18:0326(43)NG - Maritime/Metal Trades Council and Panama Canal Commission -- 1985 FLRAdec NG



[ v18 p326 ]
18:0326(43)NG
The decision of the Authority follows:


 18 FLRA No. 43
 
 MARITIME/METAL 
 TRADES COUNCIL 
 Union 
 
 and 
 
 PANAMA CANAL COMMISSION
 Agency
 
                                            Case No. 0-NG-979
 
                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 presents issues
 concerning the negotiability of five Union proposals.  /1/ Upon careful
 consideration of the entire record, including the contentions of the
 parties, the Authority makes the following determinations.
 
                             Union Proposal 1
 
          The early retirement provisions of Pub. L. 96-70 are
       incorporated herein by reference and made a part of this
       agreement.
 
    Based on the record herein, it appears that Union Proposal 1 would
 incorporate in the parties' negotiated agreement the provisions of 5
 U.S.C. 8336(i) and 8339(d)(2) relating to early retirement.  /2/ The
 Union states that the inclusion of these provisions by reference within
 the agreement is intended "to open up title 7 avenues of redress." /3/
 The Agency contends, without controversion, that the Union intends
 thereby to provide for unit employees to grieve the denial of claims for
 early retirement through the negotiated grievance procedure.  /4/ As
 such, the Agency argues, the proposal is outside the duty to bargain
 under section 7117(a)(1) of the Statute /5/ because it is inconsistent
 with law, i.e., section 7121(c)(2) of the Statute, which excludes
 matters pertaining to retirement from the scope of the negotiated
 grievance procedure. /6/ The Authority agrees.
 
    Section 7121(c)(2) excludes from the grievance procedures required by
 section 7121(a) and (b) of the Statute any grievance concerning
 retirement. Thus, to the extent that Union Proposal 1 is intended to
 provide a basis for employee grievances as to denial of claims for early
 retirement benefits pursuant to 5 U.S.C. 8336(i) and 8339(d)(2), it is
 clearly inconsistent with section 7121(c)(2) and is outside the duty to
 bargain under section 7117(a)(1).  The exclusion of such grievances as
 are contemplated by the proposal is clear on the face of section
 7121(c)(2).  The reason for the exclusion is evident from consideration
 of the provisions of law relating to retirement benefits for Federal
 employees.  In particular, under 5 U.S.C. 8347(b) the Office of
 Personnel Management (OPM) is granted jurisdiction over the adjudication
 of all claims as to benefits under subchapter III of chapter 83 of title
 5 of the United States Code.  See also 5 CFR 831.101.  Under 5 U.S.C.
 8347(d)(1) an administrative action or order affecting the rights of
 individuals under subchapter III of chapter 83 of title 5 may be
 appealed to the Merit Systems Protection Board (MSPB).  /7/ See also 5
 CFR 1201.3(a)(6).  Thus, it is evident that matters pertaining to
 retirement are excluded from the negotiated grievance procedure because
 they are subject to other procedures under law.  /8/
 
                             Union Proposal 2
 
          The Commission will eliminate all discriminatory provisions in
       its travel regulations.
 
    By its plain language, as well as the Union's stated intent, Union
 Proposal 2 would require the Agency to eliminate all provisions of its
 travel regulations which provide benefits to some employees that are
 denied to others.  However, while the Union claims that the proposal is
 intended to eliminate provisions of the Agency's travel regulations
 which provide different benefits to employees based upon such
 distinctions as whether they were hired in Panama prior to the Panama
 Canal Treaty of 1977, it does not cite the provisions of the regulations
 having the alleged discriminatory effect to which it refers.  Nor does
 the Union cite discriminatory effect, stating that "it is difficult for
 (it) to point out all various areas" in which discriminatory provisions
 based on date and place of employment, "or others, are extant or apply
 to employees in the bargaining unit." /9/ The Agency, citing the
 Authority's decision in Association of Civilian Technicians, Alabama ACT
 and State of Alabama National Guard, 2 FLRA 314 (1979), argues that the
 proposal is not sufficiently specific and delimited in form and content
 so as to enable it to determine whether or not the proposal is
 negotiable.  In particular, the Agency claims that it is not possible to
 determine whether the proposal violates applicable law and
 Government-wide regulation by requiring the elimination of distinctions
 between employees required by such law and regulation.  The Authority
 agrees.
 
    In this regard, since the Union has not specified which provisions of
 the Agency's travel regulations establish benefits based upon date and
 place of employment, it is not possible to determine whether the
 elimination of such provisions would conflict with law and regulation.
 See, for example, 22 U.S.C. 3647, which provides round-trip
 transportation for undergraduate college education for dependents of
 certain specified employees based upon the date of their employment.
 Moreover, while the Union implies that there are provisions of the
 Agency's travel regulations which may have other discriminatory effects,
 it admits that it is unable to identify any such provisions or specify
 any other distinctions among employees which would be affected by the
 proposal.  In essence, the Union itself concedes that it cannot indicate
 what actions the Agency would need to take to comply with the proposal.
 
    The Authority has consistently held that, in order for a
 determination as to the negotiability of a proposal to be made, that
 proposal must be set forth with sufficient specificity the particular
 matter to be negotiated.  Without such specificity it is impossible to
 measure the proposal against applicable law and regulation so as to
 determine whether it is inconsistent therewith.  While the proposal here
 in dispute would require the elimination of discriminatory provisions,
 it does not specify, or provide a basis for determining, which
 provisions are discriminatory so as to permit a determination as to
 whether elimination thereof would be consistent with law and regulation.
  Thus, Union Proposal 2 is not sufficiently specific and delimited to
 permit a negotiability determination.  Therefore, Union Proposal 2 does
 not meet the conditions for review set forth in section 7117(a)(1) of
 the Statute and section 2424.1 of the Authority's Rules and Regulations.
  See 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 574, 584 (1981), affirmed as
 to other matters sub nom. National Federation of Federal Employees,
 Local 1167 v. Federal Labor Relations Authority, 681 F.2d 886 (1982);
 American Federation of Government Employees, AFL-CIO, Local 3525 and
 United States Department of Justice, Board of Immigration Appeals, 10
 FLRA 61, 66-68 (1982);  Fort Bragg Unit of North Carolina Association of
 Educators, National Education Association and Fort Bragg Dependents
 Schools, Fort Bragg, North Carolina, 12 FLRA 519, 527 (1983).
 
                             Union Proposal 3
 
          The Commission yacht 'Blue Runner' will be made available to
       professional employees on an equitable, negotiated basis once a
       month on a weekend.
 
    Based upon the language of the proposal and the record in the case,
 it appears that Union Proposal 3 is intended to provide unit employees
 with the use of the Agency's launch for recreational purposes on
 weekends.  The Agency contends that the proposal is outside the duty to
 bargain under section 7103(a)(14) of the Statute because it does not
 concern the "conditions of employment" of unit employees.  /10/ The
 Authority agrees.
 
    The Authority has consistently held, as a general rule, that matters
 concerning non-work activities of employees while in a non-duty status
 do not constitute "conditions of employment" within the meaning of
 section 7103(a)(14) of the Statute.  See International Association of
 Fire Fighters, AFL-CIO, Local F-116 and Department of the Air Force,
 Vandenberg Air Force Base, California, 7 FLRA 123 (1981) (proposal
 providing off-duty employees and dependents use of agency property for
 recreational purposes, e.g., hunting and fishing, does not concern
 "conditions of employment");  American Federation of Government
 Employees, Local 225 and U.S. Army Armament Research and Development
 Command, Dover, New Jersey, 11 FLRA 630 (1983) (proposal concerning us
 of "picnic area" and "recreational facilities" does not concern
 "conditions of employment");  National Federation of Federal Employees,
 Local 1363 and United States Army Garrison, Yongsan, Korea, 12 FLRA 635
 (1983) (proposal concerning dispensation of alcoholic beverages in
 membership association nonappropriated fund instrumentalities does not
 concern "conditions of employment");  International Organization of
 Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA 508,
 517-18 (1983) (proposal concerning acquisition of licenses for personal
 activities of employees, e.g., boats and airplanes, does not concern
 "conditions of employment");  Maritime Metal Trades Council and Panama
 Canal Commission, 17 FLRA No. 116 (1985) (proposal concerning personal
 check cashing privileges does not concern "conditions of employment").
 Thus, for the reasons set forth in the cited decisions, Union Proposal 3
 herein, which concerns recreational use of Agency property during
 weekends, i.e., non-duty time, is outside the duty to bargain under
 section 7103(a)(14) of the Statute.
 
    Moreover, contrary to the Union's contention, the fact that the
 Agency has in the past permitted recreational use of its launch by
 employees on weekends does not thereby transform the matter into a
 "condition of employment" which is subject to the duty to bargain.  See
 Maritime Metal Trades Council, at 3 of slip opinion, citing National
 Association of Air Traffic Specialists and Department of Transportation,
 Federal Aviation Administration, 6 FLRA 588, 593 (1981).
 
                             Union Proposal 4
 
          1.  All Panamanian professional employees who were hired before
       October 1, 1979 on a temporary basis, and who achieved permanent
       status after October 1, 1979 without a break in service shall be
       given the option of remaining covered under the Panamanian social
       security system or obtaining coverage under the Federal Civil
       Service Retirement program.
 
          2.  The Commission will do everything it can to see that the
       goal set forth in paragraph 1 of this article is achieved.
 
          3.  The Commission will report to the union monthly on its
       progress in achieving the goal set forth in paragraph 1 of this
       article.
 
    Union Proposal 4 would afford all Panamanian, i.e., non-United States
 citizen, professional employees of the Panama Canal Commission who
 received permanent appointment after October 1, 1979, but who had been
 employed on temporary appointments prior to that date, an option of
 choosing coverage under the Federal Civil Service Retirement System.
 The Agency contends that this proposal is outside the duty to bargain
 under section 7117(a)(1) of the Statute because it is inconsistent with
 law, i.e., 22 U.S.C. 3649 (Pub. L. 96-70, Sec. 1209) /11/ and Paragraph
 (1) of Article VIII of the Agreement in Implementation of Article III of
 the Panama Canal Treaty of 1977 (hereinafter referred to as the
 "Agreement").  /12/ The Authority agrees.
 
    In this regard, 22 U.S.C. 3649 provides, as relevant herein, that the
 laws governing retirement benefits for Federal employees do not apply to
 non-United States citizens who were initially appointed to positions in
 the Panama Canal Commission after October 1, 1979, and who are covered
 by the Social Security System of Panama pursuant to the Panama Canal
 Treaty and related agreements.  The legislative history of this
 provision, read in conjunction with Paragraph (1)(b) of the Agreement,
 indicates that it was the intent of Congress, as well as the United
 States and Panamanian governments, that only those employees who were
 covered by the Civil Service Retirement System prior to October 1, 1979,
 would be covered by the System after that date.  The House Committee
 report which accompanied the legislation eventually enacted as the
 Panama Canal Act of 1979 stated, with respect to this provision, as
 follows:  /13/
 
          Section 128. Inapplicability of Certain Benefits to Certain Non
       Citizens.-- This section would effect technical amendments to
       conform certain provisions of personnel law to the new Treaty
       provisions concerning non-United States citizen employees of the
       Panama Canal Commission hired after the Treaty effective date who
       would be covered by the social security system of the Republic of
       Panama (see Article VIII of the Agreement in Implementation of
       Article III of the Panama Canal Treaty of 1977).  The amendments
       would make inapplicable to such persons the provisions of title 5
       of the United States Code dealing with compensation for work
       injuries, retirement, life insurance, and health insurance.
       Coverage under such provisions would continue for non-United
       States citizen federal employees who had such coverage immediately
       prior to Treaty effective date.
 
 The Senate Committee report accompanying this same legislation contained
 similar language:  /14/
 
          Section 309-- Inapplicability of certain benefits to certain
       noncitizens
 
          Subsection (a) of section 309 provides that the provisions of
       title 5, United States Code, relating to compensation for work
       injuries (chapter 81), civil service retirement (chapter 83), life
       insurance (chapter 87), and health insurance (chapter 89) shall be
       inapplicable to non-United States citizen employees of the Panama
       Canal Commission who are initially hired by the Commission after
       October 1, 1979 (the effective date of the Treaty) and who are
       covered by the Social Security System of the Republic of Panama.
       Non-United States citizen employees who were covered by such
       provisions of title 5 immediately before the effective date of the
       treaty of the treaty (i.e., coverage as of September 30, 1979)
       will continue to be covered by those provisions.
 
 Paragraph (1)(b) of Article VIII of the Agreement is to the same effect:
  /15/
 
          (Non-United States citizens) who were employed prior to the
       entry into force of this Agreement by the Panama Canal Company and
       Canal Zone Government and who were covered under the Civil Service
       Retirement System of the United States shall continue to be
       covered by the system until their retirement or until the
       termination of their employment with the Commission for any other
       reason.
 
 Thus, under 22 U.S.C. 3649 and Paragraph (1)(b) of Article VIII of the
 Agreement, employees who were not covered by chapter 83 of title 5 prior
 to October 1, 1979 are precluded from coverage after that date.
 
    In this regard, Union Proposal 4 pertains to Panamanian citizens who
 were temporary employees of either the Panama Canal Company or the Canal
 Zone Government prior to October 1, 1979.  Under 5 U.S.C. 8347(g), the
 Office of Personnel Management (OPM) may exclude from subchapter III of
 chapter 83 of title 5 an employee or group of employees in an Executive
 agency whose employment is temporary.  /16/ By regulation, OPM has
 excluded temporary employees from coverage of subchapter III of chapter
 83.  Such exclusion applied prior to 1979.  /17/ Thus, temporary
 employees of the Panama Canal Company or the Canal Zone Government who
 did not become permanent employees of the successor agency, the Panama
 Canal Commission, until after October 1, 1979, were never covered by
 subchapter III of chapter 83 of title 5.  They were not entitled to
 participate in the Federal Civil Service Retirement System prior to
 October 1, 1979, and, therefore, under 22 U.S.C. 3649, are precluded
 from participating therein after that date.  Hence, by purporting to
 create an option for Panamanian citizen employees of the Panama Canal
 Commission, who did not become permanent employees until after October
 1, 1979, to participate in the Federal Civil Service Retirement System
 under chapter 83 of title 5, Union Proposal 4 is inconsistent with 22
 U.S.C. 3649 and Paragraph (1)(b) of Article VIII of the Agreement and
 outside the Agency's duty to bargain under section 7117(a)(1) of the
 Statute.  Cf. International Organization of Masters, Mates and Pilots
 and Panama Canal Commission, 13 FLRA 508, 523 (1983) (proposal to grant
 newly hired pilots, without regard to citizenship, option of choosing
 union pension plan nonnegotiable because inconsistent with Paragraph
 (1)(a) of Article VIII of the Agreement).
 
                             Union Proposal 5
 
          1.  The Commission will do everything it can to establish 6/4
       and/or 50-50 workplans for all employees in the bargaining unit.
 
          2.  The Commission will report to the union monthly on its
       progress in achieving the goal set forth in paragraph 1 of this
       article.
 
    As explained by the Union, Union Proposal 5 would require the Agency
 to make every effort to establish work schedules whereby employees may
 work six (6) weeks and then have four (4) weeks off, or some similar
 schedule, such as a "50-50" plan, whereby an employee would have "an
 equal time off for that time on." /18/ The Agency contends that this
 proposal is outside the duty to bargain under section 7117(a)(1) of the
 Statute because it is inconsistent with law, i.e., the Federal Employees
 Flexible and Compressed Work Schedules Act of 1982, 5 U.S.C. 6120 et
 seq.  The Authority agrees.
 
    Under chapter 61 of title 5 of the United States Code, for agencies
 and employees within its coverage, Federal agencies are required to
 establish a basic workweek of five (5) 8-hour days, Monday through
 Friday.  5 U.S.C. 6101(a)(2) and (3).  5 CFR 610.121.  /19/ However,
 under the Federal Employees Flexible and Compressed Work Schedules Act
 of 1982, agencies are authorized to establish, as alternatives to the
 40-hour workweek, flexible and compressed work schedules, see 5 U.S.C.
 6122 and 6127, which, in essence, permit employees to work longer
 workdays in exchange for time off in the same or in the following
 workweek.
 
    In this regard, as to flexible schedules, 5 U.S.C. 6122 permits
 employees not only to vary their starting and quitting times, as long as
 they are present during certain "core hours," but also to work longer
 than their 8-hour daily work requirement so as to accumulate "credit
 hours" to be used to reduce the length of the workweek or of another
 workday.  /20/ Under 5 U.S.C. 6126(a), however, an employee working a
 flexible schedule established pursuant to 5 U.S.C. 6122, may not
 accumulate more than 24 credit hours during a biweekly pay period for
 use during the following biweekly pay period.  /21/ Union Proposal 5,
 considered as a proposed flexible schedule pursuant to 5 U.S.C. 6122,
 contemplates an arrangement where an employee would work for 6 weeks and
 then be entitled to 4 weeks off.  In order for an employee to be
 entitled to 4 weeks off within the framework of a flexible schedule
 under 5 U.S.C. 6122, that employee would have to be able to accumulate
 160 credit hours during three biweekly pay periods for use in the
 following two biweekly periods.  Under Union Proposal 5, therefore, the
 number of credit hours required to implement the proposed work schedule
 exceeds the 24 credit hour limit provided in 5 U.S.C. 6126(a). Moreover,
 since it would also be necessary under the proposal to carry those
 credit hours beyond the biweekly pay period following the pay period in
 which they were accumulated, in this respect as well as the proposal
 conflicts with Sec. 6126(a). Thus, considered as a proposed flexible
 work schedule pursuant to 5 U.S.C. 6122, Union Proposal 5 is
 inconsistent with the limitations governing the use of credit hours in
 connection with such schedules under 5 U.S.C. 6126(a).
 
    Moreover, Union Proposal 5 does not fall within the definition of a
 "compressed schedule" under 5 U.S.C. 6121(5).  /22/ By the terms of that
 definition, such a schedule involves an 80-hour basic biweekly work
 requirement which is scheduled for less than 10 workdays.  That is, a
 "compressed schedule" authorized under 5 U.S.C. 6127 is a fixed work
 schedule which, by means of longer daily work requirements, i.e., longer
 than 8 hours, results in a reduced length for the basic workweek, e.g.,
 to 4 days out of 5, or 9 days out of 10 on a biweekly basis.  /23/ Union
 Proposal 5 is not a proposal which is intended to reduce the length of
 the workweek on either a weekly or biweekly basis as contemplated by 5
 U.S.C. 6121(5) and 6127.  Rather, as discussed above, it appears
 intended to authorize a work schedule, e.g., in which employees work
 longer than 8-hour workdays and/or 5-day workweeks for 6 weeks and the
 extra time thus accumulated is used to provide 4 weeks off from work.
 Thus, the proposal does not constitute a "compressed schedule" which
 agencies are authorized to establish under 5 U.S.C. 6121(5) and 6127.
 
    Finally, though the Union states that the proposal is intended only
 to require the Agency to "explore the possibility that such a plan could
 be implemented on behalf of bargaining unit members," /24/ that fact
 does not render the proposal negotiable.  The Authority has consistently
 held that proposals requiring an agency to make an effort to accomplish
 an objective which is outside the duty to bargain are themselves
 nonnegotiable.  See American Federation of Government Employees,
 AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C.,
 8 FLRA 409 (1982);  Maritime Metal Trades Council and Panama Canal
 Commission, 17 FLRA No. 116 (1985) (Union Proposal 4).  /25/
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review as to Union
 Proposals 1, 2, 3, 4 and 5 be, and it hereby is, dismissed.  Issued,
 Washington, D.C., May 31, 1985
                                       Henry B. Frazier III, Acting
                                       Chairman
                                       William J. McGinnis, Jr., Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ Pursuant to section 2424.3 of the Authority's Rules and
 Regulations, the Union requested written allegations of nonnegotiability
 from the Agency as to six disputed proposals.  However, as a result of a
 subsequent agreement with the Agency to discuss further the sixth
 proposal, the Union did not appeal that matter herein.  Union Petition
 for Review at seventh unnumbered page.
 
 
    /2/ The referenced provisions represent the codification of sections
 1241 and 1242 of the Panama Canal Act of 1979, Pub. L. 96-70, 93 Stat.
 465.  See Agency Brief at 1.
 
 
    /3/ Union Petition for Review at second unnumbered page.
 
 
    /4/ Agency Brief at 1-2.
 
 
    /5/ Section 7117(a)(1) provides:
 
          Sec. 7117.  Duty to bargain in good faith;  compelling need;
       duty to consult
 
          (a)(1) Subject to paragraph (2) of this subsection, the duty to
       bargain in good faith shall, to the extent not inconsistent with
       any Federal law or any Government-wide rule or regulation, extend
       to matters which are the subject of any rule or regulation only if
       the rule or regulation is not a Government-wide rule or
       regulation.
 
 
    /6/ Section 7121(c)(2) provides, in relevant part, as follows:
 
          Sec. 7121.  Grievance procedures
 
                                  * * * *
 
          (c) The preceding subsections of this section shall not apply
       with respect to any grievance concerning--
 
                                  * * * *
 
          (2) retirement, life insurance, or health insurance(.)
 
 
    /7/ MSPB has jurisdiction over appeals as to retirement claims under
 5 U.S.C. 7701 as well.  Hein v. OPM, 1 MSPB 396 (1980);  Chavez v. OPM,
 6 MSPB 343 (1981).
 
 
    /8/ In this regard, cf. section 7121(e)(1) of the Statute, wherein
 Congress especially provided employees an option to raise, under the
 negotiated grievance procedure, matters pertaining to unacceptable
 performance under 5 U.S.C. 4303 and to adverse actions under 5 U.S.C.
 7512, which matters would otherwise be appealable to MSPB under 5 U.S.C.
 7701.
 
 
    /9/ Union Petition for Review at third unnumbered page.
 
 
    /10/ Section 7103(a)(14) provides, in relevant part, as follows:
 
          Sec. 7103.  Definition;  application
 
          (a) For the purpose of this chapter--
 
                                  * * * *
 
          (14) "conditions of employment" means personnel policies,
       practices, and matters, whether established by rule, regulation,
       or otherwise, affecting working conditions . . . (.)
 
 
    /11/ 22 U.S.C. 3649 provides:
 
          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.
 
 
    /12/ Paragraph (1) of Article VIII of the Agreement in Implementation
 of Article III of the Panama Canal Treaty of 1977 provides as follows:
 
          (1) Concerning Social Security and retirement benefits
       applicable to employees of the Commission who are not United
       States citizens, 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 and Canal Zone
       Government and who were covered under the Civil Service Retirement
       Syst