15:0576(125)NG - NMUA and Commerce, NOAA, National Ocean Survey, Rockville, MD -- 1984 FLRAdec NG
[ v15 p576 ]
The decision of the Authority follows:
15 FLRA No. 125 NATIONAL MARITIME UNION OF AMERICA, AFL-CIO Union and DEPARTMENT OF COMMERCE, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, NATIONAL OCEAN SURVEY, ROCKVILLE, MARYLAND Agency Case No. O-NG-684 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 concerns the negotiability of two Union proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal I Logging-- i.e., the deduction of wages as a fine for misconduct-- shall no longer be used as a method of penalizing unit employees. The proposal would prohibit the imposition of a specific penalty for employee misconduct. In National Treasury Employees Union and NTEU Chapter 70 and Department of the Treasury, Internal Revenue Service, Atlanta Service Center, Georgia, 8 FLRA 37 (1982), the Authority found that a proposal which sought only to discuss penalties prior to their imposition entailed a procedure which did not prevent the agency from acting at all with respect to disciplining employees, and did not limit the penalties which the agency could impose. In the present case, however, contrary to the Union's assertion, Union Proposal I is not procedural in nature but would impinge upon the Agency's right to make substantive determinations regarding its choice of the particular disciplinary action to be imposed on an employee for misconduct. /1/ By substantively limiting the Agency's discretion with respect to the particular action to be taken, Union Proposal I would interfere with the Agency's right under section 7106(a)(2)(A) of the Statute to take disciplinary action. /2/ Therefore this proposal is not within the duty to bargain. /3/ Union Proposal II Whenever this work is performed by less than three (3) unlicensed seamen per watch, the wages equivalent to the rating that is missing from a watch shall be paid to the other member or members making up the remainder of that watch. The Union contends that the purpose of the proposal is to bring the Agency's pay practices into line with private industry practice as it maintains is required by 5 U.S.C. 5348. /4/ In support of its assertion that the proposal parallels private industry practice it cites two provisions from a collective bargaining agreement involving the maritime industry in the private sector which provide for the payment of additional wages to employees when staffing is below a particular level. /5/ The Union contends that the proposal is not intended to require the Agency to assign a certain number of seamen per watch but would only require additional wages to be paid under certain circumstances. The Agency states, without controversion, that the U.S. Coast Guard is responsible for establishing appropriate crew complements for vessels in the private sector. Government-owned vessels, however, are exempt from the Coast Guard's manning requirements. Thus, the Agency, unlike the maritime industry in the private sector, retains discretion to determine the crew complement of its vessels. The Authority finds that, although Union Proposal II does not explicitly require that the Agency assign at least three unlicensed seamen per watch, its terms would have that practical effect. In this regard, the Agency would be required to pay wages in accordance with that particular staffing complement even if it elected to assign fewer unlicensed seamen to a watch. Thus, the proposal would function as an economic disincentive to assigning less than three of that type of employee to a watch. In this way, Union Proposal II would effectively and substantively interfere with the Agency's discretion to determine the numbers and types of employees to be assigned to a work project or tour of duty. Such matters are negotiable only at the election of the Agency. /6/ Because the Union's proposal would directly interfere with the Agency's exercise of its authority to make substantive decisions with regard to these matters and because the Agency has not elected to negotiate, Union Proposal II is not within the duty to bargain. /7/ Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the petition for review be, and it hereby is, dismissed. Issued, Washington, D.C., August 23, 1984 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ See American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 603 (1980), enforced sub nom. Department of Defense v. Federal Labor Relations Authority, 659 F.2d 1140, 1152 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982). /2/ Section 7106(a)(2)(A) provides in relevant part: Sec. 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- . . . . (2) in accordance with applicable laws-- (A) to . . . suspend, remove, reduce in grade or pay, or take other disciplinary action against such employees(.) /3/ See also National Treasury Employees Union and Internal Revenue Service, 6 FLRA 522 (1981). /4/ 5 U.S.C. 5348 provides in relevant part: Sec. 5348. Crews of vessels (a) Except as provided by sections (b) and (c) of this section, the pay of officers and members of crews of vessels excepted from chapter 51 of this title by section 5102(c)(8) of this title shall be fixed and adjusted from time to time as nearly as is consistent with the public interest in accordance with prevailing rates and practices in the maritime industry. /5/ The contract provisions relied upon follow: Section 19. Division of Wages. When members of the Unlicensed Personnel are required to do extra work because a vessel sailed without the full complement required by the vessel's certificate, under circumstances where the law permits such sailing, the wages of the absent seaman shall be divided among the seamen who perform his work, but no overtime or penalty time shall be included in such wages. Section 6. Division of Watches. The sailors while at sea shall be divided into three watches which shall be kept on duty successively for the performance of ordinary work incident to the sailing and maintenance of the vessel. Not fewer than three (3) seamen shall constitute a complete sea watch at all times. When any of these three ratings are missing and the watch is not complete, the wages equivalent to the rating that is missing from the watch shall be paid to the other member or members making up the remainder of the watch. /6/ Section 7106(b)(1) provides: Sec. 7106. Management rights (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (1) at the election of the agency, on the numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty . . . (.) /7/ In view of the decision herein, it is unnecessary to pass upon the Agency's additional contentions concerning the nonnegotiability of this proposal.