25:0105(8)NG - National Maritime Union of America and Navy, MSC -- 1987 FLRAdec NG



[ v25 p105 ]
25:0105(8)NG
The decision of the Authority follows:


 25 FLRA No. 8
 
 NATIONAL MARITIME UNION 
 OF AMERICA, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF THE NAVY 
 MILITARY SEALIFT COMMAND
 Agency
 
                                            Case No. 0-NG-694
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and presents issues as
 to the negotiability of five Union proposals which appear in the
 Appendix to this Decision.  The five proposals relate to the pay and pay
 practices of employees of the Agency who are members of vessel crews and
 who are represented by the Union.  Based on the following, we find the
 proposals negotiable.  /1/
 
                       II.  Positions of the Parties
 
    The Agency asserts that the fixing of pay rates and practices of the
 employees involved is outside the duty to bargain under the Statute
 because it is controlled by the Prevailing Rate Act of 1972, Pub. L. No.
 92-392, 86 Stat. 564 (codified in scattered sections of 5 U.S.C.) (the
 Act).  It contends that under that Act the Secretary of the Navy is
 vested with the authority to determine whether adoption of private
 sector pay rates and practices is in the public interest.  It argues
 that if the proposals are found negotiable the Federal Service Impasses
 Panel (FSIP) would inappropriately be permitted to impose its judgments
 in this regard on the Secretary.  It contends further that these
 employees are not covered by Section 9(b), the savings clause in the
 Act, which allowed prevailing rate employees who had negotiated various
 matters prior to the passage of the Act to continue to do so afterward.
 /2/ By extension it contends that they are also not covered by section
 704 of the Civil Service Reform Act which continued that savings clause
 under the Statute.
 
    The Union contends that its proposals seek to bring the pay and pay
 practices into line with those in the private maritime industry as it
 contends is required to be done as nearly as is consistent with the
 public interest pursuant to 5 U.S.C. Section 5348(a).  It asserts that
 the "public interest" determination is within the Agency's discretion.
 It disputes the Agency's assertion that the pay of these particular
 employees has not, historically, been subject to negotiation.
 
                              III.  Analysis
 
                              A.  Background
 
    Pay of prevailing rate employees is governed by the terms of the Act,
 which established a system for determining rates of pay for such
 employees.  However, the Act generally excepted from coverage under that
 system members of crews of vessels.  5 U.S.C. Section 5342(b)(3).  As to
 those employees, the Act incorporated a restatement of existing law
 relied upon by the Union which provided that their pay should be set "as
 nearly as is consistent with the public interest in accordance with
 prevailing rates and practices in the maritime industry." 5 U.S.C.
 Section 5348(a).
 
    Section 9(b) of the Act is a savings clause, which allowed prevailing
 rate employees who had negotiated over, among other things, wages prior
 to the Act to continue to do so.  /3/ Section 704 of the Civil Service
 Reform Act preserved the scope of bargaining for employees covered by
 this savings clause for negotiations occurring under the Statute.  See
 Columbia Power Trades Council and United States Department of Energy,
 Bonneville Power Administration, 22 FLRA No. 100 (1986).
 
        B.  Effect of 5 U.S.C. Section 5348 on the Negotiability of
 
                the Proposals
 
    The Union effectively seeks to negotiate over the Agency's discretion
 to determine whether adoption of the proposed pay practices is
 consistent with the public interest.  It asserts without controversion
 that the practices being proposed reflect those in private maritime
 industry.  By its terms, 5 U.S.C. Section 5348(a) vests the Agency with
 discretion in setting wages for vessel crews insofar as determining the
 degree to which they may parallel the private maritime industry and
 still be consistent with the public interest.  See, for example,
 National Maritime Union of America v. United States, 682 F.2d 944 (Ct.
 Cl. 1982).  It is well established that to the extent that an Agency has
 discretion with respect to a matter affecting the working conditions of
 its employees and where such discretion is not intended to be sole and
 exclusive that matter is within the duty to bargain.  See, for example,
 National Treasury Employees Union, Chapter 6 and Internal Revenue
 Service, New Orleans District, 3 FLRA 748, 759-60 (1980).  Insofar as
 matters relating to the compensation of employees are not specifically
 provided for by Federal statute but, instead, are within the discretion
 of the Agency, they are conditions of employment.  As to these matters,
 the Authority recently has reaffirmed that nothing in the Statute, or
 its legislative history, bars negotiation of proposals concerning them
 insofar as (1) the matters proposed are not specifically provided for by
 law and are within the discretion of the agency and (2) the proposals
 are not otherwise inconsistent with law, Government-wide rule or
 regulation or an agency regulation for which a compelling need exists.
 American Federation of Government Employees, AFL-CIO, Local 1897 and
 Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No.
 41 (1986).
 
    Determinations as to whether adoption of the particular pay practices
 involved in the proposals in this case is in the public interest are
 matters within the Agency's administrative discretion under 5 U.S.C.
 Section 5348(a) and it has not been demonstrated that such discretion
 was intended to be sole and exclusive.  /4/ The exercise of that
 discretion is subject to bargaining.  See, for example, American
 Federation of Government Employees, AFL-CIO, Local 3525 and United
 States Department of Justice, Board of Immigration Appeals, 10 FLRA 61
 (1982) (Proposal 1).
 
           C.  Section 9(b) and Section 704 Do Not Apply to the
 
                Employees in This Case
 
    We do not rely on section 9(b) or section 704 in reaching this
 conclusion.  As already noted, the employees who are the subject of the
 proposals in this case were explicitly excepted from coverage under the
 pay system established by the Act.  5 U.S.C. Section 5342(b)(3).
 Consequently, section 9(b) and section 704 which preserved bargaining
 rights on pay matters for certain employees who would otherwise have
 their pay determined by that pay system have no relevance to the
 negotiability of proposals on pay matters relating to these employees.
 
                              IV.  Conclusion
 
    The proposals are within the duty to bargain.  We are aware in
 reaching this conclusion that a proposal substantially similar to
 Proposal 1 in this case was held to be negotiable "at the election of
 the agency" in National Maritime Union of America, AFL-CIO and
 Department of Commerce, National Oceanic and Atmospheric Administration,
 National Ocean Survey, Rockville, Maryland, 15 FLRA 576 (1984) (Proposal
 II).  In that case, the Authority's decision was based upon the record
 presented, including the Agency's specific assertion that under section
 7106(b)(1) of the Statute, the proposal was negotiable only "at the
 election of the agency." Here, the Agency did not raise section
 7106(b)(1) as a bar to negotiation of Proposal 1.  Rather in its brief
 it acknowledged awareness that in Department of Commerce, National
 Oceanic and Atmospheric Administration the agency had raised section
 7106 as a bar to negotiation of a similar proposal.  Nonetheless it
 asserted only that the provisions of 5 U.S.C. Section 5348(a) bar
 negotiation of Proposal 1.  Agencies may, of course, elect whether to
 bargain over section 7106(b)(1) matters.  We therefore will not
 generally find a proposal nonnegotiable based on that section unless the
 agency specifically raises it as a bar to negotiation since the agency
 can terminate bargaining on the matter at any point even if it initially
 agrees to negotiations.  National Association of Government Employees,
 Local R4-75 and U.S. Department of the Interior, National Park Service,
 Blue Ridge Parkway, 24 FLRA No. 7 (1986) (Provision 4).
 
                                 V.  Order
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, negotiate over the Union's proposals.
 
    Issued, Washington, D.C. January 12, 1987.
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) In finding these proposals negotiable, we make no judgment as to
 their metis.
 
    (2) Section 9(b) of Pub. L. No. 92-392 is codified at 5 U.S.C.
 Section 5343 (Amendments, note) (1982 ed.).
 
    (3) Pub. L. No. 92-392, Section 9(b), provides as follows:
 
          Sec. 9. (b) The amendments made by this Act shall not be
       construed to --
 
          (1) abrogate, modify, or otherwise affect in any way the
       provisions of any contract in effect on the date of enactment of
       this Act pertaining to the wages, the terms and conditions of
       employment, and other employment benefits, or any of the foregoing
       matters, for Government prevailing rate employees and resulting
       from negotiations between Government agencies and organizations of
       Government employees;
 
          (2) nullify, curtail, or otherwise impair in any way the right
       of any party to such contract to enter into negotiations after the
       date of enactment of this Act for the renewal, extension,
       modification, or improvement of the provisions of such contract or
       for the replacement of such contract with a new contract;  or
 
          (3) nullify, change, or otherwise affect in any way after such
       date of enactment any agreement, arrangement, or understanding in
       effect on such date with respect to the various items of subject
       matter of the negotiations on which any such contract in effect on
       such date is based or prevent the inclusion of such items of
       subject matter in connection with the renegotiation of any such
       contract, or the replacement of such contract with a new contract,
       after such date.
 
    (4) The various court decisions cited by the Agency do not require a
 different conclusion.  In National Maritime Union of America v. United
 States, 682 F.2d 944 (Ct. Cl. 1982), the Court of Claims, relying on the
 same decisions which the Agency has cited, held that the "public
 interest" phrase found in 5 U.S.C. Section 5348(a) effectively creates
 discretion in the Agency.  682 F.2d at 949-50.  However, the question we
 are deciding in the present case -- whether such discretion can be
 exercised through the collective bargaining process -- was not before
 the court in those cases.
 
 
                  Dissenting Opinion of Chairman Calhoun
 
    I respectfully disagree with my colleagues in this case for
 essentially the same reasons I set forth in my dissent in American
 Federation of Government Employees, AFL-CIO, Local 1897 and Department
 of the Air Force, Eglin Air Force Base, Florida, 24 FLRA No. 41 (1986).
 
    Dated, Washington, D.C. January 12, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
 
                                 APPENDIX
 
                             UNION PROPOSAL 1
 
    (1) Appendix IV of each collective bargaining agreement (i.e., for
 tankers and for cargo ships), shall be amended by adding the following
 Section:
 
                           Division of Watchers
 
       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) seaman 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 members making
       up the remainder of the watch.
 
                             UNION PROPOSAL 2
 
    (2) Appendix VI of each agreement shall be amended by adding the
 following Section:
 
                            WORK NOT SPECIFIED
 
       Any work performed by the Stewards' Department that is not
       specifically defined as routine duties in this Agreement or in the
       applicable Work Schedule shall be paid at the applicable penalty
       rate.
 
                             UNION PROPOSAL 3
 
    (3) Appendix VII, of each agreement shall be amended by adding the
 following Section:
 
               EXTRA COMPENSATION FOR UNDERWAY REPLENISHMENT
 
       Unlicensed members of the crew on watch on deck performing
       services in connection with the actual or simulated refueling
       operation while the vessel is underway shall receive penalty pay.
       The Pumpman on duty during his regular hours shall receive penalty
       pay while pumping cargo during this operation.
 
                             UNION PROPOSAL 4
 
    (4) Appendix VII, Section 4 of each existing collective bargainin