51:0333(32)NG - - Intl Organization of Masters, Mates and Pilots, Marine Division, Panama Canal Pilots Branch and Panama Canal Commission - - 1995 FLRAdec NG - - v51 p333



[ v51 p333 ]
51:0333(32)NG
The decision of the Authority follows:


51 FLRA No. 32

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

INTERNATIONAL ORGANIZATION OF MASTERS

MATES AND PILOTS, MARINE DIVISION

PANAMA CANAL PILOTS BRANCH

(Union)

and

PANAMA CANAL COMMISSION

(Agency)

0-NG-2172

_____

DECISION AND ORDER ON NEGOTIABILITY ISSUES

October 13, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute) and concerns the negotiability of six proposals concerning wages for Agency pilots.(1) Pursuant to section 7117(c)(6) of the Statute and section 2424.10 of the Authority's Regulations, we have severed Proposal 4 from the proposals addressed herein and will consider it in a separate Authority decision after consideration of further information requested by Authority order issued today. See American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 3 FLRA 784 n.1 (1980).(2)

Proposal 1 provides that, with one exception, the current bonus pay system and tropical differential will be eliminated and replaced with "standard salaries."(3) Proposal 2 provides that, in establishing pilots' compensation, the Agency will abide by the "intent of the U.S. Congress" in enacting 5 U.S.C. § 5348(b), specifying that pilots' pay may be adjusted in accordance with the wages and practices of the maritime industry. Proposal 3 requires that a joint survey of pilots' wages and practices be conducted every 3 years. Proposal 5 provides that if a pay cap is imposed on salaries, the Agency will offset any reduction in pay with a contribution to employees' retirement plans. Proposal 6 requires that pilots' pay be adjusted annually in accordance with any cost of living adjustment (COLA) added to the U.S. General Schedule (GS) in addition to the 3-year adjustment determined from the survey in Proposal 3.

For the reasons set forth below, we find that none of the proposals concern matters that are specifically provided for by Federal statute within the meaning of section 7103(a)(14)(C), or classification matters within the meaning of section 7103(a)(14)(B) of the Statute. See Section II.B., infra. We further find that Proposals 1, 2, and 3 are not inconsistent with management's rights or any other provision of law and are negotiable. See Sections III.B, IV.B., and V.B., respectively, infra. We find that Proposal 6 is inconsistent with law and, therefore, is nonnegotiable. See Section VII.B., infra. Finally, we find that the negotiability of Proposal 5 cannot be determined because it is substantively affected by a proposal which is not properly before us. See Section VI.B., infra.

II. Whether the Proposals Concern Conditions of Employment

A. Positions of the Parties

1. Agency

The Agency argues that all of the proposals are nonnegotiable because they do not concern conditions of employment, as that term is defined in section 7103(a)(14) of the Statute, for two reasons: (1) the proposals concern matters that are "specifically provided for by Federal statute" under section 7103(a)(14)(C); and (2) the proposals concern classification matters under section 7103(a)(14)(B).

With respect to its first contention, the Agency asserts that the proposals concern the rates of basic pay for pilots and that these matters are specifically provided for by 22 U.S.C. § 3655 (section 3655). In support, the Agency relies on International Organization of Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA 508 (1983) (Panama Canal Commission) and District No. 1, Pacific Coast District, Marine Engineers Beneficial Association and Panama Canal Commission, 26 FLRA 63 (1987) (Marine Engineers).

As to its second contention, the Agency asserts:

[B]ecause section 3655 expressly conditions the establishment and adjustment of basic pay on a comparison of same or similar positions elsewhere and because such comparisons intrinsically concern the classification of positions, any [U]nion proposal which would establish or adjust the basic pay of [Agency] employees effectively implicates the classification of positions within the meaning of section 7103(a)(14)(B) of the Statute, and does not, therefore, concern a condition of employment.

Statement at 23. In support, the Agency cites American Federation of Government Employees, Local 3295 and U.S. Department of the Treasury, Office of Thrift Supervision, 47 FLRA 884, 901-02 (1993) (Office of Thrift Supervision), affirmed, 46 F.3d 73 (D.C. Cir. 1995).

The Agency makes an additional condition of employment argument regarding Proposal 1 which would, as relevant here, eliminate tropical differential. The Agency asserts that tropical differential is specifically provided for by 22 U.S.C. § 3671(a)(2)(B) (section 3671(a)(2)(B)) and Article X, Section 6 of the Panama Canal Treaty of 1977 (Treaty).

2. Union

Citing Fort Stewart Schools v. FLRA, 495 U.S. 641 (1990) (Fort Stewart), the Union contends that the proposals are negotiable.

B. Analysis and Conclusions

1. Whether Wage Rates for Pilots Are Matters that Are "Specifically Provided for" by 22 U.S.C. § 3655

Under the Statute, a matter proposed to be bargained is outside the duty to bargain if it does not concern conditions of employment of bargaining unit employees.(4) Antilles Consolidated Education Association and Antilles Consolidated School System, 22 FLRA 235, 236 (1986). The term "conditions of employment" is defined in section 7103(a)(14) as "personnel policies, practices, and matters, whether established by rule, regulation, or otherwise, affecting working conditions" which are not excepted under subsections 7103(a)(14)(A), (B) or (C). Subsections A and B, respectively, except from conditions of employment matters relating to certain political activities and the classification of any position. Subsection C excepts personnel policies, practices, and other matters (hereinafter matters) to the extent that they are "specifically provided for" by Federal statute. See American Federation of Government Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin Air Force Base, Florida, 24 FLRA 377, 378-79 (1986). See also American Federation of Government Employees v. FLRA, 653 F.2d 669, 670 (D.C. Cir. 1981) (AFGE v. FLRA).

Mere reference to a matter in a statute is not sufficient to exclude it from the definition of conditions of employment under section 7103(a)(14)(C). See International Association of Machinists and Aerospace Workers, Franklin Lodge No. 2135, et al. and U.S. Department of the Treasury, Bureau of Engraving and Printing, 50 FLRA 677, 681 (1995) (IAM), petition for review filed, No. 95-1499 (D.C. Cir. Sept. 27, 1995). Under the terms of section 7103(a)(14)(C), the statute must "specifically provide[] for" the matter, and the exception applies only "to the extent that" it does so. Id. In particular, and for the reasons explained in IAM, the Authority will find that a matter is specifically provided for, within the meaning of section 7103(a)(14)(C), only to the extent that the governing statute leaves no discretion to the agency. Id. at 682. Conversely, when a statute provides an agency with discretion over a matter, it is not excepted from the definition of conditions of employment to the extent of the agency's discretion. Therefore, insofar as an agency has discretion, even if that discretion is less than total, it is subject to being exercised through negotiation, provided that proposals affecting that discretion otherwise comply with the Statute. Id.

Applying this principle to the issue before us, we conclude that Proposals 1, 2, 3, 5, and 6, which address establishment of rates of basic pay and adjustments to those rates, do not concern matters that are specifically provided for by section 3655 within the meaning of section 7103(a)(14)(C) of the Statute.

On its face, section 3655(b) does not prescribe the actual rates of basic pay for employees covered by the section. Rather, it provides that the Agency may establish and revise rates of basic pay for employees in relation to the rates of basic pay for the same or similar work performed in the United States or other areas outside the United States designated by regulation. In particular, the Agency has discretion under section 3655(b) both in determining what constitutes "the same or similar work" and in determining whether to base employees' pay on such work in the United States or outside the United States. Because section 3655(b) gives the Agency this discretion in establishing and revising the rates of basic pay for its employees, it does not specifically provide for rates of basic pay within the meaning of section 7103(a)(14)(C) of the Statute. See IAM, 50 FLRA at 685-88.(5)

Section 3655(c) provides, in pertinent part, that the Agency "may" make adjustments in rates of basic pay established under section 3655(b) "in amounts not to exceed the amounts of the adjustments made from time to time by or under statute in the corresponding rates of basic pay for the same or similar work," and may designate the effective dates of such adjustments so long as they are not earlier than the effective date of the adjustment in the comparable group. By its terms, section 3655(c) provides the Agency discretion to determine: (1) whether to adjust the rates; (2) the amount of the adjustment, within the statutory limitation; and (3) when, after the effective date of the corresponding adjustment, the adjustment will occur. Because section 3655(c) gives the Agency discretion to make adjustments to basic pay, those adjustments are not matters that are specifically provided for by Federal statute within the meaning of section 7103(a)(14)(C) of the Statute.

We note that in Panama Canal Commission, 13 FLRA at 514, and Marine Engineers, 26 FLRA at 64, the Authority based its conclusion that rates of basic pay were matters specifically provided for by statute on the finding that the Panama Canal Act, Pub. L. No. 96-70, § 1215, 93 Stat. 452, 465 (1979) (the Act) established a comprehensive statutory scheme of wage determination that precluded bargaining. This approach is inconsistent with the analysis governing the application of section 7103(a)(14)(C) set forth in IAM. In IAM, we held that prior decisions, including Panama Canal Commission, finding the comprehensiveness of a statutory scheme a sufficient basis on which to find that a matter is specifically provided for were inconsistent with a long line of Authority decisions and will no longer be followed.(6) IAM, 50 FLRA at 681-85. For the same reasons, we will also no longer follow Marine Engineers to the extent that the decision suggests that a comprehensive statutory scheme of wage determination is a sufficient basis on which to find that a matter is "specifically provided for" under section 7103(a)(14)(C) of the Statute.

In sum, the establishment of rates of basic pay for Canal pilots and adjustments to basic pay are not matters that are specifically provided for by Federal statute within the meaning of section 7103(a)(14)(C) of the Statute and the proposals in this case are not excluded from the definition of conditions of employment on this basis.

2. Whether the Proposals Concern Classification Matters

Section 7103(a)(14)(B) of the Statute excludes from the definition of "conditions of employment" matters "relating to the classification of any position[.]" In enacting this section, "Congress intended to remove from the scope of bargaining threshold determinations as to what duties and responsibilities will constitute a given position and the placement of that position in a class for purposes of personnel and pay administration." March Air Force Base, Riverside, California, 13 FLRA 255, 258 (1983) (March AFB). The assignment of a particular "pay level" or "grade level" to a position based on its duties and responsibilities is part of the classification process. See National Association of Government Employees, Local R12-33 and U.S. Department of the Navy, Naval Air Warfare Center, Weapons Division, Point Mugu, California, 45 FLRA 802, 803 (1992) (NAWC, Point Mugu) ("Proposals concerning the pay level of positions concern classification of positions, within the meaning of section 7103(a)(14)(B)."); National Association of Government Employees, Federal Union of Scientists and Engineers, Local R1-144 and U.S. Department of the Navy, Naval Underwater Systems Center, Newport, Rhode Island, 42 FLRA 1285, 1291 (1991) (proposal requiring an agency to ensure that a position have "a grade and pay level of GS-15" concerns the classification of a position within the meaning of section 7103(a)(14)(B)). See also Office of Thrift Supervision, 47 FLRA at 900-01 (The term "classification" is "commonly understood to mean the process by which a level of compensation is assigned to a particular position based on the duties and responsibilities of that position.") (citation omitted). The phrases "pay level," "grade level," and "level of compensation" refer, in this context, to the grouping of positions (determined according to the duties and responsibilities involved) into a particular level (or "class"), such that all positions at this level are assigned the same amount of compensation. Cf. March AFB, 13 FLRA at 258 (purpose of the exclusion of classification matters from the duty to bargain under the Statute is to "ensure uniformity with regard to the classification of positions throughout the Federal service[]").

We reject the Agency's argument that the comparison of same or similar work required by section 3655 "intrinsically concern[s] the classification of positions[]" and thereby excludes from the definition of "conditions of employment" under section 7103(a)(14)(B) any proposal which would establish or adjust the basic pay of Agency employees.  The comparison performed pursuant to section 3655 does not involve the classification of any position because it does not constitute "threshold determinations as to what duties and responsibilities will constitute a given position and the placement of that position in a class for purposes of personnel and pay administration." March AFB, 13 FLRA at 258. The duties and responsibilities of Canal pilots' positions, and the placement of those positions in a class for purposes of personnel and pay administration, have already been determined by the Agency. See Statement at 3 and Attachment D. The proposals at issue do not concern those determinations; they concern the process of setting the amount of compensation to be assigned to a classification that has already been established by the Agency. Cf. NAWC, Point Mugu (proposal that required the agency to classify GS-5 firefighter positions at the GS-6 level and to reclassify those positions if any remaining GS-5 firefighters were required to perform GS-6 duties concerned the classification of a position within the meaning of section 7103(a)(14)(B)).

Based on the above, we conclude that the proposals do not concern matters "relating to the classification of any position" within the meaning of section 7103(a)(14)(B).

3. Whether Proposal 1 Concerns a Matter that Is Specifically Provided for by 22 U.S.C. § 3761 and Article X, Paragraph 6 of the Treaty

Section 3671(a)(1), which implements Article X, section 2(b) of the Treaty, applies to persons (hereinafter "transferred employees") employed by the Panama Canal Company or Canal Zone Government prior to entry into force of the Treaty. The section provides that the terms and conditions of employment set forth in section 3671(a)(2) shall be "generally no less favorable" for such transferred employees after the implementation of the Treaty than those in effect on September 30, 1979 (hereinafter 1979). Panama Canal Federation of Teachers and U.S. Department of Defense, Dependents Schools, Panama Region, 40 FLRA 763, 773 (1991) (Dependents Schools).(7) The "terms and conditions of employment" are set out in section 3671(a)(2), and include tropical differential.

Consistent with the analytic approach set forth above, tropical differential is a matter specifically provided for by section 3671(a)(1) only if that section leaves the Agency no discretion to eliminate that differential for the unit employees covered by Proposal 1. The extent to which the Agency has discretion depends on the meaning of the phrase "generally no less favorable" as used in section 3671(a)(1). As the phrase is not precisely defined in the Act, or relevant legislative history, we will interpret it based on the "ordinary meaning of the words used." Russello v. United States, 464 U.S. 16, 21 (1983); Malat v. Riddell, 383 U.S. 569, 571 (1966).

Webster's Third New International Dictionary 945 (1986) defines "generally," among other things, as "in a general manner," "as a whole," "collectively," "with respect to all" and "in disregard of specific instances and with regard to an overall picture." Thus, the term "generally" refers to the whole of, or the overall picture with regard to, a matter. Applying this definition to section 3671(a)(1), we construe the term "generally no less favorable" to mean that one or more of the specific terms and conditions of employment listed in section 3671(a)(2) may be less favorable after implementation of the Treaty than before implementation as long as, viewed as a whole, the terms and conditions continue to be no less favorable than they were in 1979.

Interpreted in this manner, section 3671 gives the Agency discretion to eliminate individual terms and conditions of employment listed in section 3671(a)(2). See, for example, Comp. Gen. No. B-205126 (Nov. 29, 1983) (unpublished) (applying section 3671(a)(1) and (2), the Comptroller General found that the agency was not required to continue to provide transferred employees certain overtime pay because their terms and conditions of employment, even without overtime, were generally no less favorable than they were prior to 1979). The Agency's discretion to eliminate, as relevant here, tropical differential is not unconstrained: it is limited by the requirement that the remaining terms and conditions be generally no less favorable than those in effect in 1979. However, this limitation on the extent of the Agency's discretion does not make the continued payment of a tropical differential a matter that is specifically provided for within the meaning of section 7103(14)(C) of the Statute. See IAM, 50 FLRA at 681-82.

We further find that tropical differential is not a matter that is specifically provided for by Article X, Section 6 of the Treaty. Article X, Section 6 prohibits the Agency, "[w]ith regard to wages and fringe benefits," from discriminating against employees on the basis of nationality, sex, or race, except with respect to payments of additional remuneration or the provision of other benefits to transferred employees and certain Panamanians. As stated above, to come within the meaning of section 7103(a)(14)(C), a statute must "specifically provide[] for" the matter, and the exception applies only "to the extent that" it does so. IAM, 50 FLRA at 681. On its face, Article X, Section 6 does not prescribe wage rates. Rather, it simply permits the Agency to pay additional remuneration to transferred employees and certain Panamanians. We conclude, therefore, that Article X does not concern a matter that is specifically provided for under section 7103(a)(14)(C) of the Statute.

III. Proposal 1

A. Positions of the Parties

1. Agency

The Agency argues that Proposal 1 is inconsistent with section 3655. The Agency contends that the standard salaries referred to in Proposal 1 are not: (1) related to the basic pay for work which is the same or similar to that which a Panama Canal pilot performs; (2) based on an adjustment similar to one made for those who perform the same or similar work; or (3) based on a similar adjustment made by or under statute.

The Agency further claims that by seeking to eliminate tropical differential for all pilots, including those not subject to section 3671, Proposal 1 is inconsistent with section 3671(a)(2)(B).

2. Union

The Union asserts that the term "standard salaries" reflects the average pay rate derived from a study that it conducted of U.S. commercial pilots in seven U.S. ports and Navy pilots performing the same or similar work as that performed by Canal pilots. The Union asserts that as the work performed by employees comprising the survey group is similar to work performed by Canal pilots, the use of standard salaries as proposed in Proposal 1 is consistent with section 3655. The Union also states that the proposal for "standard salaries" is based on the "elimination of all bonuses and the tropical differential." Union's Response (Response) at 8.

B. Analysis and Conclusions

1. Whether Proposal 1 Is Inconsistent with 22 U.S.C. § 3655(b)

Proposal 1 seeks an agreement that, with the exception of overtime bonuses for holdover pilots,(8) the elimination of the existing bonus pay system and tropical differential in exchange for "standard salaries" will benefit the parties in specified ways. Because the parties interpret the proposal as requiring the Agency to establish "standard salaries," see Response at 8-9 and Statement at 31, we construe it to have such meaning. We further note that the proposal is silent as to what is meant by "standard salaries." The Union asserts that the term "standard salaries" refers to salaries based on a wage "study done of U.S. [commercial pilots in seven U.S. ports and of U.S. Navy civilian] pilots" in accordance with Proposals 2 and 3. Response at 8-9 and Attachment 4. The Agency does not dispute the Union's assertion. The Union's explanation is not inconsistent with the wording of the proposal. Accordingly, the Union's explanation of the term "standard salaries" is adopted for purposes of this decision and we will interpret "standard salaries" in Proposal 1 to refer to salaries that are based on wage surveys conducted in accordance with Proposals 2 and 3 of commercial pilots in seven United States ports and of U.S. Navy civilian pilots. See, for example, International Organization of Masters, Mates and Pilots and U.S. Department of the Navy, Chief of Naval Operations, Washington, D.C., 47 FLRA 218, 223 (1993) (Department of the Navy).

We concluded above that section 3655(b) provides the Agency discretion to set rates of basic pay. The issue here is whether Proposal 1 is inconsistent with that discretion so as to be inconsistent with law and nonnegotiable under section 7117(a)(1) of the Statute.

Section 3655(b) provides that the Agency may establish rates of basic pay "in relation to" such rates "for the same or similar work performed in the United States or in such areas outside of the United States as may be designated" in regulations. As interpreted above, the "standard salaries" referred to in Proposal 1 are based on a survey conducted of Navy pilots and commercial pilots in seven U.S. ports in accordance with Proposals 2 and 3. Accordingly, the question to be addressed is whether Navy and commercial pilots perform "the same or similar work," within the meaning of section 3655(b), as Canal pilots.

The record reveals that Canal pilots take operational control of vessels, including commercial vessels, and pilot them through the Canal. See Response at 5 and Statement at 1. Canal pilots "assume command . . . from the vessel's Master . . . ." Response at 5. They "also perform pilotage in the ports adjacent to the entrances to the Canal." Statement at 1. Navy pilots "are licensed ship masters and are responsible for moving all classes of vessels in and out of naval harbors." Department of the Navy, 47 FLRA at 219. Their wages are based on a survey conducted of private sector pilots in the maritime industry. See Statement, Attachment S.

The Agency acknowledges that Navy pilots have been used as a comparable group for establishing rates of basic pay for Canal pilots. See Statement at 26-27. Also, the Fifth Circuit in Reinheimer v. Panama Canal Co., 413 F.2d 153, 156 (5th Cir. 1969) previously found that Navy pilots' positions were similar to Canal pilots' positions. The Agency has not demonstrated that the Fifth Circuit's determination was in error or is no longer applicable.

With respect to commercial pilots in the seven U.S. ports, their responsibilities, like those of Canal pilots, include piloting vessels. The record before us provides no basis for finding that the two groups of pilots do not perform "the same or similar work" within the meaning of section 3655(b).

The Agency relies on the principles governing the prevailing rate system set forth in 5 U.S.C. § 5341 to support its assertion that Canal pilots do not perform the same or similar work as that of the commercial and Navy pilots. The principles set forth in 5 U.S.C. § 5341 are not requirements in establishing the rates of basic pay for Agency employees under section 3655. Those principles provide no basis for finding that the work of the commercial and Navy pilots is not "the same or similar" as that performed by Canal pilots.

In sum, the Agency has not demonstrated that the work of the relevant commercial and Navy pilots is not "the same or similar" as that performed by Canal pilots. As such, the Agency has not shown that it lacks the discretion to use Navy and commercial pilots as a basis for establishing rates of basic pay for Canal pilots under section 3655(b). Consequently, Proposal 1 is not inconsistent with section 3655(b).(9)

3. Whether Proposal 1 Is Inconsistent with 22 U.S.C. § 3671

As explained above, section 3671 provides that the terms and conditions of employment of transferred employees shall be generally no less favorable than their terms and conditions of employment in 1979. The Agency has not shown that such employees' terms and conditions of employment would be generally less favorable if the Agency eliminated the tropical differential payment in exchange for higher salaries.

Nor has the Agency shown how it would be inconsistent with section 3671 to extend its terms and conditions to benefit employees not covered by that section. The purpose of section 3671 is to guarantee that certain benefits of transferred employees be generally no less favorable than those that existed prior to 1979--not to deny benefits to others. Dependents Schools, 40 FLRA at 774 (citing Comp. Gen. No. B-205126 (Feb. 28, 1983) (unpublished)). In addition, section 3671 does not preclude terms and conditions of employment that are more favorable than those required by the Treaty. Id. (citing Comp. Gen. No. B-205126 (Nov. 29, 1983) (unpublished)). Consequently, the fact that Proposal 1 would have the effect of providing unit employees who are not subject to the protections of section 3671 with benefits that they would not otherwise have does not render the proposal inconsistent with section 3671.

Based on the foregoing, we conclude that Proposal 1 is not inconsistent with law. Accordingly, Proposal 1 is negotiable.

IV. Proposal 2

A. Positions of the Parties

1. Agency

The Agency asserts that the Union's petition, as it concerns Proposal 2, fails to conform to section 2424.4(a)(2) of our Regulations because it does not contain a statement setting forth the meaning attributed to the proposal by the Union. The Agency further contends that Proposal 2 is inconsistent with law. The Agency asserts that Panama Canal pilots are not "vessel employees" of the Panama Canal Commission within the meaning of 5 U.S.C. § 5348(b) (section 5348(b)) and, therefore, section 5348(b) is not applicable. The Agency further asserts that even if section 5348(b) is applicable, the proposal is inconsistent with law because any adjustments in basic pay must be made in accordance with section 3655(c), not section 5348(b), and the proposal does not limit adjustments in that manner.

2. Union

Citing Department of the Navy, the Union claims that Canal pilots, like Navy pilots, are maritime pilots and, therefore, rates of basic pay for Canal pilots should be determined under section 5348(b). The Union further contends that section 3655 "expressly directs the [Agency] to adjust pilot base pay to an amount comparable for the same or similar work in the U.S. or elsewhere . . . ." Response at 3. The Union asserts that Canal pilots have had no basic pay adjustment for some time while the pay of commercial pilots in the U.S. (the pilots referred to in Proposal 3) has risen. The Union contends that if section 3655 "is applied[,]" Canal pilots' base pay should be fixed at a level no less than the base pay of Navy pilots and even higher if fixed according to the rates of commercial pilots in the U.S. Id.

B. Analysis and Conclusions

We find that the petition is not deficient under section 2424.4(a)(2) of our Regulations. Both in its petition and response to the Agency's statement, the Union provided information that addressed the intended effect and operation of Proposal 2. The Union's explanation is sufficient to indicate how Proposal 2 is intended to operate.

Proposal 2 requires the Agency, in establishing Canal pilots' wages, to be guided by the "intent" of Congress in enacting 5 U.S.C. § 5348(b). Section 5348(b) provides that vessel employees of the Agency may be paid in accordance with the wage practices of the maritime industry. The Union's explanation indicates that Proposal 2 seeks to require the Agency to look to the wage practices of pilots in the maritime industry, i.e., the commercial pilots referred to in Proposal 3, in establishing Canal pilots' basic pay under section 3655. This explanation is not inconsistent with the wording of the proposal, and, therefore, we will adopt it for purposes of this decision.

We determined above that the Agency has not demonstrated that the work of commercial pilots is not "the same or similar" as that performed by Canal pilots and, as such, the Agency has not shown that it may not use commercial pilots as a basis for establishing rates of basic pay for Canal pilots under section 3655(b). See Section III.B.1., above. As the commercial pilots are in the "maritime industry" referred to in section 5348(b), it follows that the Agency would not be acting in a manner inconsistent with section 3655(b) if, in establishing wages of Canal pilots, it is guided by the intent of Congress in enacting section 5348(b).

We also reject the Agency's claim that the proposal is inconsistent with law because it does not limit adjustments in accordance with section 3655(c). Proposal 2 concerns the establishment of rates of basic pay, not adjustments in those rates. Further, even if the proposal could be construed to concern adjustments in rates of basic pay, the proposal would not be inconsistent with section 3655(c), which precludes adjustments in excess of adjustments of rates of basic pay for the same or similar work in the United States or elsewhere established under section 3655(b). Nothing in Proposal 2 requires the Agency to adjust rates of basic pay in any particular percentage or amount, let alone in a manner inconsistent with section 3655(c); rather, it simply provides that the Agency will look to the wage practices of commercial pilots in establishing Canal pilots' basic pay under section 3655.

Accordingly, Proposal 2 is negotiable.

V. Proposal 3

A. Positions of the Parties

1. Agency

The Agency claims that the proposal would require the assignment of pilots, as Union members, to the wage survey task and, therefore, is inconsistent with its right to assign work under section 7106(a)(2)(B) of the Statute.

2. Union

The Union contends that the proposal would permit the Department of Defense Wage Fixing Authority to conduct the required surveys, as it does for U.S. Navy civil service pilots.

B. Analysis and Conclusions

By its terms, Proposal 3 requires the Agency and the Union to conduct joint surveys of pilot wages and practices every 3 years. The Union's contention that the proposal would permit the Department of Defense Wage Fixing Authority to conduct the surveys is inconsistent with the plain wording of the proposal, which requires the Agency and the Union to conduct joint surveys. Because the Union's statement of meaning is inconsistent with the plain wording of the proposal, we will not base our negotiability determination on the Union's statement. See, for example, American Federation of Government Employees, Local 1923 and U.S. Department of Health and Human Services, Health Care Financing Administration, Baltimore, Maryland, 44 FLRA 1405, 1431 (1992). Therefore, we interpret the proposal to require, as it clearly states, that the Agency and the Union conduct joint surveys of pilot wages and practices.

Proposals which provide for joint labor-management committees whose purpose is to make recommendations concerning conditions of employment have been found to be negotiable. National Federation of Federal Employees, Local 1482 and U.S. Department of Defense, Defense Mapping Agency, Hydrographic/Topographic Center, Washington, D.C., 44 FLRA 637, 674 (1992) (DMA). More particularly, participation of unit employees on such committees as union representatives does not constitute the work of an agency. Id. at 677. Proposal 2 provides for Union representation on a joint labor-management committee that would conduct wage surveys. Because the proposal merely provides for Union representatives on an otherwise negotiable joint labor-management committee that would conduct wage surveys and provide such information to the Agency, the proposal does not conflict with management's right to assign work under section 7106(a)(2)(B) of the Statute.

In so finding, we note that the Agency relies on Association of Civilian Technicians, Inc., Pennsylvania State Council and the Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, 7 FLRA 346, 355-57 (1981) (ACT), reversed per curiam as to other matters sub nom. Adjutant General, Department of Military Affairs, Commonwealth of Pennsylvania, Department of Defense v. FLRA, 685 F.2d 93 (3d Cir. 1982). In ACT, the Authority, interpreting 5 U.S.C. § 5343(c) and its implementing regulations, concluded that a provision that granted the union the right to select union representatives to participate on a local wage survey committee as data collectors was inconsistent with management's right to assign work under section 7106(a)(2)(B) because it required the agency to relinquish its statutory authority to assign work--that is, data collection duties--to the union.

However, as DMA properly recognizes, participation of unit employees as union representatives on joint labor-management committees does not constitute the work of an agency. "The duties of unit employees as [u]nion representatives involve the responsibility of unit employees to the [u]nion and management has no role in determining which unit employees will be assigned those duties." DMA, 44 FLRA at 677. Accordingly, when a unit employee is selected by a union as its representative on a joint labor-management committee, such an action does not constitute an assignment of work and does not implicate management's right to assign work under section 7106(a)(2)(B). Inasmuch as ACT is inconsistent with this principle, we will no longer follow it and the Agency's argument provides no basis for finding Proposal 3 nonnegotiable.

Accordingly, the proposal is negotiable.

VI. Proposal 5

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 5 is inconsistent with law because: (1) it is based on the erroneous premises that pilots are non-appropriated fund employees and that Congress has not limited the expenditure of Panama Canal revenues; and (2) pay increases for Canal employees are limited to amounts that do not exceed statutory increases granted for the same period for other Government employees in comparable positions, under the Department of Transportation and Related Agencies Appropriations Act, 1993, Pub. L. No. 102-388, 106 Stat. 1520 (1993) (section 302 of title III) (the Appropriations Act).

2. Union

According to the Union, "[t]he idea of assigning possible excess[, due to wage caps,] to other benefits simply falls in line [with] industry practice, which include[s] IRA's and 401 K Plans." Response at 10.

B. Analysis and Conclusions

Under Proposal 5, if and when a pay cap imposed by a third party would reduce the salary levels established by Proposal 4, the Agency would be required to offset that reduction with a contribution, to the maximum extent allowed by law, to the retirement plans that would be established for unit employees under proposed Article 18, Section 6.

Article 18, Section 6, which is not properly before us for review, establishes retirement plans for unit employees. By its terms, Proposal 5 requires the Agency to offset any salary reductions resulting from a pay cap by contributing, as much as legally permissible, funds resulting from the offset to the retirement plans established under Article 18, Section 6. Because the offset is inextricably bound to contributions to the plans proposed in Article 18, Section 6, the negotiability of the offset cannot be determined without consideration of the negotiability of the plans established in Article 18, Section 6. Without the existence of plans to which funds resulting from the offset to employees could be credited, the offset, standing alone, is meaningless. Thus, the negotiability of Proposal 5 depends not only on whether any law precludes the Agency from offsetting a pay cap, but also on whether the Agency could legally contribute funds resulting from such an offset to the plans established in Article 18, Section 6.

Unlike Proposal 1 above, where the meaning and intent of the proposal was not affected by the referenced proposal (see note 9, supra), Proposal 5 is substantively affected by Article 18, Section 6. For that reason, we cannot determine the negotiability of Proposal 5 without also addressing Article 18, Section 6, which is not properly before us. Accordingly, we will dismiss the petition as it relates to this proposal.

VII. Proposal 6

A. Positions of the Parties

1. Agency

The Agency contends that Proposal 6 is inconsistent with law because, among other things, there is no indication that the amount of the adjustment required by the proposal would be consistent with the limitation in section 3655(c).

2. Union

The Union asserts that Proposal 6 is not inconsistent with law because COLAs are paid in every Government agency when authorized by Congress. The Union also contends that COLAs are paid to Navy pilots in addition to each 3-year survey adjustment.

B. Analysis and Conclusions

Proposal 6 requires that, in addition to the 3-year adjustment determined from the survey in Proposal 3, pilots' pay be adjusted annually in accordance with any COLA added to the General Schedule. Under section 3655(c), the Agency has discretion to make adjustments in rates of basic pay, but that discretion is limited to adjustments that do not exceed any adjustments made in the corresponding rates of basic pay for the same or similar work used for determining rates of basic pay under section 3655(b). The proposal does not limit adjustments in pilots' rates of basic pay to those made in the corresponding rates of basic pay for the same or similar work used for determining rates of basic pay under section 3655(b), but rather requires adjustments to be made, in part, in accordance with the General Schedule. Adjustments made in accordance with the General Schedule could exceed the limitation in section 3655(c). Accordingly, the proposal is inconsistent with section 3655(c) and is, therefore, nonnegotiable under section 7117(a)(1) of the Statute.

VIII. Order

The Agency shall upon request, or as otherwise agreed to by the Union, bargain on Proposals 1, 2, and 3.(10) The petition for review as to Proposals 5 and 6 is dismissed.

APPENDIX A

ARTICLE 17

WAGES

Proposal 1

SECTION 1. The Commission and the PCPB agree that elimination of the bonus pay system, except as provided under Article 19, Section 20(d) for work during non-duty periods to benefit the Employer, and elimination of the tropical differential, in exchange for standard salaries, will benefit both parties through eliminating complicated accounting costs, reducing unpredictable pay expense, lowering overall costs, and enhancing morale by providing equal compensation for all qualified pilots regardless of nationality, which will lead to smoother transition when the Canal is transferred to the Republic of Panama.

Proposal 2

SECTION 2. In establishing Panama Canal Pilot compensation for the future, the Commission agrees to abide by the intent of the U.S. Congress when it enacted law 5 [U.S.C. §] 5348(b) specifying that their pay may be adjusted in accordance with the wages and practices of the maritime industry.

Proposal 3

SECTION 3. In accordance with SECTION 2, a survey of pilot wages and practices will be made every three (3) years of seven (7) United States Ports and of U.S. Navy Civil Service Pilots by the Commission and the PCPB together, and the average wages and practices of these seven (7) ports and Navy Civil Services [sic] Pilots will be used to establish the wages and practices for Panama Canal Pilot Grade 04-08, with other pilot grades reflected by the percentages in the present step system.

Proposal 5

SECTION 5. Because Panama Canal Pilots are non-appropriated fund employees whose compensation is generated from revenues produced from the operation of the Canal, Congress has placed no limitations on them, so no pay caps should apply. If any valid third party legal interpretation imposes any cap on salaries in SECTION 4, the salaries will be recorded and adjusted to when legal, and the Commission will offset any imposed salary reductions by as much legal increase in contributions as possible to the plan described in Article 18, SECTION 6.

Proposal 6

SECTION 6. Panama Canal Pilot pay will be adjusted annually by any COLA [cost-of-living adjustment] added to the U.S. General Schedule pay in addition to each three (3) year survey adjustment.

APPENDIX B

22 U.S.C. § 3655 provides as follows:

§ 3655. Basic Pay

(a) Establishment and revision of rates

The head of each agency, in accordance with the provisions of this subpart, shall establish, and from time to time may revise, the rates of basic pay for positions and employees in the agency.

(b) Relationship of same or similar work performed in United States or certain other areas outside United States

The rates of basic pay may be established and revised in relation to the rates of basic pay for the same or similar work performed in the United States or in such areas outside the United States as may be designated in the regulations prescribed under section 3663 of this title.

(c) Adjustments in rates; limits

The head of each agency may make adjustments in rates of basic pay established under subsection (b) of this section in amounts not to exceed the amounts of the adjustments made from time to time by or under statute in the corresponding rates of basic pay for the same or similar work referred to in such subsection (b) of this section. The head of the agency may designate the effective date of any such adjustment, except that that date may not be earlier than the effective date of the adjustment in the corresponding rate of basic pay.

22 U.S.C. § 3671 provides, in pertinent part, as follows:

§ 3671. Transferred or reemployed employees

(a) Terms and conditions of employment

(1) With respect to any individual employed in the Panama Canal Company or the Canal Zone Government--

(A) who is transferred--

(i) to a position in the Commission;

. . . .

the terms and conditions of employment set forth in paragraph (2) of this subsection shall be generally no less favorable, on or after the date of the transfer referred to in subparagraph (A) of this paragraph . . . than the terms and conditions of employment with the Panama Canal Company and Canal Zone Government on September 30, 1979[.]

(2) The terms and conditions of employment referred to in paragraph (1) of this subsection are the following:

(A) rates of basic pay;

(B) tropical differential;

(C) premium pay and night differential[.]

Article X, Section 6 of the Treaty provides as follows:

6. With regard to wages and fringe benefits, there shall be no discrimination on the basis of nationality, sex, or race. Payments by the Panama Canal Commission of additional remuneration, or the provision of other benefits, such as home leave benefits, to United States nationals employed prior to entry into force of this Treaty, or to persons of any nationality, including Panamanian nationals who are thereafter recruited outside the Republic of Panama and who change their place of residence, shall not be considered to be discrimination for the purpose of this paragraph.

5 U.S.C. § 5348 states, in pertinent part, as follows:

§ 5348. Crews of Vessels

. . . .

(b) Vessel employees of the Panama Canal Commission may be paid in accordance with the wage practices of the maritime industry.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. The Union's petition for review requests negotiability determinations only as to proposals in Article 17. Accordingly, these are the only proposals properly before us. The proposals in Articles 18, 19, and 20 that are discussed by the Agency in its Statement of Position (Statement) are not properly before us and will not be considered. See section 2424.4(a)(1) of the Authority's Regulations.

2. Proposal 4 (Article 17, Section 4) provides as follows:

SECTION 4. In accordance with SECTION 3, the PCPB [the Union] hereby provides the wages and practices of pilots in seven (7) U.S. Ports for 1992 and the wages to be paid to U.S. Navy Civil Service Pilots fiscal year 1993. The calculation provides an average pay rate, without addressing fringes or work time, of US $ 179,000.00. Effective . . . the Panama Canal base pay rate for grade 04-08 will be adjusted to $179,000, with the other pilot grades pay adjusted based on this rate according to the percentages in the current step system. (Only the underlined portion of the proposal is in dispute.)

Based on the record before us, we are unable to determine whether, as the Agency asserts, this proposal is nonnegotiable because it conflicts with the Agency's right to determine its budget under section 7106(a)(1) of the Statute. The record is insufficient because the Agency bases its argument on a total cost figure which includes in an undistinguishable way the costs of proposals that are not properly before us. See n.1.

3. The text of Proposals 1, 2, 3, 5, and 6 is set forth in Appendix A to this decision. The text of relevant statutory provisions is set forth in Appendix B.

4. A bargaining proposal that concerns a condition of employment mus