[ v13 p508 ]
The decision of the Authority follows:
13 FLRA No. 87 INTERNATIONAL ORGANIZATION OF MASTERS, MATES AND PILOTS Union and PANAMA CANAL COMMISSION Agency Case No. 0-NG-337 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 25 proposals. Upon careful consideration of the entire record, including the parties' contentions, the Authority makes the following determinations. Union Proposal 1 The pilot duty station shall have adequate provisions for radio transmitters capable of transmitting on Channel 12 and 16, as well as the local harbor frequency, and shall have the capability to simultaneously monitor one channel and transmit and receive on another. The Union tacitly concedes that this proposal would require the Agency to use certain equipment in performing its work, asserting that such equipment is the minimum needed for safe and effective performance. In American Federation of State, County and Municipal Employees, AFL-CIO, Local 2477 and Library of Congress, Washington, D.C., (and the case consolidated therewith), 7 FLRA No. 89 (1982), (Proposal IX), affirmed as to other matters sub nom. Library of Congress v. FLRA, 699 F.2d 1280 (D.C. Cir. 1983), the Authority stated that section 7106(b)(1) of the Statute /1/ reserves to management the determination of the technical method used by an agency for accomplishing or furthering the performance of the agency's work. The instant proposal would require the Agency to furnish the pilot duty station with radio transmitters having particular capabilities to be used in performing the Agency's work. The proposal would, therefore, prescribe a technical method for work performance and consequently is inconsistent with the Agency's election, under section 7106(b)(1), to unilaterally determine the technology of performing its work. Thus, Proposal 1 is outside the duty to bargain. Union Proposal 2 All launches shall be equipped with VHF radio capable of transmission on Channel 12 and 16, in addition to the local harbor frequency, and shall be equipped with the capacity to monitor one channel while transmitting. As with Proposal 1, this proposal would require the Agency to use certain equipment in performing its work. The Union asserts that the equipment which this proposal would require to be installed in launches already is installed in tow boats and that launches are substituted for tow boats when tow boats are unavailable. Therefore, the Union argues that the proposal merely would require tow boat substitutes and tow boats to be comparably equipped. Nevertheless, this proposal, like Proposal 1, would require the Agency to adopt a specific technology for performing its work in a circumstance where the Agency has chosen not to adopt that technology. As stated with respect to Proposal 1, the Statute gives the Agency the right to elect to make such a determination unilaterally under section 7106(b)(1). Thus, the proposal is outside the duty to bargain. Union Proposals 3 and 4 The employer shall establish positive harbor control in Cristobal harbor. A Canal port captain (CPC) will be stationed at the signal station to control the movement of all unpiloted vessels . . . . The record indicates that in carrying out the part of its mission which is to provide for the orderly transit of vessels through the Panama Canal, the Agency utilizes a "compulsory pilotage" system, where only certain vessels maneuvering in designated Canal waters are required to be under the control of the Agency, and exempts certain vessels from the requirement that an Agency pilot be on board while the vessel maneuvers within the waters under the Agency's jurisdiction. In contrast, according to the Agency, the "positive harbor control" which the proposal would prescribe is a system under which all vessels not assigned a pilot would be required to remain at designated anchorages until authorized to maneuver by the port captain. By requiring the Agency to establish a positive harbor control system of operation in Cristobal harbor, the first sentence of the combined proposals would require the Agency to adopt a specific procedure or system for performing its work. Thus, the Authority finds, in agreement with the Agency, that the proposal would directly interfere with the Agency's elective right under section 7106(b)(1) of the Statute, to determine unilaterally the "methods . . . of performing work." See National Federation of Federal Employees, Local 541 and Veterans Administration Hospital, Long Beach, California, 12 FLRA No. 62 (1983); National Treasury Employees Union and Internal Revenue Service, 6 FLRA No. 98 (1981) (Proposals III, IV and V). Further, the second sentence of the combined proposals, by dictating a specific function for the port captain, concerns the assignment of duties to an individual who is not in the bargaining unit. Thus, the proposal is outside the duty to bargain because it does not concern conditions of employment of bargaining unit employees (National Council of Field Labor Locals, American Federation of Government Employees, AFL-CIO and U.S. Department of Labor, Washington, D.C., 3 FLRA 290 (1980) (Proposal 1)); and prescribes the assignment of specific duties to particular employees which would directly interfere with management's right under section 7106(a)(2)(B) of the Statute to assign work. /2/ American Federation of Government Employees, AFL-CIO and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604, 623, 631 (1980), enforced 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, 102 S.Ct. 1443 1982). Union Proposal 5 The Commission shall provide free housing, telephone and utilities for all pilots and their families. This proposal would require the Agency to provide housing, including telephone and utilities, free for all pilots and their families. The Agency's predecessor, the Panama Canal Company, owned and operated employee housing. Article III of the Panama Canal Treaty provides for title to all such housing to be transferred to the Panamanian Government upon enactment of the Treaty. However, Article VI(1) (Regime of Civil Coordination for Housing Areas) of the Agreement in Implementation of Article III of the Panama Canal Treaty (Agreement) specifies, "(t)he housing areas shall, however, continue to be dedicated, for the duration of this Agreement, to the primary purpose of housing employees of the Commission (the Agency herein) in accordance with the provisions of this Article. /3/ These provisions as pertinent herein indicate that the Agency controls the use, and can establish the rental rate, only of that housing which remains dedicated to housing U.S. citizen employees and their dependents. The Agency does not control the use, nor can it establish the rental rate, of housing occupied by employees who are not U.S. citizens. Hence, the proposal, which expressly would require the Agency to provide free housing for all employees, including those who are not U.S. citizens, is inconsistent with Article VI of the Agreement in Implementation of Article III of the Panama Canal Treaty. The Treaty, of course, has the force of Federal law. /4/ Accordingly, apart from other considerations, the proposal is outside the duty to bargain under section 7117(a) of the Statute because it is inconsistent with Federal law. /5/ Union Proposal 6 Should it become necessary for the pilot to move during the year, the Commission shall pay all moving expenses for the pilot, his family and belongings . . . . The record reveals that the Agency pays all employee moving expenses when the Agency transfers an employee from the northern to the southern district in Panama and when the Agency otherwise initiates a move for its convenience, e.g., to renovate old quarters. The record further indicates that the intent of the proposal is to require the Agency to pay, also, for moves initiated at employees' requests, for employees' convenience. The Agency essentially asserts that it is prohibited under law from paying for such moves. In this regard, 5 U.S.C. 5724(h) states: (h) When a transfer is made primarily for the convenience or benefit of an employee . . . or at his request, his expenses of travel and transportation and the expenses of transporting . . . household goods and personal effects may not be allowed or paid from Government funds. Accordingly, since the record clearly indicates that the moving expenses which this proposal would require the Agency to pay relate to moves made primarily for the convenience or benefit of employees, the Authority finds in agreement with the Agency that this proposal is inconsistent with Federal law and is outside the duty to bargain under section 7117(a) of the Statute. Union Proposals 7 and 8 The Commission shall pay the (cash) equivalent of an allowance for allowable travel expenses, including first-class air fare and per diem to every pilot, for himself and his family, once per year. Monies, including one week (40 hours) of home leave and one week (40 hours) of travel time shall be paid or credited whether or not the travel is effected. While not covered by chapter 63 of title 5 of the U.S.C. governing annual and sick leave, employees of the Panama Canal Commission who were recruited in the U.S. (or any other U.S. territory or possession) appear to benefit from a "home leave" program much like that authorized in 5 U.S.C. 6305(a). See Article X(6) of the Panama Canal Treaty of 1977. Under such a program, an employee who completes a fixed period in the Commission's service and agrees to serve another fixed period, is provided additional leave for the purpose of visiting his or her former place of residence, and such travel time and expenses as are necessary to make the visit. The Union designates Proposals 7 and 8 as providing together for "Cash equivalent of travel expense, leave, and travel." Thus, the proposals appear to be intended to provide employees, who do not take home leave to which they would otherwise be entitled, with a cash payment equivalent to the amount the Agency was prepared to spend. Hence, the proposal would, in effect, establish supplements to such employees' pay. Section 1215 of the Panama Canal Act of 1979 (93 Stat. 465( (22 U.S.C. 3655) establishes, however, a specific procedure for determining the basic pay of employees. (See the discussion concerning Union Proposal 13, infra.) Likewise, the Act provides various specific supplements to basic pay (e.g., the tropical differential provided by 22 U.S.C. 3656, discussed in connection with Union Proposal 16, infra). Thus, the proposed additional supplement to certain employees' pay would alter, and is therefore inconsistent with, the comprehensive statutory scheme established for that purpose. Thus, the proposal concerns a matter which is specifically provided for by Federal law. Such matters are excluded from the meaning of "conditions of employment" under section 7103(a)(14) of the Statute and, accordingly, are outside the duty to bargain as defined in section 7103(a)(12). /6/ Union Proposal 9 Should the employer desire chartered aircraft during peak periods of travel, rather than normal commercial transportation, no employee shall be required to use such chartered aircraft. The Union's response to the Agency's statement of position indicates that the proposal is intended to allow employees taking home leave to travel on commercial flights rather than on aircraft chartered by the Agency. The Agency contends the proposal is outside the duty to bargain for two reasons. First, the Agency argues that the decision whether to use commercial or chartered aircraft is governed by 5 U.S.C. 5733, which states that, "(t)he travel of an employee shall be by the most expeditious means of transportation practicable . . . ." The Agency claims that the proposal would conflict with this provision by allowing employees to refuse to use chartered aircraft even when they are the "most expeditious means of transportation." In our view, however, the phrase requiring use of "most expeditious means of transportation" would not ordinarily refer to the choice between commercial or chartered aircraft because both are the same "means" of transportation: aircraft. Furthermore, the legislative history of section 5733 indicates that, in enacting it, Congress sought to achieve an altogether different purpose. In this regard, the Senate Committee stated as follows: /7/ The committee also believes that agencies should utilize the most expeditious means of transportation practicable, commensurate with the nature and purpose of an employee's duties. To require an employee to ride the bus 200 or 500 or 1,000 miles to attend a meeting simply because it is the cheapest form of transportation is a false economy and archaic practice. The section clearly was intended to require use of the speediest means of transportation practicable when a slower means, although less costly, itself, would not be more economical in overall effect. This directive therefore would not generally apply to the use of commercial instead of chartered aircraft. Second, the Agency argues the proposal conflicts with Chapter 1-2.2.b of the Federal Travel Regulations (FTR), which states: b. Selecting method of transportation to be used. Travel on official business shall be by the method of transportation which will result in the greatest advantage to the Government, cost and other factors considered. In selecting a particular method of transportation to be used, consideration shall be given energy conservation and to the total cost to the Government, including costs of per diem, overtime, lost worktime, and actual transportation costs . . . . This FTR requirement, also, would not apply to the choice of aircraft to be used when taking home leave. By its terms, the FTR requirement applies only when selecting the method of transportation to be used when on official business. However, as stated in Erickson v. United States, 105 F.Supp. 1020, 1023 (Ct.Cl. 1952): "When an employee enters upon either sick leave, annual leave, or leave without pay he is no longer traveling on official business for the Government unless statutory enactment so provides." The record does not support a finding in the present case that home leave, as a supplemental form of annual leave for a special category of employees, is travel on official business. As a consequence, the cited FTR requirement is inapposite. Accordingly, since the Agency has not demonstrated that the proposal would conflict with either law or regulations, the proposal is within the duty to bargain. Union Proposals 10 and 11 All pilots and their families shall be granted full privileges in the use of all military commissaries, exchanges, retail stores, clubs, libraries, pools, service stations, etc. for the duration of this agreement, including any renewal or extension thereof. All pilots and their families shall be provided Post Office boxes free of charge with full privileges for using all services offered by the APO Post Office, for the life of the Panama Canal Commission. These proposal expressly would require the Agency to provide all pilots and their families with full privileges in the use of certain facilities. The use of these facilities, however, is limited by treaty to U.S. citizen employees and their dependents. Specifically, Article XIII(3) of the Agreement in Implementation of Article III of the Panama Canal Treaty provides: The United States may furnish to United States citizen employees and dependents the services provided for in Article XVIII of the Agreement in Implementation of Article IV of the Panama Canal Treaty signed this date, and authorize their use of the facilities provided for in the Article X and Article XI of that Agreement (these references list the kind of facilities enumerated in the proposals) provided, however, that their use of military postal services, commissaries, and military exchanges may not be authorized after five years from the entry into force of this Agreement. Thus, since the Treaty only authorizes the use of the facilities in question to be extended to U.S. citizen employees and dependents, and since the record indicates that all pilots are not U.S. citizens, the proposals would conflict with the quoted provisions. Accordingly, the proposals are inconsistent with Federal law and therefore outside the duty to bargain under section 7117(a) of the Statute. /8/ Union Proposal 12 The Commission shall reimburse any pilot or dependent for any and all fees charged the pilot or dependent by the government of Panama for licensing, inspection or registration, including the cost of license plates for vehicles and trailers, including but not limited to: 1. Vehicle operator's license 2. Motorboat license 3. Airplane license 4. Radio license 5. Firearms license 6. Vehicle and trailer registration 7. Boat registration and navigation permit 8. Radio operator's permit The Agency states without controversion that employees are not required as part of their jobs to acquire any of the licenses or permits enumerated in the proposal. These licenses and permits are, instead, for the personal use of employees. Therefore, payment for their acquisition is not a matter subject to the duty to bargain. The duty to bargain under the Statute extends only to "conditions of employment," i.e., personnel policies, practices, and matters affecting working conditions. /9/ In construing that statutory phrase, the Authority has found proposals which concern matters directly affecting "the work situation and employment relationship" of bargaining unit employees to be within the duty to bargain. Conversely, proposals which principally relate to employees involved in non-work activities while in a non-duty status do not concern matters which are "conditions of employment" within the meaning of section 7103(a)(14) of the Statute. See National Federation of Federal Employees, Local 1363 and United States Army Garrison, Yongsan, Korea, 12 FLRA No. 125 (1983) and cases cited therein. The Authority finds, in agreement with the Agency, that the acquisition of the licenses and permits involved in the instant proposal has no direct relationship to the work situation and the employment relationship of unit employees. Rather, it concerns non-work activities while on a non-duty status. Accordingly, it is concluded that the proposal does not concern conditions of employment and, therefore, is outside the duty to bargain. Union Proposal 13 The base pay of pilots which was in effect on January 1, 1980 shall be increased by ten percent (10%). The proposal would require a 10% increase in the base pay of pilots. Section 1215 of the Panama Canal Act of 1979 (93 Stat. 465) (22 U.S.C. 3655) as previously indicated in connection with Union Proposals 7 and 8, herein, establishes a specific procedure for determining the basic pay of employees. That section provides that any adjustments in the basic rate of pay can only be made "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" performed in the United States or in such areas outside the United States as may be designated by regulation. There is no evidence in the record that the proposal is based upon or is intended to be applied in conformity with the statutory procedure. Accordingly, the proposal is inconsistent with Federal law and, therefore, outside the duty to bargain under section 7117(a) of the Statute. /10/ Union Proposal 14 Pilots receive a bonus for any work performed on Saturday, Sunday, or United States or Panamanian legal holiday. Section 111 of the Panama Canal Code, as enacted into Federal law by 76A Stat. 6, specifies that certain days are to be considered legal holidays and section 112 indicates that all other days "are business days for all purposes." This Union proposal, however, inconsistent with section 112, would have the effect of adding, for employee pay purposes, all Saturdays and certain Panamanian holidays to the Code's list of holidays. Accordingly, the proposal is inconsistent with Federal law and outside the duty to bargain. Union Proposal 15 Ceiling Leave Bonus In the event the pilots should suffer deductions in their wages to conform to the Federal wage ceiling or for any other reason such deductions (presently referred to as minus signs) shall be credited to a special leave account of the affected pilot. This special leave shall be computed by dividing the amount of salary deducted from the gross pay by the hourly rate of the pilot. The resulting figure shall be the hours of special leave earned during the pay period. This leave shall be carried in an account separate from any other form of leave, and no ceiling or limitation shall be placed upon it. This leave account shall be liquidated by cash payment in the event the pilot dies or leaves the service for any reason. The proposal would in effect ensure that pilots who otherwise would lose wages insofar as they exceed an applicable Federal wage ceiling or for any other reason would receive compensation to that extent in the form of "special leave" of an equivalent dollar value to the lost wages. The employee could use this leave or, upon death or leaving the service, a cash equivalent would be paid. The Agency argues that the proposal is inconsistent with 5 U.S.C. 5308 which states: Pay may not be paid, by reason of any provision of this subchapter, at a rate in excess of the rate of basic pay for level V of the Executive Schedule. The Agency asserts that the proposal would circumvent the pay ceiling, and is therefore inconsistent with law and nonnegotiable. The Union argues that 5 U.S.C. 5308 is inapplicable to the Panama Canal Commission and, therefore, "a proposal to negotiate an alternative method of payment of wages is not unlawful . . . ." 5 U.S.C. 5308 is part of subchapter I and chapter 53 of title 5. At the outset, subchapter I indicates section 5308 is one of the provisions to be used in connection with fixing and adjusting the pay rate of each "statutory pay system." 5 U.S.C. 5301(b). Hence, it would appear that if the Panama Canal Commission operates under a "statutory pay system," it is bound by the pay ceiling language contained in section 5308. 5 U.S.C. 5301(c) defines a "statutory pay system" as follows: (c) For the purpose of this subchapter, "statutory pay system means a pay system under-- (1) subchapter III of this chapter, relating to the General Schedule; (2) subchapter IV of chapter 14 of title 22, relating to the Foreign Service of the United States; or (3) chapter 73 of title 38, relating to the Department of Medicine and Surgery, Veterans' Administration. The Panama Canal Commission is not covered by (1), (2), or (3) of this section. In fact, under (1) the Panama Canal Commission is specifically excluded from the the definition of an "agency," by virtue of 5 U.S.C. 5102(a)(1)(G)(vii). Accordingly, the Panama Canal Commission does not operate under a "statutory pay system," as defined in 5 U.S.C. 5301(c). Therefore, as the Union asserts, the pay ceiling language contained in section 5308 does not apply to the Agency so as to bar negotiation of this proposal as claimed by the Agency. Further, two other provisions of the U.S. Code are pertinent herein. In this regard, 5 U.S.C. 5373 provides, in relevant part: sec. 5373. Limitation on pay fixed by administrative action Except as provided by the Government Employees Salary Reform Act of 1964 (78 Stat. 400) and notwithstanding the provisions of other statutes, the head of an Executive agency or military department who is authorized to fix by administrative action the annual rate of basic pay for a position or employee may not fix the rate at more than the maximum rate for GS-18. This section does not impair the authorities provided by-- (1) section 1202 of the Panama Canal Act of 1979).) Additionally, 22 U.S.C. 3642 (section 1202 of the Panama Canal Act of 1979) provides, in relevant part: sec. 3642. Appointment and compensation; duties (a) In accordance with this part, the Panama Canal Commission may appoint without regard to the provisions of Title 5, relating to appointments in the competitive service, fix the compensation of, and define the authority and duties of, officers, agents, attorneys, and employees (other than the Administrator, Deputy Administrator, and Chief Engineer) necessary for the management, operation, and maintenance of the Panama Canal and its complementary works, installations, and equipment. Read together, these two provisions allow the Agency to exceed the maximum rates for GS-18 when fixing employee pay. Hence, noting that the Agency asserts no other basis for finding this proposal contrary to law or controlling regulation, this proposal is within the Agency's duty to bargain. Union Proposal 16 As provided in the Panama Canal Treaty of 1977, the tropical differential shall be increased to twenty-five percent (25%) to be applied exclusive of any grade ceilings. The Agency argues that the proposal conflicts with Government-wide regulations which would bar negotiation pursuant to section 7117(a) of the Statute. Such regulations currently are contained in 35 CFR 251.31 /11/ and govern Compensation and Allowances under the Panama Canal Employment System. They were issued pursuant to Section 1212 of the Panama Canal Act, 22 U.S.C. 3652. Under the law, pay practices established by the regulations 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. Thus, contrary to the Agency's argument, the Authority finds the regulations at issue are not Government-wide rules or regulations in that they are not generally applicable throughout the Federal Government. See, e.g., Professional Air Traffic Controllers Organization, AFL-CIO and Department of Transportation, Federal Aviation Administration, 4 FLRA 232 (1980) (Union Proposal 1). In addition, the Agency has neither alleged, nor made any showing, that its Agency 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 Agency regulations cannot bar negotiation of the proposal. /12/ Union Proposal 17 . . . newly recruited pilots shall have the additional option of electing or continuing coverage under M.M. & P. Offshore Pension Plan, in the manner and under the procedures applicable for deck officers of the S.S. Cristobal. The proposal would afford all newly recruited pilots, without differentiation on the basis of citizenship, the option of choosing the M.M. & P. Offshore Pension Plan as their retirement system. The Agency argues, inter alia, that employees who are not U.S. citizens are required under Article VIII(1)(a) of the Agreement in Implementation of Article III of the Panama Canal Treaty of 1977 to be covered by the Social Security System of the Republic of Panama. Article VIII(1)(a) provides: (1) Concerning Social Security and retirement benefits to employees of the Commission who are not United States citizen employees, the following provisions shall apply: (a) Such persons who are employed by the Commission subsequent to the entry into force of this Agreement shall, as of their date of employment, be covered by the Social Security System of the Republic of Panama. Accordingly, the Agency is correct in asserting that the terms of this provision require, with regard to newly recruited employees who are not U.S. citizens, the Agency's retirement contribution to be made to the Social Security System of the Republic of Panama. Since the proposal would in effect allow such employees to elect to have the contributions made to the M.M. & P. Plan, instead, the proposal is inconsistent with Federal law and is outside the duty to bargain under section 7117(a) of the Statute. /13/ Union Proposal 18 Except in an emergency, no pilot shall be required to proceed outside the Cristobal breakwater for the purpose of boarding a vessel. If due to an emergency it becomes necessary to board a vessel outside the breakwater, the pilot shall be compensated for such work by $500.00 in addition to any pay or allowance due. This proposal would restrict the Agency from assigning certain duties to a pilot unless there is an emergency. Thus, the proposal would impermissibly condition management's statutory right to assign work, in contravention of the discretion granted to management by section 7106(a)(2)(B) of the Statute. International Association of Fire Fighters, Local F-61 and Philadelphia Naval Shipyard, 3 FLRA 438 (1980). Accordingly, the proposal is outside the duty to bargain. Union Proposals 19 and 20 Any vessel having a beam of over 75 feet and scheduled to begin a transit between the hours of 1600 and 2400 local time shall be assigned (two) control pilots. All vessels presently assigned six locomotives will be assigned (two) qualified control pilots. Each proposal would require that two employees be assigned to specific jobs. The proposals, therefore, would preclude management from assigning just one employee to these jobs. In this regard, the proposals are materially to the same effect as the "solitary assignment" clause of Union Proposal 6 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 No. 105 (1981), affirmed as to other matters sub nom. NFFE, Local 1167 v. FLRA, 681 F.2d 806 (D.C. Cir. 1982). In that case the Authority held that the proposal would directly interfere with management's right under section 7106(b)(1) of the Statute to determine the number of employees assigned to any work project or tour of duty and to negotiate such a determination only if it elects to do so. Accordingly, as in National Federation of Federal Employees, Local 1167, the proposals herein are outside the duty to bargain. Union Proposal 21 The employer agrees to cover all pilots with a life insurance policy in a face amount equal to three years base pay, or $150,000.00, whichever shall be less, the premiums of which are to be paid by the Commission. The policy shall have provisions for double indemnity. The proposal would establish a life insurance policy for employees other than the one provided Federal employees by statute (5 U.S.C. 8701 et seq.). The question becomes whether the the Agency's employees are excluded or excludable from this statutory life insurance coverage; if they are not, the Union's attempt to negotiate alternative life insurance coverage would be nonnegotiable under section 7103(a)(14)(C), since such coverage is specifically provided for by law. Section 1209 of the Panama Canal Act of 1979 (22 U.S.C. 3649) states: Sec. 3649. Inapplicability of certain benefits to certain noncitizens Chapter 81 of Title 5, relating to compensation for work injuries, chapter 83 of such Title 5, relating to civil service retirement, chapter 87 of such title 5, relating to life insurance, and chapter 89 of such Title 5, relating to health insurance, are inapplicable to any individual-- (1) who is not a citizen of the United States; (2) whose initial appointment by the Commission occurs after October 1, 1979; and (3) who is covered by the Social Security System of the Republic of Panama pursuant to any provision of the Panama Canal Treaty of 1977 and related agreements. This precise definition of which Agency employees are excluded from coverage of the enumerated Federal employee programs is strong evidence of Congressional intent to Include the remaining Agency employees under those programs. Thus, as relevant herein, it is concluded that Congress intended U.S. citizen employees to be covered by chapter 87 of title 5, relating to life insurance. Accordingly, since the proposal would establish a life insurance policy for U.S. citizen employees different from or in addition to the one specifically provided for by law, the proposal is excluded from the definition of conditions of employment in section 7103(a)(14)(C) of the Statute. Therefore, the proposal is outside the duty to bargain under the Statute. Union Proposals 22 and 23 No former pilot in a management position shall be permitted to work as a control pilot in the Canal at any time, except as specifically provided in the Work Rules. Temporary office positions may be filled by retired annuitant pilots. Union Proposal 22 would prohibit certain management officials from doing bargaining unit work. In this regard, the proposal is materially to the same effect as Union Proposal VI in National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA No. 106 (1981). In that case, the Authority held the proposal to be outside the duty to bargain on two bases. First, it interferes with the discretion reserved to management by the right to assign work under section 7106(a)(2)(B). Second, it applies to employees outside the bargaining unit; and the duty to bargain under the Statute extends only to the conditions of employment of bargaining unit employees. Hence, for the reasons stated in National Association of Air Traffic Specialists, Proposal 22 is not within the duty to bargain. As to Union Proposal 23, the Union, in its response to the Agency's statement of position, indicates the proposal neither requires the creation of temporary office positions nor, if they are created, the filling of these positions with retired annuitant pilots. Instead, the Union states the proposal "merely suggests that if (the positions) are (created), they may be filled by such persons." Based upon this interpretation of the proposal, the Authority finds that the proposal would impose no obligation or restriction on the Agency with respect to any management right or any nonbargaining unit positions or personnel. Thus, the proposal is within the duty to bargain. /14/ Union Proposal 24 It is further agreed that the Commission will, upon the appropriate written authorization from the pilot, deduct as directed by the written authorization contributions to the MMP Political Fund, as well as such other deductions from pay as were permissible prior to negotiation of this agreement. This proposal is materially to the same effect as Union Proposal IV in National Association of Air Traffic Specialists and Department of Transportation, Federal Aviation Administration, 6 FLRA No. 106 (1981). In that case, the Authority determined that a proposal which would have required the agency to honor employee requests for payroll deductions for a political action fund was outside the duty to bargain because the purpose of the proposed deduction did not directly relate to personnel policies, practices, or matters affecting working conditions. Accordingly, for the reason set forth therein, this proposal is outside the duty to bargain. /15/ Union Proposal 25 For pilots terminated because of disability and dependents of pilots terminated by death, regular pay shall continue through the end of the pay period following the pay period in which termination occurs, and thereafter, benefits shall be payable as herein above provided. The proposal would require that, for employees in the unit whose employment is terminated for reasons of disability or death, pay shall continue at regular rates for the remainder of the pay period in which the termination occurred and for the entire succeeding biweekly pay period. When an employee leaves the job due to disability, 5 U.S.C. 8118 requires that before such time as an employee receives disability compensation, the employee, at the employee's option, either use sick/annual leave or apply for a separate 45 day continuation of pay when the disability was caused by job-related traumatic injury. The proposal's continuation of pay in disability situations does not require that the employee either use sick/annual leave or qualify for the kind of continuation of pay provided for in 5 U.S.C. 8118 and 20 CFR 10.200-10.206. Therefore, the proposal is inconsistent with these provisions and, accordingly, outside the duty to bargain. When employment is terminated due to the death of an employee, subchapter VIII of chapter 55 of title 5 U.S. Code specifies the settlement of accounts. Specifically, 5 U.S.C. 5581(2) states that "'money due' means the pay and allowances due on account of the services of a deceased employee for the Government of the United States or the government of the District of Columbia." The proposal, by providing for pay at a time the employee could not be rendering services, i.e., the day after the date of death through the following pay period, is inconsistent with this provisions. /16/ Accordingly, this portion of the proposal is also inconsistent with law and, thus, outside the duty to bargain. /17/ ORDER Accordingly, pursuant to section 2424.10 of the Authority's Rules and Regulations, IT IS ORDERED that the Agency shall upon request (or as otherwise agreed to by the parties) bargain concerning Union Proposals 9, 15, 16 and 23. /18/ IT IS FURTHER ORDERED that the Union's petition for review as to the remaining proposals herein be, and it hereby is, dismissed. Issued, Washington, D.C., December 14, 1983 Barbara J. Mahone, Chairman Ronald W. Haughton, Member Henry B. Frazier III, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- /1/ Section 7106(b)(1) provides: Sec. 7106. Management rights * * * * (b) Nothing in this section shall preclude any agency and any labor organization from negotiating-- (1) at the election of the agency, on the numbers, types and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty, or on the technology, methods, and means of performing work(.) /2/ Section 7106(a)(2)(B) reads as follows: Sec. 7106. Management rights (a) Subject to subsection (b) of this section, nothing in this chapter shall affect the authority of any management official of any agency-- * * * * (2) in accordance with applicable laws-- * * * * (B) to assign work, to make determination with respect to contracting out, and to determine the personnel by which agency operations shall be conducted(.) /3/ The Article provides as follows: 2. The Republic of Panama hereby places at the disposal of the United States, without cost, the use of such housing, within the housing areas, as the United States may deem necessary for United States citizen employees and dependents throughout the duration of this Agreement. The United States may continue to manage, maintain, improve, rent and assign such housing for United States citizen employees and dependents. 3. The use of housing units beyond those required by the United States for housing United States citizen employees and dependents at the date of entry into force of this Agreement, shall pass to the Republic of Panama on that date . . . 4. In order to protect the interests and welfare of employees of the United States who are not United States citizen employees and who, on the date of entry into force of this Agreement, are occupying housing units, the use of which is transferred to the Republic of Panama, the Republic of Panama shall give such persons the following special treatment: (a) The opportunity to occupy, by lease or rental, or in the event the Republic of Panama decides to sell, to acquire by purchase at reasonable prices, the units which they are occupying on the date of entry into force of this Agreement; (b) In cases of purchase, the opportunity to obtain long-term financing arrangements. (c) In cases where continued occupancy of a particular housing unit is not feasible, the opportunity to obtain other adequate housing within such areas at reasonable cost, on a preferential or priority basis. /4/ U.S. CONST. art. VI, cl. 2. /5/ In view of its disposition, the Authority finds it unnecessary to address the Agency's additional contentions as to the nonnegotiability of the proposal. /6/ In view of the Authority's disposition of these proposals, it is unnecessary to consider the Agency's additional contentions concerning the proposals' impact on various aspects of the home leave program. /7/ SEN. REP. NO. 801, 90th Cong., 1st Sess., reprinted in (1967) U.S. CODE CONG. & AD. NEWS, 2258, 2288. (1967) U.S. CODE CONG. & AD. NEWS, 2258, 2288. /8/ In view of the disposition herein, the Authority finds it unnecessary to consider the Agency's additional contentions as to the nonnegotiability of these proposals. /9/ Section 7103(a)(14) of the Statute. /10/ In view of its disposition, the Authority finds it unnecessary to address the Agency's other contentions concerning the nonnegotiability of the proposal. /11/ The Agency in its submission cited 35 CFR Part 253 which has subsequently been superceded by 35 CFR Part 251. /12/ It is additionally noted that under Section 1217 of the Panama Canal Act, 22 U.S.C. 3657, agencies may establish a recruitment and retention differential of up to 25% and are exempted from the application of the overseas differentials and allowances portion of title 5 of the U.S. Code. Hence, there is nothing in 22 U.S.C. 3657 which would preclude the Agency from adopting a 25% instead of 15% tropical differential. /13/ In view of its disposition, the Authority finds it unnecessary to address the Agency's additional contentions as to the nonnegotiability of the proposal. /14/ Of course, if the proposal were intended to prohibit selection of retired annuitant pilots to fill any positions other than temporary office positions, the proposal would be nonnegotiable for the reasons set forth in connection with Proposal 22. However, the record does not establish any such intent. /15/ In view of the Authority's disposition herein, it is unnecessary to address the Agency's contentions concerning the nonnegotiability of the proposal. /16/ Accord 9 Comp.Gen. 111 (1929); 26 Comp.Gen. 366 (1945); 43 Comp.Gen. 503 (1964) (there is legal entitlement to compensation only up to and including the date of death). /17/ In view of its disposition herein, the Authority finds it unnecessary to address the Agency's additional contentions concerning the nonnegotiability of the proposal. /18/ In deciding that these four proposals are within the duty to bargain, the Authority makes no judgment as to their merits.