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58 FLRA No. 136
DEPARTMENT OF THE NAVY
MILITARY SEALIFT COMMAND
VIRGINIA BEACH, VIRGINIA
May 27, 2003
Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members
I. Statement of the Case
This matter is before the Authority on exceptions to an award of Arbitrator J.J. Pierson filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.
The Arbitrator sustained a grievance alleging that the Agency violated the parties' agreement, an Agency regulation and law by paying the grievants at an improper rate. For the reasons set forth below, we conclude that the award is deficient under § 7122(a) of the Statute. Accordingly, we set aside the award.
II. Background and Arbitrator's Award
The grievants are Licensed Engineer Civilian Mariners (licensed engineers) assigned to sail on the USNS HENRY J. KAISER (Kaiser), which, prior to 1995, was classified and operated as an Underway Replenishment (unrep) oiler. [n1] Since 1995, the Kaiser has been operated as a point-to-point tanker, although it retains the design features of an unrep oiler. [n2] The Agency pays licensed engineers assigned to unrep oilers a special fleet support pay differential, which it does not pay the grievants when they do not perform unrep duties. [n3]
The Union filed a grievance alleging that the grievants were entitled to be paid at a comparative rate to licensed engineers assigned to unrep oilers and that the grievants' pay rate was improperly based on the mission of the vessel rather than vessel classification, which is based on gross tonnage and horsepower. The grievance was unresolved and submitted to arbitration, where, as relevant here, the Arbitrator framed the issue as whether the Agency violated the parties' agreement, Civilian Marine Personnel Instruction 531 (CMPI) and 5 U.S.C. § 5348 by paying the grievants at a rate based on the vessel's mission. [n4]
The Arbitrator concluded that the CMPI requires that the grievants' pay be based on the classification of the vessel and that the Agency's action violated the parties' agreement, the CMPI and 5 U.S.C. § 5348. [n5] The Arbitrator thus determined that the grievants should be paid the differential paid to licensed engineers assigned to unrep oilers.
In reaching his conclusions, the Arbitrator relied on the CMPI, which, according to the Arbitrator, "establishes pay scales for `[Agency] tankers and unrep oilers . . . classified by power tonnage.'" Award at 12, (quoting § 5-1(c)), Exceptions, Attachment 6. The Arbitrator found that the Kaiser falls within the same classification as the Agency's unrep oilers, but that the Agency chose to pay the grievants the unrep oiler differential pay only when they performed unrep duties. According to the Arbitrator, "by linking wage rates of [l]icense[d] [e]ngineers to similar positions in the private maritime industry, [the Agency] circumvents the classification of the [vessel.]" Id. at 9. Accordingly, the Arbitrator sustained the grievance and ordered the Agency to compensate the grievants at all times, prospectively from the date of the award, based on classification of the vessel. [ v58 p559 ]
III. Positions of the Parties
A. Agency's Exceptions
The Agency claims that the award is contrary to §§ 1-2 and 5-1(a) of the CMPI. [n6] In this regard, the Agency contends that, in accordance with these sections, the grievants are paid a rate based on point-to-point tanker rates in the maritime industry. The Agency claims that because functions of UNREP oilers are "not mirrored in the commercial sector," those rates include a special fleet support differential founded on performance of the hazardous unrep mission. Exceptions at 6. The Agency argues that unrep pay is permitted under the CMPI and that the grievants have no entitlement to unrep pay except when they perform unrep missions. The Agency also maintains that because § 5-1 recognizes differences based not only on classification but also on type of vessel, the fact that the Kaiser and unrep oilers have the same classification does not require that the pay rates must be identical. See id. at 16-17. According to the Agency, the award forces the Agency to establish pay rates for the grievants that are not parallel to those paid for similar positions in the commercial industry, contrary to the CMPI.
The Agency further contends that the award is contrary to 5 U.S.C. § 5348 because the Arbitrator was precluded from establishing a pay rate different from the one the Agency established under that statute. See id. at 11. In addition, the Agency claims that the award is based on the nonfact that the grievants are paid based on mission rather than classification and that, to the "extent the [A]rbitrator's [award] is interpreted to require abandonment of unrep pay on unrep oilers, . . . the [A]rbitrator exceeded his authority by deciding an issue not properly brought before him." Exceptions at 18 n.11.
B. Union's Opposition
The Union contends that the award is not contrary to the CMPI and that the Arbitrator did not make a pay determination under 5 U.S.C. § 5348 because the award does not direct a pay rate different than that established by the Agency. The Union also contends that the award is not based on a nonfact because the Arbitrator properly determined that the grievants are paid based on mission rather than classification.
IV. Analysis and Conclusions
An award is deficient if it is inconsistent with a governing agency regulation. See United States Dep't of the Army, Fort Campbell Dist., Third Region, Fort Campbell, Ky., 37 FLRA 186, 192 (1990). As the Agency's exception challenges the award's consistency with the CMPI - an Agency regulation -- we review the question of law raised by the exception de novo. [n7] See United States Dep't of the Navy Commander, Military Sealift Command, Wash., D.C., 57 FLRA 930, 931 (2002); AFGE, Local 1203, 55 FLRA 528, 530 (1999). In applying a de novo standard of review, the Authority assesses whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that assessment, the Authority defers to the arbitrator's underlying factual findings. See id.
Section 1-2 of the CMPI provides that "compensation of officers and crews of vessels shall be fixed and adjusted from time to time, as nearly as consistent with the public interest, in accordance with prevailing rates and practices in the maritime industry." The regulation provides that "[p]revailing rates and practices" are determined by, (1) "administrative practices" used by commercial companies; (2) "agreements and contracts between commercial maritime companies and maritime labor unions[;]" and (3)"current maritime positions[,]" with the qualification that "[s]pecific commercial industry rates and practices are not always directly applicable to [Agency] marine positions . . . ." Id., § 1-3(a). The regulation also provides that pay rates may include "hazard pay." Id., § 3-3(a)(5). [n8]
[ v58 p560 ] The Arbitrator found that the Agency's practice of paying a differential to employees on unrep oilers -- on the grounds that duties performed by those employees are particularly hazardous -- and not to the grievants, was contrary to the regulation. He interpreted the regulation as requiring that pay rates be based only on a vessel's "classification," not on its "mission." Award at 10.
The statutory and regulatory provisions governing these pay rates do not require pay based on ship classification. Rather, they require that pay be based on "prevailing rates and practices in the maritime industry[,]" "as nearly as is consistent with the public interest[.]" 5 U.S.C. § 5348; CMPI, § 1-2. There is no dispute that the grievants' vessel operates during the time at issue as a point-to-point tanker, and that the grievants are paid a rate based on point-to-point tanker rates in the maritime industry. The Union also does not dispute the Agency's assertion that the functions of UNREP oilers are "not mirrored in the commercial sector" and that employees performing those functions are paid a special fleet support differential founded on performance of the hazardous unrep duties. Exceptions at 6.
Nothing in the regulation prohibits the Agency from establishing a differential based on hazardous unrep duties, or limits the Agency's discretion to interpret the regulation in this manner. See United States Dep't of Transportation, Fed. Aviation Admin., 55 FLRA 797, 801 (1999) (agency's interpretation of its own regulation entitled to deference); Panama Canal Comm'n, 52 FLRA 404, 410 (1996) (same). In fact, as set forth above, the regulation expressly provides that the hazardous nature of particular work is an appropriate consideration in establishing pay rates. The Agency's practice is, thus, consistent with the regulatory standards.
Contrary to the finding of the Arbitrator, the regulation does not support a conclusion that employee pay must be based only on a vessel's classification. Instead, as noted above, the CMPI provides only that pay rates "may" vary with the classification of the vessel, including its "design characteristics." CMPI, § 5-1(a). Also as noted above, the CMPI expressly provides that factors other than classification -- including private maritime rates, other factors unique to Agency positions, and the hazardous nature of particular work -- are appropriate considerations in establishing pay rates. Contrary to the Union's argument, the fact that CMPI § 2-1(g) provides that "the arithmetic sum of a [vessel's] horsepower plus the gross tonnage . . . is used for the purpose of classifying [vessels] for pay purposes" does not support a contrary interpretation of the regulation. That wording merely confirms that this sum is a -- not the only -- factor in determining pay rates.
In these circumstances, we find that the award, which overturned the Agency's practice on the ground that it was contrary to the regulation, is deficient and should be set aside. [n9]
The award is set aside.
Footnote # 1 for 58 FLRA No. 136 - Authority's Decision
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Footnote # 5 for 58 FLRA No. 136 - Authority's Decision
5 U.S.C. § 5348 provides, in pertinent part, that "the pay of officers and members of crews of vessels . . . 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."
Footnote # 6 for 58 FLRA No. 136 - Authority's Decision
1-2. Legal Basis: The provisions of [the CMPI] are based upon 5 U.S.C. § 5348a, which provides that . . . compensation . . . 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.
. . . .
5-1. Establishment of Pay Scales
a. Use of pay scales. Pay scales . . . may vary depending on the classification, i.e., power tonnage or design characteristics of the [vessels] involved. [Agency] pay scales parallel those paid for similar positions in the maritime industry, consistent with the type and class of [vessel] to which assigned.
Exceptions, Attachment 6 at 1, 8.
Footnote # 7 for 58 FLRA No. 136 - Authority's Decision
The Union asserts that this regulation has been incorporated into the parties' agreement and that, as a result, the award should be reviewed under the essence standard. Union Opposition at 6. Although collective bargaining agreements, not agency-wide regulations, govern the disposition of matters to which they both apply, see, e.g., United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 55 FLRA 163, 165-66 (1999), the award does not reference any contract terms incorporating or applying the disputed regulation. We therefore review the legality of the award under the regulation de novo.
Footnote # 8 for 58 FLRA No. 136 - Authority's Decision
Section 3-3(a)(5) of the CMPI provides, in pertinent part, that requests for the "authorization of new or revised pay rates shall include . . . [r]ecommended pay rates including . . . hazard pay . . . ." Exceptions, Attachment 6 at 4-5.
Footnote # 9 for 58 FLRA No. 136 - Authority's Decision