26:0390(48)NG - District No. 1, Pacific Coast District, MEBA, and Panama Canal Commission -- 1987 FLRAdec NG



[ v26 p390 ]
26:0390(48)NG
The decision of the Authority follows:


 26 FLRA No. 48
 
 DISTRICT NO. 1, PACIFIC COAST 
 DISTRICT, MARINE ENGINEERS 
 BENEFICIAL ASSOCIATION
 Union
 
 and
 
 PANAMA CANAL COMMISSION
 Agency
 
                                            Case No. 0-NG-716
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case comes 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 two parts, sections 3 and 5, of a proposal.  The
 Authority finds that section 3 of the proposal is negotiable and section
 5 is not.
 
                               II.  Proposal
 
                                  Article
 
          Adjustment of Marine Engineers wage and work rules to conform
       to wage practices in the maritime industry.
 
          1.  Legal Basis:  Section 5102(c)(8), Title 5 U.S. Code exempts
       from coverage of Chapter 51 (Classification) of Title 5 U.S. Code
       "officers and members of crews of vessels." Section 5348, Title 5,
       U.S. Code provides that . . . vessel employees of the Panama Canal
       Commission may be paid in accordance with wage practices of the
       maritime industry.
 
          2.  Scope:  This article applies to all licensed marine
       positions aboard vessels of the Panama Canal Commission including
       tugs, dredges and cranes.
 
          3.  Applicability:  In accordance with the legal basis for this
       article, licensed marine engineer members of the bargaining unit
       shall be paid in accordance with wage practices of the maritime
       industry.
 
          4.  Related Subjects:  The subjects of pay, subsistence and
       quarters, hours of work, and premium pay, will be treated in
       separate articles.
 
          5.  Policy:  Certain traditionally defined positions are
       recognized throughout the Maritime Industry as necessary to the
       safe and efficient operation of floating equipment.  As nearly as
       is consistent with the public interest the Panama Canal Commission
       will establish and use positions similar to those in the industry
       so that applicable wage practices may be applied.
 
          6.  Prevailing Maritime Practice:  The established policies,
       methods, and procedures of the Maritime Industry pertaining to
       positions and compensation of marine personnel.  (Only Sections 3
       and 5 of the proposal are in dispute).
 
                              III.  Section 3
 
    The Members of the Authority disagree over the negotiability of
 section 3.  The Decision and Order as to that section, and Chairman
 Calhoun's dissent appear below.
 
                              IV.  Section 5
 
    A.  Positions of the Parties
 
    The Agency contends that section 5 concerns the numbers, types and
 grades of positions assigned to the organization under section
 7106(b)(1) of the Statute, a matter over which it has elected not to
 bargain.  The Union does not controvert the Agency's contention.
 
    B.  Analysis and Conclusion
 
    In agreement with the Agency's uncontroverted contention, we find
 that section 5 would require the Agency to establish and use certain
 specific positions, that is, those traditionally defined and recognized
 throughout the maritime industry.  Thus, section 5 of the Union's
 proposal concerns the numbers, types and grades of employees assigned as
 provided under section 7106(b)(1) of the Statute, and is negotiable only
 at the election of the Agency.  See American Federation of Government
 Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air
 Force Base, Ohio, 2 FLRA 604 (1980) (Proposal X), enforced as to other
 matters 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 (1982).  Since
 the Agency has elected not to bargain, this portion of the proposal is
 outside the duty to bargain.
 
    We therefore conclude that section 5 concerns the numbers, types, and
 grades of employees or positions assigned to an organization element,
 and therefore, under section 7106(b)(1) of the Statute, is negotiable
 only at the Agency's election.  Since the Agency has elected not to
 bargain on that section, it is nonnegotiable.
 
    C.  Order
 
    The Union's petition of review of section 5 is dismissed.
 
    Issued, Washington, D.C., March 27, 1987.
                                       /s/ Jerry L. Calhoun, Chairman
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                      DECISION AND ORDER ON SECTION 3
 
    Section 3
 
          3.  Applicability:  In accordance with the legal basis for this
       article, licensed marine engineer members of the bargaining unit
       shall be paid in accordance with wage practices of the maritime
       industry.
 
    A.  Positions of the Parties
 
    The Agency claims that section 3 of the proposal is nonnegotiable
 because:  (1) it is contrary to a Government-wide regulation;  (2) the
 basis upon which wage rates are determined is a matter beyond the scope
 of its authority to bargain;  and (3) negotiations over wages and fringe
 benefits is barred by the Statute.
 
    The Union points out that the Agency has discretion under 5 U.S.C.
 Section 5348(b) to pay its vessel employees "in accordance with the wage
 practices of the maritime industry." Consequently, according to the
 Union, the Agency is obliged to bargain on section 3 to the extent of
 its discretion.  The Union contends that the proposal does not conflict
 with requirements of the regulations cited by the Agency.  Finally, the
 Union denies that section 3 involves bargaining over pay rates,
 contending that it would only establish the procedure to be followed in
 the process of determining rates of pay.
 
    B.  Analysis
 
    1.  Statutory Considerations
 
    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), appeal docketed sub nom. Department of the Air Force,
 Eglin Air Force Base, Florida v. FLRA, No. 87-3073 (11th Cir. Feb. 2,
 1987), we held that nothing in either the Statute or its legislative
 history bars negotiating over proposals related to pay and fringe
 benefits insofar as:  (1) the matters proposed are not specifically
 provided for by law and are within the discretion of the agency
 involved;  and (2) the proposals do not otherwise conflict with law,
 Government-wide rule or regulation or an agency regulation for which a
 compelling need exists.  Based on the analytical framework established
 there, we held that the proposal in Eglin Air Force Base, requiring the
 agency to pay up to 75 percent of the premium cost of health insurance
 for non-appropriated fund employees, was within the duty to bargain.
 See also American Federation of Government Employees, AFL-CIO, Local 997
 and Department of the Air Force, Maxwell Air Force Base, Alabama, 24
 FLRA No. 51 (1986).
 
    In the present case, the matter sought to be negotiated in section 3
 is not provided for by law.  Rather, 5 U.S.C. Section 5348(b) states:
 "Vessel employees of the Panama Canal Commission may be paid in
 accordance with the wage practices of the maritime industry." Thus, the
 law in question merely provides guidance on how to determine the pay of
 vessel employees of the Agency -- guidance which the Agency has
 heretofore decided not to follow.  Section 3, therefore, only calls upon
 management to exercise its statutory discretion in precisely the manner
 suggested by the law.  The Authority has consistently held that, where
 an agency has discretion over a matter affecting conditions of
 employment, the agency is obliged under the Statute to exercise that
 discretion by means of bargaining, unless the governing law or
 regulations specifically limit the exercise of discretion to the agency.
  National Treasury Employees Union, Chapter 6 and Internal Revenue
 Service, New Orleans District, 3 FLRA 748, 759-60 (1980).  Here, because
 no such inhibition on discretion has been identified, section 3 is
 within the Agency's duty to bargain to the extent not otherwise
 inconsistent with applicable regulations.
 
    2.  Regulatory Considerations
 
    The Agency's claim that negotiation on section 3 is foreclosed by an
 asserted Government-wide regulation is unpersuasive.  The Agency
 specifically relies on 35 CFR Section 251.13, governing "Establishment
 of basic wages" under the Panama Canal Employment System.  /1/ That
 regulation was promulgated under the authority of 22 U.S.C. Section
 3652, establishing the Panama Canal Employment System.  The question of
 whether regulations issued under the same statutory authority were
 Government-wide in nature was answered in the negative by the Authority
 in International Organization of Masters, Mates and Pilots and Panama
 Canal Commission, 13 FLRA 508 (1983) (Proposal 16).  In finding that the
 regulations in question were not Government-wide, it was noted that they
 were statutorily applicable only to employees of the Agency.  22 U.S.C.
 Section 3652(b)(1).  Other agencies were given the choice of including
 their employees working in the Republic of Panama under coverage of the
 Panama Canal Employment System.  22 U.S.C. Section 3652(b)(2).  The same
 considerations resulting in the finding that the regulations in the
 cited case were not Government-wide are applicable to the regulation
 cited here.  Consequently, we conclude that 35 CFR Section 251.13 is not
 a Government-wide regulation under section 7117(a) of the Statute
 because it is not generally applicable throughout the Federal
 Government, The Agency, moreover, has not alleged, nor has it made any
 showing, that a compelling need exists for its regulation.  The
 regulation therefore cannot bar negotiations on section 3.
 
    3.  Matters within the Agency's Authority to Bargain
 
    It is well established that the duty of an agency under the Statute
 is to negotiate with an exclusive representative of an appropriate unit
 of its employees concerning conditions of employment affecting them to
 the extent of its discretion, that is, except as provided otherwise by
 Federal law including the Statute, or by Government-wide rule or
 regulation or by an agency regulation for which a compelling need
 exists.  For example, see National Treasury Employees Union and
 Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769
 (1980), aff'd sub nom. National Treasury Employees Union v. FLRA, 508
 F.2d 553 (D.C. Cir. 1982).
 
    It is likewise well established that an agency may not prevent
 bargaining on an otherwise negotiable matter by delegating authority
 over that matter to an organizational level within the agency other than
 the one at which recognition exists.  Rather, under section 7114(b)(2)
 of the Statute, an agency must provide representatives empowered to
 negotiate and enter into agreement on all matters within the statutorily
 prescribed scope of bargaining.  American Federation of Government
 Employees, AFL-CIO, Local 3525 and U.S. Department of Justice, Board of
 Immigration Appeals, 10 FLRA 61 (1982) (Proposal 1).  Hence, the
 Agency's claim that it is without authority to bargain over the basis
 for fixing the pay of its vessel employees because approval of Agency
 wage practices resides outside the Agency cannot be sustained.  See
 American Federation of Government Employees, AFL-CIO, Local 1409 and
 U.S. Adjutant General Publications Center, Baltimore, Maryland, 18 FLRA
 508 (1985).
 
    D.  Conclusion
 
    The Agency has not established, nor is it otherwise evident, that
 section 3 of the proposal is:  (1) statutorily excluded from the
 definition in section 7103(a)(14) of the Statute of "conditions of
 employment;" or (2) removed from the bargaining obligation by applicable
 law or regulation.  Consequently, this section of the proposal is within
 the duty to bargain.
 
    E.  Order
 
    The Agency must upon request, or as otherwise agreed to by the
 parties, bargain over section 3 of the proposal.  /2/
 
    Issued, Washington, D.C., March 27, 1987.
                                       /s/ Henry B. Frazier III, Member
                                       /s/ Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                   Separate Opinion of Chairman Calhoun
 
    In my opinion 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), petition for review filed sub nom.
 Department of the Air Force, Eglin Air Force Base, Florida v. FLRA, No.
 87-3073 (11th Cir. February 2, 1987), I stated that in the absence of a
 clear expression of Congressional intent to make wages and money-related
 fringe benefits negotiable, I would find that these matters are not
 within the duty to bargain under the Statute.  As I stated in my opinion
 in District No. 1, Pacific Coast District, Marine Engineers Beneficial
 Association and Panama Canal Commission, 26 FLRA No. 8 (1987), I find no
 such expression of Congressional intent in the Panama Canal Act of 1979
 or its legislative history.  Therefore, I do not join the majority
 decision concerning section 3 of the Union's proposal in this case,
 which would require negotiations over the method used by the Agency to
 determine the wages of marine engineers.
 
    Issued, Washington, D.C., March 27,