Marine Engineers' Beneficial Association, District No. 1 - PCD (Union) and United States, Department of the Navy, Military Sealift Command, Virginia Beach, Virginia (Agency)

[ v60 p828 ]

60 FLRA No. 156

MARINE ENGINEERS' BENEFICIAL
ASSOCIATION, DISTRICT NO. 1 - PCD
(Union)

and

UNITED STATES
DEPARTMENT OF THE NAVY
MILITARY SEALIFT COMMAND
VIRGINIA BEACH, VIRGINIA
(Agency)

0-NG-2776

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

April 11, 2005

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.      Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of two proposals.

      The proposals were offered in response to the transfer of a ship from the United States Navy to the Military Sealift Command (Agency). Proposal 1 concerns the designation of the position to supervise civilian employees on the ship. Proposal 2 seeks retroactive pay.

      For the reasons that follow, we dismiss the petition for review. We find that Proposal 1 is outside the duty to bargain and Proposal 2 does not present an issue that is appropriate for resolution in a negotiability appeal.

II.      Background

      Ships commissioned in the United States Navy are designated USS, are under the command of a Military Officer and are staffed by military service personnel. See Record of Post-Petition Conference at 2 (Conference Record). However, when a ship designated as USS is transferred from the United States Navy to the Agency, it is redesignated United States Naval Ship (USNS) and staffed by a civilian mariner crew under the command of a civilian marine Master who is licensed by the United States Coast Guard (USCG).

      In this case, the Agency informed the Union that the USS CORONADO would be transferred from the United States Navy to the Agency. When the ship was transferred in November 2003, it was designated as USNS with a civilian crew under the command of a civilian marine Master. The ship was later redesignated USS with a military officer in command of the ship and supervising a civilian crew.

      After an initial inspection of the USS CORONADO, the Agency classified the ship as A/3 Conventional. As a result of this classification, the Agency paid the civilian mariners on the ship at the A/3 Conventional rate. After another inspection of the ship, the Agency reclassified the USS CORONADO ship as A/3 Mechanized. As a result of this reclassification, the Agency decided to pay the civilian mariners at the higher A/3 Mechanized rate to become effective on January 25, 2004.

      The parties entered into negotiations over matters related to the transfer of the USS CORONADO to the Agency. The Agency provided a written declaration of non-negotiability regarding the two proposals at issue, whereupon the Union filed the instant petition for review.

III.      Preliminary Matters

A.     The Agency's Statement of Position and Reply Brief are Untimely

      At the post-petition conference, the Agency was advised that its statement of position (SOP) had to be filed by July 27, 2004. While the SOP was dated July 27, 2004, it was filed (postmarked) on July 30, 2004. The Authority's Case Control Office issued an Order directing the Agency to show cause why its SOP should be considered as it appeared to be untimely filed.

      In response, the Agency asserts that its SOP was timely filed because it was faxed and received by the Authority on July 27, 2004. The Agency argues that the Authority's Regulations do not prevent the filing of an SOP by fax and that the Union was not prejudiced as its response to the SOP was timely filed.

      Section 2429.24(e) of the Authority's Regulations specifies certain documents that may be filed by fax. [ v60 p829 ] Statements of position are not among the documents that may be filed in this manner. Rather, statements of position must be filed in accordance with the filing requirements otherwise set out in § 2429.24. It is well established that parties filing documents with the Authority are "responsible for being knowledgeable" of the statutory and regulatory filing requirements. AFGE, Local 2065, 50 FLRA 538, 539-40 (1995). As the Agency's SOP was not timely filed under the Authority's Regulations, we will not consider it.

      Additionally, we find that the Agency's reply brief was not timely filed. In this regard, the Union's response was served on the Agency on August 11, 2004. To be considered timely, the Agency's reply had to be filed with the Authority by August 31, 2004. As the reply was filed (postmarked on September 1), we find that it was not timely and it will not be considered.

      That leaves the question of whether to consider the arguments made by the Union in its response, which was filed subsequent to the Agency's untimely SOP. For the following reasons, we find that it is appropriate and equitable to consider the arguments made in the Union's response.

      The Authority's Regulations provide that a negotiability dispute exists "when an exclusive representative disagrees with an agency contention that . . . a proposal is outside the duty to bargain[.]" 5 C.F.R. § 2424.2. Here, the Agency provided the Union with a written allegation of nonnegotiability, declaring that the proposals interfered with certain enumerated management rights. The Union then filed its petition for review, which complied with all of the regulatory filing requirements. As expressly permitted on the form provided by the Authority for filing petitions, the Union reserved the right to make legal arguments following receipt of the Agency's SOP. Since the Union properly complied with the regulatory filing requirements and reserved its right to make legal arguments following receipt of the Agency's SOP, it is appropriate to consider the arguments made in the Union's response. Accordingly, we will consider the Union's arguments. [n2] 

B.      The Union's Hearing Request is Denied

      The Union requests that the Authority hold a hearing in this case. The Union states that the Agency has violated provisions of law and past practice and asks the Authority to take "equitable considerations" into account. Petition for Review at 8. The Union also stated that a hearing "will provide more information concerning the dispute." Conference Record at 5.

      Under § 2424.31 of the Authority's Regulations, a hearing is appropriate "[w]hen necessary to resolve disputed issues of material fact . . . ." Here, the Union has not set forth any disputed issues of material fact for the Authority to consider at a hearing. Therefore, we deny the Union's request.

IV.      Proposal 1

The Union proposed that the status quo of a civilian marine Master being assigned to each MSC [Military Sealift Command] USNS ship remain intact, and/or that MSC continue to have the Military Officer retain responsibility over the command of the vessel with regards to military subordinates as well as retaining all weapons/ military responsibility, as is the current case when an MSC ship has a military detachment. The civilian marine Master would retain responsibility for the civilian marine subordinates and retain the normal and routine duties assigned to MSC civilian marine Masters today which include the supervision over our USCG certified Chief Engineers.

A.      Positions of the Parties

1.      Agency

      In its allegation of nonnegotiability, the Agency asserted that this proposal interferes with management's right to assign work. At the post-petition conference, the Agency stated that it is not uncommon for military personnel to supervise civilians. See Conference Record at 4.

2.      Union

      The Union contends that the proposal does not interfere with management's right to assign work. The Union also contends that the proposal constitutes an appropriate arrangement under § 7106(b)(3). The Union argues that the proposal is intended as an arrangement for employees adversely affected by management's decision to designate the ship on which they work as USS and assign a military officer in command of the ship. See Response at 3. The Union asserts that military officers, who are not governed by the same USCG requirements as civilian employees, would place civilian employees' licenses "in jeopardy" as well as [ v60 p830 ] place them at risk for criminal charges for "mishaps." [n3] Id.

      For the same reasons the Union contends that the proposal constitutes an appropriate arrangement under § 7106(b)(3), it contends that the proposal concerns a matter negotiable at the election of the Agency under § 7106(b)(1) and constitutes a negotiable procedure under § 7106(b)(2). See id. at 4-5.

      The Union acknowledges that, in the Federal Government, military officers supervise civilian employees. However, the Union asserts that bargaining unit employees "have never sailed aboard USNS vessels under the administrative and operational command of a United States Naval Officer." See id. The Union maintains that military officers are not familiar with civilian personnel regulations and practices. The Union asserts that, in the absence of a civilian marine Master supervising unit employees, there would likely be an increase in grievances and litigation. The Union also asserts that if the "status quo" cannot be retained, that is, a civilian marine Master retained on the ship, then the proposal would "require a parallel system with a civilian marine Master and a military officer retaining responsibility for the ship[.]" Conference Record at 3.

      The Union further contends that the Agency's decision "to allow for the operation of a commissioned vessel of the Navy to have a hybrid organization" is contrary to Department of Defense, Department of the Navy and MSC regulations. Petition for Review at 5. The Union argues that "prevailing maritime practice required to be mirrored by Public Law 5348 would not permit a merchant ship to be captained by a Navy Captain[.]" Id.

B.      Analysis and Conclusions

1.      Meaning of Proposal 1

      Proposal 1 addresses the Agency's decision to replace the civilian marine Master assigned to the USS CORONADO with a Naval Commander to supervise both civilian and military personnel. The proposal would require the Agency to take one of two actions: (1) retain the "status quo," that is, place the USS CORONADO and employees under the supervision of a civilian marine Master; or (2) create a "parallel system" with a civilian marine Master supervising civilian mariners on the ship and a military officer retaining responsibility over military personnel and military and weapons matters. Conference Record at 3. Under either action, the Agency would be required to retain a civilian marine Master on the USS CORONADO to supervise civilian mariners.

2.      Analytical Framework

      In AFGE, HUD Council of Locals 222, Local 2910, 54 FLRA 171, 175-76 (1998), the Authority clarified the approach it will follow in resolving negotiability disputes where the parties disagree as to whether a proposal comes within the terms of § 7106(a) or § 7106(b) of the Statute. Where an agency claims that a proposal affects a management right under § 7106(a), and a union disagrees or claims that the proposal is within the duty to bargain under § 7106(b)(2) and/or (3), as well as being electively negotiable under § 7106(b)(1), the Authority will first resolve those claims that would determine if a proposal is within the duty to bargain. Then, if necessary, the Authority will address those claims that would determine if a proposal is electively negotiable. See, e.g., NAGE, Local R1-109, 54 FLRA 521, 526-28 (1998). Consistent with this sequence, we first consider the claims that the proposal comes within the terms of §§ 7106(a) and 7106(b)(2) and (3).

3.      Proposal 1 Affects Management's Right to Assign Work Under § 7106(a)(2)(B) of the Statute

      Under well established Authority precedent, the right to assign work under § 7106(a)(2)(B) of the Statute encompasses the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See AFGE, Local 1985, 55 FLRA 1145, 1148 (1999).

      By requiring the Agency to retain a civilian marine Master to retain supervision over the ship and its civilian employees, the proposal would prevent the Agency [ v60 p831 ] from assigning the supervision of the ship and civilian employees to a military officer. As such, the proposal affects management's right to determine to whom or what positions certain supervisory duties are assigned. See id.

      Accordingly, we find that the proposal affects management's right to assign work under § 7106(a)(2)(B) of the Statute.

4.      Proposal 1 Does Not Constitute a Procedure Under § 7106(b)(2) of the Statute

      Under Authority precedent, proposals or provisions that affect the substantive exercise of management's rights under § 7106(a) do not constitute negotiable procedures. See, e.g., National Federation of Federal Employees, Local 1214, 40 FLRA 1181, 1188 (1991). Applying that precedent, which the parties do not challenge, to this case, we find that the proposal does not constitute a negotiable proposal under § 7106(b)(2) of the Statute. See also NFFE, Local 2192, 59 FLRA 868, 870 (2004) (Chairman Cabaniss dissenting in part).

5.      Proposal 1 Is Not an Arrangement

      In determining whether a proposal is an appropriate arrangement, the Authority uses the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). The Authority first determines whether the proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. See United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992); AFGE, Local 1900, 51 FLRA 133, 141 (1995). The adverse effect, however, need not flow from the management right that a given proposal affects. See, e.g., NTEU, Chapter 243, 49 FLRA 176, 185 (1994) (Member Armendariz concurring in part and dissenting in part).

      The claimed arrangement must also be sufficiently "tailored" to compensate employees suffering adverse effects attributable to the exercise of management's rights. See id. at 184. As the Authority has explained, relying on United States Dep't of the Interior, Minerals Mgmt. Serv., New Orleans, Louisiana v. FLRA, 969 F.2d 1158, 1162 (D.C. Cir. 1992), § 7106(b)(3) brings within the duty to bargain proposals that provide a balm only to the hurts arising as a consequence of the management actions under § 7106 giving rise to a bargaining obligation. AFGE, Nat'l Border Patrol Council, 51 FLRA 1308, 1319 (1996); see also NAGE, Local R14-23, 53 FLRA 1440, 1443 (1998).

      To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from the exercise of management's rights and how those effects are adverse. See KANG, 21 FLRA at 31. Proposals that address purely speculative or hypothetical concerns do not constitute arrangements. NTEU, 55 FLRA 1174, 1187 (1999).

      If a proposal is determined to be an arrangement pertaining to the exercise of management's rights, then the Authority determines whether it excessively interferes with the relevant management right. The Authority reaches this determination by weighing the "competing practical needs of employees and managers." KANG, 21 FLRA at 31-32.

      The Union asserts that the proposal is intended as an arrangement for employees adversely affected by management's decision to designate the ship on which they work as USS and assign a military officer in command of the ship. See Response at 3. The adverse effect, according to the Union, would be that military officers, who are not governed by the same USCG requirements as civilian employees, would place civilian employees' licenses "in jeopardy" as well as place them at risk for criminal charges for "mishaps." Id. According to the Union, a "[f]ailure to negotiate this proposal would potentially adversely affect those employees' licenses and certifications and put them at significant risk to have criminal charges levied against them for any mishap." Id.

      We interpret this argument as a claim that the designation of a military officer to supervise civilian employees on the ship could subject civilian employees to some type of discipline and could otherwise adversely affect employees' conditions of employment. We conclude that the adverse effect that the Union seeks to mitigate is speculative. The Union has not provided any evidence that there is any reasonable likelihood that designating a military officer to supervise civilian employees would subject civilian employees to some type of discipline or otherwise adversely affect employees' conditions of employment. Similarly, there is no showing that military officers lack familiarity with USCG requirements, as the Union asserts, or, if they do, that there would be negative consequences for unit employees.

      Accordingly, as the concern the proposal is intended to address is speculative, we find that the proposal does not constitute an arrangement within the meaning of § 7106(b)(3) of the Statute. As such, there is no need to address whether the proposal is appropriate. [ v60 p832 ] See Prof'l Airways Sys. Specialists, 59 FLRA 25, 29 (2003); NTEU, 55 FLRA at 1187.

6.      Proposal 1 Is Not Electively Negotiable Under § 7106(b)(1)

      As relevant here, § 7106(b)(1) provides that an agency may elect to negotiate on the "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty[.]" The Authority has interpreted the phrase "numbers, types, and grades" to apply to the establishment of agency staffing patterns, or the allocation of staff, for the purpose of an agency's organization and the accomplishment of its work. ACT, Schenectady Chapter, 55 FLRA 925, 927-28 (1999).

      The Union claims that the proposal is electively negotiable under § 7106(b)(1) of the Statute. In support, the Union states only, "[p]lease note explanation above." Response at 6. That explanation is only that "[t]he Union continues to assert that this proposal . . . is permissively . . . bargainable under section 7106[.]" Id. at 2. In these circumstances, and consistent with Authority precedent, we find that the Union's claim is a bare assertion, and we reject it on that ground. See AFGE, Local 2031, 56 FLRA 32, 34 (2000).

7.     Union's Remaining Arguments

      The Union argues that the Agency's decision "to allow for the operation of a commissioned vessel of the Navy to have a hybrid organization" is contrary to Department of Defense, Department of the Navy and MSC regulations. Petition for Review at 5. The Union argues that "prevailing maritime practice required to be mirrored by Public Law 5348 would not permit a merchant ship to be captained by a Navy Captain[.]" Id.

      In our view, these claims do not involve the legality of the proposal itself and, therefore, do not involve a dispute regarding the negotiability of the proposal. See 5 C.F.R. § 2424.2(c). Rather, the Union's claims concern allegations that the Agency's conduct was unlawful. Such claims are not appropriately before us in a negotiability proceeding and we do not address them further.

V.      Proposal 2

The Union proposed that upon departing the shipyard, the ship be classified automated/mechanized versus conventional rather than the agency effected date of 25 January 2004.

A.      Positions of the Parties

1.      Agency

      In its allegation of nonnegotiability, the Agency asserts that this proposal "interferes with management's right to set pay." Attachment dated May 13, 2004 (unnumbered) to Petition for Review. The Agency also agrees with the Union's statement that the proposal "is seeking retroactive pay." Conference Record at 4.

2.      Union

      The Union states that, when the USS CORONADO was transferred to USNS status on November 14, 2003, it was fully mechanized and operated by civilian mariners. See Conference Record at 4. According to the Union, as the Agency agreed to the Union's proposal to reclassify the ship at the higher A/3 mechanized rate of pay, the increase in the rate of pay for employees should have become effective on November 14, 2003, the date the bargaining unit employees manned the ship and not on January 25, 2004, when the Agency decided to make the pay increase effective. See id. In this regard, the Union argues that "[s]ince there was no change to the ship's equipment or machinery," the date the unit members were assigned to the ship should be the proper date to effectuate the higher pay rate rather than the January 25, 2004 date. Response at 7. The Union explains that Proposal 2 seeks to require the Agency to provide retroactive pay at the A/3 mechanized rate for the period from November 14, 2003, the date unit employees first manned the ship, until January 25, 2004, the date the pay rate was effectuated. See id. The Union adds that 5 U.S.C. § 5348 "requires that MSC mirror private sector maritime industry prevailing practices and pay." Id.

B.      Analysis and Conclusions

1.      Meaning of Proposal 2

      Both parties agree that the proposal would require the Agency to provide employees with retroactive pay.

2.      Proposal 2 Is Not Appropriate for Resolution in a Negotiability Appeal

      This proposal raises the threshold jurisdictional issue of whether it is appropriate for resolution under the negotiability procedures. [n4] We find that this proposal is substantively similar to that presented in AFGE, AFL-CIO, Local 1867, 42 FLRA 787, 794 (1991) (Local 1867) and, like the proposal in that case, is not appropriate for resolution in a negotiability appeal. [ v60 p833 ]

      In Local 1867, the union proposed that management compensate employees essentially for time they had spent in a standby status. The Authority found that "the proposal by its terms applies only to events that would have already transpired at the point at which it is executed[,]" and was "in essence, a claim for overtime compensation for events that have already occurred." Id. at 791, 792. The Authority found that the proposal was not appropriate for resolution in a negotiability proceeding and dismissed the petition for review. Noting that statutory and regulatory provisions governed an entitlement to payment for those employees who met the conditions for eligibility, the Authority held that resolution of the matter was appropriate in other proceedings. The Authority also stated that, insofar as its earlier precedent "suggests that we will rule, in the context of negotiability procedures, on claims that employees are entitled to overtime compensation for work already performed, it will no longer be followed." Id. at 794.

      Although presented by the Union as a proposal for bargaining, the proposal in this case is essentially a claim for compensation for events that have already occurred. Consistent with Local 1867, we find the Union's claim is not appropriate for resolution as a negotiability issue and that the petition for review as to the proposal must be dismissed. [n5] 

VI.      Order

      The petition for review is dismissed.


Separate Opinion of Member Carol Waller Pope:

      While the factual history of this case may be imperfect, the discourse offered by the dissent, which notably does not either recommend a different process or include an actual decision resolving the petition in this case, is both misplaced and a disservice to the parties. Rather than identifying a resolution different from the majority's, thereby supporting the issuance of a "dissenting" opinion, the Chairman simply disagrees. In this regard, the Authority has a statutory mandate to resolve issues relating to the duty to bargain under the Statute and, consistent with this, a union may appeal an agency's allegation of nonnegotiability to the Authority. See 5 U.S.C. §§ 7105(a)(2)(E), 7117(c)(1)&(6). If the petition were dismissed, then agencies would have a simple way to thwart this union right: declare a proposal nonnegotiable and then fail to fully participate in negotiability proceedings. This would not "almost . . . penalize" the Union for the Agency's failure, Dissent at 1, it would absolutely penalize the Union for the Agency's failure. By the same token, issuing a bargaining order would result in a direction that the Agency bargain over Proposal l, which clearly is not negotiable and Proposal 2, which is not appropriate for resolution in a negotiability proceeding. See Majority Opinion at 8-11, 13-14.

      I note that throughout the history of the FLRA, regulatory review and revision, separate and apart from resolution of individual cases, has been successfully undertaken. With effective leadership, the FLRA must continue to ensure that its processes adequately operate to fulfill its statutory mission and, when warranted, must revise its regulatory processes in the appropriate forum. [ v60 p834 ]


Dissenting opinion of Chairman Cabaniss:

      I write separately to express concern over the process relied on to arrive at a decision in this case. Here a merits determination is being made (in this case against a union) on an issue that has not adequately been placed by the parties before the Authority for resolution. The facts of this case reveal that there is a need for a different process to be used in processing negotiability questions.

      When an agency refuses to bargain over a proposal by declaring it outside the duty to bargain, the agency is under no obligation at that time to set forth its legal rationale for that assertion. Thus, when a union files its negotiability petition for review, and even when the parties take part in the negotiability post-petition conference under the Authority's regulations, the union still has no idea what the agency's legal rationale is as to why "a proposal or provision is not within the duty to bargain or contrary to law," the requirement established § 2424.24(a) of our regulations regarding the purpose of an agency statement of position, which is not filed by the agency until after a union has already filed its petition for review.

      Where an agency never files a statement of position, however, there would seem to be nothing for the Authority to act on. On the one hand, dismissing the case would almost seem to penalize the union and reward the agency. On the other hand, issuing a merits determination when the parties have placed no matter before us (which in negotiability appeals really doesn't happen without a statement of position) makes no sense, either, and neither does issuing that merits determination by acting upon what amounts to a bare assertion, which seems at odds with precedent denying such assertions. All of these actions are problematic, and none should be condoned.

      Here the Agency never timely filed its statement of position. Thus, it is as though the Agency filed no statement of position at all, and the sole content of the Agency's position, as noted in the majority decision, is that the Agency asserted in its allegation of nonnegotiability that the proposal interferes with its right to assign work and that at the post-petition conference the Agency stated that it is not uncommon for military personnel to supervise civilians. Majority Opinion at 6.

      While I do not believe the Union should be penalized by the Agency's failure to file a statement of position, I also see no basis for accepting the Union's reply brief to a non-existent statement of position and then issuing a merits determination, especially since the Agency position amounts to a bare assertion consisting of the two statements noted by the majority. This ad hoc determination to resolve this case is just that, an ad hoc determination that may or may not be made the next time a similar circumstance arises in the future.

      A better course of action would be a negotiability appeal process that identifies early on the issues to be resolved. That notwithstanding, however, I still find no basis for the actions taken here by the majority.



Footnote # 1 for 60 FLRA No. 156 - Authority's Decision

   The separate opinion of Member Pope and the dissenting opinion of Chairman Cabaniss are set forth at the end of this decision.


Footnote # 2 for 60 FLRA No. 156 - Authority's Decision

   In addition, the Agency's allegation of nonnegotiability, which was attached to the Union's petition, and the record of the post-petition conference, which was conducted pursuant to § 2424.23 and which included Agency representatives, are properly part of the record and will be considered.


Footnote # 3 for 60 FLRA No. 156 - Authority's Decision

   In this regard, the Union explains:

Civilian mariners licensed by the United States Coast Guard are being forced (for the first time in US history) to sail aboard USS combatant vessels. These civilian mariners are MEBA unit members sailing as Licensed Engineers. They are sailing aboard un-inspected, uncertified combatant vessels in belligerent operations and are supervised by Naval Officers who are not governed by the same USCG rules or regulations. They are responsible for retaining standards of certification and licensing qualifications and can be criminally charged if any mishap occurs. The Naval Officers responsible for their supervision are not governed by these USCG requirements and are placing civilian mariner licenses in jeopardy as well as placing these civilians at risk for criminal charges.

Id. at 3.


Footnote # 4 for 60 FLRA No. 156 - Authority's Decision

   The appropriateness of a proposal for resolution under the negotiability procedures is a threshold jurisdictional issue and, as such, may be raised by the Authority sua sponte. Cf. Int'l Fed'n of Prof'l and Technical Eng'rs, Local 35, 54 FLRA 1384, 1387 n.3 (1998) (jurisdictional threshold issues such as mootness may be raised by the Authority sua sponte).


Footnote # 5 for 60 FLRA No. 156 -