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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.