15:0576(125)NG - NMUA and Commerce, NOAA, National Ocean Survey, Rockville, MD -- 1984 FLRAdec NG

 15 FLRA No. 125
 
 NATIONAL MARITIME UNION
 OF AMERICA, AFL-CIO
 Union
 
 and
 
 DEPARTMENT OF COMMERCE,
 NATIONAL OCEANIC AND
 ATMOSPHERIC ADMINISTRATION,
 NATIONAL OCEAN SURVEY,
 ROCKVILLE, MARYLAND
 Agency
 
                                            Case No. O-NG-684
 
                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 concerns the
 negotiability of two Union proposals.  Upon careful consideration of the
 entire record, including the parties' contentions, the Authority makes
 the following determinations.
 
                             Union Proposal I
 
          Logging-- i.e., the deduction of wages as a fine for
       misconduct-- shall no longer be used as a method of penalizing
       unit employees.
 
    The proposal would prohibit the imposition of a specific penalty for
 employee misconduct.  In National Treasury Employees Union and NTEU
 Chapter 70 and Department of the Treasury, Internal Revenue Service,
 Atlanta Service Center, Georgia, 8 FLRA 37 (1982), the Authority found
 that a proposal which sought only to discuss penalties prior to their
 imposition entailed a procedure which did not prevent the agency from
 acting at all with respect to disciplining employees, and did not limit
 the penalties which the agency could impose.  In the present case,
 however, contrary to the Union's assertion, Union Proposal I is not
 procedural in nature but would impinge upon the Agency's right to make
 substantive determinations regarding its choice of the particular
 disciplinary action to be imposed on an employee for misconduct.  /1/ By
 substantively limiting the Agency's discretion with respect to the
 particular action to be taken, Union Proposal I would interfere with the
 Agency's right under section 7106(a)(2)(A) of the Statute to take
 disciplinary action.  /2/ Therefore this proposal is not within the duty
 to bargain.  /3/
 
                             Union Proposal II
 
          Whenever this work is performed by less than three (3)
       unlicensed seamen per watch, the wages equivalent to the rating
       that is missing from a watch shall be paid to the other member or
       members making up the remainder of that watch.
 
    The Union contends that the purpose of the proposal is to bring the
 Agency's pay practices into line with private industry practice as it
 maintains is required by 5 U.S.C. 5348.  /4/ In support of its assertion
 that the proposal parallels private industry practice it cites two
 provisions from a collective bargaining agreement involving the maritime
 industry in the private sector which provide for the payment of
 additional wages to employees when staffing is below a particular level.
  /5/ The Union contends that the proposal is not intended to require the
 Agency to assign a certain number of seamen per watch but would only
 require additional wages to be paid under certain circumstances.
 
    The Agency states, without controversion, that the U.S. Coast Guard
 is responsible for establishing appropriate crew complements for vessels
 in the private sector.  Government-owned vessels, however, are exempt
 from the Coast Guard's manning requirements.  Thus, the Agency, unlike
 the maritime industry in the private sector, retains discretion to
 determine the crew complement of its vessels.  The Authority finds that,
 although Union Proposal II does not explicitly require that the Agency
 assign at least three unlicensed seamen per watch, its terms would have
 that practical effect.  In this regard, the Agency would be required to
 pay wages in accordance with that particular staffing complement even if
 it elected to assign fewer unlicensed seamen to a watch.  Thus, the
 proposal would function as an economic disincentive to assigning less
 than three of that type of employee to a watch.  In this way, Union
 Proposal II would effectively and substantively interfere with the
 Agency's discretion to determine the numbers and types of employees to
 be assigned to a work project or tour of duty.  Such matters are
 negotiable only at the election of the Agency.  /6/ Because the Union's
 proposal would directly interfere with the Agency's exercise of its
 authority to make substantive decisions with regard to these matters and
 because the Agency has not elected to negotiate, Union Proposal II is
 not within the duty to bargain.  /7/
 
    Accordingly, pursuant to section 2424.10 of the Authority's Rules and
 Regulations, IT IS ORDERED that the petition for review be, and it
 hereby is, dismissed.
 
    Issued, Washington, D.C., August 23, 1984
 
                                       Barbara J. Mahone, Chairman
                                       Ronald W. Haughton, Member
                                       Henry B. Frazier III, Member
                                       FEDERAL LABOR RELATIONS AUTHORITY
 
 
 
 
 
 
 --------------- FOOTNOTES$ ---------------
 
 
    /1/ See American Federation of Government Employees, AFL-CIO and Air
 Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA
 603 (1980), enforced sub nom. Department of Defense v. Federal Labor
 Relations Authority, 659 F.2d 1140, 1152 (D.C. Cir. 1981), cert. denied
 sub nom. AFGE v. FLRA, 455 U.S. 945, 102 S.Ct. 1443 (1982).
 
 
    /2/ Section 7106(a)(2)(A) provides in relevant part:
 
    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--
 
          (A) to . . . suspend, remove, reduce in grade or pay, or take
       other disciplinary action against such employees(.)
 
 
    /3/ See also National Treasury Employees Union and Internal Revenue
 Service, 6 FLRA 522 (1981).
 
 
    /4/ 5 U.S.C. 5348 provides in relevant part:
 
    Sec. 5348.  Crews of vessels
 
    (a) Except as provided by sections (b) and (c) of this section, the
 pay of officers and members of crews of vessels excepted from chapter 51
 of this title by section 5102(c)(8) of this title shall be fixed and
 adjusted from time to time as nearly as is consistent with the public
 interest in accordance with prevailing rates and practices in the
 maritime industry.
 
 
    /5/ The contract provisions relied upon follow:
 
    Section 19.  Division of Wages.  When members of the Unlicensed
 Personnel are required to do extra work because a vessel sailed without
 the full complement required by the vessel's certificate, under
 circumstances where the law permits such sailing, the wages of the
 absent seaman shall be divided among the seamen who perform his work,
 but no overtime or penalty time shall be included in such wages.
 
    Section 6.  Division of Watches.  The sailors while at sea shall be
 divided into three watches which shall be kept on duty successively for
 the performance of ordinary work incident to the sailing and maintenance
 of the vessel.  Not fewer than three (3) seamen shall constitute a
 complete sea watch at all times.  When any of these three ratings are
 missing and the watch is not complete, the wages equivalent to the
 rating that is missing from the watch shall be paid to the other member
 or members making up the remainder of the watch.
 
 
    /6/ 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 . . . (.)
 
 
    /7/ In view of the decision herein, it is unnecessary to pass upon
 the Agency's additional contentions concerning the nonnegotiability of
 this proposal.