13:0508(87)NG - International Organization of Masters, Mates and Pilots and Panama Canal Commission -- 1983 FLRAdec NG



[ 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