26:0390(48)NG - District No. 1, Pacific Coast District, MEBA, and Panama Canal Commission -- 1987 FLRAdec NG
[ v26 p390 ]
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, 1987. /s/ Jerry L. Calhoun, Chairman --------------- FOOTNOTES$ --------------- (1) 35 CFR Section 251.13 provides: Section 251.13 Establishment of basic wages. Agencies that participate in the Panama Canal Employment System shall consult with each other concerning basic pay for employees and shall refer their recommendations for basic pay to the Panama Area Personnel Board. Upon approval by the Secretary of the Army or his designee of basic wage rates, the rates shall be adopted by the agencies. (2) In finding section 3 of the proposal to be negotiable, we make no judgment on its merits.