[ v26 p63 ]
26:0063(8)NG
The decision of the Authority follows:
26 FLRA No. 8
DISTRICT NO. 1,
PACIFIC COAST DISTRICT,
MARINE ENGINEERS
BENEFICIAL ASSOCIATION
Union
and
PANAMA CANAL COMMISSION
Agency
Case No. 0-NG-749
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)(D) and (E) of the Federal Service
Labor-Management Relations Statute (the Statute) and concerns the
negotiability of eight proposals.
All eight proposals relate to negotiation of premium pay and other
pay practices for employees of the Panama Canal Commission. The
question generally is whether premium pay for such employees is a
condition of employment, and if so, whether Union Proposals 1-5, which
require the payment of various types of bonuses and premium pay, are
inconsistent with applicable Government-wide rules and regulations, and
if not, whether they are inconsistent with internal Agency regulations
for which a compelling need exists. As to proposals 6-8, the second
question is whether the proposals are inconsistent with Federal law, and
thus nonnegotiable. Footnotes are set forth in the Appendix.
II. Premium Pay for Panama Canal Commission to Employees
is a Condition of Employment.
A. Positions of the Parties
The Agency states as to the subject matter of all eight proposals
generally that the legislative history of the Panama Canal Act of 1979
(Pub. L. 96-70, 93 Stat. 455) indicates Congress intended to preclude
negotiation of wages by unions representing employees of Federal
agencies subject to the Act in the same manner that such negotiations
are precluded by the Statute. /1/
B. Analysis and Conclusions
The relevant provision of the Statute is section 7103(a)(14)(C) which
excludes from the duty to bargain matters specifically provided for by
Federal statute. /2/ That is, wages are not negotiable in the Federal
sector because, and to the extent that, they are matters specifically
provided for by Federal statute, for example, wage rates for General
Schedule employees are provided for in 5 U.S.C. Section 5332 and for
prevailing rate employees in 5 U.S.C. Sections 5341-5349; premium pay
for Federal employees in 5 U.S.C. Sections 5541-5551. See National
Treasury Employees Union and Pension Benefit Guaranty Corporation, 9
FLRA 692 (1982) (employees subject to General Schedule and thus proposal
for salary adjustments concerns a matter specifically provided for by
Federal statute and excluded from duty to bargain under section
7103(a)(14)(C); International Brotherhood of Electrical Workers, Local
2080, AFL-CIO-CLC and Department of the Army, U.S. Corps of Engineers,
Nashville, Tennessee, 10 FLRA 222 (1982) (employees subject to
prevailing rate law and thus proposals establishing overtime rates
excluded from duty to bargain under section 7103(a)(14)(C). However,
the Authority has expressly held and recently reaffirmed that
substantive proposals regarding compensation of employees are negotiable
if they do not concern matters specifically provided for by law and are
otherwise consistent with applicable law and regulations. 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).
As to this case, the establishment of the basic pay of employees of
the Panama Canal Commission is a matter which is specifically provided
for by Federal statute. 22 U.S.C. Section 3655. /3/ International
Organization of Masters, Mates and Pilots and Panama Canal Commission,
13 FLRA 508 (1983) (Union proposals 7 and 8). There is no similar
provision of the Panama Canal Act of 1979 concerning premium pay for
such employees. As distinguished from basic pay, therefore, premium pay
for these employees is not a matter specifically provided for by Federal
statute and is not excluded from the duty to bargain pursuant to section
7103(a)(14)(C) of the Statute. /4/ Thus, if otherwise negotiable, the
proposals at issue are within the Agency's duty to bargain.
III. Proposals 1-5
Proposal 1
Incentive pay shall be paid at a rate of ten percent ("10%") or
$2.50 per hour to licensed watchstanding engineers when assigned
to a watch which includes an apprentice for training.
Proposal 2
A night differential of 10% is to be paid for regularly
scheduled work between the hours of 6:00 P.M. and 6:00 A.M.
Proposal 3
Employees called in to work outside of and unconnected with
their basic work week shall be paid a minimum of four (4) hours of
overtime pay regardless of whether the employee is required to
work the entire four (4) hours.
Proposal 4
An employee shall be paid eight (8) hours overtime where less
than seventy-two (72) hours notice was given in any schedule
change, etc.
Proposal 5
A bonus of five (5) times the hourly wage will be paid to all
licensed marine engineers ordered to work on non U.S. flag vessels
or on any vessel not flying a national ensign.
A. Positions of the Parties
The Agency contends that Proposals 1-5, which require the payment of
various types of bonuses and premium pay, are inconsistent with
applicable Government-wide rules and regulations and, thus, are
nonnegotiable under section 7117(a)(1) of the Statute. /5/
Specifically, as to Proposals 1 and 5, the Agency contends that these
proposals are inconsistent with the Panama Canal Employment System in
that they require the payment of bonuses which are not provided for or
authorized by the regulations constituting that System. /6/ As to
Proposals 2, 3, and 4, the Agency contends that the provisions regarding
night differential and overtime set forth therein conflict with the
requirements of 5 U.S.C. Section 5544 as made applicable to the Panama
Canal Commission by the regulations which constitute the Panama Canal
Employment System. /7/ The Agency primarily asserts that these
regulations, constituting a portion of the Panama Canal Employment
System, are Government-wide rules and regulations within the meaning of
section 7117(a)(1).
Further, the Agency contends, in the alternative, that the
regulations at issue are agency regulations for which a compelling need
exists to bar negotiation of the Union's proposals under section
7117(a)(2) and (3) of the Statute /8/ and section 2424.11(a) of the
Authority's Rules and Regulations. /9/ An agency regulation can bar
negotiation on union proposals if an agency can establish a compelling
need for the regulation. In this regard, the Agency argues that a
compelling need exists for 35 CFR 251.71 and 251.73 under section
2424.11(a) in that the restrictions on premium pay contained therein are
essential to the accomplishment of the Agency's mission in a manner
consistent with the requirements of an effective and efficient
government. Specifically, the Agency contends that such restrictions
are necessary to preclude the additional operating costs which would
result from implementation of the Union's proposals.
The Union contends generally that these proposals do not conflict
with law or regulation, and that the matters covered are within the
discretion of the Agency. As to Proposal 5, the Union simply says that
the Agency does not allege conflict with any law or regulation and that
to the extent the proposal is neither required nor precluded by law, it
is negotiable.
B. Analysis and Conclusions
1. Proposals 1-5 are not inconsistent with Government-wide
rules and regulations
The regulations relied on by the Agency are set forth in 35 CFR Part
241. They were issued pursuant to section 1212 of the Panama Canal Act,
22 U.S.C. Section 3652. Under the law, pay practices established by
these regulations are mandatorily applicable only to employees of the
Panama Canal Commission. While other agencies may elect to be covered
under such systems when conducting operations in Panama, they are not
required to do so. Thus, we find that the regulations at issue are not
Government-wide rules or regulations in that they are not generally
applicable throughout the Federal Government. International
Organization of Masters, Mates and Pilots and Panama Canal Commission,
13 FLRA 508 (1983). Therefore, the cited regulations do not constitute
a bar to negotiation under section 7117(a)(1) of the Statute.
2. A compelling need has not been shown to exist to bar
negotiation of the proposals.
The Agency has failed to demonstrate that the cited regulations are
essential, as distinct from merely helpful or desirable, in the
achievement of its objectives regarding costs since it does not indicate
why the goal of limiting operational costs could not be achieved through
means other than the regulations pertaining to premium pay. That is,
the Agency has not shown that its costs are so fixed as to preclude
adjustments in other areas of its operations or that it cannot find ways
to avoid the situations set forth in the proposals so as to preclude the
necessity of paying the required premium pay. Thus, in failing to
demonstrate that, in the absence of its regulation, the Agency would be
unable to limit its operational costs, it must be concluded that the
Agency has not met its burden of demonstrating that the cited
regulations are essential to the accomplishment of that objective.
Compare Lexington-Blue Grass Army Depot, Lexington, Kentucky and
American Federation of Government Employees, AFL-CIO, Local 894, 24 FLRA
No. 6 (1986) (monetary savings alone will not be a basis for a finding
of compelling need); American Federation of Government Employees,
AFL-CIO, Local 2875 and Department of Commerce, National Oceanic and
Atmospheric Administration, National Marine Fisheries Service, Southeast
Fisheries Center, Miami Laboratory, Florida, 5 FLRA 441, 446-50 (1981)
(agency contention as to costs of modification of comprehensive system
of record keeping not sufficient to establish compelling need for its
regulation). We determine, therefore, that the Agency has not shown
that the cited regulations are supported by a compelling need.
Accordingly, such regulations do not bar negotiation on Proposals 1-5.
/10/
IV. Proposal 6 is inconsistent with Federal law.
Proposal 6
All licensed marine engineers shall be paid a recruitment and
retention bonus of 25% for the duration of the treaty.
A. Positions of the Parties
The Agency contends that Proposal 6 is inconsistent with Federal law
in that it would require a recruitment and retention bonus for certain
employees expressly excluded by Statute.
The Union asserts that as the Agency has discretion under the Panama
Canal Employment System Regulation, 35 C.F.R. Section 251.32 to grant
the bonus, the proposal is negotiable.
B. Analysis and Conclusions
Section 1217 of the Panama Canal Act of 1979, 22 U.S.C. Section 3657,
authorizes the payment of a recruitment and retention bonus of up to 25%
of an employee's basic pay if, in the discretion of the agency head, it
is determined that recruitment or retention of that employee is
essential. The payment of such a bonus is limited to individuals who
meet certain criteria as to date and place of employment for service in
the former Canal Zone, which criteria exclude, among others, employees
recruited within the Republic of Panama on or after October 1, 1979.
/11/
Proposal 6 provides that all licensed marine engineers shall receive
a recruitment and retention bonus. By its terms, therefore, the
proposal would prescribe payment of the bonus to any unit employee who
is a licensed marine engineer and who had been recruited in the Republic
of Panama after October 1, 1979. That is, the proposal would include
individuals expressly excluded by statute. Thus, Proposal 6 is
inconsistent with Federal law and, under section 7117(a)(1) of the
Statute, is outside the Agency's duty to bargain. /12/ Compare
International Organization of Masters, Mates and Pilots and Panama Canal
Commission, 13 FLRA 508, 523 (1983) (proposal which required that
certain employees be given the option to continue to choose the Union
pension plan as their retirement system is inconsistent with Federal
law); National Federation of Federal Employees, Local 1745 and Veterans
Administration, 13 FLRA 543 (1983) (proposal which required
unconditional disclosure of information is inconsistent with
restrictions of the Privacy Act and nonnegotiable under section
7117(a)(1)).
V. Proposals 7 and 8 are inconsistent with Federal law.
Proposal 7
For each nonwatchstanding licensed engineer rating (including
the Chief Engineer) on each class of vessel, the monthly nonwatch
allowance shall be increased as set forth in the wage tables. The
nonwatch monthly allowance shall be established in accordance with
the following formula: it shall be the daily wage rate times
6.067 (monthly base divided by 21-2/3 times 6.067). This
allowance will be included in the monthly base pay for all
purposes including computation of pensions or the applicable
overtime rate.
The same formula will be used to compute the nonwatch
equivalent for the watchstanding licensed engineers, which amount
will be added to the monthly base pay for the purposes of
computing vacations, unearned wages and bonuses.
A monthly nonwatch allowance shall be paid to the Chief
Engineer and to each Assistant Engineer who does not stand watch
and whose normal hours of work are forty (40) hours per week.
This monthly nonwatch allowance shall not be lost by virtue of a
change in duties.
Proposal 8
In the event the Consumer Price Index -- United States City
Average for Urban Wage Earners and Clerical Workers or its agreed
upon successor published by the Bureau of Labor Statistics of the
United States Department of Labor (1967 equals 100) increases by
one percent or more between October 1982 and April 1983, then
effective July 1, 1983 a cost-of-living bonus of two-thirds of
each full one percent increase shall be added to the base wage,
nonwatch, and overtime rates. Any remaining fraction in the
Consumer Price Index in any period shall be carried over to the
next period and used in computing the percentage increase in the
Consumer Price Index for said later period.
Further increases, if applicable, shall be granted under the
same formula at six month intervals based upon cost-of-living
increases, if any, between July 1, 1983 and December 31, 1983 to
be effective on December 31, 1983.
The cost-of-living adjustment provided herein shall not be
included in the base wage for the purpose of computing pension
benefits.
A. Positions of the Parties
The Agency contends that as proposal 7 would provide a special
remuneration for not working, and as Proposal 8 provides for
cost-of-living adjustments based on the Consumer Price Index, both
proposals are beyond the authority of the Agency to establish. It
claims in this connection that while it has discretion to consult with
other U.S. Government agencies in Panama, and can make recommendations
to the Panama Area Personnel Board under the Panama Canal Act and 35 CFR
251, it has no authority to establish an allowance by itself. (Agency
brief, pp. 7-8). Moreover, the Agency asserts that there is a
compelling need for the Panama Canal Employment System because it is
essential to the effective and efficient functioning of the government.
(Agency brief, pp. 8-9).
The Union argues that it is within the Agency's discretion to pay the
proposed allowance raised by Proposal 7, and to pay in accordance with
practices in the maritime industry in regard to Proposal 8.
B. Analysis and Conclusions
Proposal 7 provides for a nonwatch allowance to be paid to unit
employees, which allowance constitutes a part of the basic pay of those
employees for all purposes relating to employee compensation. Proposal
8 provides for a 10% cost of living increment to be paid, effective July
1, 1983, to unit employees, which increment, by the terms of the
proposal, constitutes a part of the basic pay of such employees for all
purposes other than computing pension benefits. /13/ In thus providing
for adjustments to the basic pay of unit employees, Proposals 7 and 8
herein have the same effect as Proposal 13 in International Organization
of Masters, Mates and Pilots and Panama Canal Commission, 13 FLRA 508
1983), which provided for a 10% increase in the base pay of unit
employees. The Authority held that the proposal at issue in that case
was inconsistent with Federal law, namely, section 1215 of the Panama
Canal Act of 1979, 22 U.S.C. Section 3655. /14/ Specifically, the
Authority found that 22 U.S.C. Section 3655(c) required that any
adjustments in the rates of basic pay only be made "in amounts not to
exceed the amounts of the adjustments made from time to time by or under
statute in the corresponding rates of basic pay for the same or similar
work" performed in the United States or in such areas outside the United
States as may be designated by regulation. Since the record in that
case contained no evidence that the proposed 10% adjustment was based
upon, e.g., similar adjustments for the same or similar work in the
United States, the Authority found that the proposal did not conform to
the statutory procedures governing such matters as set forth in 22
U.S.C. Section 3655.
Similarly, there is no evidence in the record of the instant case
that the proposed nonwatch allowance and 10% cost of living adjustment
are based upon or are intended to be applied in accordance with the
requisite statutory procedures. In this regard, the cost of living
increment provided for in Proposal 8 is clearly distinct from and
independent of the cost of living allowance prescribed in 22 U.S.C.
Section 3646, which took effect October 1, 1984, and was intended to
offset the increased expenses resulting from termination of employee
eligibility to use, e.g., military exchanges. Thus, for the reasons set
forth in the Panama Canal Commission decision cited above, Proposals 7
and 8 are inconsistent with Federal law and, under section 7117(a)(1) of
the Statute, /15/ are outside the Agency's duty to bargain. /16/
VI. Summary
Proposals 1-5 have been found to be within the duty to bargain. /17/
Proposals 6-8 have been found to be inconsistent with Federal law and
are outside the duty to bargain.
VII. Order
The Agency must upon request, or as otherwise agreed to by the
parties, bargain concerning Proposals 1-5. The petition for review as
to Proposals 6-8 is dismissed.
Issued, Washington, D.C., March 9, 1987.
/s/ Henry B. Frazier III, Member
/s/ Jean McKee, Member
FEDERAL LABOR RELATIONS AUTHORITY
Separate Opinion of Chairman Calhoun
In 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 stated that in the absence of a
clear expression of Congressional intent to make wages and money-related
fringe benefits negotiable, I would find that these matters are not
within the duty to bargain under the Statute. I find no such expression
in the Panama Canal Act of 1979. Therefore, I would find that the
proposals in this case are outside the duty to bargain.
In addition, the legislative history of the Panama Canal Act leads me
to elaborate on my opinion in Eglin Air Force Base. As originally
proposed, Section 381 of the Act provided:
Sec. 381. The provisions of chapter 71 of title 5, United
States Code shall not apply to the Panama Canal Commission or to
its personnel. In lieu thereof, the President shall establish a
form of collective bargaining, applicable to the Commission's
employees; into which is incorporated the substance of sections
7102, 7106, 7116, 7120, and 7131. The form of collective
bargaining so established shall contain such other necessary
provisions, and shall be administered, so as to provide the
Commission's employees with the right to bargain collectively
under the same conditions and with respect to the same subject
matter that obtains where that right is exercised generally in the
Federal service within the continental United States.
See 125 Cong. Rec. S10,587 (daily ed. July 29, 1979). After hearings
at which many individuals testified concerning both the then-existing
labor relations climate in the Panama Canal Zone and the need for
protection and stabilization of employee interests in Panama, the
following substitute provision was adopted as section 1271(a) of the
Act.
Sec. 1271. (a) Nothing in this Act shall be construed to
affect the applicability of chapter 71 of title 5, United States
Code, relating to labor-management and employee relations, with
respect to the Panama Canal Commission or the operations of any
other Executive agency conducted in that area of the Republic of
Panama which, on September 30, 1979, was the Canal Zone, except
that in applying those provisions --
(1) the definition of "employee" shall be applied without
regard to clause (i) of section 7103(a)(2) of such title 5 which
relates to nationality and citizenship: and
(2) a unit shall be considered to be appropriate
notwithstanding the fact that it includes any supervisor if that
supervisor's position (or type of position) was, before October 1,
1979, represented before the Panama Canal Company by a labor
organization that included employees who were not supervisors.
Thus, employees of the Commission and other Executive agencies
operating in the Republic of Panama, including certain supervisors and
Panamanian nationals, are clearly covered by the Statute in the conduct
of their labor-relations.
The majority references the remarks of Representative Schroeder cited
by the Agency and referred to in footnote 1 of the majority opinion.
Representative Schroeder stated:
Furthermore, the committee assured that the employees of the
United States in Panama would be covered by the same groundrules
for labor-management relations that are applicable to Federal
employees in the United States. We applied the provisions of
title VII of the Civil Service Reform Act of 1978 . . . Title VII
lays out the rules under which labor-management relations are
conducted; it imposes only one obligation on the employer and the
employees -- the obligation to talk to one another. Title VII
provides a very limited scope of bargaining: Wages cannot be
negotiated, . . . .
125 Cong. Rec. H3,519 (daily ed. May 21, 1979). This statement, in
context, is a post-enactment reference to the Statute, and is of the
same nature and effect as the statements of various Members of Congress
I cited in my dissenting opinion Eglin Air Force Base. I find it
significant, however, that the general perception and understanding of
the non-negotiability of these matters was specifically reiterated in
the context of the Panama Canal Act.
Moreover, there are other indications of Congressional understanding
that Commission employees were not entitled to negotiate over wages.
During hearings before the Committee on Post Office and Civil Service,
House of Representatives, Ninety-Sixth Congress, on then-pending
legislation to implement the Panama Canal Treaty of 1977 (H.R. 1716 and
H.R. 111), Federal-sector labor leaders and others familiar with the
Panama Canal labor relations situation testified concerning coverage of
Commission employees under the Statute. Following conclusion of the
hearings, Representative James M. Hanley, then Chairman of the
Committee, received answers to a series of questions posed by
Representative Schroeder.
H.R. Parfitt, Governor of the Canal Zone Government, was asked the
following question: "What would be the impact of allowing employee
bargaining representatives to have the right to bargain collectively
over wages with the Panama Canal Commission?" Governor Parfitt responded
that "Wage bargaining would invariably result in substantial increases
in wage costs. To meet these additional costs, the Commission would
inevitably have to revise its toll rates upward." Implementation of the
Panama Canal Treaty of 1977: Hearings on H.R. 1716 and H.R. 111 before
the Committee on Post Office and Civil Service of the House of
Representatives, 96th Cong., 1st Sess. 294-95 (1979) (statement of H.R.
Parfitt, Governor of the Canal Zone Government) (hereinafter House
Hearings at . . . ).
Representative Schroeder also posed the following question: "Title
VII of the Civil Service Reform Act does not allow unions and management
to bargain collectively over wages. What differences are there in the
situation in Panama which would warrant wage bargaining here and not for
Federal employees elsewhere?" Talmadge E. Simpkins, Executive Director,
AFL-CIO Maritime Committee responded in relevant part that:
Full-scale collective bargaining is one of the goals of
organized labor in the United States. However, there are unusual
circumstances existing in Panama which could make bargaining for
wages detrimental to some of the workers. We firmly believe that
wage bargaining at this time in Panama could well obscure and
endanger the wage position of non-U.S. citizen workers who have
been historically lumped into the same economic mold as other
overseas host countries where the United States has established
bases.
This would provide DOD management and that of the Panama Canal
Commission the necessary ready-made machinery and leverage to
parade its inapplicable prevailing wage philosophy before U.S.
public opinion and thus obscure and effectively camouflage the
stark reality of a U.S.-created cost-of-living economy in Panama
which is significantly higher than that presently existing for
U.S. citizens in the Canal Zone and in all of the major cities in
the continental United States.
House Hearings at 297-98.
Alfred J. Graham, President, Canal Zone Central Labor Union and Metal
Trades Council, AFL-CIO, stated, "We believe that all persons should be
able to organize and collectively bargain on all aspects of their terms
and conditions of employment including wages." House Hearings at 301.
William H. Sinclair, on behalf of the American Federation of State,
County and Municipal Employees, stated:
It is presumed that 'Federal employees elsewhere' means federal
employees within the Continental United States or working in areas
under US political jurisdiction. As indicated in AFSCME testimony
before the House Subcommittee on Post Office and Civil Service,
Title 7 may be tolerable in the United States where labor unions
are able to exert considerable pressure in Congress to attain wage
increases and other fringe benefits, which, in essence, is a form
of "collective bargaining." However, the Panama Canal Commission
and DOD agencies in Panama, will be playing a new ball game, under
different rules after entry into force of the treaties of 1977.
Consequently, . . . wage bargaining is a must for our unions,
either under a special system devised by the Congress, direct
negotiation between management and labor or in accordance with the
general principles of the Panama Labor Code. There are several
successful precedents related to wage bargaining in the U.S.
federal service, i.e., the St. Lawrence Waterway, U.S. Postal
Corporation, Tennessee Valley Authority and probably other areas
not known to us at this time.
House Hearings at 302-03.
Jules Kolodny, Vice President, American Federation of Teachers,
AFL-CIO stated, "I believe that all employees should have the right to
organize and bargain collectively on the terms and conditions of their
employment . . . . We would have problems with Title 7 with the alien
exclusion clause deleted if bargaining on salaries was not included."
House Hearings at 307-08. S.V. Faulkner of the International
Organization of Masters, Mates and Pilots of America stated:
The retention incentives for employees to remain with the Canal
enterprise after the next five years are going to be hard to come
by with the elimination of side benefits such as APO mailings,
commissary and exchange privileges. These side benefits are
shared by all U.S. Government Agency employees stationed overseas.
It might be noted here that the State Department and other
non-Panama Canal Federal Agency employees in Panama have and will
continue to enjoy these side benefits. The past practices of the
Panama Canal organization have been cradle-to-grave care. The
Carter-Torrijos Treaties are mandating the employees to take care
of themselves. What other retention incentives are there for the
Canal employees other than wages?
House Hearings at 308.
I conclude from these responses that it was generally acknowledged
that no ability to negotiate concerning wage-related matters either
existed in the Canal Zone before passage of the Panama Canal Act of
1979, or under the Statute if Commission employees were included in its
coverage. The support expressed for such bargaining was premised on an
understanding that Congressional action was needed to provide for it.
Such action never occurred. Until it does, I cannot find proposals like
those in this case negotiable.
Issued, Washington, D.C., March 9, 1987.
/s/ Jerry L. Calhoun, Chairman
--------------- FOOTNOTES$ ---------------
(*) Chairman Calhoun dissents for the reasons set forth in his
separate opinion.
(1) Agency Brief at 5-6, citing the statement of Rep. Patricia
Schroeder at 125 CONG. REC. H3519 (daily ed. May 21, 1979).
(2) Section 7103(a)(14)(C) provides:
Section 7103. Definitions; application
(a) For the purpose of this chapter --
. . . . . . .
(14) 'conditions of employment' means personnel policies,
practices , and matters, whether established by rule, regulation,
or otherwise, affecting working conditions, except that such term
does not include policies, practices, and matters --
. . . . . . .
(C) to the extent such matters are specifically provided for by
Federal statute(.)
(3) See the disposition of Union Proposals 7 and 8, infra. See also
35 CFR 251.13 and 25.
(4) Under 5 U.S.C. Section 5541(2)(xii) marine engineers employed by
the Panama Canal Commission are not subject to the provisions of title
5, chapter 55, subchapter V of the United States Code which authorize
and establish the conditions governing the payment of premium pay to
Federal employees generally. Rather, those provisions apply only
through the regulations of the Panama Canal Employment System. See note
7, infra.
(5) Section 7117(a)(1) of Statute provides as follows:
Section 7117. Duty to bargain in good faith; compelling need;
duty to consult
(a)(1) Subject to paragraph (2) of this subsection, the duty to
bargain in good faith shall, to the extent not inconsistent with
any Federal law or any Government-wide rule or regulation, extend
to matters which are the subject of any rule or regulation only if
the rule or regulation is not a Government-wide rule or
regulation.
(6) Agency Brief at 6-7.
(7) The Agency relies specifically on 35 CFR 251.71 and 251.73 which
provide, respectively, as follows:
Section 251.71 Environmental and night shift differentials for
manual-type positions.
The head of each agency, in coordination with the heads of
other agencies, may authorize payment of environmental
differentials for manual-type positions to compensate for exposure
to hazards, physical hardships, and working conditions of an
unusually severe nature which have not been considered in
determining the base rate of pay for the position in question.
Differentials for night work may also be established for
manual-type positions. Any differential prescribed under this
section shall conform with like differentials established under
the Federal Wage System to the extent that it is practicable under
local conditions. Such differential shall be treated as part of
the basic compensation for the position to the extent it is so
treated in the Federal Wage System.
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. (Emphasis in original.)
(8) Section 7117(a)(2) and (3) provides as follows:
Section 7117. Duty to bargain in good faith; compelling need;
duty to consult
. . . . . . .
(a)(2) The duty to bargain in good faith shall, to the extent
not inconsistent with Federal law or any Government-wide rule or
regulation, extend to matters which are the subject of any agency
rule or regulation referred to in paragraph (3) of this subsection
only if the Authority has determined under subsection (b) of this
section that no compelling need (as determined under regulations
prescribed by the Authority) exists for the rule or regulation.
(3) Paragraph (2) of the subsection applies to any rule or
regulation issued by any agency or issued by any primary national
subdivision of such agency, unless an exclusive representative
represents an appropriate unit including not less than a majority
of the employees in the issuing agency or primary national
subdivision, as the case may be, to whom the rule or regulation is
applicable.
(9) Section 2424.11(a) of the Authority's Rules and Regulations
provides as follows:
Section 2424.11 Illustrative criteria.
A compelling need exists for an agency rule or regulation
concerning any condition of employment when the agency
demonstrates that the rule or regulation meets one or more of the
following illustrative criteria:
(a) The rule or regulation is essential, as distinguished from
helpful or desirable, to the accomplishment of the mission or the
execution of functions of the agency or primary national
subdivision in a manner which is consistent with the requirements
of an effective and efficient government.
(10) The Agency states, in outlining the impact of the disputed
proposals, that in the interest of equity it would need to extend the
bonuses set forth therein to all Agency employees, thus increasing its
costs beyond what is required for the unit alone. However, in this
regard, the circumstances of the instant case are distinguishable from
National Treasury Employees Union, Chapter 207 and Federal Deposit
Insurance Corporation, Washington, D.C., 14 FLRA No. 84 (1984), appeal
docketed sub nom. National Treasury Employees Union v. Federal Labor
Relations Authority, No. 84-1286 (D.C. Cir. July 6, 1984). In that
case, based on the record before it, the Authority held that a
compelling need existed under section 2424.11(a) of its Rules and
Regulations for an agency regulation establishing a wage schedule for
employees. The Authority found that the agency had established an
overriding need for a uniform pay setting system in order to operate
effectively and efficiently to accomplish its mission. The Authority
reaffirmed its decision upon remand of the record in the case to
consider certain additional matters which arose during the pendency of
the appeal before the court. 21 FLRA No. 36 (1986).
In that case, however, the proposal at issue was intended to raise
the basic wage rate of unit employees over that established by the
agency regulation. In this case, the proposals concern premium pay,
that is, additional compensation, for specific work situations involving
additional duties or difficulties confronting marine engineers alone and
not applicable to other Agency employees, which additional compensation
is not already provided for by regulation. Moreover, as claimed by the
Union and not disputed by the Agency, such bonuses are common practices
in the maritime industry and thus are within the Agency's discretion
under 5 U.S.C. Section 5348(b). Thus, the law governing the wage
policies of the Agency with respect to the employees represented by the
Union herein expressly permits the Agency to prov ide for premium pay
which varies from that set forth in the Federal Wage System and 5 U.S.C.
Section 5544 and required by 35 CFR 251.71 and 251.73. See American
Federation of Government Employees, AFL-CIO, Local 2670 and Army and Air
Force Exchange Service, Keesler Air Force Base Exchange, Mississippi and
American Federation of Government Employees, AFL-CIO, Local 1504 and
Departments of the Army and Air Force, Army and Air Force Exchange
Service, Northwest Area Exchange Service, Ft. Lewis, Washington, 10 FLRA
71 (1982).
(11) 22 U.S.C. Section 3657 provides as follows:
Section 3657. Recruitment and retention remuneration
Determination by head of agency
(a) In addition to basic pay, additional compensation may be
paid, in such amounts as the head of the agency concerned
determines, as an overseas recruitment or retention differential
to any individual who --
(1) before October 1, 1979, was employed by the Panama Canal
Company, by the Canal Zone Government, or by any other agency in
the area then known as the Canal Zone;
(2) is an employee who was recruited on or after October 1,
1979, outside of the Republic of Panama for placement in the
Republic of Panama; or
(3) is a medical doctor employed by the Department of Defense
in the Republic of Panama or by the Commission; if, in the
judgment of the head of the agency concerned, the recruitment or
retention of the individual is essential.
Restriction
(b) Any employee described in more than one paragraph of
subsection (a) of this section may qualify for a recruitment or
retention differential under only one of those paragraphs.
Limit on compensation
(c) Additional compensation provided under this section may not
exceed 25 percent of the rate of basic pay for the same or similar
work performed in the United States by individuals employed by the
Government of the United States.
Applicability of subchapter III of chapter 59 of Title 5
(d) Subchapter III of chapter 59 of Title 5, relating to
overseas differentials and allowances, shall not apply with
respect to any employee whose permanent duty station is in the
Republic of Panama and who is employed by an agency.
See also 35 CFR 251.32.
(12) See note 5, supra.
(13) Compare 22 U.S.C. Section 3658 which provides:
Section 3658. Benefits based on basic pay
For the purpose of determining --
(1) amounts of compensation for disability or death under
chapter 81 of Title 5, relating to compensation for work injuries;
(2) benefits under subchapter III of chapter 83 of Title 5,
relating to civil service retirement;
(3) amounts of insurance under chapter 87 of Title 5, relating
to life insurance;
(4) amounts of overtime pay or other premium pay;
(5) annual leave benefits; and
(6) any other benefits related to basic pay; the basic pay of
each employee shall include the rate of basic pay established for
his position under section 3655 of this title plus the amount of
any additional compensation provided under section 3657 of this
title.
(14) 22 U.S.C. Section 3655 provides:
Section 3655. Basic pay
Establishment and revision of rates
(a) The head of each agency, in accordance with the provisions
of this subpart, shall establish, and from time to time may
revise, the rates of basic pay for positions and employees in the
agency.
Relationship of same or similar work performed in United States
or certain other areas outside United States
(b) The rates of basic pay may be established and revised in
relation to the rates of basic pay for the same or similar work
performed in the United States or in such areas outside the United
States as may be designated in the regulations prescribed under
section 3663 of this title.
Adjustments in rates; limits
(c) The head of each agency may make adjustments in rates of
basic pay established under subsection (b) of this section in
amounts not to exceed the amounts of the adjustments made from
time to time by or under statute in the corresponding rates of
basic pay for the same or similar work referred to in such
subsection (b) of this section. The head of the agency may
designate the effective date of any such adjustment, except that
that date may not be earlier than the effective date of the
adjustment in the corresponding rate of basic pay.
(15) See note 5, supra.
(16) Contrary to the Union, the fact that the bonuses provided for in
Union Proposals 7 and 8 constitute common wage practices in the maritime
industry within the meaning of 5 U.S.C. Section 5348(b) does not affect
the fact that they are inconsistent with law, 22 U.S.C. Section 3655,
and, hence, nonnegotiable under section 7117(a)(1) of the Statute.
(17) In finding that Proposals 1-5 are within the duty to bargain, we
make no judgment as to their merits.