27:0907(100)AR MMP VS PCC -- 1987 FLRAdec AR

[ v27 p907 ]
The decision of the Authority follows:

27 FLRA NO. 100






Case No. O-AR-1053


I. Statement of the Case

This matter is before the Authority on exceptions to the award of Arbitrator J. Earl Williams filed by the Agency and the Union under section 7122(a) of the Federal Service Labor - Management Relations Statute (the Statute) and part 2425 of the Authority's Rules and Regulations. 1

II. Background and Arbitrator's Award

The grievants in this matter are employed by the Panama Canal Commission as pilots and are responsible for the transit of vessels through the Canal. The major duty of the pilots is to board vessels transitting the Canal, take operational control of the vessels, and pilot them from one ocean to the other. 

In 1981, the parties executed a collective bargaining agreement which provided for additional compensation for pilots based upon the number of transit starts during a pay period. The parties failed to resolve several issues, including the issue of additional compensation for pilots, before the 1981 agreement expired in 1984. After that agreement expired, the parties entered into an interim agreement which included a provision for additional compensation for pilots. The provision included in the interim agreement stated in pertinent part:

Pilots . . . will be credited with a completion bonus based upon the number of piloting assignments completed in a pay period. . . . For the purpose of calculating a completion assignment bonus, a pilot must complete, to the satisfaction of management, a transit, a partial transit, a shuttle assignment or a harbor watch.

The Agency interpreted "partial transit" to require actual entry into the channel in order for pilots to receive credit for a completion bonus. As a result of this interpretation, 20 pilots were denied credit for the completion bonus. The resulting grievances were consolidated for arbitration.

The parties stipulated the issue for resolution by the Arbitrator as whether the Agency had violated the interim agreement by not paying completion bonuses to the grievants. In resolving the issue submitted, the Arbitrator first addressed the meaning of the terms "partial transit" and "to the satisfaction of management." He determined that there was no evidence that the parties had their own special definition for the term "partial transit." Thus, he adopted the normal and accepted meaning of the term, and defined "partial transit" as some transit of a vessel more than a  "zero portion" but less than a completed transit through the Canal. However, because some possibility of ambiguity remained, he analyzed the parties' intent during negotiations. He determined that since the parties agreed during negotiations that the completion bonus should not be abused, they in effect agreed that "to the satisfaction of management" meant that the pilot must complete a transit or partial transit in a timely manner, without misconduct, and without pilot-contributed damage or injury. The Arbitrator noted that this language was substituted for "to the satisfaction of management" in the provision for pilot completion bonuses in the final agreement between the parties which was effective March 31, 1985.

The Agency argued before the Arbitrator that the pilot completion bonus is incentive pay and therefore, based primarily upon the Authority's decision in National Treasury Employees Union and Internal Revenue Service, 14 FLRA 463 (1984), is an essential part of management's right to direct employees and assign work and thus is outside the duty to bargain. The Arbitrator rejected the Agency's argument. He determined that the Agency had not established that the subject of pilot completion bonuses violated the Agency's retained management rights.

Accordingly, the Arbitrator entered the following award:

1. Management did not violate the agreement when it released pilots and gave no credit for an assignment completion bonus before they had been cleared to get their vessel under way.

2. Management did violate the agreement to the extent there were pilots, who were cleared to start their transit and had attempted to start engines, raise anchors, actually started the vessel, etc. However, if the partial transit is not "to the satisfaction of management" as defined in the (award), it is not a violation.

3. To the extent the parties have problems in the application of this award, the Arbitrator will retain jurisdiction.

The Agency essentially raises two exceptions to the award. 

III. First Exception

A. Contentions

The Agency contends that the award is contrary to section 7105(a)(2)(E) of the Statute. In support of its contention the Agency argues that based upon the Authority's decision in Department of the Air Force, Air Force Logistics Command, Wright - Patterson Air Force Base, Ohio and American Federation of Government Employees, Council of Locals, No. 214, 18 FLRA No. 81 (1985), the Arbitrator erred when he resolved an issue relating to the duty to bargain which under section 7105(a)(2)(E) must be resolved only by the Authority.

B. Analysis and Conclusion

We conclude that the award is not violative of section 7105(a)(2)(E) of the Statute. In AFLC, Wright - Patterson Air Force Base, the decision relied upon by the Agency, the Authority held that since the Federal Service Impasses Panel is not authorized to resolve disputes as to whether there is an obligation to bargain under the Statute, an interest arbitrator acting pursuant to the direction of the Panel also is without authority to resolve such issues. The Authority also reaffirmed its earlier decision in Louis A. Johnson Veterans Administration Medical Center, Clarksburg, West Virginia and American Federation of Government Employees, Local 2384, 15 FLRA 347 (1984), that negotiability disputes which arise between an agency and an exclusive representative under section 7117(c)(1) must be resolved only by the Authority as required by section 7105(a)(2)(E) and that such disputes may not be resolved by an arbitrator in the guise of a grievance.

As noted, the parties in this case stipulated the issue for resolution by the Arbitrator as whether the Agency had violated the parties' interim agreement. Thus, the Arbitrator was resolving a dispute between the parties concerning the meaning and application of a specific provision of the parties' interim agreement. Such disputes are properly raised under the negotiated grievance procedures. Louis A. Johnson Veterans Administration Medical Center, 15 FLRA 350. In the course of resolving the dispute before him, the Arbitrator considered the Agency's arguments regarding the negotiability of the agreement provisi