45:0469(37)NG - - National Air Traffic Controllers Association, Local C90 and Transportation, FAA - - 1992 FLRAdec NG - - v45 p469



[ v45 p469 ]
45:0469(37)NG
The decision of the Authority follows:


45 FLRA No. 37

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

LOCAL C90

(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

(Agency)

0-NG-1916

DECISION AND ORDER ON A NEGOTIABILITY ISSUE

July 1, 1992

Before Chairman McKee and Members Talkin and Armendariz.

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). It involves the negotiability of a proposal concerning the implementation of "Feeder Final" procedures for the Chicago Terminal Radar Approach Control (TRACON). For the reasons stated below, we conclude that the proposal directly and excessively interferes with management's right to assign employees and, therefore, is nonnegotiable.

II. The Proposal

A. The Feeder Final Concept will require additional shift coverage, increasing the number of controllers on each shift, thereby making it more difficult to accomplish training. Because developmentals are used for shift coverage, their training requirements may be secondary to the operational requirements of the Chicago TRACON. Although Local C90 understands the necessity to accomplish the operational mission,

developmentals may not receive the necessary training required in a timely manner. Local C90 proposes the following:

1. The purpose of this MOU is to define procedures to be used to compensate Chicago TRACON developmentals who are at the GS-13 pay grade, having attained a year in grade as a developmental, and who's [sic] training has been delayed because of unforseable [sic] circumstances.

2. If a Chicago TRACON developmental has received a GS-13 promotion upon arrival to the TRACON, has not certified as a Full Performance Level Controller, he/she shall be promoted to the GS-14 level effective on his/her year anniversary date as a GS-13, provided he[/she] meets the following criteria:

a. Has one year in grade as a GS-13.

b. A South Developmental must be certified on Sectors 1, 2, 3, and 4.

c. A North Developmental must be certified on North Satellite and Departure.

d. If the North Developmental trains on arrival prior to North Satellite and/or departure, he/she need [sic] only one year in grade as a GS-13 and certification on one position in the TRACON.

3. An exception to this policy is if the developmental has received a letter indicating a need for improvement and a specific number of hours to improve, and/or the developmental's most recent monthly evaluation is unsatisfactory.

4. If the developmental's progress is no longer unsatisfactory, he/she shall be promoted to the GS-14 grade effective the first day of the month in which he/she received an other than unsatisfactory monthly training evaluation and the provisions of number 2 above are met.

5. In the event the developmental's training is terminated or he/she withdraws from training, the developmental shall be demoted to a GS-13 effective the date his/her training was terminated or when he/she withdrew from training.

6. All developmental controllers currently at the GS-13 level, [who] have a year in grade as a GS-13 and meet the provisions of 2 and 3 above, shall be promoted to the GS-14 level.

III. Background and Preliminary Matter

The purpose of the Feeder Final procedures is to redistribute the workload of air traffic controllers in order to alleviate the volume of aircraft handled by the final approach air traffic controllers at O'Hare Airport. The Agency developed Feeder Final procedures for Chicago TRACON because of concern that the final approach air traffic controllers had become overburdened with air traffic. After the Agency submitted a copy of the procedures to the Union on November 29, 1990, the Union submitted a number of proposals to the Agency on December 27, 1990. The Agency responded by stating that the issues addressed in the proposals concerned the exercise of management's rights and did not identify any adverse effect on employees. The Agency stated, however, that if the Union viewed the Feeder Final concept as creating an adverse impact, the Agency would be willing to negotiate over the impact. The Agency thereafter implemented the Feeder Final procedures. On January 9, 1991, the Union filed an unfair labor practice charge claiming, in relevant part, that the Agency implemented the Feeder Final procedures without completing negotiations.1/ On that same day, the Union submitted the instant proposal to the Agency.2/ On January 22, 1991, the Union requested an allegation of nonnegotiablility as to the proposal. The Agency responded by letter dated February 1, 1991, stating that the procedures had no foreseeable adverse impact and that the parties had already bargained over the subject of promotions in Article 42, Section 4 of their existing agreement. On February 19, 1991, the Union filed its petition for review.

The Agency contends that the Authority should dismiss the petition for review because the conditions governing  review of a negotiability appeal have not been met. The Agency states that it did not take the position that the proposal was inconsistent with law, rule or regulation but, rather, that it declined to negotiate on the basis that the proposal concerned matters addressed in the parties' national agreement. The Agency maintained that any disputes about such matters should be resolved through the negotiated grievance procedure or by the filing of an unfair labor practice charge. In support of this position, the Agency cites National Federation of Federal Employees, Local 1900 and Department of Housing and Urban Development, 33 FLRA 192 (1988). The Agency also contends, in its statement of position, that the proposal is nonnegotiable because it interferes with the exercise of various management rights.

The Union disputes the Agency's contentions. The Union claims that it requested an allegation of nonnegotiability after "management advised the [Union] verbally that the [U]nion's proposal was illegal." Response at 2. The Union also claims that the proposal was not previously addressed in the parties' agreement.

We find that the conditions governing review of a negotiability appeal, as set forth in section 2424.1 of our Rules and Regulations, have been met. In its response to the Union's request for an allegation of nonnegotiability, the Agency addressed the Union's concerns regarding a delay in employees' training and promotional opportunities and claimed that there was no foreseeable adverse impact of the Feeder Final procedures on employees. More significantly, in its statement of position, the Agency claimed that the proposal interfered with the exercise of management's rights in various respects. The Authority previously has held that there is no requirement in the Statute or the Authority's Rules and Regulations that a declaration of nonnegotiablility must be made with any particular degree of specificity. The only requirement that an agency support its allegation of nonnegotiability with specificity and rationale occurs after the agency has been served with the petition for review, at which time the agency has 30 days within which to file a statement of position specifying its reasons for the allegation. See National Association of Government Employees, and U.S. Department of Defense, National Guard Bureau, Connecticut Army and Air National Guard, Hartford, Connecticut, 40 FLRA 33, 36 (1991). We find here that the Agency has sufficiently disputed the negotiability of the proposal to satisfy the conditions governing review of the Union's petition.

Additionally, we reject the Agency's contention that the petition for review should be dismissed because it concerns matters addressed in the parties' national agreement. Under section 7117 of the Statute and section 2424.1 of our Rules and Regulations, we will consider a petition for review of a negotiability issue where, as here, the parties are in dispute over whether a proposal is inconsistent with law, rule, or regulation. See, for example, Overseas Education Association and U.S. Department of Defense Dependents Schools, FPO, Seattle, 42 FLRA 197, 199 (1991), petition for review denied sub nom. Overseas Education Assn. v. FLRA, No. 91-4166 (2d Cir. Apr. 3, 1992). It is well established that where the conditions governing review of a negotiability appeal have been met, a union is entitled to a decision as to whether the proposal is negotiable under the Statute, even though additional issues may exist, including whether there is an obligation to bargain under the terms of a collective bargaining agreement. See American Federation of Government Employees, AFL-CIO, Local 2736 v. FLRA, 715 F.2d 627, 631 (D.C. Cir. 1983). To the extent the Agency has raised issues concerning its obligation to bargain under the terms of a national agreement, those issues should be resolved in other appropriate proceedings. The claimed existence of threshold duty to bargain questions does not preclude us from determining the negotiability of proposals that are otherwise properly before us.

IV. Positions of the Parties

A. The Agency

The Agency states that the proposal concerns employees who occupy a career ladder position, where grade 14 is the full performance level,3/ and would require the Agency to promote all grade 13 level employees who meet certain Union-specified certification criteria. The Agency claims that the proposal would limit management's right to assess the effectiveness of an employee in a developmental, or training, position to the criteria specified in the proposal.4/ As such, the Agency asserts that it would be "barred from assessing whether the employee is fully qualified for the higher[-]graded position." Statement of Position at 4. The Agency argues that the proposal is similar to Proposal 3 in American Federation of Government Employees, AFL-CIO, Local 32 and Office of Personnel Management, Washington, D.C., 14 FLRA 6, 10 (1984), and, likewise, should be found nonnegotiable.

The Agency also argues that the proposal interferes with management's right to assign work under section 7106(a)(2)(B) of the Statute insofar as it concerns the assignment of training. In support, the Agency cites American Federation of Government Employees, Local 2094, AFL-CIO and Veterans Administration Medical Center, New York, New York, 22 FLRA 710 (1986), aff'd sub nom. American Federation of Government Employees, AFL-CIO, Local 2094 v. FLRA, 833 F.2d 1037 (D.C. Cir. 1987).

Finally, the Agency claims that the proposal is not an appropriate arrangement. The Agency argues that the proposal would excessively interfere with management's rights because it is "so far afield from the proposed Feeder/Final Procedures so as to be characterized as being purely speculative . . . ." Statement of Position at 4. The Agency claims that, under the proposal, "employees at the GS-13 level or below will be guaranteed promotion to the full performance level (GS-14 grade level) regardless of changes in circumstances or the employee's actual level of performance." Id. (emphasis in original). With respect to the assignment of training, the Agency argues that the proposal is not an appropriate arrangement "because consideration of th[is] proposal[] is prohibited by the existing [national] agreement." Id. at 5.

B. The Union

The Union disputes the Agency's claim that the proposal concerns employees who occupy career-ladder positions. The Union states that, normally, employees at the grade 13 level are selected from other facilities and receive a promotion to the grade 14 level upon their entry on duty at Chicago TRACON. The Union also states that the Agency occasionally selects employees at the grade 12 level who are promoted to the grade 13 level when they arrive for duty at Chicago TRACON. The Union states that this system is not a career-ladder progression, but is a management plan to staff a short-staffed facility.

The Union further contends that the proposal does not interfere with the exercise of management's rights. The Union explains that the proposal does not guarantee that employees will be promoted. Instead, the Union states that "the trainee still must perform to the Agency's satisfaction and meet the Agency requirements for [o]n-the-[j]ob [t]raining." Response at 3. In this regard, the Union asserts that the certification criteria for promotion set forth in the proposal were developed after discussions with local management. The Union also claims that the proposal does not interfere with management's right to assign work insofar as "[t]he opportunity to complete training is not being negotiated." Id.

The Union also argues that the proposal is an appropriate arrangement for employees adversely affected by the Feeder Final procedures. The Union states that the proposal would apply only if developmental controllers or their training is adversely affected. The Union explains that, under the Feeder Final procedures, instructors will be utilized to staff positions and will be unavailable to provide on-the-job training to developmental controllers. As a consequence, the developmental controllers will be unable to satisfy the regulatory requirements to qualify for promotions in a timely manner. According to the Union, on-the-job training of developmentals is intermittent, continues for months, and would be delayed further as a result of the Feeder Final procedures.

V. Analysis and Conclusions

The proposal sets forth criteria for promotion of GS-13 developmental controllers to the GS-14 level. The proposal provides, among other things, that GS-13 developmental controllers shall be promoted to the GS-14 level when they have a year-in-grade as a GS-13, have been certified on certain radar positions, and have not received a letter indicating a need for improvement or an unsatisfactory monthly training evaluation. We find that by mandating the promotion of employees based on the criteria contained in the proposal, the proposal directly and excessively interferes with the right to assign employees under section 7106(a)(2)(A) of the Statute.

Initially, we note that the parties disagree as to whether the positions occupied by developmental controllers are in a career ladder. We find that the record contains insufficient evidence to establish whether the positions are in a career ladder. However, even assuming that a career ladder exists, the record is devoid of evidence regarding the requirements that employees must meet in order to be promoted. Consequently, we are unable to determine whether the proposal is inconsistent with a career ladder because, as claimed by the Agency, the proposal would require promotion based on Union-specified certification criteria. In negotiability matters, it is well established that the parties bear the burden of creating a record upon which the Authority can make a negotiability determination. A party failing to meet its burden acts at its peril. National Federation of Federal Employees, Local 1167 v. FLRA, 681 F.2d 886, 891 (D.C. Cir. 1982); American Federation of Government Employees, Local 2022 and U.S. Department of the Army, Headquarters, 101st Airborne Division, Fort Campbell, Kentucky, 40 FLRA 371, 383 (1991). Because we are unable to determine whether there is a career ladder and, therefore, whether the proposal is consistent with the requirements of a career ladder, we will assess the negotiability of the proposal in terms of the exercise of management's rights.

The right to assign employees under section 7106(a)(2)(A) of the Statute includes the right to determine the qualifications and skills needed to perform the work of a position, including job-related individual characteristics such as judgment and reliability. See American Federation of Government Employees, AFL-CIO, Local 987 and U.S. Department of the Air Force, Warner Robins Air Force Logistics Center, Robins Air Force Base, Georgia, 35 FLRA 265, 269 (1990). The Authority consistently has held that proposals that prevent an agency from determining the qualifications of a position directly interfere with the right to assign employees. See, for example, National Federation of Federal Employees, Local 738 and Department of the Army, Headquarters, USA Medical Department Activity, Fort Leonard Wood, Missouri, 34 FLRA 809, 812-13 (1990).

This proposal would prevent the Agency from determining whether developmental controllers possess the requisite skills and qualifications necessary to perform air traffic control duties at the GS-14 level. Under the proposal, GS-13 developmental controllers would be deemed qualified for promotion to the GS-14 level, and, in fact, would be promoted when they have a year-in-grade as a GS-13, have been certified on specified radar positions, and have met certain performance requirements, such as the absence of an unsatisfactory monthly training evaluation. The Agency would be prevented from establishing other qualifications that employees must possess in order to perform work at the GS-14 level, such as certification on radar positions in addition to those set forth in the proposal. Also, with regard to an employee who had received an unsatisfactory monthly training evaluation, section 4 of the proposal would require the Agency to promote the employee almost immediately after the employee's rating is no longer found unsatisfactory, without regard to whether the employee is capable of performing the duties of the higher-graded controller position. Accordingly, we find that the proposal directly interferes with management's right to assign employees.

We further conclude that the proposal excessively interferes with the Agency's right to assign employees. In determining whether a proposal constitutes an appropriate arrangement under section 7106(b)(3) of the Statute, the Authority first determines whether the proposal is intended as an arrangement for employees adversely affected by the exercise of a management right. If a proposal is intended as an arrangement, the Authority then determines whether the arrangement is appropriate, or whether it is inappropriate because it excessively interferes with management's rights. National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24, 31-33 (1986).

The Union contends that the proposal is an arrangement. The Union argues that because instructors do not have time to train developmental controllers, the developmental controllers' on-the-job training is delayed and they cannot obtain the work experience necessary to qualify for promotion to the GS-14 level. We find that the proposal is an arrangement for employees adversely affected by the Agency's assignment of work to instructors. In our view, the proposal responds to the limited availability of instructors who can provide the type of instruction that is an integral part of developmental controllers' training. Such training, in turn, is necessary in order to enhance the developmental controllers' promotional opportunities. Having found that the proposal is an arrangement, however, we conclude, for the reasons set forth below, that the arrangement is not appropriate because it excessively interferes with the Agency's right to assign employees.

The Union claims that the proposal is an appropriate arrangement because it "does not significantly hamper the ability of the Agency to accomplish its operational mission." Response at 3. We disagree. The Government has a compelling interest in maintaining aviation safety. National Federation of Federal Employees v. Cheney, 884 F.2d 603, 610 (D.C. Cir. 1989), cert. denied, U.S. , 110 S. Ct. 864 (1990). We have found that the interest in aviation safety is of paramount importance. Aviation safety is one of the primary missions of the Federal Aviation Administration (FAA), the Agency in this case. For example, in Federal Aviation Administration, 42 FLRA 82, 89 (1991), we adopted an administrative law judge's finding that "'protection of the safety of the flying public is a primary mission of the FAA, and millions of Americans entrust their safety to the FAA's stewardship of the air transportation system . . . .'" Given this finding, we concluded that it was not appropriate for the FAA to restore air traffic control specialists with a particular medical condition to their former positions because of the potential disruption to the efficiency and effectiveness of the FAA's operations from such restoration.

By mandating that the Agency promote GS-13 developmental controllers to the GS-14 level based on the criteria in the proposal, the proposal would prevent the Agency from considering other qualifications that are necessary to enable the developmental controllers to perform air traffic control duties at the GS-14 level, including those that require certification on radar positions attendant to the full performance level. The proposal would require the Agency to place developmental controllers into positions at a higher grade despite the fact that they may still be receiving on-the-job training with respect to the duties at the higher grade and despite the fact that they have not been certified on all applicable radar positions. Additionally, the proposal would require the placement of an employee into the higher-graded position as early as one month after the employee is no longer performing at an unsatisfactory level on the duties attendant to the GS-13 position. In our view, the proposal woul