[ 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 bargaining
agreement shall be deleted and all other Sections of the Agreement shall
apply to underway replenishment operations in the same fashion as to all
other duties.
UNION PROPOSAL 5
(5) Appendix VII, Section 8 of each existing collective bargaining
agreement shall be deleted and the contractual call-out provision
(Appendix II, Section 3) shall apply to underway replenishment
operations.