On Petition for Review and Cross-Petition for Enforcement of an Order of the Federal Labor Relations Authority, 25 FLRA No. 8, Case No. O-NG-694.
Higginbotham, Hutchinson and Scirica, Circuit Judges.
HUTCHINSON, Circuit Judge.
We have before us the United States Navy's petition for review of a Federal Labor Relations Authority (FLRA) decision ordering the Military Sealift Command (MSC), a department of the Navy, to collectively bargain the intervening union's proposals on pay and pay practices for civilian mariners employed by MSC. Also before us is FLRA's cross-petition for enforcement of that order. We have jurisdiction over the Navy's petition for review under § 7123(a) of the Federal Service Labor-Management Relations Statute (Labor-Management Statute), 5 U.S.C. §§ 7101-7135 (1982 and Supp. IV 1986).*fn1 Section 7123(b) provides jurisdiction over the FLRA's cross-petition for enforcement.
The FLRA generally holds that collective bargaining over "conditions of employment" (in which category it includes pay) left to executive agency discretion is not inconsistent with law unless it determines the agency's discretion is "sole and exclusive," or unless it determines the agency has a "compelling need" for the employment practice at issue.
In this case, FLRA held that § 5348(a) of the prevailing rate system does not preclude collective bargaining over pay and pay practices for civilian mariners employed by MSC. It found that the Navy's discretion within § 5348(a) was not "sole and exclusive." It also found no compelling need for the Navy's pay practices and ordered collective bargaining over the five union proposals.
We believe that § 5348 specifically gives the Navy discretion over the pay practices at issue and that bargaining over them is inconsistent with law and therefore beyond the FLRA's power to order. We believe that Congress did not intend to include the Navy's pay and pay practices with respect to MSC's civilian mariners as bargainable matters within the Labor-Management Statute. We therefore grant the Navy's petition for review, set aside the FLRA's decision and deny the FLRA's cross-petition for enforcement.
Normally, an agency's interpretation of the statute it administers is entitled to deference, provided that its interpretation is a permissible construction of the statute. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844-45, 81 L. Ed. 2d 694, 104 S. Ct. 2778 (1984). If so, an agency decision may only be overturned if "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." Administrative Procedure Act, 5 U.S.C. § 706(2)(A) (1982); see also 5 U.S.C. § 7123(c) (referring to 5 U.S.C. § 706 for standard of review of FLRA order); Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 97, 78 L. Ed. 2d 195, 104 S. Ct. 439 n.7 (1983). However, an agency decision is not entitled to such deference when it interprets another agency's statute or resolves a conflict between its own statute and the statute of another agency. See New Jersey Air Nat'l Guard v. FLRA, 677 F.2d 276, 281-82 n.6 (3d Cir.), cert. denied, 459 U.S. 988, 74 L. Ed. 2d 384, 103 S. Ct. 343 (1982); see also Hi-Craft Clothing Co. v. NLRB, 660 F.2d 910, 916 (3d Cir. 1981). Review of the FLRA's order to bargain the five Union requests for changes in the Navy's pay and pay practices for MSC's civilian mariners is plenary. Creque v. Luis, 803 F.2d 92, 93 (3d Cir. 1986).
The employees involved in this action are civilian mariners working for the MSC, a major component of the Navy's Operating Forces. MSC provides logistical support for battle fleets and ocean transportation for all branches of the armed services. Its primary purpose is to provide immediate sealift capability in an emergency, including combat emergencies. MSC operates approximately 83 government-owned ships and 52 privately owned commercial merchant vessels, including tankers, dry cargo vessels, and cable-laying, repair, research and survey ships. Direct hire, civil service seamen man approximately 59 of the government-owned ships.
The 52 MSC privately owned ships and the 59 government ships manned by civilians are basically organized and operated according to practices in the private sector of the maritime industry, but with variations from those private practices. The number of civil service mariners is about 5,210. The National Maritime Union of America, AFL-CIO (Union), intervenor in this action, represents a unit of about 2,000 unlicensed non-officer personnel and 30 stewards in the MSC Atlantic Fleet.
On April 20, 1982, the Union proposed five changes in the agreement*fn2 with MSC for civilian mariners:
The sailors at sea shall be divided into three watches which shall be kept on duty successively for the performance of ordinary work incident to the sailing and maintenance of the vessel. Not fewer than three (3) seaman [sic] shall constitute a complete seawatch at all times. When any of these three ratings are missing and the watch is not complete, the wages equivalent to the rating that is missing from the watch shall be paid to the other members making up the remainder of the watch.
Any work performed by the Stewards' Department that is not specifically defined as routine duties in this Agreement or in the applicable Work Schedule shall be paid at the applicable penalty rate.
(3) Extra Compensation for Underway Replenishment
Unlicensed members of the crew on watch on deck performing services in connection with the actual or simulated refueling operation while the vessel is underway shall receive penalty pay. The Pumpman on duty during his regular hours shall receive penalty pay while pumping cargo during this operation.
(4) Appendix VII, Section 4 of each existing collective bargaining agreement shall be deleted and all other Sections of the agreement shall apply to underway replenishment operations in the same fashion as to all other duties.
(5) Appendix VII, Section 8 of each existing collective bargaining agreement shall be deleted and the contractual call-out provision (Appendix II, Section 3) shall apply to underway replenishment operations.
Joint Appendix at 63-64 (Jt. App.).
The Navy sets pay rates for its civilian mariners according to the prevailing rate system, 5 U.S.C. § 5348(a) (1982). Section 5348(a) states that an agency has discretion to deviate from private pay practices ...