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The decision of the Authority follows:
25 FLRA No. 8 NATIONAL MARITIME UNION OF AMERICA, AFL-CIO Union and DEPARTMENT OF THE NAVY MILITARY SEALIFT COMMAND Agency Case No. 0-NG-694 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 presents issues as to the negotiability of five Union proposals which appear in the Appendix to this Decision. The five proposals relate to the pay and pay practices of employees of the Agency who are members of vessel crews and who are represented by the Union. Based on the following, we find the proposals negotiable. /1/ II. Positions of the Parties The Agency asserts that the fixing of pay rates and practices of the employees involved is outside the duty to bargain under the Statute because it is controlled by the Prevailing Rate Act of 1972, Pub. L. No. 92-392, 86 Stat. 564 (codified in scattered sections of 5 U.S.C.) (the Act). It contends that under that Act the Secretary of the Navy is vested with the authority to determine whether adoption of private sector pay rates and practices is in the public interest. It argues that if the proposals are found negotiable the Federal Service Impasses Panel (FSIP) would inappropriately be permitted to impose its judgments in this regard on the Secretary. It contends further that these employees are not covered by Section 9(b), the savings clause in the Act, which allowed prevailing rate employees who had negotiated various matters prior to the passage of the Act to continue to do so afterward. /2/ By extension it contends that they are also not covered by section 704 of the Civil Service Reform Act which continued that savings clause under the Statute. The Union contends that its proposals seek to bring the pay and pay practices into line with those in the private maritime industry as it contends is required to be done as nearly as is consistent with the public interest pursuant to 5 U.S.C. Section 5348(a). It asserts that the "public interest" determination is within the Agency's discretion. It disputes the Agency's assertion that the pay of these particular employees has not, historically, been subject to negotiation. III. Analysis A. Background Pay of prevailing rate employees is governed by the terms of the Act, which established a system for determining rates of pay for such employees. However, the Act generally excepted from coverage under that system members of crews of vessels. 5 U.S.C. Section 5342(b)(3). As to those employees, the Act incorporated a restatement of existing law relied upon by the Union which provided that their pay should be set "as nearly as is consistent with the public interest in accordance with prevailing rates and practices in the maritime industry." 5 U.S.C. Section 5348(a). Section 9(b) of the Act is a savings clause, which allowed prevailing rate employees who had negotiated over, among other things, wages prior to the Act to continue to do so. /3/ Section 704 of the Civil Service Reform Act preserved the scope of bargaining for employees covered by this savings clause for negotiations occurring under the Statute. See Columbia Power Trades Council and United States Department of Energy, Bonneville Power Administration, 22 FLRA No. 100 (1986). B. Effect of 5 U.S.C. Section 5348 on the Negotiability of the Proposals The Union effectively seeks to negotiate over the Agency's discretion to determine whether adoption of the proposed pay practices is consistent with the public interest. It asserts without controversion that the practices being proposed reflect those in private maritime industry. By its terms, 5 U.S.C. Section 5348(a) vests the Agency with discretion in setting wages for vessel crews insofar as determining the degree to which they may parallel the private maritime industry and still be consistent with the public interest. See, for example, National Maritime Union of America v. United States, 682 F.2d 944 (Ct. Cl. 1982). It is well established that to the extent that an Agency has discretion with respect to a matter affecting the working conditions of its employees and where such discretion is not intended to be sole and exclusive that matter is within the duty to bargain. See, for example, National Treasury Employees Union, Chapter 6 and Internal Revenue Service, New Orleans District, 3 FLRA 748, 759-60 (1980). Insofar as matters relating to the compensation of employees are not specifically provided for by Federal statute but, instead, are within the discretion of the Agency, they are conditions of employment. As to these matters, the Authority recently has reaffirmed that nothing in the Statute, or its legislative history, bars negotiation of proposals concerning them insofar as (1) the matters proposed are not specifically provided for by law and are within the discretion of the agency and (2) the proposals are not otherwise inconsistent with law, Government-wide rule or regulation or an agency regulation for which a compelling need exists. 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). Determinations as to whether adoption of the particular pay practices involved in the proposals in this case is in the public interest are matters within the Agency's administrative discretion under 5 U.S.C. Section 5348(a) and it has not been demonstrated that such discretion was intended to be sole and exclusive. /4/ The exercise of that discretion is subject to bargaining. See, for example, American Federation of Government Employees, AFL-CIO, Local 3525 and United States Department of Justice, Board of Immigration Appeals, 10 FLRA 61 (1982) (Proposal 1). C. Section 9(b) and Section 704 Do Not Apply to the Employees in This Case We do not rely on section 9(b) or section 704 in reaching this conclusion. As already noted, the employees who are the subject of the proposals in this case were explicitly excepted from coverage under the pay system established by the Act. 5 U.S.C. Section 5342(b)(3). Consequently, section 9(b) and section 704 which preserved bargaining rights on pay matters for certain employees who would otherwise have their pay determined by that pay system have no relevance to the negotiability of proposals on pay matters relating to these employees. IV. Conclusion The proposals are within the duty to bargain. We are aware in reaching this conclusion that a proposal substantially similar to Proposal 1 in this case was held to be negotiable "at the election of the agency" in National Maritime Union of America, AFL-CIO and Department of Commerce, National Oceanic and Atmospheric Administration, National Ocean Survey, Rockville, Maryland, 15 FLRA 576 (1984) (Proposal II). In that case, the Authority's decision was based upon the record presented, including the Agency's specific assertion that under section 7106(b)(1) of the Statute, the proposal was negotiable only "at the election of the agency." Here, the Agency did not raise section 7106(b)(1) as a bar to negotiation of Proposal 1. Rather in its brief it acknowledged awareness that in Department of Commerce, National Oceanic and Atmospheric Administration the agency had raised section 7106 as a bar to negotiation of a similar proposal. Nonetheless it asserted only that the provisions of 5 U.S.C. Section 5348(a) bar negotiation of Proposal 1. Agencies may, of course, elect whether to bargain over section 7106(b)(1) matters. We therefore will not generally find a proposal nonnegotiable based on that section unless the agency specifically raises it as a bar to negotiation since the agency can terminate bargaining on the matter at any point even if it initially agrees to negotiations. National Association of Government Employees, Local R4-75 and U.S. Department of the Interior, National Park Service, Blue Ridge Parkway, 24 FLRA No. 7 (1986) (Provision 4). V. Order The Agency must upon request, or as otherwise agreed to by the parties, negotiate over the Union's proposals. Issued, Washington, D.C. January 12, 1987. /s/ Henry B. Frazier III, Member /s/ Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY --------------- FOOTNOTES$ --------------- (1) In finding these proposals negotiable, we make no judgment as to their metis. (2) Section 9(b) of Pub. L. No. 92-392 is codified at 5 U.S.C. Section 5343 (Amendments, note) (1982 ed.). (3) Pub. L. No. 92-392, Section 9(b), provides as follows: Sec. 9. (b) The amendments made by this Act shall not be construed to -- (1) abrogate, modify, or otherwise affect in any way the provisions of any contract in effect on the date of enactment of this Act pertaining to the wages, the terms and conditions of employment, and other employment benefits, or any of the foregoing matters, for Government prevailing rate employees and resulting from negotiations between Government agencies and organizations of Government employees; (2) nullify, curtail, or otherwise impair in any way the right of any party to such contract to enter into negotiations after the date of enactment of this Act for the renewal, extension, modification, or improvement of the provisions of such contract or for the replacement of such contract with a new contract; or (3) nullify, change, or otherwise affect in any way after such date of enactment any agreement, arrangement, or understanding in effect on such date with respect to the various items of subject matter of the negotiations on which any such contract in effect on such date is based or prevent the inclusion of such items of subject matter in connection with the renegotiation of any such contract, or the replacement of such contract with a new contract, after such date. (4) The various court decisions cited by the Agency do not require a different conclusion. In National Maritime Union of America v. United States, 682 F.2d 944 (Ct. Cl. 1982), the Court of Claims, relying on the same decisions which the Agency has cited, held that the "public interest" phrase found in 5 U.S.C. Section 5348(a) effectively creates discretion in the Agency. 682 F.2d at 949-50. However, the question we are deciding in the present case -- whether such discretion can be exercised through the collective bargaining process -- was not before the court in those cases. Dissenting Opinion of Chairman Calhoun I respectfully disagree with my colleagues in this case for essentially the same reasons I set forth in my dissent 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). Dated, Washington, D.C. January 12, 1987. /s/ Jerry L. Calhoun, Chairman APPENDIX UNION PROPOSAL 1 (1) Appendix IV of each collective bargaining agreement (i.e., for tankers and for cargo ships), shall be amended by adding the following Section: Division of Watchers 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) seaman 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 members making up the remainder of the watch. UNION PROPOSAL 2 (2) Appendix VI of each agreement shall be amended by adding the following Section: WORK NOT SPECIFIED Any work performed by the Stewards' Department that is not specifically defined as routine duties in this Agreement or in the applicable Work Schedule shall be paid at the applicable penalty rate. UNION PROPOSAL 3 (3) Appendix VII, of each agreement shall be amended by adding the following Section: EXTRA COMPENSATION FOR UNDERWAY REPLENISHMENT Unlicensed members of the crew on watch on deck performing services in connection with the actual or simulated refueling operation while the vessel is underway shall receive penalty pay. The Pumpman on duty during his regular hours shall receive penalty pay while pumping cargo during this operation. UNION PROPOSAL 4 (4) Appendix VII, Section 4 of each existing collective bargaining agreement shall be deleted and all other Sections of the Agreement shall apply to underway replenishment operations in the same fashion as to all other duties. UNION PROPOSAL 5 (5) Appendix VII, Section 8 of each existing collective bargaining agreement shall be deleted and the contractual call-out provision (Appendix II, Section 3) shall apply to underway replenishment operations.