52:0548(51)CA - - FAA, Washington, DC and National Air Traffic Controllers Association - - 1996 FLRAdec CA - - v52 p548



[ v52 p548 ]
52:0548(51)CA
The decision of the Authority follows:


52 FLRA No. 51

FEDERAL LABOR RELATIONS AUTHORITY

WASHINGTON, D.C.

_____

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, D.C.

(Respondent)

and

NATIONAL AIR TRAFFIC CONTROLLERS ASSOCIATION

AFL-CIO

(Charging Party/Union)

WA-CA-30823

_____

DECISION AND ORDER

October 31, 1996

_____

Before the Authority: Phyllis N. Segal, Chair; Tony Armendariz and Donald S. Wasserman, Members.(1)

I. Statement of the Case

This unfair labor practice case is before the Authority in accordance with section 2429.1(a) of the Authority's Regulations, based on a stipulation of facts by the parties who have agreed that no material issue of fact exists. The Respondent and the General Counsel filed briefs.(2)

The complaint alleges that the Respondent violated section 7116(a)(1) and (5) of the Federal Service Labor-Management Relations Statute (the Statute) by refusing to negotiate over a Union proposal seeking hazardous duty pay for bargaining unit employees that was previously held negotiable by the Authority.(3) For the reasons discussed below, we remand this case to the Regional Director for action consistent with our decision.

II. Stipulation

The Union represents a nationwide unit of Air Traffic Control Specialists. On March 7, 1992, the Union requested to bargain over HPD for employees at the Roswell Tower in connection with a military exercise scheduled to take place during May 1992, at the Roswell, New Mexico Air Traffic Control Facility. The parties met and discussed the possibility that employees might be exposed to hazardous chemicals and live ordnance that would create an entitlement to HPD. On April 18, after the Respondent advised the Union that HPD would not be authorized, the Union requested to bargain on the following proposal:(4)

NATCA offers that all of the bargaining unit at ROW should be paid "hazard" pay or "environmental" differential for the full extent of the military exercise, i.e., approximately 11 days.

Stipulation, para. 19.(5) The Respondent refused to bargain on the basis that the proposal "was outside the duty to bargain." Id., para. 20.

The military exercise was held as scheduled in May 1992. The parties stipulated that, during the exercise, bombs loaded on military aircraft at the airfield were fused, becoming high explosive bombs. These bombs were dropped several miles from the Tower. On June 2, the Union advised the Respondent that, "[i]n conjunction with Article 7 of the negotiated agreement," the issue of HPD remained unresolved and that the Union was forwarding its "regional position" to the "Director of Labor Relations, NATCA, DC, for final negotiations in this area."(6) Stipulation, Exhibit 8. The Union, at the national level, then informed the Respondent of its desire to negotiate over the issue of HPD. The parties met and on January 25, 1993, the Union submitted another bargaining request. On March 24, 1993, the Respondent stated that there was no duty to bargain over hazard pay differentials because they are governed by provisions in the Code of Federal Regulations. The Respondent also stated that the claim of entitlement to HPD met the contractual definition of grievance and, therefore, that "the grievance procedure, not the collective bargaining procedure is the appropriate forum in which to resolve it." Stipulation, Exhibit 14 at 1. The Union filed an unfair labor practice charge on July 19, 1993.

III. Positions of the Parties

A. Respondent

The Respondent argues that the complaint should be dismissed because the charge was not timely filed. The Respondent explains that, following its initial refusal to bargain, the military exercise was conducted in May 1992. According to the Respondent, both the refusal to bargain and the military exercise occurred more than 6 months before the charge was filed on July 19, 1993. The Respondent maintains that "[t]he subsequent exchange of correspondence between the Parties, occurring well after the event that was the subject of the Union's bargaining request, does not revive the timeliness of the issue." Respondent's Brief at 2.

The Respondent also claims that the proposal requiring HPD is outside the duty to bargain as payment would be contrary to regulations promulgated by the Office of Personnel Management (OPM).(7) Finally, the Respondent maintains that, if the Union or employees believed that they were incorrectly denied pay, their remedy was to file a grievance under the parties' collective bargaining agreement.

B. General Counsel

The General Counsel contends that the charge was timely filed based on the fact that the Respondent's refusal to bargain did not occur until March 1993. The General Counsel explains that "the parties were in discussions throughout 1992 over the payment of hazard pay[,]" that the Union "elevated the discussion" to the national level, and that it was only after the Union's letter of January 25, 1993, that the Respondent advised the Union "for the first time" that the Union's proposal was outside the duty to bargain. Id. at 17.

The General Counsel also maintains that OPM regulations governing HPD "create an entitlement to hazard pay" when, as here, employees are assigned to and perform irregular or intermittent duties involving exposure to highly explosive military ordnance.

The General Counsel further argues that "[n]othing in 5 U.S.C. §5545(d), 5 C.F.R. §550.901 et. seq. and Appendix A to 5 C.F.R. Part 550 limits or grants the Agency unfettered discretion over whether to bargain hazard duty pay differentials." Id. at 12. In support, the General Counsel cites National Association of Government Employees and U.S. Department of Veterans Affairs, Washington, D.C., 43 FLRA 414 (1991) (Proposal 2) (Veterans Affairs), order denying motions for reconsideration and stay, 43 FLRA 1008 (1992), petition for review and cross-application for enforcement denied as moot, decisions vacated sub nom. U.S. Department of Veterans Affairs v. FLRA, No. 92-1111 (D.C. Cir. May 26, 1993) (per curiam).(8)

Finally, referring to the Respondent's contention that the negotiated grievance procedure is the appropriate forum to resolve claims of HPD, the General Counsel argues that HPD is not covered by the parties' agreement.

IV. Analysis and Conclusions

A. The Charge Was Timely Filed

Section 7118(a)(4)(A) of the Statute provides, in pertinent part, that:

[N]o complaint shall be issued on any alleged unfair labor practice which occurred more than 6 months before the filing of the charge with the Authority.

The intent of this provision is to prevent the litigation of stale charges. United States Department of the Interior, Lower Colorado Dams Project, Water and Power Resources Service, 14 FLRA 539, 542-43 (1984). In order to determine whether the charge was timely filed in this case, it is necessary to determine the date on which the refusal to bargain occurred. The charge would be timely filed if the events giving rise to the charge occurred within the 6-month period preceding the filing--namely, between January 19 and July 19, 1993.

The stipulated record shows that the initial refusal to bargain occurred prior to the military exercise in May 1992. Subsequent to its completion, however, the Union exercised its contractual right to escalate the dispute over HPD to the national level. The Respondent has not argued that the contractual provision was unavailable to the Union or that the Union failed to adhere to its provisions. Having exercised its right to move the dispute from the regional to the national level, the Union properly looked to the Respondent's refusal to bargain at that level as the operative date for the filing of a charge. After the dispute was raised to the national level, the Union renewed its bargaining request, and the Respondent declared the Union's proposal outside the duty to bargain. As the charge was filed within 6 months of the Respondent's refusal to bargain at the national level, it was timely.(9)

B. The Stipulation Is Insufficient to Enable the Authority to Resolve the Alleged Unfair Labor Practice

The basis of the complaint in this case is a claimed refusal to bargain over a proposal that "has been previously held to be negotiable by the Authority . . . ." Stipulation, Exhibit 1(b) at 2. In order to determine whether there was an obligation to bargain over that proposal, it is necessary to know what proposal was before the Respondent. The record before us does not establish what proposal was submitted to the Respondent that led to its refusal to bargain in 1993. While the stipulation explicitly refers to a proposal that was offered in 1992, nothing in either the stipulation or the record establishes whether the same, or a different, proposal was presented to the Respondent after negotiations were moved to the national level. Without this critical factual information, it is not possible to assess whether the Union advanced a proposal that is substantially identical to one that the Authority previously has found negotiable.

Moreover, even if we were to assume that the proposal before the Respondent at the national level was the same as that submitted in regional negotiations, it is unclear whether that proposal is intended to implement an entitlement to HPD for all bargaining unit employees, or to encompass bargaining over employee eligibility for HPD. Compare American Federation of Government Employees, AFL-CIO, Local 1867 and Department of the Air Force, United States Air Force Academy, Colorado Springs, Colorado, 42 FLRA 787 (1991) (Authority found that proposal, although phrased as a bargaining request regarding compensation, was essentially a claim of entitlement for past events and was not appropriate for resolution as a negotiability issue) with Veterans Affairs, 43 FLRA 414 (Authority found that proposal, which defined a situation for which hazard pay would be provided, was within the duty to bargain). We point to the following:

  • The stipulation identifies the proposal as having one sentence. However, the stipulation also cites an attached exhibit, which contains a second sentence.
  • The two sentences are susceptible to different interpretations. The first sentence could be read purely as a request for a hazard pay differential. The second sentence, which proposed regional discussions to determine how employees would be "proven eligible," could be interpreted as the Union's desire to bargain over employee eligibility.
  • Assuming the second sentence of the proposal was not before the Respondent, it is unclear whether that sentence was eliminated because of its reference to regional discussions or because the Union no longer wanted to bargain over employee eligibility.

In order to clarify these matters, we remand this case to the Regional Director for appropriate action.(10)

V. Order

This case is remanded to the Regional Director for further processing consistent with this decision.

APPENDIX

5 C.F.R. § 550.904(a) provides, in relevant part, as follows:

An agency shall pay the hazard pay differential listed in appendix A of this subpart to an employee who is assigned to and performs any duty specified in appendix A of this subpart. However, hazard pay differential may not be paid to an employee when the hazardous duty or physical hardship has been taken into account in the classification of his or her position, without regard to whether the hazardous duty or physical hardship is grade controlling, unless payment of a differential has been approved under paragraph (b) of this section.

Appendix A is a schedule of pay differentials including a description of the hazardous duties or duties involving physical hardship for which differentials are payable. That schedule includes a 25 percent hazard pay differential for:

Exposure to Hazardous Agents, work with or in close proximity to:

(1) Explosive or incendiary materials. Explosive or incendiary materials which are unstable and highly sensitive.

. . . .

(3) Toxic chemical materials. Toxic chemical materials when there is a possibility of leakage or spillage.

Member Armendariz, dissenting:

Because I disagree with my colleagues as to the adequacy of the stipulated record in this case, I would not remand the case to the Regional Director for further proceedings. It is clear from the record, as summarized below, that the Union attempted to bargain with the Respondent over the entitlement of unit employees at the Roswell, New Mexico airport to a hazard pay differential (HPD) for an exposure to toxic chemicals and explosive materials during the period of the military exercise, Operation Roving Sands, between May 11 and May 22, 1992. The alleged violation of the Statute is premised on the Respondent's failure and refusal to bargain on that matter. Consistent with that interpretation, I would also find that the matter in dispute in this case is distinguishable from the matter at issue in National Association of Government Employees and U.S. Department of Veterans Affairs, Washington, D.C., 43 FLRA 414 (1991) (Veterans Affairs), order denying motions for reconsideration and stay, 43 FLRA 1008 (1992), petition for review and cross-application for enforcement denied as moot, decisions vacated sub nom. U.S. Department of Veterans Affairs v. FLRA, No. 92-1111 (D.C. Cir. May 26, 1993) (per curiam), relied on by the General Counsel, and, therefore, I would conclude that the Respondent did not violate the Statute as alleged.

According to the majority, the fact that the parties stipulated only to the proposal offered by the Union before the military exercise took place leaves open the possibility that different proposals were offered when the matter was moved to the level of exclusive recognition after the completion of that exercise. However, the parties also stated in the stipulation that the facts set forth therein "constitute[] the entire record in the case . . . ." If we are to take the parties at their word, the proposal to which they stipulated sets forth the only matter that has been at issue throughout this case.(1) The attachments to the stipulation are consistent with, and supportive of, that conclusion, for although there are in those attachments several communications between the parties after the dispute was raised to the level of exclusive recognition, not one of those communications references any different or additional matter as being in dispute between the parties. The absence of any reference to a different or additional matter in those communications convinces me that the proposal in the stipulation sets forth the only matter at issue in this case.

A brief summary of the stipulated record demonstrates that the Union consistently attempted to negotiate with the Respondent over the entitlement of unit employees at the Roswell, New Mexico airport to HPD, under applicable law and regulation,(2) for an exposure to toxic chemicals and explosive materials during the military exercise. The Union proposed, before Operation Roving Sands, that employees be paid HPD because that military exercise would expose them to toxic chemicals and explosive materials.(3) The parties stipulated to that proposal as stating the matter that was at issue in the case. The stipulated record indicates that, after the matter was raised to the level of recognition, the Union continued to describe the matter at issue in terms that were consistent with the requirement of that proposal, namely, that unit employees were entitled to, and should be paid, HPD for the period of the military exercise.(4) The General Counsel is litigating the case on the theory that, despite clear Authority precedent to the contrary in Veterans Affairs, the Respondent failed to negotiate that entitlement and thereby violated the Statute.(5)

The facts in this case, as set forth in the stipulated record, are clear. Consequently, I find that the record presents an adequate basis on which to resolve the issues presented.

I turn, then, to the question of whether the stipulated record supports the General Counsel's claim that the Respondent violated section 7116(a)(1) and (5) of the Statute by refusing to bargain over a matter that had previously been found to be negotiable by the Authority. I conclude that the General Counsel has not demonstrated such a violation in the circumstances of this case. Specifically, I find that the proposal at issue in this case is distinguishable from the proposal at issue in Veterans Affairs.

Based on the stipulated record, I find that the disputed proposal constitutes a claim that unit employees were entitled to, and should have been paid, HPD for the period of the military exercise. Stated differently, the proposal is a claim that those employees met the legal and regulatory requirements for HPD in the circumstances of that exercise.(6) Veterans Affairs, however, concerned the conditions under which employees would be entitled to HPD. That is, the proposal in Veterans Affairs purported to modify the requirements governing the payment of HPD. In particular, the proposal sought to add exposure to tobacco smoke as one of the hazards for which employees would be entitled to HPD.(7) It did not constitute a claim that a particular group of employees were entitled to HPD for a specific exposure to tobacco smoke.

In my view, rather than Veterans Affairs, this case is analogous to American Federation of Government Employees, AFL-CIO, Local 1867 and Department of the Air Force, United States Air Force Academy, Colorado Springs, Colorado, 42 FLRA 787 (1991) (Air Force Academy). In Air Force Academy, the Authority dismissed a union's petition for review of a proposal purporting to establish that employees were entitled to overtime compensation for time spent in "on-call" status. The Authority noted that: (1) "entitlement to overtime compensation for waiting periods is dependent on the facts and circumstances involved in each case;" and (2) "[a]lthough presented . . . as a proposal for bargaining, the proposal is, in essence, a claim for overtime . . . ." Id. at 792. According to the Authority, "[t]hat entitlement is dependent on whether the employee meets the governing legal and regulatory conditions for compensation." Id.

The Authority concluded that "[t]his type of claim is not appropriate for resolution as a negotiability issue, but rather, should be resolved in other appropriate proceedings, for example, the parties' negotiated grievance procedure." Id. at 793. (footnote omitted). The Authority distinguished cases in which proposals "seek to influence the circumstances involved . . . so that [employees] will meet the conditions for entitlement to compensation." Id. The Authority also distinguished proposals that "merely ensure that employees will be compensated if a proper determination has been made in an appropriate proceeding that they are indeed entitled to compensation." Id. Concluding that the proposal, "as written, does not involve a matter that is properly resolved through the negotiability procedures," the Authority dismissed the petition for review.

Although Air Force Academy is a negotiability case and this case is an unfair labor practice case, I am persuaded by the reasoning in that case that the Union's claim for entitlement to HPD in this case, both as offered before the military exercise took place and as pursued thereafter, was not appropriate for bargaining. Consequently, I conclude that the Respondent did not violate the Statute by failing or refusing to bargain over the Union's proposal. The proposal is distinguishable from the proposal in Veterans Affairs, and thus I would find that the Respondent did not refuse to bargain over a proposal that the Authority had found to be negotiable. In addition, by analogy to the reasoning of Air Force Academy, because the proposal constitutes a claim for HPD in the particular circumstances of the military exercise, I would find that it is a matter that is not appropriate for bargaining. Instead, I would find that the proposal concerns a matter that should have been resolved through some other appropriate procedure.

For the foregoing reasons, therefore, I would dismiss the complaint.




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


Authority's Footnotes Follow:

1. Member Armendariz' dissenting opinion is set forth at the end of this decision.

2. In response to an Authority request, the Union and the General Counsel filed briefs addressing section 347 of the Department of Transportation and Related Agencies Appropriations Act of 1996, Pub. L. 104-50, which would have limited the Statute's coverage of Federal Aviation Administration employees. Subsequently, that section was amended to continue the Statute's coverage in full.

3. The correct term for pay for duty involving physical hardship or hazard is hazard pay differential. We use that term, or its abbreviation HPD, in this decision.

4. The Union submitted a second proposal that was ultimately abandoned and is not before the Authority in this case.

5. The proposal originally contained an additional sentence that reads as follows: "We would like to confirm this in regional discussion and determine how the controllers would be proven eligible." Stipulation, Exhibit 6 at 2. This sentence was not included in the stipulation as a "pertinent part" of the proposal. Stipulation, para. 19. Further, although the proposal refers to hazard pay or environmental differential pay, the Union clearly indicated that it sought only hazard pay. Stipulation, Exhibit 13 at 1.

6. The General Counsel states, without contravention, that Article 7, Section 2 of the parties' agreement, then in effect, provided in relevant part that "[i]f, after a good faith effort, the Parties at the regional level are unable to reach agreement, the issue may be escalated within ten (10) days to the national level." General Counsel's Brief at 4 n.4. The Respondent makes no argument that this provision was inapplicable in this case or was improperly invoked.

7. The regulations, which implement 5 U.S.C. § 5545(d) (governing pay differentials for General Schedule employees for duties involving unusual physical hardship or hazard), are contained in 5 C.F.R. Part 550, Subpart I and are set forth in the attached Appendix.

8. The Authority's decision in Veterans Affairs was in effect at the time of the Respondent's refusal to bargain. Subsequently, the court dismissed the petition for review and cross-application for enforcement of that decision because, during the pendency of the judicial proceeding, the parties had reached an agreement that rendered moot the cases on review. The court then vacated the decision in Veterans Affairs.

9. In reaching this result, we reject the Respondent's position that the events following the military exercise did not render the charge timely. Where, as here, the parties have an agreement that sets forth a process for resolving bargaining disputes, it would not effectuate the purposes and policies of the Statute to discourage the use of that process.

10. Our remand of this case, particularly on the issue of what proposal was before the Respondent at the national level, is consistent with the Authority's policy of remanding cases where material issues of fact are not resolved by a stipulated record. E.g., United States Border Patrol, Tucson Sector, Tucson, Arizona, 48 FLRA 391, 394 (1993); U.S. Department of Justice, Office of Justice Programs, 42 FLRA 371, 375 (1991).


Dissenting Opinion Footnotes Follow:

1. The complaint is premised on the fact that the proposal offered by the Union prior to the military exercise is the proposal that the Respondent refused to bargain over when, after that exercise, the matter was referred to the level of exclusive recognition. See Paragraphs 9 and 12 of the Stipulation (Stip.).

2. The Union relies on 5 C.F.R. Part 550, Subpart I, Appendix A, "Schedule of Pay Differentials Authorized for Hazardous Duty Under Subpart I." In particular, the Union relies on that part of Appendix A that begins "Exposure to Hazardous Agents, work with or in close proximity to."

3. On March 7, 1992, based upon its "examination of the pertinent laws, rules, and regulations regarding 'hazard pay'," the Union wrote to the Respondent, stating that unit employees at the Roswell airport "are entitled to this differential allowance" for the period of Operation Roving Sands, and requesting an opportunity "to negotiate this matter." Joint Exhibit 4 attached to the Stip. The Union subsequently proposed, on April 18, 1992, before the military exercise commenced, that all employees in the bargaining unit at the Roswell airport "should" be paid a HPD, or "environmental differential," for the "full extent of the military exercise." Paragraph 19 of the Stip. In the letter dated June 2, 1992, forwarding the dispute to the level of exclusive recognition, the Union indicated that two proposals had been offered before the military exercise, but only one, the HPD proposal, "remains active[.]" Joint Exhibit 8 attached to the Stip.

4. In a letter to the Respondent dated March 19, 1993, the Union stated that its "proposals reflect entitlement pursuant to 5 CFR subpart I, App. A, Exposure to Hazardous Agents or work with or in close proximity to" explosive or incendiary materials or toxic chemical materials. Joint Exhibit 13 attached to Stip. The Union complained that the Respondent raised duty to bargain objections because it was attempting to "avoid negotiating entitlement" and concluded that the parties are in disagreement "over entitlement to" HPD. Id. In response, the Respondent stated, in a letter dated March 24, 1993, that there is "no provision for 'negotiating' entitlement" under 5 C.F.R. Part 550, Subpart I, Appendix A. Joint Exhibit 14 attached to Stip. Rather, according to the Respondent, the "appropriate forum" in which to resolve the Union's "claim of entitlement to hazardous duty pay" is the negotiated grievance procedure. Id.

5. The General Counsel claims that "unit employees established their entitlement to hazard pay differential as provided for by law," General Counsel's Brief at 10, and concludes that the Respondent violated the Statute by failing and refusing to negotiate that entitlement, citing Veterans Affairs.

6. In this case, for example, although there seems to be no basis for disputing that explosive or incendiary materials within the meaning of Appendix A were present at the Roswell airport, employees' entitlement would dep