[ v11 p115 ]
11:0115(29)NG
The decision of the Authority follows:
11 FLRA No. 29
INTERNATIONAL ORGANIZATION OF
MASTERS, MATES, AND PILOTS
Union
and
PANAMA CANAL COMMISSION
Agency
Case No. O-NG-422
DECISION AND ORDER ON NEGOTIABILITY ISSUES
The petition for review in this case comes before the Authority
pursuant to section 7105(a)(2)(E) of the Federal Service
Labor-Management Relations Statute (the Statute) and raises questions
concerning the negotiability of six provisions of the parties' agreement
disapproved by the Agency head under section 7114(c) of the Statute.
Upon careful consideration of the entire record, including the parties'
contentions, the Authority makes the following determinations. /1/
Provision 1
ARTICLE III. AGREEMENT DURATION, REOPENERS, AND TERMS
SECTION 1. The anniversary date of this Agreement is March 26,
1980, 0001 hours, and this Agreement will expire at 2400 hours on
March 25, 1984, except as otherwise provided in accordance with
terms of this Article.
The Agency contends that Provision 1 establishes an effective date
for the parties' agreement which is inconsistent with the provisions of
section 7114(c) of the Statute. /2/ The Agency argues in this regard
that by establishing the "anniversary date" of the parties' agreement as
March 26, 1980, the disputed provision gives retroactive effect to the
terms of the agreement, which agreement was not executed and approved
until after that date. However, based on the record in this case, and
without passing upon the Agency's argument concerning the legality of
giving retroactive effect to the terms of the agreement, the Authority
concludes that the Agency has misunderstood the intent of the provision.
Consistent with the language of the provision and Union statements as
to its intent, the sole effect of the provision would be to establish a
date to be used for determining when the Agency may be obligated to
reopen specific portions of the agreement or begin negotiations for a
new agreement, rather than to establish the date on which the terms of
the agreement would become binding on the Agency. Thus, the provision
is within the duty to bargain.
Provision 2
ARTICLE XI. GRIEVANCE PROCEDURE AND ARBITRATION
. . . .
SECTION 3.
. . . .
(c) Any proposed section that is subject to this grievance
procedure will be stayed pending final resolution of that
grievance, except in cases described in Section 17(c) of this
Article. (Only the underscored portion of this provision is in
dispute.)
On its face, Provision 2 provides that any Agency action which is the
subject of a grievance under the parties' negotiated grievance procedure
will be held in abeyance by the Agency until the "final resolution of
that grievance." Since, upon completion of the final step of the
grievance procedure, a dispute would cease to be a "grievance," the
Authority interprets the phrase "final resolution of that grievance" to
extend only to resolution of the dispute through the negotiated
procedure including possible arbitration. So interpreted, Provision 2
is not materially distinguishable from the proposal at issue in American
Federation of Government Employees, Local 547, AFL-CIO and Veterans
Administration Medical Center, Tampa, Florida, 4 FLRA No. 50 (1981),
enforced sub nom. Veterans Administration Medical Center, Tampa, Florida
v. Federal Labor Relations Authority, 675 F.2d 260 (11th Cir. 1982),
which provided that any personnel action which is the subject of a
grievance or arbitration would be stayed pending a final decision of the
matter, and which the Authority held was a negotiable procedure under
section 7106(b)(2) of the Statute. /3/ For the reasons set forth in
that decision, Provision 2 herein is within the duty to bargain under
the Statute.
Provision 3
ARTICLE XIII. SENIORITY LIST
The Commission shall maintain and distribute a Pilot Seniority
List which shall be kept on a current basis. The order in which a
Pilot's name appears on this list will serve to designate the
control Pilots on four-pilot vessels as well as all other matters
dealing with Pilot seniority. Time spent as an active Pilot will
be used in determining the proper sequence of names on the Pilot
Seniority List. Any Pilot special duty assignments will be
considered active Pilot time and, additionally, the first six
months of employment in management will be credited as Pilot
seniority. The Pilot Seniority List shall be kept current and
distributed to all Pilots covered by this Agreement every six
months, and five copies of the list shall be furnished to the
Organization. Any disputes or disagreements concerning such
seniority list shall be subject to the grievance procedure
contained in Article XI of this Agreement. (Only the underscored
portion of this provision is in dispute.)
Provision 4
ARTICLE XVI. MISCELLANEOUS PROVISIONS
SECTION 2. Pilots in the highest pay step may, on a voluntary
basis and in the Commission's discretion, be assigned to perform
evaluation or observation rides with Pilots-in-Training or limited
Pilots.
Provision 5
ARTICLE XIX. PILOT WORK RULES
SECTION 7. Multiple Pilot Vessels, Dead Tours and Vessels
Making Less Than 5 Knots
(a) On multiple Pilot vessels the two senior Pilots shall share
the conn and other Pilots shall assist as instructed.
. . . .
(f) In unusual partial or aborted transits not covered by these
Work Rules, the Pilots involved will determine a fair division of
duties.
. . . .
(o) When a Northbound vessel requires a Pilot through the
Breakwater in Cristobal, the control Pilot or harbor Pilot will
perform this duty, and any assisting Pilots will debark in Limon
Bay.
Provision 6
ARTICLE XIX. PILOT WORK RULES
SECTION 11. Harbor and Shuttle
. . . .
(d) A Pilot assigned to shuttle duty who is not needed for
shuttle may be assigned to harbor duty if needed. Acceptance of
such duty is voluntary if it is in the port to which he is not
regularly assigned for harbor duty.
. . . .
(g) When a harbor or shuttle Pilot is assigned duty on a
multiple Pilot vessel with a transit Pilot, the transit Pilot will
conn, and the harbor or shuttle Pilot will assist. (Only the
underscored portion of this provision is in dispute.)
For the following reasons, the Authority finds, in agreement with the
Agency, that Provisions 3-6 would directly interfere with management's
right "to assign work" under section 7106(a)(2)(B) of the Statute and,
thus, are outside the Agency's duty to bargain. /4/ Provision 3 would
require the Agency to assign control pilot duties on the basis of
seniority. Therefore, it is not materially distinguishable from
proposals in American Federation of Government Employees, AFL-CIO,
International Council of U.S. Marshals Service Locals and U.S.
Department of Justice, U.S. Marshals Service, 8 FLRA No. 62 (1982)
(Union Proposals 1-4) and American Federation of Government Employees,
AFL-CIO, and Air Force Logistics Command, Wright-Patterson Air Force
Base, Ohio, 2 FLRA 604, 630-632 (1980) (Union Proposal XVI), enforced as
to other matters sub nom. Department of Defense v. Federal Labor
Relations Authority, 659 F.2d 1140 (D.C. Cir. 1981), cert. denied sub
nom. AFGE v. FLRA, . . . U.S. . . . , 102 S.ct.. 1443 (1982), which
mandated the assignment of particular duties to employees on the basis
of seniority, and which the Authority held directly interfered with the
Agency's right to assign work under section 7106(a)(2)(B) of the
Statute.
Provision 4 would permit management to assign duties involving
evaluation or observation of pilots-in-training and limited pilots only
to pilots in the highest pay step who have volunteered for such
assignments. In this regard, Provision 4 is not materially
distinguishable from Union proposal 13 in American Federation of
Government Employees, AFL-CIO, National Immigration & Naturalization
Service Council and U.S. Department of Justice, Immigration &
Naturalization Service, 8 FLRA No. 75 (1982), which would have required
the Agency to discontinue any work assignment away from an employee's
normal duty station after 35 days unless the employee volunteered to
continue working. The Authority held that proposal nonnegotiable under
section 7106(a)(2)(B) because it prevented the Agency from exercising
its discretion to assign work to particular employees. See also
American Federation of Government Employees, AFL-CIO, Local 3385 and
Federal Home Loan Bank Board, District 7, Chicago, Illinois, 7 FLRA No,
58 (1981) (Union Proposal I). Similarly, the second sentence of
subsection (d) of Provision 6, which would preclude the Agency from
assigning harbor duty to a pilot assigned to shuttle duty unless, in the
circumstances specified, the pilot volunteered for such duty, would
directly interfere with the Agency's right to assign work under section
7106(a)(2)(B) by preventing the Agency from determining the particular
employee to whom it would assign harbor duty. See also Association of
Civilian Technicians and State of Georgia National Guard, 2 FLRA 581
(1981).
Subsections (a) and (o) of Provision 5, and subsection (g) of
Provision 6, which would require the assignment of specific duties to
particular employees, are not materially distinguishable from Union
Proposal 6 in National Treasury Employees Union and Department of the
Treasury, Internal Revenue Service, 7 FLRA No. 35 (1981), which required
management to assign specific work to a specific employee or position.
The Authority held that the proposal deprived management of its
discretion under section 7106(a)(2)(B) of the Statute to determine the
employee(s) or position(s) to whom such work would be assigned and,
thus, that the proposal was not within the duty to bargain.
Finally, subsection (f) of Provision 5 would permit the pilots
themselves to assign duties under specified circumstances. In agreement
with the Agency, the Authority finds that such a proposal would permit
employees to substitute their judgment for management's with regard to
such assignments of duties, and would thereby restrict management in
making work assignments. As such, the provision is analogous to the
proposals discussed above which would condition management's exercise of
its statutory discretion to assign work upon employees' willingness to
volunteer. In thus making the assignment of work a matter to be
determined by employees instead of management, subsection (f) deprives
management of its right to assign work under section 7106(a)(2)(B).
Thus, for the reasons more fully stated in the decisions cited above,
and in the absence of any showing of special circumstances, /5/
Provisions 3-6 at issue herein are outside the Agency's duty to bargain
under section 7106(a)(2)(B) of the Statute.
Accordingly, pursuant to section 2424.10 of the Authority's Rules and
Regulations, IT IS ORDERED that the Agency shall rescind its disapproval
of Provisions 1 and 2, which were agreed to by the parties at the level
of exclusive recognition. /6/ IT IS FURTHER ORDERED that the Union's
petition for review as to Provisions 3-6 be, and it hereby is,
dismissed. Issued, Washington, D.C., January 27, 1983
Ronald W. Haughton, Chairman
Henry B. Frazier III, Member
Leon B. Applewhaite, Member
FEDERAL LABOR RELATIONS AUTHORITY
--------------- FOOTNOTES$ ---------------
/1/ During the pendency of this case, the Authority determined,
contrary to the Agency's and Union's respective contentions, that the
petition for review and the response were timely filed, and so informed
the parties by letter. Such determinations are incorporated herein as a
part of this decision.
/2/ Section 7114(c) provides as follows:
Sec. 7114. Representation rights and duties
. . . .
(c)(1) An agreement between any agency and an exclusive
representative shall be subject to approval by the head of the
agency.
(2) The head of the agency shall approve the agreement within
30 days from the date the agreement is executed if the agreement
is in accordance with the provisions of this chapter and any other
applicable law, rule, or regulation (unless the agency has granted
an exception to the provision).
(3) If the head of the agency does not approve or disapprove
the agreement within the 30-day period, the agreement shall take
effect and shall be binding on the agency and the exclusive
representative subject to the provisions of this chapter and any
other applicable law, rule, or regulation.
(4) A local agreement subject to a national or other
controlling agreement at a higher level shall be approved under
the procedures of the controlling agreement or, if none, under
regulations prescribed by the agency.
/3/ Section 7106(b)(2) provides as follows:
Sec. 7106. Management rights
. . . .
(b) Nothing in this section shall preclude any agency and any
labor organization from negotiating--
. . . .
(2) procedures which management officials of the agency will
observe in exercising any authority under this section(.)
/4/ In so deciding, the Authority finds it unnecessary to address the
Agency's other contentions in support of its claim that the provisions
are outside the duty to bargain.
/5/ Compare Department of Defense, Department of the Army, 192nd
Infantry Brigade (Panama) and Panama DOD Employees Coalition, AFL-CIO,
CTRP (American Federation of State, County and Municipal Employees,
AFL-CIO, Local 907; American Federation of Government Employees,
AFL-CIO, Local 14; and American Federation of Government Employees,
AFL-CIO, Local 1805), et al., 7 FLRA No. 73 (1981), n.1.
/6/ In deciding that these provisions are within the duty to bargain,
the Authority makes no judgment as to their merits.