51:0102(11)AR - - National Air Traffic Contollers Association and DOT, FAA (Federal Aviation Administration) - - 1995 FLRAdec AR - - v51 p102



[ v51 p102 ]
51:0102(11)AR
The decision of the Authority follows:


51 FLRA No. 11

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

(Agency)

0-AR-2712

_____

DECISION

August 31, 1995

_____

Before the Authority: Phyllis N. Segal, Chair; and Tony Armendariz, Member.

I. Statement of the Case

This matter is before the Authority on exceptions to an award of Arbitrator M. David Vaughn filed by the Union under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Agency filed an opposition to the Union's exceptions.

The Arbitrator denied in relevant part a grievance contesting the Agency's decision not to credit, for promotion purposes, time spent by unit employees in training programs that they did not successfully complete.

For the following reasons, we conclude that the Union has failed to establish that the award is deficient under section 7122(a) of the Statute. Accordingly, we deny the exceptions.

II. Arbitrator's Award

The pay of air traffic control specialists (controllers or ATCSs) depends on the level of difficulty of their work. Air traffic control facilities are classified from level 1 to level 5, with level 5 handling the greatest volume of traffic and having the most complex operations. The highest grade for a controller at a level 1 facility is GS-10 and at a level 5 facility is GS-14.

A controller who has not satisfied all the training and qualification requirements for a particular facility is called a developmental controller (DC). A controller who has completed the required training program and thus can perform the full range of work at a particular facility is called a full performance level (FPL) or journeyman controller. If an FPL controller applies for and is chosen for a higher-graded position at a higher-level facility for which he or she is not fully qualified, the controller becomes a DC at that facility and must complete all phases of training to become an FPL controller at that facility. If a DC does not complete a training program, he or she may be removed from employment or reassigned and demoted to a lower-level facility. A demoted DC must requalify as an FPL controller at the lower-level facility in order to retain employment. A DC who gains or regains FPL status again becomes eligible for promotion and may repeat the training program process to become an FPL controller at a higher-level facility. Controllers in career-ladder positions are promoted noncompetitively as they achieve successive qualifications, until they reach the journeyman grade for the facility or until they fail training and are removed or demoted.

The Union filed a grievance on behalf of controllers who did not receive credit, for promotion and pay purposes, for time spent as DCs in training programs that they did not successfully complete. As relevant here, the grievance was submitted to arbitration on the following stipulated issues:(1)

1. Is the [Agency] required to credit a period of time spent as a developmental air traffic controller that ends in termination of training as qualifying experience when evaluating employees for career-ladder promotions within the bargaining unit? If so, what is the remedy?

2. Is the [Agency] required to credit a period of time spent as a developmental air traffic controller that ends in termination of training when deciding whether or not an employee has met the time[-]in[-]grade requirements for promotion for the next highest grade at a different location? If so, what is the remedy?

Award at 2.

As an initial matter, the Arbitrator stated that Article 42, Section 4 of the parties' agreement requires that promotions be made in accordance with Agency directives and that Article 36 of the agreement provides that an employee will be promoted when the employee becomes "fully eligible." Id. at 22. Interpreting these provisions, the Arbitrator found that an otherwise lawful "eligibility requirement set forth in Agency Directives constitutes a valid requirement and allows the Agency to withhold a promotion . . . ." Id. (2) The Arbitrator also rejected the Union's reliance on an award of Arbitrator David Concepcion (Concepcion award) involving the parties to support its position that time spent as a DC should be credited for promotion and pay purposes. The Arbitrator noted that the Agency's exceptions to that award were pending with the Authority (3) and that the record and arguments in the case before him "differentiate it from the dispute addressed" by the other arbitrator. Id. at 23.

With respect to the first stipulated issue, the Arbitrator concluded that the Agency's policy of refusing to credit periods of time spent as a DC that end in termination of training as qualifying experience when evaluating employees for career-ladder promotions did not violate applicable law, regulation, or the parties' collective bargaining agreement. The Arbitrator found that the determination of experience deemed to qualify a controller for a career-ladder promotion is made in regional promotion plans that are established under Agency Order 3330.1B, and that these plans provide that "prior experience as a [DC] - that is, experience below FPL - is not credited for purposes of determining eligibility for promotion, regardless of the number of training phases completed." Id. The Arbitrator determined that, as a result, experience as a DC "is lost, following return from an uncompleted [d]evelopmental assignment, for purposes of qualifying for future promotions." Id. at 24.

The Arbitrator found that the Agency's decision not to credit experience at less than FPL levels, as set forth in the regional promotion plans, was not inconsistent with Federal Personnel Manual (FPM) Chapter 338, subchapter 7-2c(6).(4) He also found that the Agency's promotion policy was in accordance with Agency directives within the meaning of Article 42, Section 4 of the agreement and that an employee with only developmental experience was not "fully eligible" for promotion under the regional promotion plans on the basis of that experience and was not entitled to promotion under Article 36, Section 1. The Arbitrator also determined that the Agency's failure to promote such an employee did not violate controllers' rights to promotion or pay under Article 37, Section 1.

With respect to the second stipulated issue, the Arbitrator concluded that time in grade at a satisfactory level of performance is necessary, but not sufficient, to entitle an employee to promotion to the next highest grade. The Arbitrator determined that to be "fully eligible," a DC must satisfy the requirements of a National Training Agreement (NTA), including successful completion of training.(5) The Arbitrator found that under 5 C.F.R. § 300.603(b), certain actions, including advancement under an OPM-approved training agreement such as the NTA, are excluded from otherwise applicable time-in-grade requirements, but such actions must be "'consistent with all other applicable requirements, such as qualification standards.'" Id. at 26 (quoting 5 C.F.R. § 300.603(b)). The Arbitrator found that, under the NTA, a DC's promotion to a higher grade is subject to completion of and certification for the training phases listed in the NTA and that until such training is complete, the DC is not "fully eligible" for promotion. Id.

III. Exceptions

A. Union's Contentions

The Union contends that the Arbitrator's determination that the Agency was not required to credit as qualifying experience for purposes of career-ladder or competitive promotions time spent by a DC that ended in training failure is contrary to law, rule, and regulation. Specifically, the Union asserts that, with respect to credit for career-ladder promotions, the award is contrary to 5 C.F.R. §§ 300.601 and 300.605(a) and FPM Chapter 338. The Union also asserts that, with respect to credit for competitive promotions, the award is contrary to the provisions of 5 C.F.R. §§ 300.603(b)(6) and 300.605(a) and (c) and Agency Order 3330.1B.(6)

Additionally, although the Union acknowledges that exceptions may not be sustained based upon an arbitrator's failure to give res judicata or precedential effect to a prior arbitration award, it excepts to the Arbitrator's failure to apply or distinguish the Concepcion award.

Finally, the Union contends that the award fails to draw its essence from the parties' collective bargaining agreement because the Arbitrator misconstrued the agreement by: (1) disregarding the wording of Article 37, Section 1 that controllers be compensated so as to receive the maximum compensation allowable by law; (2) interpreting Article 36, Section 1 as imposing a substantive limitation on promotions; and (3) interpreting Article 7, Section 1 as licensing improper Agency action.

B. Agency's Opposition

The Agency asserts that the exceptions do not establish that the award is inconsistent with regulations but rather constitute disagreement with the Arbitrator's reasoning and interpretation of pertinent collective bargaining agreement articles and applicable Agency directives. The Agency further contends that arbitrators are not bound by previous awards. Finally, the Agency asserts that the Union has not demonstrated that the award fails to draw its essence from the agreement.

IV. Analysis and Conclusions

A. Contrary to Law, Rule, or Regulation

An arbitration award is deficient under section 7122(a)(1) of the Statute if it conflicts with a rule or regulation that governs the matter in dispute. U.S. Department of the Army, Fort Campbell District, Third Region, Fort Campbell, Kentucky and American Federation of Government Employees, Local 2022, 37 FLRA 186, 192 (1990). For the following reasons, we find that the award does not conflict with applicable regulations.

With respect to the career-ladder promotions involved in the first stipulated issue, the Union claims that the award is inconsistent with 5 C.F.R. §§ 300.601 and 605(a). The purpose of the regulations relied on by the Union is to prevent excessively rapid promotions in competitive service General Schedule positions and to protect competitive principles. 5 C.F.R. § 300.601. To that end, the regulations prescribe the periods of time that a candidate must have completed in a grade equivalent to or no more than one grade lower than the position for which the candidate is applying. 5 C.F.R. § 300.604. Time spent by an employee at the grade applied for, or a higher grade, is creditable toward time-in-grade requirements, unless that time is spent in a temporary appointment. 5 C.F.R. § 300.605(a), (c). These requirements apply to all actions taken to fill positions except those actions that are specifically excluded under 5 C.F.R. § 300.603(a),(b). Nevertheless, actions excluded from the time in grade requirements "must be consistent with all other applicable requirements, such as qualification requirements." 5 C.F.R. § 300.603(b) (emphasis added).

Among the actions excluded from the time-in-grade requirements is "[a]dvancement of an employee under a training agreement . . . ." 5 C.F.R. § 300.603(b)(6). There is no dispute that the NTA involved in this case is a training agreement within the meaning of subsection 300.603(b)(6). Subsection 300.603(b)(6) requires that a training agreement be established in accordance with OPM regulations. The NTA involved in this case was established pursuant to OPM regulations and approved by OPM. Advancement of employees under the NTA, therefore, may be made without regard to time-in-grade requirements. Such advancement must, however, be consistent with applicable qualification requirements. 5 C.F.R. § 300.603(b).

Consequently, under the time-in-grade regulations relied on by the Union, a DC's advancement to a higher grade by noncompetitive promotion under the applicable training agreement must be consistent with the qualification requirements prescribed by that agreement. The Arbitrator found that, under Agency directives, including the NTA, successful completion of applicable training requirements was necessary for a DC to be advanced to a higher grade.(7) We find, therefore, that under 5 C.F.R. § 300.603(b), the Arbitrator properly determined that the grievants' prior experience as DCs, which ended in the termination of training, is not creditable for promotion purposes and we conclude that the award is consistent with 5 C.F.R. §§ 300.601 and 605(a).

We turn next to the Union's contention that, insofar as the award concerns the first stipulated issue, it is inconsistent with FPM Chapter 338, subchapter 7-2c(6). That provision provides, in part, that "a training agreement may not provide accelerated credit for qualifications earned in training by any employee who leaves the program without reaching the target position." The Arbitrator found that applicable Agency directives, including the NTA, precluded credit for purposes of noncompetitive promotion for time spent in training by an employee who did not successfully complete that training and denied the grievances. We find, therefore, that the award is consistent with FPM Chapter 338, subchapter 7-2c(6). Accordingly, even assuming that an award that is inconsistent with that provision, which is no longer in effect, could provide a basis for finding the award deficient, the Union has not demonstrated that the award is deficient on that ground.

With respect to the competitive promotions involved in the second stipulated issue, the Union claims that the award is inconsistent with 5 C.F.R. §§ 300.603(b)(6) and 605(a). As set forth above, the regulations relied on by the Union apply to all actions to fill a competitive service General Schedule position. Thus, the requirements previously outlined apply to competitive promotions under the applicable training agreement and a DC who did not successfully complete training under the terms of such an agreement, for example, the NTA, cannot receive credit for time spent in that training program. Accordingly, we find that the Arbitrator's award denying the grievants time-in-grade credit for competitive promotion is consistent with 5 C.F.R. §§ 300.603(b)(6) and 605.

Finally, we find that the award is not inconsistent with Agency Order 3330.1B, Paragraph 30(c)(1)(a). This section of the Order pertains to the competitive promotion of FPL controllers selected under the merit promotion program for positions in other facilities and provides that a "FPL specialist who meets the 1-year time-in-grade requirement shall be promoted coincident with entering on duty at the new facility." By its terms, Paragraph 30(c)(1)(a) provides that, for an FPL specialist, one year of time-in-grade warrants a competitive promotion on transfer to a new facility. Paragraph 30(c)(1)(a) does not concern DCs and it does not address noncompetitive promotion of DCs within the facility to which they transferred. Consequently, we find that the Arbitrator properly concluded that DCs are not entitled to competitive or noncompetitive promotions based on time spent in training programs that they did not complete. We conclude, therefore, that the award is consistent with Paragraph 30(c)(1)(a).

B. The Concepcion Award

The Union's reliance on the Concepcion award does not provide a basis for finding the award deficient. As the Union properly acknowledges, an arbitrator is not bound by another arbitrator's award. See, e.g., U.S. Department of Veterans Affairs, Medical Center, Northport, New York and National Federation of Federal Employees, Local 387, 49 FLRA 630, 637 (1994). Moreover, we note that the Arbitrator discussed the Concepcion award and found that the record and arguments in the instant case "differentiate[d] it from the dispute addressed" by the other arbitrator. Award at 23. Accordingly, the Union's exception provides no basis for finding the award deficient.

C. Essence

To demonstrate that an award fails to draw its essence from a collective bargaining agreement, a party must show that the award is: (1) so unfounded in reason and fact and so unconnected with the wording and purposes of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; or (2) does not represent a plausible interpretation of the agreement; or (3) cannot in any rational way be derived from the agreement, or evidences a manifest disregard of the agreement. United States Department of Labor (OSHA) and National Council of Field Labor Locals, 34 FLRA 573, 575-76 (1990) (OSHA). An award will not be found to fail to draw its essence from the agreement merely because a party believes that the arbitrator misinterpreted the agreement. Id. The question of the interpretation of the collective bargaining agreement is a question solely for the arbitrator because it is the arbitrator's construction of the agreement for which the parties have bargained. Id. at 576.

In this case, the Arbitrator interpreted Articles 7, 36, 37, and 42 of the parties' agreement, as well as Agency directives, to conclude that experience as a DC, without successfully completing training, is not creditable experience for promotion to a higher grade. The Arbitrator found that an employee whose only DC experience ends in termination of training is not fully eligible for promotion under Agency directives on the basis of that experience and, therefore, is not entitled to a promotion under Article 36, Section 1 or to be paid at the maximum compensation allowable by law under Article 37, Section 1.

The Arbitrator's interpretation and application of the agreement does not disregard the agreement and is not irrational, unfounded, or implausible. As such, this exception provides no basis for finding the award deficient.

V. Decision

The Union's exceptions are denied.

APPENDIX

Relevant provisions of the parties' collective bargaining agreement provide as follows:

Article 7, Section 1

It is agreed that personnel policies, practices, and matters affecting working conditions, not specifically covered by this Agreement, shall not be changed by the Employer without prior notice to, and negotiation with the Union. The provisions of this Article also apply to the impact and implementation of changes to operational procedures and procedures resulting from technological changes.

Article 36, Section 1

Provided all legal, regulatory, and administrative requirements have been met, promotions to positions within the unit including those resulting from facility classification changes shall be effected on the beginning of the first full pay period after the employee becomes fully eligible. Facility managers shall ensure that local facility administrative requirements are uniformly administered and that the Human Resources Management Division is advised sufficiently in advance to accomplish the promotion action to meet this requirement.

Article 37, Sections 1 and 2

Section 1. Employees shall be paid in accordance with applicable laws, so as to receive the maximum compensation allowable by law except as otherwise provided for in this agreement.

Section 2. The provisions of section 1 apply to , but are not limited to, the following: basic rate of pay, overtime pay, night differential, Sunday premium pay, holiday pay, operational differential pay, and COLA's.

Article 42, Section 4

Promotions shall be made in accordance with applicable laws, regulations, FAA directives, and this Agreement. If as a result of a grievance being filed under this Article, either the Employer agrees or an arbitrator decides that an employee was improperly excluded from the best qualified list, he/she will receive priority consideration for the next appropriate vacancy for which he/she is qualified.

5 C.F.R. Part 300, Subpart F provides, in pertinent part, as follows:

§ 300.601 Purpose

The restrictions in this subpart are intended to prevent excessively rapid promotions in competitive service General Schedule positions and to protect competitive principles . . . . These restrictions are in addition to the eligibility requirements for promotions in part 335 of this chapter.

. . . .

§ 300.603 Coverage

(a) Coverage. This subpart applies to advancement to a General Schedule position in the competitive service by any individual who within the previous 52 weeks held a General Schedule position under a nontemporary appointment in the competitive or excepted service in the executive branch, unless excluded by paragraph (b) of this section.

(b) Exclusions. The following actions may be taken without regard to this subpart but must be consistent with all other applicable requirements, such as qualifications standards:

. . . .

(6) Advancement of an employee under a training agreement established in accordance with chapter 338 of the [FPM]. However, an employee may not receive more than two promotions in any 52-week period solely on the basis of one or more training agreements. Also, only OPM may approve a training agreement that provides for consecutive promotions at rates that exceed those permitted by § 300.604 of this part.

§ 300.604 Restrictions

[Lists the time-in-grade restrictions that must be met for advancement unless advancement is permitted by § 300.603(b).]

§ 300.605 Creditable service

(a) All service at the required or higher grade (or equivalent) in positions to which appointed in the Federal civilian service is creditable towards the time periods required by [5 C.F.R. § 300.604.]

. . . .

(c) In applying the restriction in § 300.604 of this part, prior service under temporary appointment at a level above that of a subsequent non-temporary competitive appointment is credited as if the service had been performed at the level of the non-temporary appointment.

FAA Order 3330.1B, Paragraph 30 provides, in pertinent part, as follows:

30. PROMOTION OR REASSIGNMENT OF AIR TRAFFIC CONTROL SPECIALISTS SELECTED FOR MOVES BETWEEN FACILITIES

a. This paragraph establishes a standard procedure for the promotion or reassignment of air traffic control specialists (any option) who are selected under the Merit Promotion Plan (MPP) for positions in other facilities. . . . .

. . . .

c. Requirement when selecting specialists under MPP for positions in a different facility.

(1) Full-Performance-Level (FPL) Specialists.

(a) An FPL specialist who meets the 1-year time-in-grade requirement shall be promoted coincident with entering on duty at the new facility.

FPM Chapter 338, subchapter 7-2c(6) provides as follows:

A training agreement may be the basis for crediting qualifications or time in grade at an accelerated rate only when making assignments under the program established by the agreement. Because training which justifies credit at an accelerated rate must be designed to include all essential knowledges, skills, and abilities needed in the target position, completion of less than the full training program may not enhance an employee's ability to learn and succeed in that target position. Therefore, the training agreement may not provide accelerated credit for qualifications earned in training by any employee who leaves the program without reaching the target position.




FOOTNOTES:
(If blank, the decision does not have footnotes.)
 

1. As no exceptions were filed regarding the Arbitrator's disposition as to a third stipulated issue, we do not address that matter in this decision.

2.   The Arbitrator also cited Article 37, Section 1 and Article 7, Section 1 of the parties' agreement. The pertinent text of the parties' agreement is set forth in the Appendix to this decision.

3. The exceptions were docketed as Case No. 0-AR-2560.

4. FPM Chapter 338, subchapter 7-2c(6), which is no longer in effect as a result of the abolition of the FPM on December 31, 1994, is set forth in the Appendix to this decision. Although the cited provision has been abolished, this has no effect on the resolution of the Union's exceptions. See, infra, at 7.

5. The NTA was entered into by the Agency and the Office of Personnel Management (OPM) to speed the qualification and promotion of controllers to alleviate a shortage of controllers.

6. The pertinent text of the cited authorities is