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52:0251(23)NG - - International Organization of Masters, Mates and Pilots, Marine Division, Panama Canal Pilots Branch and Panama Canal Commission - - 1996 FLRAdec NG - - v52 p251

[ v52 p251 ]
The decision of the Authority follows:

52 FLRA No. 23














September 27, 1996


Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.

I. Statement of the Case

This case is before the Authority on a negotiability appeal filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal addressing compensation for Panama Canal pilots (Canal pilots). That proposal, Proposal 4, was severed by the Authority from the other proposals in Case No. 0-NG-2172 whose negotiability was decided in International Organization of Masters, Mates and Pilots, Marine Division, Panama Canal Pilots Branch and Panama Canal Commission, 51 FLRA 333 (1995) (Panama Canal Pilots Branch).

In an Order dated October 13, 1995, the Authority requested supplementary information on Proposal 4 from the parties. The parties filed supplemental statements that raised questions concerning the continued viability of Proposal 4. In an Order dated January 4, 1996, the Authority directed the parties to file submissions providing additional information. The parties filed additional submissions.

For the reasons that follow, we conclude that the dispute as to Proposal 4 is moot and, therefore, we dismiss the petition for review (petition) as to Proposal 4.

II. Background

After the Union filed its petition in Case No.  0-NG-2172, the parties continued to explore avenues for reaching agreement on a new collective bargaining agreement. On October 3, 1994, the parties executed a Memorandum of Understanding (MOU I), wherein they agreed to engage in informal discussions on matters involved in their negotiations for a new collective bargaining agreement and set forth ground rules for these discussions. Paragraph 5 of MOU I provided as follows:

If as a result of these discussions, an agreement is reached and implemented, the [Agency] or the [Union] will have no obligation to bargain on any proposal(s) which may be found negotiable in any subsequent determination as a result of the negotiability appeal presently docketed and pending before the [Authority] as Case No. 0-NG-2172. If agreement on an MOU has not been reached and implemented, and an appropriate authority determines that one or more proposals in 0-NG-2172 are negotiable, if the [U]nion elects to bargain over such negotiable proposals, it must inform the [Agency]. In this event, informal discussions will be terminated.

Agency's supplemental statement dated November 17, 1995, Attachment 2 at 2.

On December 1, 1994, the parties executed a second Memorandum of Understanding (MOU II) describing the outcome of these discussions. MOU II: (1) stated that on October 14, 1994, the parties had reached a Memorandum of Understanding (MOU III) that "amended and renewed" the expired collective bargaining agreement; (2) set forth the ratification procedures of MOU III and the "effective" and "expiration" dates of the new amended agreement; and (3) commented on matters included in MOU III and in an attachment to the agreement referred to as "Appendix A." Agency's supplemental statement dated February 1, 1996 (Agency's February submission), Attachment 1 and 3.

The parties' expired collective bargaining agreement was amended and, on December 11, 1994, their new agreement became effective. The new agreement incorporated MOU III and added, as an attachment, Appendix A, which pertained to the compensation of Panama Canal pilots. The new agreement is effective through July 10, 1998.

III. Proposal 4

SECTION 4. In accordance with SECTION 3, the PCPB hereby provides the wages and practices of pilots in seven (7) U.S. Ports for 1992 and the wages to be paid to U.S. Navy Civil Service Pilots fiscal year 1993. The calculation provides an average pay rate, without addressing fringes or work time, of US $179,000.00. Effective . . . [sic] the Panama Canal base pay rate for grade 04-08 will be adjusted to $179,000, with the other pilot grades pay adjusted based on this rate according to the percentages in the current system. [Only the underlined portion is in dispute.]

IV. Positions of the Parties (1)

A. Agency

The Agency asserts that no dispute exists over Proposal 4 because "it has been overtaken by Appendix A to the new collective bargaining agreement, which establishes pilot compensation through July 10, 1998." Agency's February submission at 2. According to the Agency, the Union's petition "is mooted when the evidence shows that the parties previously agreed to the substance" of the proposal, and "Appendix A of [MOU III] nevertheless, covers the substance of [P]roposal 4." Id.

The Agency states that inasmuch as a collective bargaining agreement was reached and implemented in December 1994, paragraph 5 of MOU I "operates to negate the duty to bargain over [P]roposal 4 even if the Authority was to now find it negotiable." Id. at 1. Therefore, the Agency contends that paragraph 5 of MOU I renders the petition as to Proposal 4 moot.

B. Union

The Union asserts that "Proposal 4 remains a subject of contention between the parties." Union's supplemental statement dated January 30, 1996, at 1. According to the Union, "[a]ny wage adjustments were established as an attachment, and not part of the Agreement." Id.

The Union further contends that "no matter what might have been agreed to prior to the [Authority's] decision in [Panama Canal Pilots Branch,] . . . because wages are not part of [MOU III] and the Agreement and because the Authority ordered [wages] negotiable, they remain to be negotiated." Id. Additionally, the Union asserts that in Case No. DA-CA-30994, currently pending before the Authority, it claimed that informal discussions that occurred between the parties on contract matters were illegal.(2)

V. Analysis and Conclusions

The Union's sole argument that Proposal 4 is not moot is that Appendix A was not included as a part of the parties' new collective bargaining agreement. However, the question of mootness does not turn on whether Appendix A is part of the parties' new collective bargaining agreement. Rather, it turns on whether the record establishes that a valid, binding agreement disposing of the subject matter in dispute in Proposal 4 has been reached by the parties. See American Federation of Government Employees, AFL-CIO, Council 214 and Department of the Air Force, Air Force Logistics Command, Wright-Patterson Air Force Base, Ohio, 21 FLRA 575, 577-78 (1986) (AFLC, Wright-Patterson Air Force Base, Ohio).

Proposal 4 sets rates of basic pay for Canal pilots. Section 1 of Appendix A sets forth rates of basic pay for Canal pilots and MOU II, which accompanies the collective bargaining agreement, expressly incorporates by reference "[t]he Pilot Compensation document, which is . . . Appendix A." Agency's February submission, Attachment 1. The record also establishes that: (1) MOU II, MOU III and Appendix A resulted from meetings between the parties; (2) MOU III and Appendix A were initialed by the same Union representative who signed MOU II; (3) paragraphs 18 and 19 of MOU III refer to pay issues contained in Appendix A and indicate that such matters will be provided pursuant to Appendix A; and (4) the new collective bargaining agreement and Appendix A have the same effective and expiration dates.

Given this record, it is clear that Appendix A constitutes a valid, binding agreement by the parties on rates of basic pay for Canal pilots, and that the agreement disposes of the subject matter in dispute in Proposal 4. For this reason, Proposal 4 is moot. See AFLC, Wright-Patterson Air Force Base, Ohio, 25 FLRA at 577-78. Further, inasmuch as an agreement has been reached and implemented, the parties, by entering into paragraph 5 of MOU I, have effectively agreed to this result.

Accordingly, we dismiss the petition with respect to Proposal 4.

VI. Order

The petition for review with respect to Proposal 4 is dismissed.

(If blank, the decision does not have footnotes.)

1. The parties' positions are set forth only with respect to the issue of the continued viability of Proposal 4.

2. The complaint in Case No. DA-CA-30994 primarily concerns Agency conduct that occurred during meetings between the parties in April, May, and July of 1993. Discussions on the MOUs and collective bargaining agreement referenced in this case occurred in and after October 1993 and the documents were signed in October and December of 1994, substantially later than the events at issue in Case No. DA-CA-30994. Because the events in this case, including the implementation of the new agreement and Appendix A, occurred substantially later than the events at issue in Case No. DA-CA-30994, the Union's reliance on that case to support its claim that there is no valid agreement on wages is misplaced. We will, therefore, not address this contention further.