[ v26 p783 ]
26:0783(92)AR
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.