Authority makes the following determinations.  /1/
 
                                Provision 1
 
          ARTICLE III.  AGREEMENT DURATION, REOPENERS, AND TERMS
 
          SECTION 1.  The anniversary date of this Agreement is March 26,
       1980, 0001 hours, and this Agreement will expire at 2400 hours on
       March 25, 1984, except as otherwise provided in accordance with
       terms of this Article.
 
    The Agency contends that Provision 1 establishes an effective date
 for the parties' agreement which is inconsistent with the provisions of
 section 7114(c) of the Statute.  /2/ The Agency argues in this regard
 that by establishing the "anniversary date" of the parties' agreement as
 March 26, 1980, the disputed provision gives retroactive effect to the
 terms of the agreement, which agreement was not executed and approved
 until after that date.  However, based on the record in this case, and
 without passing upon the Agency's argument concerning the legality of
 giving retroactive effect to the terms of the agreement, the Authority
 concludes that the Agency has misunderstood the intent of the provision.
  Consistent with the language of the provision and Union statements as
 to its intent, the sole effect of the provision would be to establish a
 date to be used for determining when the Agency may be obligated to
 reopen specific portions of the agreement or begin negotiations for a
 new agreement, rather than to establish the date on which the terms of
 the agreement would become binding on the Agency.  Thus, the provision
 is within the duty to bargain.
 
                                Provision 2
 
          ARTICLE XI.  GRIEVANCE PROCEDURE AND ARBITRATION
 
                                .  .  .  .
 
          SECTION 3.
 
                                .  .  .  .
 
          (c) Any proposed section that is subject to this grievance
       procedure will be stayed pending final resolution of that
       grievance, except in cases described in Section 17(c) of this
       Article.  (Only the underscored portion of this provision is in
       dispute.)
 
    On its face, Provision 2 provides that any Agency action which is the
 subject of a grievance under the parties' negotiated grievance procedure
 will be held in abeyance by the Agency until the "final resolution of
 that grievance." Since, upon completion of the final step of the
 grievance procedure, a dispute would cease to be a "grievance," the
 Authority interprets the phrase "final resolution of that grievance" to
 extend only to resolution of the dispute through the negotiated
 procedure including possible arbitration.  So interpreted, Provision 2
 is not materially distinguishable from the proposal at issue in American
 Federation of Government Employees, Local 547, AFL-CIO and Veterans
 Administration Medical Center, Tampa, Florida, 4 FLRA No. 50 (1981),
 enforced sub nom. Veterans Administration Medical Center, Tampa, Florida
 v. Federal Labor Relations Authority, 675 F.2d 260 (11th Cir. 1982),
 which provided that any personnel action which is the subject of a
 grievance or arbitration would be stayed pending a final decision of the
 matter, and which the Authority held was a negotiable procedure under
 section 7106(b)(2) of the Statute.  /3/ For the reasons set forth in
 that decision, Provision 2 herein is within the duty to bargain under
 the Statute.
 
                                Provision 3
 
          ARTICLE XIII.  SENIORITY LIST
 
          The Commission shall maintain and distribute a Pilot Seniority
       List which shall be kept on a current basis.  The order in which a
       Pilot's name appears on this list will serve to designate the
       control Pilots on four-pilot vessels as well as all other matters
       dealing with Pilot seniority.  Time spent as an active Pilot will
       be used in determining the proper sequence of names on the Pilot
       Seniority List.  Any Pilot special duty assignments will be
       considered active Pilot time and, additionally, the first six
       months of employment in management will be credited as Pilot
       seniority.  The Pilot Seniority List shall be kept current and
       distributed to all Pilots covered by this Agreement every six
       months, and five copies of the list shall be furnished to the
       Organization.  Any disputes or disagreements concerning such
       seniority list shall be subject to the grievance procedure
       contained in Article XI of this Agreement.  (Only the underscored
       portion of this provision is in dispute.)
 
                                Provision 4
 
          ARTICLE XVI.  MISCELLANEOUS PROVISIONS
 
          SECTION 2.  Pilots in the highest pay step may, on a voluntary
       basis and in the Commission's discretion, be assigned to perform
       evaluation or observation rides with Pilots-in-Training or limited
       Pilots.
 
                                Provision 5
 
          ARTICLE XIX.  PILOT WORK RULES
 
          SECTION 7.  Multiple Pilot Vessels, Dead Tours and Vessels
       Making Less Than 5 Knots
 
          (a) On multiple Pilot vessels the two senior Pilots shall share
       the conn and other Pilots shall assist as instructed.
 
                                .  .  .  .
 
          (f) In unusual partial or aborted transits not covered by these
       Work Rules, the Pilots involved will determine a fair division of
       duties.
 
                                .  .  .  .
 
          (o) When a Northbound vessel requires a Pilot through the
       Breakwater in Cristobal, the control Pilot or harbor Pilot will
       perform this duty, and any assisting Pilots will debark in Limon
       Bay.
 
                                Provision 6
 
          ARTICLE XIX.  PILOT WORK RULES
 
          SECTION 11.  Harbor and Shuttle
 
                                .  .  .  .
 
          (d) A Pilot assigned to shuttle duty who is not needed for
       shuttle may be assigned to harbor duty if needed.  Acceptance of
       such duty is voluntary if it is in the port to which he is not
       regularly assigned for harbor duty.
 
                                .  .  .  .
 
          (g) When a harbor or shuttle Pilot is assigned duty on a
       multiple Pilot vessel with a transit Pilot, the transit Pilot will
       conn, and the harbor or shuttle Pilot will assist.  (Only the
       underscored portion of this provision is in dispute.)
 
    For the following reasons, the Authority finds, in agreement with the
 Agency, that Provisions 3-6 would directly interfere with management's
 right "to assign work" under section 7106(a)(2)(B) of the Statute and,
 thus, are outside the Agency's duty to bargain.  /4/ Provision 3 would
 require the Agency to assign control pilot duties on the basis of
 seniority.  Therefore, it is not materially distinguishable from
 proposals in American Federation of Government Employees, AFL-CIO,
 International Council of U.S. Marshals Service Locals and U.S.
 Department of Justice, U.S. Marshals Service, 8 FLRA No. 62 (1982)
 (Union Proposals 1-4) and American Federation of Government Employees,
 AFL-CIO, and Air Force Logistics Command, Wright-Patterson Air Force
 Base, Ohio, 2 FLRA 604, 630-632 (1980) (Union Proposal XVI), enforced as
 to other matters sub nom. Department of Defense v. Federal Labor
 Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub
 nom. AFGE v. FLRA, . . . U.S. . . . , 102 S.ct.. 1443 (1982), which
 mandated the assignment of particular duties to employees on the basis
 of seniority, and which the Authority held directly interfered with the
 Agency's right to assign work under section 7106(a)(2)(B) of the
 Statute.
 
    Provision 4 would permit management to assign duties involving
 evaluation or observation of pilots-in-training and limited pilots only
 to pilots in the highest pay step who have volunteered for such
 assignments.  In this regard, Provision 4 is not materially
 distinguishable from Union proposal 13 in American Federation of
 Government Employees, AFL-CIO, National Immigration & Naturalization
 Service Council and U.S. Department of Justice, Immigration &
 Naturalization Service, 8 FLRA No. 75 (1982), which would have required
 the Agency to discontinue any work assignment away from an employee's
 normal duty station after 35 days unless the employee volunteered to
 continue working.  The Authority held that proposal nonnegotiable under
 section 7106(a)(2)(B) because it prevented the Agency from exercising
 its discretion to assign work to particular employees.  See also
 American Federation of Government Employees, AFL-CIO, Local 3385 and
 Federal Home Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA No,
 58 (1981) (Union Proposal I).  Similarly, the second sentence of
 subsection (d) of Provision 6, which would preclude the Agency from
 assigning harbor duty to a pilot assigned to shuttle duty unless, in the
 circumstances specified, the pilot volunteered for such duty, would
 directly interfere with the Agency's right to assign work under section
 7106(a)(2)(B) by preventing the Agency from determining the particular
 employee to whom it would assign harbor duty.  See also Association of
 Civilian Technicians and State of Georgia National Guard, 2 FLRA 581
 (1981).
 
    Subsections (a) and (o) of Provision 5, and subsection (g) of
 Provision 6, which would require the assignment of specific duties to
 particular employees, are not materially distinguishable from Union
 Proposal 6 in National Treasury Employees Union and Department of the
 Treasury, Internal Revenue Service, 7 FLRA No. 35 (1981), which required
 management to assign specific work to a specific employee or position.
 The Authority held that the proposal deprived management of its
 discretion under section 7106(a)(2)(B) of the Statute to determine the
 employee(s) or position(s) to whom such work would be assigned and,
 thus, that the proposal was not within the duty to bargain.
 
    Finally, subsection (f) of Provision 5 would permit the pilots
 themselves to assign duties under specified circumstances.  In agreement
 with the Agency, the Authority finds that such a proposal would permit
 employees to substitute their judgment for management's with regard to
 such assignments of duties, and would thereby restrict management in
 making work assignments.  As such, the provision is analogous to the
 proposals discussed above which would condition management's exercise of
 its statutory discretion to assign work upon employees' willingness to
 volunteer.  In thus making the assignment of work a matter to be
 determined by employees instead of management, subsection (f) deprives
 management of its right to assign work under section 7106(a)(2)(B).
 
    Thus, for the reasons more fully stated in the decisions cited above,
 and in the absence of any showing of special circumstances, /5/
 Provisions 3-6 at issue herein are outside the Agency's duty to bargain
 under section 7106(a)(2)(B) of the Statute.
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the Agency shall rescind its disapproval
 of Provisions 1 and 2, which were agreed to by the parties at the level
 of exclusive recognition.  /6/ IT IS FURTHER ORDERED that the Union's
 petition for review as to Provisions 3-6 be, and it hereby is,
 dismissed.  Issued, Washington, D.C., January 27, 1983
                                       Ronald W. Haughton, Chairman
                                       Henry B. Frazier III, Member
                                       Leon B. Applewhaite, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ During the pendency of this case, the Authority determined,
 contrary to the Agency's and Union's respective contentions, that the
 petition for review and the response were timely filed, and so informed
 the parties by letter.  Such determinations are incorporated herein as a
 part of this decision.
 
 
    /2/ Section 7114(c) provides as follows:
 
          Sec. 7114.  Representation rights and duties
 
                                .  .  .  .
 
          (c)(1) An agreement between any agency and an exclusive
       representative shall be subject to approval by the head of the
       agency.
 
          (2) The head of the agency shall approve the agreement within
       30 days from the date the agreement is executed if the agreement
       is in accordance with the provisions of this chapter and any other
       applicable law, rule, or regulation (unless the agency has granted
       an exception to the provision).
 
          (3) If the head of the agency does not approve or disapprove
       the agreement within the 30-day period, the agreement shall take
       effect and shall be binding on the agency and the exclusive
       representative subject to the provisions of this chapter and any
       other applicable law, rule, or regulation.
 
          (4) A local agreement subject to a national or other
       controlling agreement at a higher level shall be approved under
       the procedures of the controlling agreement or, if none, under
       regulations prescribed by the agency.
 
 
    /3/ Section 7106(b)(2) provides as follows:
 
          Sec. 7106.  Management rights
 
                                .  .  .  .
 
          (b) Nothing in this section shall preclude any agency and any
       labor organization from negotiating--
 
                                .  .  .  .
 
          (2) procedures which management officials of the agency will
       observe in exercising any authority under this section(.)
 
 
    /4/ In so deciding, the Authority finds it unnecessary to address the
 Agency's other contentions in support of its claim that the provisions
 are outside the duty to bargain.
 
 
    /5/ Compare Department of Defense, Department of the Army, 192nd
 Infantry Brigade (Panama) and Panama DOD Employees Coalition, AFL-CIO,
 CTRP (American Federation of State, County and Municipal Employees,
 AFL-CIO, Local 907;  American Federation