[ v26 p783 ]
The decision of the Authority follows:
26 FLRA No. 92 AIR FORCE LOGISTICS COMMAND TINKER AIR FORCE BASE Activity and AMERICAN FEDERATION OF GOVERNMENT EMPLOYEES, LOCAL 916 Union Case No. 0-AR-1320 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 concerns the negotiability of six proposals. Four of the proposals (proposals 1 and 4-6) concern bonus or premium pay practices for employees of the Panama Canal Commission. The two other proposals concern matters relating to assignment and relief of employees under certain specified conditions. II. Proposals 1, 4, 5 and 6 The Members of the Authority disagree over the negotiability of these proposals. The Decision and Order of the Authority on these proposals begins on page 6 of this decision. Chairman Calhoun's separate opinion is on page 10. III. Proposal 2 Without prejudice to the Organization's nonnegotiable appeal on this subject, and pending decision by the Federal Labor Relations Authority, two Pilots will be assigned on board any vessel over 90.0 feet extreme beam that is scheduled to transit any portion of Gatun Lake, between Miraflores and Gatun Locks, in hours of darkness. A. Positions of the Parties The Agency asserts that the proposal has a direct impact on staffing patterns and, under section 7106(b)(1) of the Statute, is negotiable only at the election of the Agency. It claims that by requiring certain vessels to be manned by two pilots, the proposal is directly and integrally related to the number of employees in a work project. The Union argues that the proposal refers to an Agency proposal to change procedures and is therefore negotiable under section 7106(b)(2) and (3). B. Analysis and Conclusions 1. The Proposal Directly Interferes with Management's Right Proposal 2 would require the assignment of two employees to specific jobs. In this regard, the proposal has the same effect as proposals 19 and 20 in International Organization of Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA No. 87 (1983). In that case, relying on the decision 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 574, 585-587 (1981), affirmed as to other matters sub nom. NFFE, Local 1167 v. FLRA, 681 F.2d 806 (D.C. Cir. 1982), the Authority held that proposals which similarly would have required the assignment of two employees to particular tasks directly interfered with management's right under section 7106(b)(1) of the Statute to determine unilaterally the number of employees assigned to any work project, or to elect to bargain on such a determination. Thus, for the reasons set forth in the Homestead Air Force Base and Panama Canal Commission cases, Union Proposal 2 is outside the Agency's duty to bargain. 2. "Procedures" and "Appropriate Arrangements." Since the proposal directly interferes with management's right under section 7106(B)(1) by prescribing the number of employees to be assigned to certain work projects, it does not constitute a negotiable procedure within the meaning of section 7106(b)(2) of the Statute. See American Federation of Government Employees, AFL-CIO, and Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 2 FLRA 604 (1980), enforced as to other matters 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 (1982). Furthermore, during the pendency of this case the Authority issued National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA No. 4 (1986), concerning section 7106(b)(3). There we stated that henceforth we will determine whether a proposal constitutes an appropriate arrangement for employees adversely affected by the exercise of a management right by determining whether the proposal "excessively interferes" with the exercise of management's rights. The proposal here is not an appropriate arrangement under section 7106(b)(3), because it would totally abrogate management's discretion under section 7106(b)(1) to determine the number of employees assigned to a tour of duty. That is, it would require assignment of a specific number of employees to a particular job under certain conditions and would allow management no discretion in determining staffing patterns in circumstances covered by the proposal. In so doing, the provision excessively interferes with management's right to determine the number of employees or positions assigned to a work project. Rather than ameliorating an adverse effect of an exercise of a management right, the proposal would prevent management from exercising the right; it therefore is not an appropriate arrangement within the meaning of section 7106(b)(3) of the Statute. See American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 24 FLRA No. 57 (1986). IV. Proposal 3 Control Pilots that have earned a HML (high mast lighting) Bonus on an assignment will be relieved at Gamboa. A. Positions of the Parties The Agency asserts that the proposal interferes with management's right to assign work under section 7106(a)(2)(B). It also claims that the proposal interferes with management's right to determine the number of employees on a work project and that it has a direct and integral impact on the Agency's staffing patterns. The Union asserts that the proposal relates to the procedures and appropriate arrangements and is negotiable under section 7106(b)(2) and (3) of the Statute. B. Conclusion and Analysis 1. The Proposal Directly Interferes with Management's Right Proposal 3 prescribes that in certain circumstances an employee's work assignment will be terminated at a particular time and place. That is, the effect of the proposal is to prescribe the duration of a work assignment. This proposal has the same effect as proposal III in International Association of Firefighters, AFL-CIO, Local F-116 and Headquarters, 4392d Aerospace Support Group (SAC), Vandenberg Air Force Base, California, 9 FLRA 700 (1982). In that case, the proposal provided that certain tours of duty would not last more than three hours. The Authority, relying on its decision in National Treasury Employees Union and Department of the Treasury, Bureau of the Public Debt, 3 FLRA 769, 775 (1980), affirmed sub nom. National Treasury Employees Union v. Federal Labor Relations Authority, 691 F.2d 553 (D.C. Cir. 1982), held that, by limiting the length of time during which work normally could be performed, the proposal directly interfered with management's right to assign work under section 7106(a)(2)(B) of the Statute. For the reasons set forth in the Bureau of the Public Debt and Vandenberg Air Force Base decisions, this proposal, by prescribing the substantive criteria for ending a work assignment, directly interferes with management's right to assign work under section 7106(a)(2)(B). 2. "Procedures" and "Appropriate Arrangements" Since the proposal directly interferes with management's right to assign work by prescribing the substantive criteria which must be applied, it does not constitute a negotiable procedure under section 7106(b)(2) of the Statute. See cases cited in answer to this same argument for proposal 2, above. In addition, we find that this proposal is not an appropriate arrangement under section 7106(b)(3) of the Statute. The proposal would totally abrogate management's right under section 7106(a)(2)(B) to assign work by requiring it to relieve pilots at Gamboa under specified circumstances. Because the proposal requires that these employees be relieved under specific conditions, it would completely bar management's right to assign work and therefore excessively interferes with that right. See American Federation of Government Employees, AFL-CIO, Local 1931 and Department of the Navy, Naval Weapons Station, Concord, California, 24 FLRA No. 57 (1986). V. Order Pursuant to section 2424.10 of the Authority's Rules and Regulations, the petition for review as to proposals 2 and 3 is dismissed. Issued, Washington, D.C., March 9, 1987. Jerry L. Calhoun, Chairman Henry B. Frazier, III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY DECISION AND ORDER ON PROPOSALS 1, 4, 5 AND 6 I. The Proposals Proposal 1 A bonus equal to fourteen (14) times the Pilots' basic rate of pay will be paid to the Pilots of a vessel with an extreme beam of 100 feet or more which arrives or departs a set of locks during hours of darkness. Proposal 4 When it becomes necessary to tie up vessels at Gamboa Moorings or Pedro Miguel Locks, the following shall apply: (a) A harbor movement bonus will be paid in accordance with the schedule set forth in Article XIX. Part D. Section 8(a) for undocking a vessel when on transit or shuttle duty, or for anchoring, or mooring any vessel after such piloting duty. Proposal 5 Pilots who are assigned to duty out-of-rotation will receive an out-of-rotation bonus of twelve (12) hours compensatory pay, in addition to other compensation authorized by the Agreement. Proposal 6 A bonus equal to eight (8) times the Pilots' basic hourly rate of pay will be paid, when assigned to vessels whose schedules deteriorate beyond transit limits specified elsewhere in this Agreement. A. Positions of the Parties The Agency argues that all four of these proposals are inconsistent with an applicable regulation, 35 C.F.R. Section 251.73 /1/ pertaining to premium pay, which it claims to be a Government-wide regulation which would bar negotiation of a conflicting proposal pursuant to section 7117(a)(1) of the Statute. The Agency does not claim, nor does it otherwise appear, that the proposals are inconsistent with applicable statutory provisions governing basic pay and specific supplements thereto contained in the Panama Canal Act of 1979. In regard to proposals 4-6, the Agency also raises a threshold issue, arguing that a contract reopener provision in the parties' negotiated agreement does not permit the subjects in the proposals to be addressed at this time. In response to the Agency's statement, the Union argues that the regulation in question is not Government-wide. As to the assertion that proposals 4-6 are not proper subjects to address during a contract reopener, the Union argues that proposed changes by the Agency would require negotiation over impact and implementation, a proper subject since the Agency made the proposals. B. Analysis and Conclusions The question raised by the Agency regarding whether proposals 4-6 are proper subjects for bargaining under the reopener clause cannot be resolved in this decision. The record in this case fails to provide any basis for substantiating the Agency's assertions. Further, to the extent that there are factual issues in dispute between the parties concerning the duty to bargain in the specific circumstances of this case, these issues may be raised in other appropriate proceedings. /2/ See, for example, American Federation of Government Employees, AFL-CIO, Local 2736 and Department of the Air Force, Headquarters 379th Combat Support Group (SAC), Wurtsmith Air Force Base, Michigan, 14 FLRA 302 at 306, n.6 (1984). National Treasury Employees Union and Internal Revenue Service, Denver District, 24 FLRA No. 3 (Union proposals 1 and 2) (1986). As to the Agency's assertion that proposals 1 and 4-6 are inconsistent with a Government-wide regulation, we note that the cited regulation was issued pursuant to section 1212 of the Panama Canal Act, 22 U.S.C. SEction 3652, establishing the Panama Canal Employment System. See also 22 U.S.C. Section 3663. Under the law, pay practices established in the regulation 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. Therefore, contrary to the Agency's argument, we find that the regulation is not a Government-wide rule or regulation in that it is not generally applicable to the Federal work force as a whole. International Organization of Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA No. 87 (1983) (Union Proposal 16). Moreover, the Agency has neither alleged, nor made any showing, that the cited 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 regulation cannot bar negotiation of the proposals. II. Order The Agency must negotiate upon request, or as otherwise agreed to by the parties, concerning proposals, 1, 4, 5, and 6. Issued, Washington, D.C., March 9, 1987. Henry B. Frazier III, Member Jean McKee, Member FEDERAL LABOR RELATIONS AUTHORITY Separate Opinion of Chairman Calhoun As I stated in my opinion in District No. 1, Pacific Coast District, Marine Engineers Beneficial Association and Panama Canal Commission, 26 FLRA No. 8 (1987), I find no indication that Congress intended parties covered by the Panama Canal Act of 1979 to bargain over wages and money-related fringe benefits. For the reasons stated in that opinion, therefore, as well as my opinion 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), petition for review filed sub nom. Department of the Air Force, Eglin Air Force Base, Florida v. FLRA, 87-3073 (11th Cir. February 2, 1987), I do not join the majority opinion on Proposals 1, 4, 5, and 6. Issued, Washington, D.C., March 9, 1987. Jerry L. Calhoun, Chairman --------------- FOOTNOTES$ --------------- (1) 35 C.F.R. Section 251.73 provides as follows: Section 251.73 Premium pay. (a) Premium pay for Manual-type positions shall be established in accordance with the provisions of 5 U.S.C. 5544 and Supplement 532-1 of the Federal Personnel Manual; Provided, However, That any rule concerning premium pay established prior to the effective date of these regulations may be continued for the type of position to which the rule applied before the said effective date. (b) Premium pay and compensatory time for positions, other than positions subject to paragraph (a) of this section, shall be established in accordance with the provisions of Subchapter V of Chapter 55 of Title 5, United States Code; Provided, however, That any rule concerning premium pay or compensatory time established prior to the effective date of these regulations may be continued for the type of position to which the rule applied before the said effective date. (2) We note that Case No. 6-CA-30064, involving unfair labor practice allegations related to the negotiability issues in this case, is pending. Pursuant to section 2423.5 of our Rules and Regulations, the Union has selected the negotiability procedure. Therefore, processing of the unfair labor practice case is suspended during the processing of this case.