51:0192(20)AR - - National Air Traffic Controllers Association and FAA - - 1995 FLRAdec AR - - v51 p192



[ v51 p192 ]
51:0192(20)AR
The decision of the Authority follows:


51 FLRA No. 20

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

MEBA/NMU

(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

(Agency)

0-AR-2560

_____

DECISION

September 20, 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 David A. Concepcion filed by the Agency under section 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions.

The Arbitrator sustained a grievance over the Agency's decision not to credit, for promotion and pay-setting purposes, time spent by three employees in training programs that they did not successfully complete.

For the following reasons, we conclude that the Agency has established that, as to two employees, the award is deficient under section 7122(a) of the Statute. Accordingly, we set aside that portion of the award. The Agency has failed to establish that the award is deficient under section 7122(a) as to the third employee and, therefore, we deny the Agency's exceptions as to that portion of the award.

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.

In this case, three DCs entered training programs, during which they were paid at a rate that was one grade level higher than their previous ATCS positions. The employees did not successfully complete the training programs and were demoted to positions at their former grade levels. Subsequently, they applied for ATCS positions at higher-level facilities announced under the Agency's merit promotion plan. Each position was announced at two different grade levels. According to the Agency, the lower grade was a developmental or trainee grade and the higher grade was the FPL grade for individuals who qualified.

The employees were selected for the positions at the lower grade. The Agency acknowledged that the employees satisfied the time-in-grade requirement for the higher grade, but determined that, because the employees did not successfully complete the training programs, they were not qualified for the higher grade. Two employees--Carlton and Bell--grieved because they believed that the time that they spent in the training programs qualified them for the higher grade. The third employee, Cook, grieved the Agency's failure to pay him at a higher step within the lower grade, based on the time he had spent in the training program. The grievances were consolidated for arbitration and the parties agreed to the following issue:

Can time spent as a developmental controller be credited toward time-in-grade, promotion and/or pay[-]setting purposes[?] If so, what is the remedy?

Award at 3.

The Arbitrator found that time spent by an employee as a DC can be credited for time-in-grade, promotion and/or pay-setting purposes, without regard to whether the employee successfully completed the training program. In rejecting the Agency's argument to the contrary, the Arbitrator concluded that the minimum requirements under the Office of Personnel Management (OPM) qualification standards for the ATCS positions are not a factor in determining promotions or in setting pay. He ordered the Agency to give the grievants retroactive promotions and backpay.

III. Exceptions

A. Agency's Contentions

The Agency asserts that the award is contrary to law and regulation because time spent by an employee in a training program as a DC cannot be credited for merit promotion or pay-setting purposes if the employee does not successfully complete the training program.(1) The Agency relies on Federal Personnel Manual (FPM) chapter 335, subchapter 1-4, Requirement 3 and the OPM qualification standards, including Air Traffic Controller Series (ATCS) GS-2152, which contains, among other things, a section on training.(2)

B. Union's Opposition

The Union contends that the award is consistent with law and Agency regulation, FAA Order 3330.1B, Paragraph 30.c(1).(3) According to the Union, the time served by the grievants in the training program is creditable for grade or pay-setting purposes.

IV. Analysis and Conclusions

For the following reasons, we find that the award, insofar as it concerns Carlton and Bell, is deficient. Accordingly, we set aside the award to that extent.

The Agency asserts that the award is contrary to law and regulation because time spent by an employee in the Agency's training program as a DC cannot be credited for competitive promotion purposes if the employee does not successfully complete the training program. We recently addressed a similar issue involving the same parties in National Air Traffic Controllers Association and U.S. Department of Transportation, Federal Aviation Administration, 51 FLRA No. 11 (1995) (FAA). In FAA, the arbitrator determined that time spent by an employee as a DC in the Agency's training program that the employee did not successfully complete could not be credited for competitive promotion purposes. In denying the Union's exceptions to the award, we concluded that the award was consistent with 5 C.F.R. § 300 Subpart F, concerning time-in-grade requirements, and Agency regulati