26:0783(92)AR - Air Force Logistics Command, Tinker AFB, and AFGE, Local 916 -- 1987 FLRAdec AR

 26 FLRA No. 92
 
 AIR FORCE LOGISTICS COMMAND
 TINKER AIR FORCE BASE
 Activity
 
 and
 
 AMERICAN FEDERATION OF GOVERNMENT
 EMPLOYEES, LOCAL 916
 Union
 
                                            Case No. 0-AR-1320
 
                DECISION AND ORDER ON NEGOTIABILITY ISSUES
 
                         I.  Statement of the Case
 
    This case is before the Authority because of a negotiability appeal
 filed under section 7105(a)(2)(E) of the Federal Service
 Labor-Management Relations Statute (the Statute) and concerns the
 negotiability of six proposals.
 
    Four of the proposals (proposals 1 and 4-6) concern bonus or premium
 pay practices for employees of the Panama Canal Commission.  The two
 other proposals concern matters relating to assignment and relief of
 employees under certain specified conditions.
 
                       II.  Proposals 1, 4, 5 and 6
 
    The Members of the Authority disagree over the negotiability of these
 proposals.  The Decision and Order of the Authority on these proposals
 begins on page 6 of this decision.  Chairman Calhoun's separate opinion
 is on page 10.
 
                             III.  Proposal 2
 
       Without prejudice to the Organization's nonnegotiable appeal on
       this subject, and pending decision by the Federal Labor Relations
       Authority, two Pilots will be assigned on board any vessel over
       90.0 feet extreme beam that is scheduled to transit any portion of
       Gatun Lake, between Miraflores and Gatun Locks, in hours of
       darkness.
 
    A.  Positions of the Parties
 
    The Agency asserts that the proposal has a direct impact on staffing
 patterns and, under section 7106(b)(1) of the Statute, is negotiable
 only at the election of the Agency.  It claims that by requiring certain
 vessels to be manned by two pilots, the proposal is directly and
 integrally related to the number of employees in a work project.
 
    The Union argues that the proposal refers to an Agency proposal to
 change procedures and is therefore negotiable under section 7106(b)(2)
 and (3).
 
    B.  Analysis and Conclusions
 
    1.  The Proposal Directly Interferes with Management's Right
 
    Proposal 2 would require the assignment of two employees to specific
 jobs.  In this regard, the proposal has the same effect as proposals 19
 and 20 in International Organization of Masters, Mates and Pilots and
 Panama Canal Commission, 13 FLRA No. 87 (1983).  In that case, relying
 on the decision in National Federation of Federal Employees, Local 1167
 and Department of the Air Force, Headquarters, 31st Combat Support Group
 (TAC), Homestead Air Force Base, Florida, 6 FLRA 574, 585-587 (1981),
 affirmed as to other matters sub nom. NFFE, Local 1167 v. FLRA, 681 F.2d
 806 (D.C. Cir. 1982), the Authority held that proposals which similarly
 would have required the assignment of two employees to particular tasks
 directly interfered with management's right under section 7106(b)(1) of
 the Statute to determine unilaterally the number of employees assigned
 to any work project, or to elect to bargain on such a determination.
 Thus, for the reasons set forth in the Homestead Air Force Base and
 Panama Canal Commission cases, Union Proposal 2 is outside the Agency's
 duty to bargain.
 
    2.  "Procedures" and "Appropriate Arrangements."
 
    Since the proposal directly interferes with management's right under
 section 7106(B)(1) by prescribing the number of employees to be assigned
 to certain work projects, it does not constitute a negotiable procedure
 within the meaning of section 7106(b)(2) of the Statute.  See American
 Federation of Government Employees, AFL-CIO, and Air Force Logistics
 Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980),
 enforced as to other matters sub nom. Department of Defense v. FLRA, 659
 F.2d 1140 (D.C. Cir. 1981), cert. denied sub nom. AFGE v. FLRA, 455 U.S.
 945 (1982).
 
    Furthermore, during the pendency of this case the Authority issued
 National Association of Government Employees, Local R14-87 and Kansas
 Army National Guard, 21 FLRA No. 4 (1986), concerning section
 7106(b)(3).  There we stated that henceforth we will determine whether a
 proposal constitutes an appropriate arrangement for employees adversely
 affected by the exercise of a management right by determining whether
 the proposal "excessively interferes" with the exercise of management's
 rights.  The proposal here is not an appropriate arrangement under
 section 7106(b)(3), because it would totally abrogate management's
 discretion under section 7106(b)(1) to determine the number of employees
 assigned to a tour of duty.  That is, it would require assignment of a
 specific number of employees to a particular job under certain
 conditions and would allow management no discretion in determining
 staffing patterns in circumstances covered by the proposal.  In so
 doing, the provision excessively interferes with management's right to
 determine the number of employees or positions assigned to a work
 project.  Rather than ameliorating an adverse effect of an exercise of a
 management right, the proposal would prevent management from exercising
 the right;  it therefore is not an appropriate arrangement within the
 meaning of section 7106(b)(3) of the Statute.  See American Federation
 of Government Employees, AFL-CIO, Local 1931 and Department of the Navy,
 Naval Weapons Station, Concord, California, 24 FLRA No. 57 (1986).
 
                              IV.  Proposal 3
 
       Control Pilots that have earned a HML (high mast lighting) Bonus
       on an assignment will be relieved at Gamboa.
 
    A.  Positions of the Parties
 
    The Agency asserts that the proposal interferes with management's
 right to assign work under section 7106(a)(2)(B).  It also claims that
 the proposal interferes with management's right to determine the number
 of employees on a work project and that it has a direct and integral
 impact on the Agency's staffing patterns.
 
    The Union asserts that the proposal relates to the procedures and
 appropriate arrangements and is negotiable under section 7106(b)(2) and
 (3) of the Statute.
 
    B.  Conclusion and Analysis
 
    1.  The Proposal Directly Interferes with Management's Right
 
    Proposal 3 prescribes that in certain circumstances an employee's
 work assignment will be terminated at a particular time and place.  That
 is, the effect of the proposal is to prescribe the duration of a work
 assignment.  This proposal has the same effect as proposal III in
 International Association of Firefighters, AFL-CIO, Local F-116 and
 Headquarters, 4392d Aerospace Support Group (SAC), Vandenberg Air Force
 Base, California, 9 FLRA 700 (1982).  In that case, the proposal
 provided that certain tours of duty would not last more than three
 hours.  The Authority, relying on its decision in National Treasury
 Employees Union and Department of the Treasury, Bureau of the Public
 Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. National Treasury
 Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C.
 Cir. 1982), held that, by limiting the length of time during which work
 normally could be performed, the proposal directly interfered with
 management's right to assign work under section 7106(a)(2)(B) of the
 Statute.  For the reasons set forth in the Bureau of the Public Debt and
 Vandenberg Air Force Base decisions, this proposal, by prescribing the
 substantive criteria for ending a work assignment, directly interferes
 with management's right to assign work under section 7106(a)(2)(B).
 
    2.  "Procedures" and "Appropriate Arrangements"
 
    Since the proposal directly interferes with management's right to
 assign work by prescribing the substantive criteria which must be
 applied, it does not constitute a negotiable procedure under section
 7106(b)(2) of the Statute.  See cases cited in answer to this same
 argument for proposal 2, above.
 
    In addition, we find that this proposal is not an appropriate
 arrangement under section 7106(b)(3) of the Statute.  The proposal would
 totally abrogate management's right under section 7106(a)(2)(B) to
 assign work by requiring it to relieve pilots at Gamboa under specified
 circumstances.  Because the proposal requires that these employees be
 relieved under specific conditions, it would completely bar management's
 right to assign work and therefore excessively interferes with that
 right.  See American Federation of Government Employees, AFL-CIO, Local
 1931 and Department of the Navy, Naval Weapons Station, Concord,
 California, 24 FLRA No. 57 (1986).
 
                                 V.  Order
 
    Pursuant to section 2424.10 of the Authority's Rules and Regulations,
 the petition for review as to proposals 2 and 3 is dismissed.
 
    Issued, Washington, D.C., March 9, 1987.
                                       Jerry L. Calhoun, Chairman
                                       Henry B. Frazier, III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
               DECISION AND ORDER ON PROPOSALS 1, 4, 5 AND 6
 
                             I.  The Proposals
 
    Proposal 1
 
       A bonus equal to fourteen (14) times the Pilots' basic rate of pay
       will be paid to the Pilots of a vessel with an extreme beam of 100
       feet or more which arrives or departs a set of locks during hours
       of darkness.
 
    Proposal 4
 
       When it becomes necessary to tie up vessels at Gamboa Moorings or
       Pedro Miguel Locks, the following shall apply:
 
          (a) A harbor movement bonus will be paid in accordance with the
       schedule set forth in Article XIX.  Part D. Section 8(a) for
       undocking a vessel when on transit or shuttle duty, or for
       anchoring, or mooring any vessel after such piloting duty.
 
    Proposal 5
 
       Pilots who are assigned to duty out-of-rotation will receive an
       out-of-rotation bonus of twelve (12) hours compensatory pay, in
       addition to other compensation authorized by the Agreement.
 
    Proposal 6
 
       A bonus equal to eight (8) times the Pilots' basic hourly rate of
       pay will be paid, when assigned to vessels whose schedules
       deteriorate beyond transit limits specified elsewhere in this
       Agreement.
 
    A.  Positions of the Parties
 
    The Agency argues that all four of these proposals are inconsistent
 with an applicable regulation, 35 C.F.R. Section 251.73 /1/ pertaining
 to premium pay, which it claims to be a Government-wide regulation which
 would bar negotiation of a conflicting proposal pursuant to section
 7117(a)(1) of the Statute.  The Agency does not claim, nor does it
 otherwise appear, that the proposals are inconsistent with applicable
 statutory provisions governing basic pay and specific supplements
 thereto contained in the Panama Canal Act of 1979.
 
    In regard to proposals 4-6, the Agency also raises a threshold issue,
 arguing that a contract reopener provision in the parties' negotiated
 agreement does not permit the subjects in the proposals to be addressed
 at this time.
 
    In response to the Agency's statement, the Union argues that the
 regulation in question is not Government-wide.  As to the assertion that
 proposals 4-6 are not proper subjects to address during a contract
 reopener, the Union argues that proposed changes by the Agency would
 require negotiation over impact and implementation, a proper subject
 since the Agency made the proposals.
 
    B.  Analysis and Conclusions
 
    The question raised by the Agency regarding whether proposals 4-6 are
 proper subjects for bargaining under the reopener clause cannot be
 resolved in this decision.  The record in this case fails to provide any
 basis for substantiating the Agency's assertions.  Further, to the
 extent that there are factual issues in dispute between the parties
 concerning the duty to bargain in the specific circumstances of this
 case, these issues may be raised in other appropriate proceedings.  /2/
 See, for example, American Federation of Government Employees, AFL-CIO,
 Local 2736 and Department of the Air Force, Headquarters 379th Combat
 Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 at
 306, n.6 (1984).  National Treasury Employees Union and Internal Revenue
 Service, Denver District, 24 FLRA No. 3 (Union proposals 1 and 2)
 (1986).
 
    As to the Agency's assertion that proposals 1 and 4-6 are
 inconsistent with a Government-wide regulation, we note that the cited
 regulation was issued pursuant to section 1212 of the Panama Canal Act,
 22 U.S.C. SEction 3652, establishing the Panama Canal Employment System.
  See also 22 U.S.C. Section 3663.  Under the law, pay practices
 established in the regulation relied upon by the Agency are mandatorily
 applicable only to employees of the Panama Canal Commission.  While
 other agencies may elect to be covered under such system when conducting
 operations in Panama, under law they are not required to do so.
 Therefore, contrary to the Agency's argument, we find that the
 regulation is not a Government-wide rule or regulation in that it is not
 generally applicable to the Federal work force as a whole.
 International Organization of Masters, Mates and Pilots and Panama Canal
 Commission, 13 FLRA No. 87 (1983) (Union Proposal 16).  Moreover, the
 Agency has neither alleged, nor made any showing, that the cited
 regulations are supported by a compelling need.  Under these
 circumstances, and as established in American Federation of Government
 Employees, AFL-CIO, Local 1928 and Department of the Navy, Naval Air
 Development Center, Warminster, Pennsylvania, 2 FLRA 450, 454 (1980),
 the cited regulation cannot bar negotiation of the proposals.
 
                                II.  Order
 
    The Agency must negotiate upon request, or as otherwise agreed to by
 the parties, concerning proposals, 1, 4, 5, and 6.
 
    Issued, Washington, D.C., March 9, 1987.
                                       Henry B. Frazier III, Member
                                       Jean McKee, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
                   Separate Opinion of Chairman Calhoun
 
    As I stated in my opinion in District No. 1, Pacific Coast District,
 Marine Engineers Beneficial Association and Panama Canal Commission, 26
 FLRA No. 8 (1987), I find no indication that Congress intended parties
 covered by the Panama Canal Act of 1979 to bargain over wages and
 money-related fringe benefits.  For the reasons stated in that opinion,
 therefore, as well as my opinion in American Federation of Government
 Employees, AFL-CIO, Local 1897 and Department of the Air Force, Eglin
 Air Force Base, Florida, 24 FLRA No. 41 (1986), petition for review
 filed sub nom. Department of the Air Force, Eglin Air Force Base,
 Florida v. FLRA, 87-3073 (11th Cir. February 2, 1987), I do not join the
 majority opinion on Proposals 1, 4, 5, and 6.
 
    Issued, Washington, D.C., March 9, 1987.
                                       Jerry L. Calhoun, Chairman
 
 
                ---------------  FOOTNOTES$ ---------------
 
 
 
    (1) 35 C.F.R. Section 251.73 provides as follows:
 
          Section 251.73 Premium pay.
 
          (a) Premium pay for Manual-type positions shall be established
       in accordance with the provisions of 5 U.S.C. 5544 and Supplement
       532-1 of the Federal Personnel Manual;  Provided, However, That
       any rule concerning premium pay established prior to the effective
       date of these regulations may be continued for the type of
       position to which the rule applied before the said effective date.
 
          (b) Premium pay and compensatory time for positions, other than
       positions subject to paragraph (a) of this section, shall be
       established in accordance with the provisions of Subchapter V of
       Chapter 55 of Title 5, United States Code;  Provided, however,
       That any rule concerning premium pay or compensatory time
       established prior to the effective date of these regulations may
       be continued for the type of position to which the rule applied
       before the said effective date.
 
    (2) We note that Case No. 6-CA-30064, involving unfair labor practice
 allegations related to the negotiability issues in this case, is
 pending.  Pursuant to section 2423.5 of our Rules and Regulations, the
 Union has selected the negotiability procedure.  Therefore, processing
 of the unfair labor practice case is suspended during the processing of
 this case.