51:0192(20)AR - - National Air Traffic Controllers Association and FAA - - 1995 FLRAdec AR - - v51 p192
[ v51 p192 ]
The decision of the Authority follows:
51 FLRA No. 20
FEDERAL LABOR RELATIONS AUTHORITY
NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION
U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
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.
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 regulations, including FAA Order 3330.1B, paragraph 30(c)(1)(a). We found that the Agency and OPM had entered into a National Training Agreement (NTA) which applied to the training and promotion of DCs. We further found that a DC who did not successfully complete training under the terms of such an agreement could not receive credit for competitive promotion purposes for that time. Consequently, we concluded that the award denying the grievants credit for competitive promotions was consistent with applicable regulations. We also found that the award was consistent with FAA Order 3330.1B, paragraph 30(c)(1)(a) because that paragraph, by its terms, refers to experience as a FPL specialist and not experience as a DC in training that the DC did not successfully complete.
The issue in this case--whether time spent by an employee in the Agency's training program as a DC that the employee does not successfully complete can be credited for competitive promotion purposes--is the same as in FAA. The cases involve the same parties, same positions (controllers), and the same Agency training program. In these circumstances, we conclude, for reasons stated fully in FAA, that the Arbitrator's finding that time spent as a DC in a training program that the employees did not successfully complete can be credited for competitive promotion purposes is inconsistent with 5 C.F.R. § 300.603(b) and Agency Order 3330.1B, Paragraph 30(c)(1)(a). Accordingly, the award of backpay and retroactive promotions to Carlton and Bell must be set aside.
As to Cook, the Agency has not established that the award is contrary to law or regulation. There is no dispute as to the grade level to which Cook was promoted. The dispute concerns only the step within the GS-12 grade that Cook should receive. Although the Agency cites its regulation as the basis for its decision for setting Cook's pay, the Agency has not shown anything in its regulation or law that would prohibit it from crediting the year that Cook spent as a GS-12, step 1 in setting his pay level. Because the Agency has not shown that any regulation or law prohibited it from crediting Cook's previous time at GS-12, step 1, we find that the Agency has not established that it was precluded from setting his pay at GS-12, step 2.
The Arbitrator's award as to Carlton and Bell is set aside. The Agency's exceptions to the portion of the award relating to Cook are denied.
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 meet the 1-year time-in-grade requirement shall be promoted coincident with entering on duty at the new facility.
(b) An FPL who does not meet the 1-year time-in-grade requirement shall be reassigned in grade. Upon completing the time-in-grade requirement, the specialist shall be promoted to the next higher grade level if progressing satisfactorily in the training program.
. . . .
(If blank, the decision does not have footnotes.)
1. Merit promotions involve "competition among employees" for promotion--competitive promotion--to a hi