43:1483(120)CA - - Panama Canal Commission, Balboa, Republic of Panama and Panama Area Metal Trades Council, National Maritime Union and Intl. Organization of Masters, Mates and Pilots - - 1992 FLRAdec CA - - v43 p1483

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[ v43 p1483 ]
43:1483(120)CA
The decision of the Authority follows:


43 FLRA No. 120

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

PANAMA CANAL COMMISSION, BALBOA

REPUBLIC OF PANAMA

(Respondent)

and

PANAMA AREA METAL TRADES COUNCIL

NATIONAL MARITIME UNION AND

INTERNATIONAL ORGANIZATION OF MASTERS

MATES AND PILOTS

(Charging Party/Union)

6-CA-80337

DECISION AND ORDER

Feburary 11, 1992

Before Chairman McKee and Members Talkin and Armendariz.

I. Statement of the Case

This unfair labor practice case is before the Authority on exceptions filed by the Union, the General Counsel, and the Respondent to the attached decision of the Administrative Law Judge in the above-entitled proceeding. The Respondent also filed an opposition to both the Union's and the General Counsel's exceptions. No opposition was filed to the Respondent's exceptions.

The complaint alleged that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by unilaterally terminating the contractual right of non-veteran professional and nonprofessional excepted service employees to elect to appeal adverse actions under the Respondent's administrative appeals procedures. The complaint also alleged that the Respondent violated section 7116(a)(1) and (8) of the Statute by refusing to comply with section 7121(e)(1) of the Statute. The Judge found that the Respondent's actions did not violate the Statute and recommended that the complaint be dismissed.

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Statute, we have reviewed the rulings of the Judge and find that no prejudicial error was committed. We affirm the rulings. For the reasons stated below, we find that the Respondent's actions did not constitute a refusal to comply with section 7121(e)(1) of the Statute and, accordingly, the Respondent did not violate section 7116(a)(1) and (8) of the Statute as alleged. However, we further find that the Respondent violated section 7116(a)(1) and (5) of the Statute by unilaterally terminating the contractual right of non-veteran professional and non-professional excepted service employees to appeal adverse actions through the Respondent's administrative appeals procedures.

II. Background

The Union is the exclusive representative of a unit of professional employees and a unit of nonprofessional employees of the Respondent. The Union and the Respondent have a collective bargaining agreement covering the unit of professional employees as well as a collective bargaining agreement covering the unit of nonprofessional employees.

By letter of February 11, 1988, the Respondent's Director of Industrial Relations informed the Union that the Respondent was immediately terminating the right of non-veteran professional excepted service employees to elect to appeal adverse actions under the administrative appeals procedures. This right is contained in Article 10, Section 06.a. and Article 11, Section 03.b. of the collective bargaining agreement covering the professional employees. Those sections provide:

ARTICLE 10, SECTION 06. APPEAL RIGHTS.

a. An employee against whom adverse action has been taken shall have the right to appeal the decision within twenty (20) calendar days following the effective date of the decision utilizing either the existing statutory/Commission procedure or the negotiated grievance procedure, but not both. The option will be considered to have been exercised at such time as the employee timely files a notice of appeal under the statutory/Commission appeal procedure or timely files a grievance in writing to the Deputy Administrator in accordance with Article II of this Agreement, whichever event occurs first. Appeal rights and time limits shall be clearly defined in the decision of adverse action.

ARTICLE 11, SECTION 03. OPTIONS.

b. With regard to matters which, under the provisions of 5 U.S.C. § 7121(e), an aggrieved employee may, at the employee's discretion, raise either under an appropriate statutory/Commission procedure or under the negotiated grievance procedure, but not under both, the option will be considered to have been exercised at such time as the employee timely files a notice of appeal under the applicable statutory/Commission procedure or timely files a formal grievance with the Deputy Administrator in accordance with the provisions of Section 12.b. of this Article.

Judge's Decision at 3-4.

Also by letter of February 11, 1988, the Respondent's Director of Industrial Relations informed the Union that the Respondent was immediately terminating the contractual right of non-veteran nonprofessional excepted service employees to elect to appeal adverse actions under the administrative appeals procedures. Article 7, Section 7.07.a. of the agreement covering nonprofessional employees states:

ARTICLE 7, SECTION 7.07. APPEAL RIGHTS.

a. An employee against whom an adverse action has been taken shall have the right to appeal the decision within 20 calendar days after the effective date of the decision utilizing either the existing statutory/agency procedure or the negotiated grievance procedure, but not both. The option will be considered to have been exercised at such time as the employee timely files a notice of appeal under the statutory/agency appeal procedure or timely files a grievance in writing in accordance with Article 8 of this Agreement, whichever event occurs first. Appeal rights and time limits shall be clearly defined in the decision of adverse action.

Id. at 4-5.

In its letters to the Union, the Respondent stated that it was terminating such access to the administrative appeals procedures by non-veteran professional and nonprofessional excepted service employees (also known as nonpreference-eligible excepted service or NEES employees) based on the Authority's decision in American Federation of Government Employees, Local 1799 and Department of the Army, Aberdeen Proving Ground, Maryland, 22 FLRA 574 (1986) (Provision 1) (Aberdeen), order denying request for reconsideration 23 FLRA 926 (1986).

Aberdeen involved non-appropriated fund employees who had access to the negotiated grievance procedure to appeal adverse actions. In Aberdeen, the union appealed the agency head's disapproval of a provision that provided employees with the option of choosing to appeal adverse actions through either the negotiated grievance procedure or the agency's internal administrative appeals system. The Authority found that, under section 7121(a)(1) of the Statute, the parties' negotiated grievance procedure was the exclusive procedure for resolving adverse action appeals of those employees unless the agency's internal administrative appeals system constituted an "appellate procedure" within the meaning of the second sentence of section 7121(e)(1) of the Statute.(1) The Authority found that, to constitute an appellate procedure within the meaning of the second sentence of section 7121(e)(1) of the Statute, an agency's administrative appeals system must have been "established by or pursuant to law." Aberdeen, 22 FLRA at 577. As the Authority found that the agency's internal administrative appeals system had not been established by or pursuant to law, the Authority concluded in Aberdeen that the provision providing employees access to a procedure other than the negotiated grievance procedure to resolve adverse action appeals was inconsistent with the exclusivity requirement of section 7121(a)(1) of the Statute and, therefore, was nonnegotiable.

The Respondent stated in its February 11 letters to the Union that because of Aberdeen and the requirements of section 7121(e) of the Statute, NEES professional and nonprofessional employees could from that point on appeal adverse actions only through the negotiated grievance procedures and not through the Respondent's administrative appeals procedures.

The Respondent's actions were taken without obtaining the Union's agreement on the changes. In a letter to the Respondent's Administrator dated February 23, 1988, the Union protested the Respondent's unilateral actions of February 11 and stated that "there was no good faith effort on the part of management . . . to consult" with the Union on this matter in advance. General Counsel's Exhibit 8. In a letter dated March 10, 1988, the Respondent's Director of Industrial Relations stated that it was not necessary for management to consult with the Union concerning the issues raised in the February 11 letters because, in management's view, the agreement provisions at issue conflicted with law.

At all times since February 11, 1988, the Respondent has denied NEES professional and nonprofessional employees access to the Respondent's administrative appeals procedures to appeal adverse actions.

III. Administrative Law Judge's Decision

The General Counsel filed a motion for summary judgment with the Judge. The Judge found that the Respondent was privileged to terminate the employees' contractual right to appeal adverse actions through the Respondent's administrative appeals procedures. Accordingly, the Judge granted the motion for summary judgment insofar as he found that it was not necessary to hold a hearing to resolve the issues raised by the complaint. However, contrary to the General Counsel's request, the Judge recommended that the complaint be dismissed.

The Judge noted that the contractual provisions at issue generally track section 7121(e)(1) of the Statute. The Judge examined the first sentence of section 7121(e)(1), which encompasses adverse actions taken against an employee, and found that the first sentence of section 7121(e)(1):

gives the aggrieved employee the choice of pursuing the matter through the negotiated grievance procedure or the appellate procedures of 5 U.S.C. 7701, which [] provides for appeal to the Merit Systems Protection Board (MSPB).

Judge's Decision at 8. However, the Judge noted that "an appeal to the MSPB is available only to competitive service employees and preference-eligible employees (generally employees with veteran status)" and that "[u]nit employees herein are not in the competitive service" and are not veterans. Id. Consequently, the Judge concluded that the unit employees in this case may not appeal adverse actions to MSPB.

The Judge then examined the second sentence of section 7121(e)(1) and determined that, under that sentence, NEES employees who are in a bargaining unit:

may challenge an adverse action by resort to the negotiated grievance procedure, or the agency appellate procedure if available, where the adverse action . . . arose "under other personnel systems applicable to employees covered by (the Statute)."

Id. at 9, quoting 5 U.S.C. § 7121(e)(1). However, the Judge noted that in Panama Canal Commission and International Association of Firefighters, Local 13, 35 FLRA 1140, 1144 (1990) (Firefighters, Local 13), the Authority found that adverse actions involving Panama Canal Commission employees in the excepted service do not arise under another personnel system within the meaning of the second sentence of section 7121(e)(1) of the Statute. As Firefighters, Local 13 held that the second sentence of section 7121(e)(1) did not apply to excepted service employees of the Panama Canal Commission, the Judge found that he was "constrained to conclude that withdrawal of appellate procedures from such employees would not consist of withdrawing rights granted by section 7121(e) of the Statute." Id. Because he found that the second sentence of section 7121(e)(1) did not apply to the employees in this case, the Judge found that he did not need to reach the question of whether the administrative appeals procedures were in fact established by or pursuant to law under Aberdeen. However, the Judge stated that "an excellent case has been presented to support" the conclusion that the Respondent's administrative appeals procedures were established by or pursuant to law, "especially when considering the specific language of the Panama Canal Act, 22 U.S.C. section 3601 et seq., particularly section[s] 3652, 3654 and 3671." Id. at 9 n.5.

The Judge noted the Union's contention that the Respondent's administrative appeals procedures had been available to unit employees through a contractual provision and, therefore, the administrative appeals procedures are "in effect a negotiated grievance procedure[.]" Id. at 9. The Judge rejected this contention, however, because under Authority precedent, excepted service employees, such as the employees in this case, "are precluded by law from challenging major adverse actions . . . through the negotiated grievance procedure." Id. at 10, citing National Labor Relations Board and National Labor Relations Board Professional Association, 35 FLRA 1116 (1990) (NLRB). Therefore, the Judge concluded that if the administrative appeals procedures in this case were considered part of the negotiated grievance procedure, such procedures "would be contrary to law in the Authority's view[.]" Id.

The Judge further noted the Union's argument that the Respondent failed to negotiate over the impact and implementation of the Respondent's decision to terminate the contractual provisions at issue. The Judge found that the record "disclose[d] no evidence" that the Union requested or was denied the opportunity to negotiate on the impact and implementation of the decision and that the "[c]omplaint did not allege such a violation of the Statute." Id.

Accordingly, the Judge recommended that the complaint be dismissed.

III. Positions of the Parties

A. The Union's Exceptions

The Union argues that the Judge should not have followed the Authority's decision in Firefighters, Local 13 because that case incorrectly held that the Respondent's excepted service employees are not covered by another personnel system within the meaning of section 7121(e)(1) of the Statute. The Union notes that 22 U.S.C. § 3652 authorizes the Respondent to "operate under a separate Panama Canal Employment System[,]" and that the Respondent "concedes that its employees are 'subject to their own title 22 personnel system.'" Union's Exceptions at 10, 11.

The Union argues that as the Respondent's employees are covered by the Panama Canal Employment System rather than by the general Federal civil service system established in title 5 of the U.S. Code, the second sentence of section 7121(e)(1) of the Statute applies to the employees in this case. Therefore, the Union contends that the Judge should not have dismissed the case under Firefighters, Local 13, but should have considered whether the Respondent "properly invoked the Authority's decision in Aberdeen[.]" Id. at 14.

The Union asserts that this case is distinguishable from Aberdeen because the unit employees in this case "received a contractual guarantee of access to the administrative appeals system" and, therefore, the administrative appeals system can "be considered to be a negotiated grievance procedure[.]" Id. at 15. The Union notes the Judge's finding that "even if the administrative appeals system can be regarded as a negotiated grievance procedure, this fact is of no help" to the Union because the Authority stated in Firefighters, Local 13 that NLRB precludes excepted service employees of the Panama Canal Commission from challenging adverse actions through the negotiated grievance procedure. Id. at 16. The Union contends, however, that NLRB should not have been extended to Panama Canal Commission employees because NLRB "did not involve a personnel system different from the general Federal civil service." Id. According to the Union, the U.S. Court of Appeals for the District of Columbia Circuit "has indicated that non-preference eligible excepted service employees in 'other personnel systems' do, indeed, retain the right to challenge adverse actions through contractual grievance arbitration." Id. at 17, citing Department of the Treasury, Office of Chief Counsel v. FLRA, 873 F.2d 1467 (D.C. Cir. 1989), cert. denied, 110 S. Ct. 864 (1990) (Department of the Treasury).

The Union maintains that even if the administrative appeals system is not a negotiated grievance procedure, this case is distinguishable from Aberdeen because the Respondent's administrative appeals system in this case was established pursuant to law. The Union asserts that both the Panama Canal Treaty of 1977 (Treaty) and the Panama Canal Act of 1979 "explicitly authorize . . . the [Respondent] to maintain an administrative procedure whereby employees can appeal adverse actions to arbitration." Id. at 20, citing the Panama Canal Treaty, Article X, Section 2(b); 22 U.S.C. § 3671(a)(2)(J). These provisions apply to employees who worked for the Respondent's predecessor agencies and, according to the Union, "[t]he majority of the [Respondent's] employees denied their appeal rights fall into this category." Id. at 21 n.2.

The Union contends that there is additional authority in Article X, Section 1 of the Treaty and 22 U.S.C. § 3652 to extend appeal rights to all other Panama Canal Commission excepted service employees. Moreover, the Union maintains that 35 C.F.R. § 253.262, which extends adverse action appeal rights to employees in "categories corresponding to those in the U.S. competitive service[,]" is "one element in the Panama Canal Employment System" and, therefore, "must cover every Commission employee." Id. at 22.

The Union notes that the Respondent may argue that the Treaty and the Panama Canal Act "do not explicitly provide for an appeal process which allows post-Treaty employees to contest adverse actions." Id. at 23 (emphasis in original). However, the Union argues that, under Aberdeen, it is sufficient that the appeals procedure in this case was established "pursuant to" law. Aberdeen, 22 FLRA at 577.

Finally, the Union contends that the Respondent "acted unlawfully regardless of whether it was correct in its conclusions concerning" Aberdeen because the Respondent "failed to consult with the [Union] before making any decision or taking any action based on Aberdeen[.]" Union's Exceptions at 25 (emphasis in original). The Union asserts that the Judge "mistakenly interprets this argument as a simple claim that the [Respondent] failed to bargain over impact and implementation[,]" when, according to the Union, the Respondent "should have consulted with the [Union] before making a final decision." Id. at 26 (emphasis in original).

As a remedy, the Union requests: (1) the posting of an appropriate notice throughout the unit; (2) an order requiring the Respondent to cease and desist from "refusing to honor the contractual provisions it repudiated"; (3) an order requiring the Respondent to cease and desist from prohibiting non-veteran professional and nonprofessional excepted service employees from filing appeals under the administrative appeals procedures; and (4) an order requiring the Respondent "to allow each and every professional and non-professional employee denied the right to file an administrative appeal since February 11, 1988 to file such an appeal." Id. at 28, 29.

B. The General Counsel's Exceptions

The General Counsel excepts to the Judge's failure to consider whether the Respondent's administrative appeals procedures were established by or pursuant to law under Aberdeen. The General Counsel contends that the Judge erred by relying on Firefighters, Local 13 because, in that case, the Authority "never was called upon or presented with arguments as to the applicability of Aberdeen[.]" General Counsel's Exceptions at 1. Moreover, the General Counsel argues that the Authority decided Firefighters, Local 13 "without the benefit of argument or consideration of the impact of the Panama Canal Employment System and the Panama Canal Act" on the excepted service employees of the Panama Canal Commission. Id. at 2.

The General Counsel submitted a copy of the General Counsel's brief to the Judge, wherein the General Counsel maintains that the Respondent violated section 7116(a)(1), (5), and (8) of the Statute by unilaterally terminating the contractual provisions allowing NEES employees to elect to use the administrative appeals procedures to appeal adverse actions. Specifically, the General Counsel argues that the Respondent violated: (1) section 7116(a)(1) and (5) of the Statute by repudiating portions of the parties' negotiated agreements and thereby violating its duty to negotiate in good faith; and (2) section 7116(a)(1) and (8) of the Statute because the Respondent's termination of the contractual provisions was "inconsistent with the rights assured by" section 7121(e)(1) of the Statute. General Counsel's Brief to the Judge at 26.

The General Counsel argues that the disputed portions of the contractual provisions are valid under Aberdeen because the Respondent's administrative appeals procedures were established pursuant to law. In support of its position, the General Counsel argues that the administrative appeals procedures "are a part of the Panama Canal Employment System, which clearly was established pursuant to 22 USC 3652." Id. at 15. The General Counsel argues further that: (1) 22 U.S.C. §§ 3660-3661 and 35 C.F.R. § 253.1 provide for the creation of a Board of Appeals; (2) 35 C.F.R. § 253.262 provides for the establishment of "an adverse action appeals system under which the provisions of 5 CFR part 752 are administratively extended to employees in the categories corresponding to those in the U.S. competitive service to which that part applies"; (3) the portion of the Respondent's personnel manual containing the administrative appeals procedures, chapter 752, was established pursuant to the Canal Zone Code and was extended under the Panama Canal Act in 22 U.S.C. § 3654; and (4) the above-noted statutory authorizations for creating the administrative appeals system under title 22 are "similar to statutory authorizations under Title 38 and Title 32 that the Authority has held to be sufficient to conclude that an administrative appeals procedure was established pursuant to law." Id. at 13, 19.

The General Counsel notes that in California National Guard v. FLRA, 697 F.2d 874 (9th Cir. 1983) (California National Guard), the United States Court of Appeals for the Ninth Circuit found nonnegotiable a proposal requiring an agency to give employees the option of appealing adverse actions through either the negotiated grievance procedure or through the agency's administrative appeals procedures because the administrative appeals procedures at issue were intended as the exclusive procedures for appealing adverse actions. The General Counsel argues that this case is distinguishable from California National Guard because the Respondent's administrative appeals procedures were "not established by law as the exclusive procedure for appealing adverse actions." Id. at 21.

In summary, the General Counsel argues that because the contractual provisions were valid, the Respondent was "obligated to continue to honor and effectuate those provisions." Id. at 24. The General Counsel contends that because the Respondent unilaterally terminated valid contractual provisions, the Respondent repudiated those portions of the agreements in violation of section 7116(a)(1) and (5) of the Statute. Moreover, the General Counsel argues that by unilaterally terminating contractual provisions that were consistent with Aberdeen and, thus, consistent with the requirements of section 7121(e)(1) of the Statute, the Respondent violated employee rights assured by section 7121(e)(1) and thereby violated section 7116(a)(1) and (8) of the Statute.

As a remedy, the General Counsel requests an order requiring the Respondent: (1) to post a notice; (2) to cease and desist from refusing to honor the disputed portions of the contractual provisions; and (3) to allow any employee who was denied the right to file an administrative appeal during the time that the Respondent refused to honor the disputed portions of the provisions to file an appeal of an adverse action under the Respondent's administrative appeals procedures.

C. The Respondent's Exceptions

The Respondent does not except to the Judge's dismissal of the unfair labor practice complaint, but "object[s] to the [Judge's] reliance on Firefighters, Local 13." Respondent's Exceptions at 2. The Respondent notes that in Firefighters, Local 13 the Authority "adopted the [Panama Canal] Commission's reasoning that its employees are in the excepted service subject to title 5[.]" Respondent's Brief in Support of Exceptions at 7. However, the Respondent now maintains that the Authority's decision in Firefighters, Local 13 "is incorrect and should be set aside." Id. at 8. Specifically, the Respondent argues that Firefighters, Local 13 should be set aside because it improperly found that: (1) the adverse actions against NEES employees of the Panama Canal Commission do not arise under another personnel system within the meaning of section 7121(e)(1) of the Statute and, therefore, are not covered under the second sentence of section 7121(e)(1); and (2) NEES employees of the Panama Canal Commission may not appeal adverse actions through the parties' negotiated grievance procedure.

1. The Adverse Actions against NEES Employees of the Panama Canal Commission Arise under Another Personnel System

In support of its first argument, the Respondent contends that the employees in this case are "subject to their own title 22 personnel system" which is intended "to operate separate and apart from the title 5 system[.]" Id. As the employees in this case are subject to another personnel system, the Respondent argues that, contrary to the finding in Firefighters, Local 13, the second sentence of section 7121(e)(1) applies to this case.

The Respondent notes that, under the second sentence of section 7121(e)(1), adverse actions "which arise under other personnel systems applicable to employees covered by this chapter may . . . be raised under the appellate procedures, if any, applicable to those matters or under the negotiated grievance procedure, but not both." The Respondent further notes that adverse action appeals are within the coverage of the parties' negotiated grievance procedure and that, under section 7121(a)(1) of the Statute, the negotiated grievance procedure is the exclusive procedure for resolving those appeals unless the Respondent's administrative appeals procedures constitute "appellate procedures" within the meaning of section 7121(e)(1) of the Statute. Therefore, the Respondent maintains that the issue in this case is whether the Respondent's administrative appeals procedures set forth in Panama Canal Commission Personnel Manual, chapter 752 (referred to by the Respondent as chapter 752) constitute appellate procedures within the meaning of section 7121(e)(1). According to the Respondent, the administrative appeals procedures are not appellate procedures within the meaning of section 7121(e)(1). As the administrative appeals procedures are not appellate procedures within the meaning of section 7121(e)(1) and as section 7121(a)(1) provides that the negotiated grievance procedure is the exclusive procedure for resolving appeals unless the administrative appeals procedures are appellate procedures under section 7121(e)(1), the Respondent argues that section 7121(a)(1) of the Statute required the Respondent to terminate access to its administrative appeals procedures.

The Respondent notes that in Aberdeen the Authority, relying on a portion of the legislative history of the Statute, interpreted the term "appellate procedure" to mean "any applicable appeals procedure established by or pursuant to law." Id. at 13. However, the Respondent claims that the Authority "did not refer" to additional portions of the legislative history indicating that the term "appellate procedure" means "statutory appellate procedure." Id. Based on these additional portions of the legislative history, the Respondent contends that "'appellate procedure' must mean an appellate procedure specifically set forth and detailed in [the relevant] statute." Id. at 20. The Respondent maintains that its construction of the term "appellate procedure" is consistent with title 38 of the U.S. Code, which is "an example of an 'other personnel system' with an 'appellate procedure'" specifically set forth in 38 U.S.C. § 4110. Id. at 19. Further, the Respondent asserts that its construction "would be consistent with other Authority cases." Id. at 21, citing American Federation of Government Employees , AFL-CIO, Council 214 and Department of the Air Force, Headquarters, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 21 FLRA 244, 247-48 (1986) (Wright-Patterson Air Force Base), remanded as to other matters sub nom. American Federation of Government Employees, AFL-CIO, Council 214 v. FLRA, No. 86-1340 (D.C. Cir. April 28, 1987), decision on remand 27 FLRA 814 (1987).

Applying its construction of the term "appellate procedure" to this case, the Respondent notes that "[a]dverse action procedures are not set forth in the Panama Canal Act" and that the Panama Canal Act "does not require regulations to be prescribed governing adverse actions." Id. at 24. Moreover, the Respondent argues that its administrative appeals procedures do not constitute statutory appellate procedures because the administrative appeals procedures make "no reference to any statutory authority" and were only "administratively extended" to NEES employees. Id. (emphasis in original). To find otherwise, the Respondent contends, would mean that "every internal agency administrative appellate procedure promulgated by an agency with statutory authorization for an 'other personnel system' meets the definition of 'appellate procedure.'" Id. at 25. The Respondent also argues that its administrative appeals procedures are not appellate procedures because: (1) "if the Congressional 'if any' [as used in section 7121(e)(1)] is to have meaning, some agency has to be subject to an 'other personnel system' without an 'appellate procedure'"; and (2) compared to the procedure that was found not to be a section 7121(e)(1) statutory procedure in New Jersey Air National Guard v. FLRA, 677 F.2d 276 (3d Cir. 1982), the administrative appeals procedures in this case "certainly [are] not" statutory. Id. at 22, 23.

2. NEES Employees of the Panama Canal Commission May Appeal Adverse Actions through the Negotiated Grievance Procedure

In support of its second argument as to why Firefighters, Local 13 should be reversed, the Respondent contends that because the Panama Canal Commission "is an agency with an 'other personnel system' instead of a title 5 system, the second sentence of section 7121(e)(1) applies, and arguably," employees of the Panama Canal Commission are not barred from using the negotiated grievance procedure to appeal adverse actions. Id. at 10. The Respondent argues that the cases barring NEES employees from appealing adverse actions through the negotiated grievance procedures did not involve personnel systems outside of title 5 and contends that "if NEES employees in an 'other personnel system' are similarly prohibited from challenging an adverse action via the NGP [negotiated grievance procedure], the second sentence [of section 7121(e)(1)] would be rendered meaningless because it only applies to NEES employees." Id. at 12. The Respondent cites Department of the Treasury, 873 F.2d at 1472, and argues that the court's "dicta supports the conclusion that the . . . NLRB rationale does not extend to actions arising under 'other personnel systems.'" Id. at 11.

3. Summary

In summary, the Respondent argues that the adverse actions against the NEES employees in this case are covered under another personnel system and, therefore, under the second sentence of section 7121(e)(1) of the Statute, such employees may appeal adverse actions through the appellate procedures, if any, or under the negotiated grievance procedure, but not both. The Respondent contends that the administrative appeals procedures at issue in this case are not appellate procedures within the meaning of section 7121(e)(1) and that, therefore, section 7121(e)(1) does not permit employees in this case to appeal adverse actions through the Respondent's administrative appeals procedures. Further, the Respondent maintains that although NEES employees may not appeal adverse actions through the administrative appeals procedures, they still may appeal those actions through the parties' negotiated grievance procedure. Accordingly, the Respondent maintains that as section 7121(a)(1) requires in part that the negotiated grievance procedure be the exclusive procedure for resolving grievances except as provided in section 7121(e)(1) and as section 7121(e)(1) does not permit employees in this case to appeal adverse actions through the Respondent's administrative appeals procedures, NEES employees in this case may only appeal adverse actions through the parties' negotiated grievance procedure. Consequently, the Respondent argues that it did not violate the Statute by unilaterally terminating the contractual right of NEES employees to appeal adverse actions through the administrative appeals procedures.

D. The Respondent's Oppositions

The Respondent filed oppositions to both the Union's and the General Counsel's exceptions. The Respondent also filed a motion requesting the Authority to hold oral argument in this case because "this is a case of first impression and [] the proper resolution of this case will be greatly facilitated by oral argument." Motion for Oral Argument at 1.

1. Opposition to the Union's Exceptions

The Respondent disputes the Union's argument that the administrative appeals procedures may be considered a second negotiated grievance procedure which would, therefore, not be barred from use under section 7121(a) of the Statute. The Respondent argues that the administrative appeals procedures do not comply with the requirements of section 7121(b) of the Statute and, thus, cannot be considered a second negotiated grievance procedure through which NEES employees may appeal adverse actions.

The Respondent also opposes the Union's argument that the administrative appeals procedures constitute appellate procedures under Aberdeen. The Respondent "does not contest that it has the statutory authority to establish chapter 752[.]" Respondent's Opposition to the Union's Exceptions at 17. However, the Respondent argues that even if chapter 752 was "'established by or pursuant to law' and even if it was retained 'in the course of carrying out' section 3652 [of title 22,]" chapter 752 does not constitute an appellate procedure within the meaning of the second sentence of section 7121(e)(1). Id. According to the Respondent, the "by or pursuant to law" standard articulated in Aberdeen is "too broad" and "does not sufficiently protect Congressional intent [under section 7121(a)] with respect to NGP exclusivity when applied to the internal administrative procedures of agencies like the Panama Canal Commission." Id. at 18. In addition to the arguments noted in its exceptions, the Respondent argues that chapter 752 is not a statutory appellate procedure because it differs from the "appeals procedure set forth in detail in 42 U.S.C. 5851." Id. at 7.

Noting the provisions of the Treaty and of title 22 relied on by the Union, the Respondent argues that the Union has not shown that the administrative appeals procedures constitute a statutory appellate procedure under section 7121(e)(1). The Respondent notes the Union's reference to Article X, section 2(b) of the Treaty, but asserts that Article X does not mention procedures, appeals, or adverse actions. The Respondent also notes the Union's reference to 22 U.S.C. § 3671(a)(2)(J), which, according to the Respondent, provides that the right to appeal adverse actions "must in general be no less favorable than that in existence at the time of Treaty implementation[.]" Id. at 10. The Respondent argues that section 3671(a)(2)(J) "only guarantees the right to appeal adverse actions" and "does not say anything about preserving any particular procedure." Id. at 11 (emphasis in original). However, the Respondent notes that if access to the administrative appeals procedures is guaranteed by section 3671(a)(2)(J), then chapter 752 "is probably a 'statutory appellate procedure' within the meaning of section 7121(e)(1)[.]" Id. Nevertheless, as section 3671(a)(2)(J) provides employees with only the right to appeal adverse actions and not the right to use any particular procedure, the Respondent argues that "the availability of the NGP . . . to appeal adverse actions fully meets the requirement of 22 U.S.C. 3671(a)(2)(J) that pre-Treaty employees maintain a right to appeal adverse actions which is generally no less favorable after implementation of the Treaty[.]" Id. at 13.

With respect to post-Treaty employees, the Respondent contends that although "chapter 752 is authorized by section 3652 [of title 22], it does not . . . mandate the establishment of such a procedure." Id. at 16. Moreover, because chapter 752 is not a statutory appellate procedure, the Respondent maintains that "despite its statutory authorization[,]" chapter 752 must be replaced by the negotiated grievance procedure "inasmuch as each NGP includes adverse action appeals within its coverage." Id. Accordingly, the Respondent argues that both pre-Treaty and post-Treaty employees must, under the exclusivity provision of section 7121(a) of the Statute, appeal adverse actions through the negotiated grievance procedure.

The Respondent further notes the Union's reference to an impact and implementation claim and asserts that "the only bargaining issue before the [Judge] was whether the [A]gency was required to bargain over the substance of its February 1988 action" and that "the impact and implementation of the 1988 action is not and has never been an issue." Id. at 19. In any event, the Respondent contends that the Union "failed to set forth the bargaining issue as a specific question to which exceptions were taken" as required by the Authority's Rules and Regulations. Id. at 20. Further, with respect to the Union's contention that the Respondent failed to consult with the Union before making a final decision, the Respondent asserts that the Union "do[es] not specify the statutory basis for the duty to consult." Id.

Finally, the Respondent states that it "has never implemented Firefighters, Local 13" and that it "has allowed its bargaining unit employees to continue to use the NGP so that every employee would have an avenue to challenge adverse actions." Id. at 21. However, the Respondent further states that if the Authority upholds its decision in Firefighters, Local 13, the Respondent "will entertain requests for negotiations with the charging parties aimed at excluding grievances and appeals of adverse actions from the bargaining agreements so that the use of chapter 752 . . . will not conflict with section 7121(a)(1)." Id. at 20-21. Moreover, the Respondent notes that "the consequences of [the Authority's] decision in this case to [NEES] employees of other agencies [have] been reduced considerably by the Civil Service Due Process Amendments[.]" Id. at 22.(2)

2. Opposition to the General Counsel's Exceptions

The Respondent contends that the General Counsel's reliance on Authority cases to support the General Counsel's claim that the Respondent's administrative appeals procedures constitute appellate procedures is misplaced. The Respondent argues that the cases noted by the General Counsel: (1) did not involve adverse action appeals; (2) were reversed in court; or (3) did not address the issue of the meaning of the term "appellate procedures" in section 7121(e)(1) of the Statute.

The Respondent further argues that as the Respondent is the agency "entrusted with [the] administration" of title 22, the Respondent's interpretation of that statute "should be followed unless there are compelling indications that it is wrong." Respondent's Opposition to the General Counsel's Exceptions at 6, 7. The Respondent states that "the [Panama Canal] Commission does not contest that chapter 752 is 'authorized by' or 'established by or pursuant to' the provisions of 22 U.S.C. 3652 and 3663." Id. at 7. However, the Respondent contends, for the reasons noted in its exceptions, that "this is insufficient to consider chapter 752 an 'appellate procedure' within the meaning of the second sentence of section 7121(e)(1)." Id. at 8.

The Respondent notes the General Counsel's reliance on 22 U.S.C. §§ 3654 and 3660-3662, but argues that those provisions do not mention adverse action appellate procedures and do not provide a statutory basis for the Respondent's administrative appeals procedures.

IV. Analysis and Conclusions

For the reasons stated below, we conclude that the Respondent did not violate section 7116(a)(1) and (8) of the Statute by refusing to comply with section 7121(e)(1) of the Statute. We find that the NEES employees in this case may not appeal adverse actions through the negotiated grievance procedure. Therefore, the NEES employees in this case do not have the right to appeal adverse actions through one of the two procedures noted in section 7121(e)(1), and section 7121(e)(1) does not apply in this case.

However, we further conclude that the Respondent violated section 7116(a)(1) and (5) of the Statute by repudiating the contractual right of NEES professional and non-professional employees to appeal adverse actions through the Respondent's administrative appeals procedures. We find that: (1) the Respondent's asserted justification for terminating the disputed contractual provisions was improper; (2) the disputed portions of two of the three contractual provisions are otherwise consistent with law; and (3) the scope of the Respondent's breach of those portions of the contractual provisions amounted to more than a mere breach of the obligations imposed by the terms of the collective bargaining agreements.(3)

A. The Respondent Did Not Violate Section 7116(a)(1) and (8) of the Statute

The complaint alleges that the Respondent violated section 7116(a)(1) and (8) of the Statute because the Respondent's termination of the contractual provisions allowing NEES employees to elect to appeal adverse actions through the Respondent's administrative appeals procedures constituted a refusal to comply with section 7121(e)(1) of the Statute. In order to address this allegation, we will examine: (1) the meaning of section 7121(e)(1); and (2) whether the NEES employees in this case may appeal adverse actions through the parties' negotiated grievance procedure.

1. Section 7121(e)(1) of the Statute

The first sentence of section 7121(e)(1) of the Statute provides, in part, that matters covered under section 7512 of title 5 of the U.S. Code (adverse actions) which also fall within the coverage of a negotiated grievance procedure may, in the discretion of the aggrieved employee, "be raised either under the appellate procedures of section 7701 of this title or under the negotiated grievance procedure, but not both." The second sentence of section 7121(e)(1) provides that:

[s]imilar matters which arise under other personnel systems applicable to employees covered by this chapter may, in the discretion of the aggrieved employee, be raised either under the appellate procedures, if any, applicable to those matters, or under the negotiated grievance procedure, but not both.

The General Counsel argues that the Respondent violated section 7116(a)(1) and (8) of the Statute because the Respondent's termination of the disputed portions of the contractual provisions was "inconsistent with the rights assured by" section 7121(e) of the Statute. General Counsel's Brief to the Judge at 26. To the extent that the General Counsel argues that section 7121(e) in and of itself grants the employees in this case the right to choose between two procedures to appeal adverse actions, we reject that argument.

Section 7121(e)(1) does not grant employees the right to grieve adverse actions through specific procedures. See Perez v. Army and Air Force Exchange Service, 680 F.2d 779, 789 (D.C. Cir. 1982) (section 7121(e)(1) is not an affirmative grant of the remedies specified elsewhere in the Civil Service Reform Act). Rather, section 7121(e)(1) applies only if it is determined that employees have access to both the negotiated grievance procedure and either the procedure set forth in section 7701 of title 5 or, for adverse actions covered under another personnel system, an applicable appellate procedure. Where employees have the right to grieve adverse actions through a negotiated grievance procedure and appeal them through a procedure set forth in section 7701 of title 5 or an applicable appellate procedure, section 7121(e)(1) provides that the employee must elect one of those procedures.

Therefore, to determine whether the Respondent's actions constituted a refusal to comply with section 7121(e)(1), we must examine whether the employees in this case have the right to appeal adverse actions through both the parties' negotiated grievance procedure and either section 7701 of title 5 or an applicable appellate procedure. We will first examine whether the employees in this case have the right to grieve adverse actions through the parties' negotiated grievance procedure. If the employees in this case do not have that right, then section 7121(e)(1) does not apply and the Respondent's actions did not constitute a refusal to comply with section 7121(e)(1).

2. NEES Employees of the Panama Canal Commission May Not Appeal Adverse Actions through the Negotiated Grievance Procedure

In Firefighters, Local 13, the Authority found that NEES employees of the Panama Canal Commission did not have the right to grieve adverse actions through the negotiated grievance procedure. Specifically, the Authority found that, under its decision in NLRB, a grievance over an adverse action by a NEES employee "was precluded as a matter of law from coverage under the negotiated grievance procedure." Firefighters, Local 13, 35 FLRA at 1145.

As noted above at note 2, subsequent to the issuance of NLRB and Firefighters, Local 13, the Civil Service Due Process Amendments were enacted. Among other things, the Amendments extended to certain NEES employees, upon completion of 2 years of current continuous service, the statutory protections and rights provided to employees in the competitive service for appealing adverse actions. However, employees of the Panama Canal Commission were specifically excluded from that extension. 5 U.S.C. § 7511(b)(8) (Supp. II 1990). Accordingly, because employees of the Panama Canal Commission were specifically excluded from the Amendments, their status is identical to that of NEES employees before passage of the Amendments.

Before the Amendments were passed, several United States Courts of Appeals found that affording NEES employees access to negotiated grievance procedures to appeal adverse actions was inconsistent with the Civil Service Reform Act of 1978 (CSRA). See, for example, Department of the Treasury, 873 F.2d at 1472; and U.S. Department of Health and Human Services v. FLRA, 858 F.2d 1278 (7th Cir. 1988) (HHS). The courts noted that Congress, in the CSRA, established a comprehensive scheme of rights and remedies for Federal employees, but intentionally denied NEES employees those rights and remedies. See id. In NLRB, the Authority adopted the courts' position that NEES employees are precluded by law from challenging adverse actions through the negotiated grievance procedure. Thus, prior to the Amendments, NEES employees did not have access to negotiated grievance procedures to appeal adverse actions. As stated above, Panama Canal Commission employees are specifically excluded from the Amendments and, thus, have the same status, in that regard, as that of NEES employees before the Amendments were enacted. Accordingly, we conclude, consistent with Department of the Treasury, HHS, and NLRB, that the Panama Canal Commission employees in this case have no right of access to the negotiated grievance procedure and arbitral review regarding adverse actions.

We note that the Authority also found in Firefighters, Local 13 that the adverse action against a NEES employee of the Panama Canal Commission arose "within the general Federal civil service" and "did not arise in another personnel system" within the meaning of section 7121(e)(1) of the Statute. Id. at 1144.(4) However, this finding in no way affects the Authority's conclusion in Firefighters, Local 13 that NEES employees of the Panama Canal Commission were precluded as a matter of law from grieving adverse actions through the negotiated grievance procedure. We find that regardless of whether the adverse actions against the NEES employees in this case arise under title 5 or under another personnel system, NEES employees of the Respondent Panama Canal Commission are precluded as a matter of law from grieving adverse actions through the parties' negotiated grievance procedure.

Both the Union and the Respondent argue that the courts' decisions and NLRB should not be extended to this case because those decisions applied to employees whose adverse actions arose under title 5 of the U.S. Code and not under another personnel system.

Contrary to the parties' arguments, we find that employees of the Panama Canal Commission are clearly excluded from coverage under the Amendments and, therefore, based on Department of the Treasury, HHS, and NLRB, those employees do not have access to negotiated grievance procedures to appeal adverse actions. We note that the Respondent cites Department of the Treasury, 873 F.2d at 1472, and contends that the court's "dicta supports the conclusion that the . . . NLRB rationale does not extend to actions arising under 'other personnel systems.'" Respondent's Exceptions at 11. We find that nothing in the court's decision compels a different result from NLRB in the circumstances of this case. Accordingly, we find that the Respondent has failed to establish that NLRB does not apply in this case. Moreover, we note that the Authority has found that prior to the effective date of the Amendments, certain NEES employees could not grieve adverse actions through the negotiated grievance procedure despite the fact that those NEES employees were covered under another personnel system within the meaning of section 7121(e)(1) of the Statute. See generally U.S. Department of Defense Dependents Schools, Alexandria, Virginia and Overseas Education Association, 41 FLRA 982, 992-95 (1991) (OEA) (prior to the Amendments, NEES employees covered under the title 20 personnel system for adverse actions could not grieve adverse actions through the negotiated grievance procedure). Accordingly, the NEES employees in this case, whose status is identical to the NEES employees in OEA before the passage of the Amendments, may not grieve adverse actions through the negotiated grievance procedure.

For the foregoing reasons, we affirm our conclusion in Firefighters, Local 13 that NEES employees of the Panama Canal Commission are precluded by law from grieving adverse actions through the negotiated grievance procedure. Because the NEES employees in this case do not have the right to grieve adverse actions through a negotiated grievance procedure, section 7121(e)(1) of the Statute, which addresses actions that fall within the coverage of both the negotiated grievance procedure and either section 7701 of title 5 or an applicable appellate procedure, does not apply. Therefore, we find that the Respondent's actions did not constitute a refusal to comply with section 7121(e)(1) of the Statute. Accordingly, we conclude that the Respondent did not violate section 7116(a)(1) and (8) as alleged.

B. The Respondent Violated Section 7116(a)(1) and (5) of the Statute

The General Counsel also contends that the Respondent violated section 7116(a)(1) and (5) of the Statute by repudiating portions of the parties' negotiated agreements and thereby violating its duty to negotiate in good faith. In addressing the parties' arguments as to whether the Respondent's unilateral termination of the disputed portions of the contractual provisions constituted a repudiation of those portions of the provisions in violation of section 7116(a)(1) and (5), we will first determine whether the portions of the provisions terminated by the Respondent are consistent with law. If we find that the portions of the provisions terminated by the Respondent are consistent with law, we will then determine whether the Respondent's actions amounted to a repudiation of an obligation imposed by the agreement's terms so as to constitute an unfair labor practice under the framework set forth in Department of Defense, Warner Robins Air Logistics Center, Robins Air Force Base, Georgia, 40 FLRA 1211, 1219 (1991) (Warner Robins).

1. The Disputed Portions of Two of the Contractual Provisions Are Consistent with Law

In determining whether the disputed portions of the contractual provisions are consistent with law, we note the Respondent's argument that it terminated the contractual right of NEES employees to elect to appeal adverse actions through the administrative appeals procedures because the contractual provisions conferring that right conflicted with section 7121(a)(1) of the Statute. Section 7121(a)(1) of the Statute provides in part that, except as provided in section 7121(e), the negotiated grievance procedure shall be the exclusive procedure for resolving grievances which fall within its coverage. The Respondent argues that because the administrative appeals procedures in this case are not "appellate procedures" within the meaning of section 7121(e)(1) of the Statute, the provisions including those procedures in the parties' agreements are contrary to the requirement in section 7121(a)(1) that the negotiated grievance procedure be the exclusive procedure for resolving grievances which fall within its coverage. For the following reasons, we reject the Respondent's argument that the disputed portions of the contractual provisions conflict with section 7121(a)(1).

As we determined previously, a negotiated grievance procedure may not, as a matter of law, include within its scope appeals of adverse actions against the employees in this case. Accordingly, section 7121(a)(1) of the Statute does not apply. Further, we found previously that section 7121(e)(1) does not apply in this case. Therefore, the Respondent's reliance on section 7121(a)(1) and section 7121(e)(1) of the Statute in terminating the disputed portions of the contractual provisions was improper.

We note that the parties discuss the issue of the validity of the disputed portions of the contractual provisions in terms of whether the Respondent's administrative appeals procedures constitute "appellate procedures" within the meaning of section 7121(e)(1) of the Statute. However, as noted previously, section 7121(e)(1) does not apply in this case. Accordingly, it is unnecessary to determine whether the Respondent's administrative appeals procedures constitute appellate procedures under section 7121(e)(1).(5) Moreover, there is no assertion or other basis on which to conclude that the disputed portions of the provisions are otherwise unenforceable. Therefore, we conclude that the disputed portions of the contractual provisions are lawful and enforceable.

However, we reach this conclusion only with respect to the disputed portions of Article 10, Section 06.a. of the agreement covering professional employees and Article 7, Section 7.07.a. of the agreement covering nonprofessional employees. We note that Article 11, Section 03.b., (Options) of the agreement covering professional employees states that it applies to matters which, under 5 U.S.C. § 7121(e), an aggrieved employee may raise either under an appropriate statutory/Commission procedure or under the negotiated grievance procedure. However, we have already found that section 7121(e) of the Statute does not apply because the NEES employees in this case may not grieve adverse actions through the negotiated grievance procedure. Accordingly, to the extent that Article 11, Section 03.b. provides employees with options under section 7121(e), the provision is inconsistent with law and, therefore, is unenforceable.

2. The Respondent Repudiated the Disputed Portions of Article 10 and Article 7

Having found that the Respondent's asserted justification for terminating the disputed portions of the contractual provisions was improper and that the disputed portions of Article 10, Section 06.a. and Article 7, Section 7.07.a. are consistent with law, we will next examine whether the Respondent repudiated the disputed portions of these contractual provisions in violation of section 7116(a)(1) and (5) of the Statute when the Respondent unilaterally terminated those portions of the provisions.

In Warner Robins, we set forth the Authority's framework for determining whether a respondent has repudiated terms of a collective bargaining agreement. We stated, as relevant here:

We find that the nature and scope of the failure or refusal to honor an agreement must be considered, in the circumstances of each case, in order to determine whether the Statute has been violated. Because the breach of an agreement may only be a single instance, it does not necessarily follow that the breach does not violate the Statute . . . . Rather, it is the nature and scope of the breach that are relevant. Where the nature and scope of the breach amount to a repudiation of an obligation imposed by the agreement's terms, we will find that an unfair labor practice has occurred in violation of the Statute.

Warner Robins, 40 FLRA at 1218-19.

Applying the framework set forth in Warner Robins, we find that the Respondent's unilateral termination of the disputed portions of the contractual provisions constituted a repudiation of the obligation imposed by the terms of the agreements in violation of section 7116(a)(1) and (5) of the Statute.

The parties do not dispute that the portions of the parties' agreement allowing NEES professional and nonprofessional employees to elect to appeal adverse actions through the administrative appeals procedures were previously agreed to by the parties and were provisions of the parties' collective bargaining agreements. Further, the parties do not dispute that the Respondent unilaterally terminated these provisions as to NEES employees and has refused to allow NEES professional and nonprofessional employees to appeal adverse actions through the administrative appeals procedures. By its actions, the Respondent failed and refused to comply with clear and unambiguous provisions of the parties' agreements and unilaterally terminated a procedure available to NEES professional and nonprofessional employees for appealing adverse actions. We find that the nature and scope of the Respondent's actions constituted more than a mere breach of the terms of the parties' agreements, but, as in Warner Robins, "went to the heart of the agreement[s.]" Id. at 1220.

Accordingly, we conclude that the Respondent's actions in unilaterally terminating the disputed portions of Article 10, Section 06.a. and Article 7, Section 7.07.a. amounted to a repudiation of the obligations imposed by the terms of the collective bargaining agreements, in violation of section 7116(a)(1) and (5) of the Statute. Consistent with our decision in Warner Robins, we will issue an appropriate remedial order.

V. Order

Pursuant to section 2423.29 of the Authority's Rules and Regulations and section 7118 of the Federal Service Labor-Management Relations Statute, the Panama Canal Commission, Balboa, Republic of Panama, shall:

1. Cease and desist from:

(a) Failing and refusing to honor the portions of Article 10, Section 06.a. of the agreement covering a unit of non-veteran professional employees, and Article 7, Section 7.07.a. of the agreement covering a unit of non-veteran nonprofessional employees, which allow non-veteran professional and nonprofessional excepted service employees the right to appeal adverse actions through the administrative appeals procedures, and which it negotiated with the Maritime/Metal Trades Council, AFL-CIO (a coalition comprised of the National Maritime Union, the Panama Area Metal Trades Council, and the International Organization of Masters, Mates and Pilots), the employees' exclusive representative, by failing and refusing to allow non-veteran professional and nonprofessional excepted service employees the right to appeal adverse actions through the administrative appeals procedures.

(b) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

2. Take the following affirmative action in order to effectuate the purposes and policies of the Federal Service Labor-Management Relations Statute:

(a) Reinstate, retroactive to February 11, 1988, the right of non-veteran professional and nonprofessional excepted service employees to appeal adverse actions through the administrative appeals procedures as required by the parties' collective bargaining agreements.

(b) Waive the applicable time limits and allow non-veteran professional and nonprofessional excepted service employees who were denied the right since February 11, 1988, to file an appeal through the administrative appeals procedures, to file such an appeal.

(c) Post at its facilities in Balboa, Republic of Panama, where employees in the bargaining units are located, copies of the attached Notice on forms to be furnished by the Federal Labor Relations Authority. Upon receipt of such forms, they shall be signed by the Administrator of the Panama Canal Commission and shall be posted in conspicuous places, including all bulletin boards and other places where notices to employees are customarily posted, and shall be maintained for 60 consecutive days thereafter. Reasonable steps shall be taken to ensure that such notices are not altered, defaced, or covered by any other material.

(d) Pursuant to section 2423.30 of the Authority's Rules and Regulations, notify the Regional Director, Dallas Regional Office, Federal Labor Relations Authority, Dallas, Texas, in writing, within 30 days from the date of this Order as to what steps have been taken to comply.

The portion of the unfair labor practice complaint alleging that the Respondent violated section 7116(a)(1) and (8) of the Statute by refusing to comply with section 7121(e)(1) of the Statute is dismissed.

NOTICE TO ALL EMPLOYEES

AS ORDERED BY THE FEDERAL LABOR RELATIONS AUTHORITY

AND TO EFFECTUATE THE POLICIES OF THE

FEDERAL SERVICE LABOR-MANAGEMENT RELATIONS STATUTE

WE NOTIFY OUR EMPLOYEES THAT:

WE WILL NOT fail and refuse to honor the portions of Article 10, Section 06.a. of the agreement covering a unit of non-veteran professional employees, and Article 7, Section 7.07.a. of the agreement covering a unit of non-veteran nonprofessional employees, which allow non-veteran professional and nonprofessional excepted service employees the right to appeal adverse actions through the administrative appeals procedures, and which we negotiated with the Maritime/Metal Trades Council, AFL-CIO (a coalition comprised of the National Maritime Union, the Panama Area Metal Trades Council, and the International Organization of Masters, Mates and Pilots), the employees' exclusive representative, by failing and refusing to allow non-veteran professional and nonprofessional excepted service employees the right to appeal adverse actions through the administrative appeals procedures.

WE WILL NOT, in any like or related manner, interfere with, restrain, or coerce our employees in the exercise of their rights assured by the Federal Service Labor-Management Relations Statute.

WE WILL reinstate, retroactive to February 11, 1988, the right of non-veteran professional and nonprofessional excepted service employees to appeal adverse actions through the administrative appeals procedures as required by the collective bargaining agreements.

WE WILL waive the applicable time limits and allow non-veteran professional and nonprofessional excepted service employees who were denied the