National Air Traffic Controllers, Association, Rochester Local (Union) and U.S. Department of Transportation, Federal Aviation Administration, Rochester, New York (Agency)

[ v56 p288 ]

56 FLRA No. 40

NATIONAL AIR TRAFFIC CONTROLLERS
ASSOCIATION, ROCHESTER LOCAL
(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
ROCHESTER, NEW YORK
(Agency)

0-NG-2486

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

April 28, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman; Phyllis N. Segal and Dale Cabaniss, Members.

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) and part 2424 of the Authority's Regulations. [n1]  The appeal concerns the negotiability of two proposals concerning leave schedules. The Agency filed a statement of position and the Union filed a response.

      For the reasons that follow, we find that the two disputed proposals are outside the duty to bargain and dismiss the petition for review.

II.     Proposals  [n2] 

1.     We (NATCA) propose that we plan for the worst case scenario (2 Sup[ervisor]s) and place them on the advanced schedule in the most efficient manner possible (in accordance with our written agreement).
2.     After placement of Supervisors on the advanced Schedule has occurred we will then act on the remaining prime time leave requests.
3.     After prime time leave requests have been approved we will explore the possibility of placing Supervisors on Administrative detail when able so they can accomplish non-operational tasks.

III.     Background

      Unit employees are air traffic controllers who are responsible for separation and control of "live" air traffic at the Rochester Tower. See Explanation of Uncommon Language (Explanation), Attachment to Petition for Review. In a Memorandum of Understanding (MOU), the parties established the terms and conditions governing the use of annual leave by unit employees. [n3]  Specifically, the parties identified three types of annual leave usage, "prime time," "scheduled," and "spot," which are defined primarily by how they are scheduled. "Prime time" leave is scheduled on a yearly basis. Each year, prior to January 1, a leave calendar is rotated among the members of each team of air traffic controllers according to seniority and members are permitted to select up to two weeks of annual leave. Supervisors are required by the MOU to enter their prime time leave requests on the calendar by January 31. See MOU, Union Exhibit 1 attached to Petition for Review. See also Explanation.

      "Scheduled" annual leave is leave that is requested for a given pay period in advance of the establishment of the work schedule for that pay period. Id. Such leave requests normally will be approved "if the remaining staffing level is 7 personnel including supervisors." Section B, "Scheduled Annual Leave," MOU, Union Exhibit 1 attached to Petition for Review. Approved or disapproved scheduled leave is recorded in the advance schedule book. See Explanation. "Spot" annual leave is leave that is requested during a shift or a watch schedule. See "Spot Annual Leave," MOU, Exhibit 1 attached to Petition for Review. See also Explanation.

      According to the Union, a past practice has been established whereby all approved leave requests, both for supervisors and controllers, are recorded in the advance schedule book. See Rochester Tower Council Minutes, Union Exhibit 2 attached to Petition for [ v56 p289 ] Review. While the MOU only addresses recording supervisors' prime time requests, the established past practice described by the Union involves recording supervisors' scheduled and spot leave requests as well. The Union asserts that recording supervisors' scheduled and spot leave is necessary to implement the minimum staffing provision of the MOU. See Petition for Review, "Opening Arguments" Section, second unnumbered page. The Union claims that because leave requests are approved or disapproved based upon the total number of personnel on a team who are available, including supervisors, if it is known that a supervisor will be present, team members' leave requests that might otherwise have to be disapproved, based on staffing numbers, could be granted. Id. The Union also claims that including supervisors in the pool of personnel available for implementing the minimum staffing level means that supervisors will perform air traffic control and separation duties (operational duties) and, as a result, an employee's leave request could be approved. See Union Exhibit No. 5 attached to the Petition for Review.

      While the MOU and past practice were in effect, Agency management notified the Union that it would no longer include supervisors' leave schedules in the advance schedule book. See Union Exhibit 4 attached to Petition for Review. The Agency claimed that it had the right to take the action under section 7106(a)(2)(B) of the Statute.

      The Union responded by challenging the Agency's claim under section 7106(a)(2)(B), noting that section 7106(a) is subject to section 7106(b)(1) pertaining to the numbers, types, and grades of employees. Union Exhibit 5 attached to the Petition for Review. The Union indicated that it considered the Agency's action to be a violation of the MOU.

      The parties met to discuss the Agency's action. The Union offered the proposals set forth above and subsequently requested an allegation of nonnegotiability as to those proposals. See Union Exhibit 6 attached to Petition for Review. The Agency responded that it considered the matter of including supervisors' schedules in the advance schedule book to be an impact and implementation issue, rather than one of substance. See Union Exhibit 7 attached to Petition for Review. The Union thereupon filed the petition for review in this case.

IV.     Positions of the Parties

A.     Agency

      According to the Agency, when it negotiated the MOU for placing supervisors on the advanced watch schedule, it assumed that they "would be available to handle the duties of separating and controlling aircraft, a function normally performed by bargaining unit employees." Statement of Position at 2. The Agency also states that, when supervisors are assigned to those duties, they "would be unable to perform their supervisory and administrative duties." Id.

      The Agency asserts that the Union's appeal is based on its claim that the Agency has violated the MOU by removing supervisors from the advanced watch schedule. Specifically, the Agency argues that "the union 'proposals' constitute nothing more than a request that the agency comply with the MOU and the relief sought for the [A]gency's alleged violation of the agreement." Id. at 5. The Agency contends that the Union's claim should be resolved under the parties' negotiated grievance procedure and is not appropriately raised under the negotiability appeals procedure. [n4] 

      The Agency also asserts that "unions are not entitled to bargain on behalf of non-bargaining unit members," id. at 6, and that Proposals 1 and 3 "directly implicate supervisory personnel." Id. at 7. Specifically, the Agency maintains that Proposal 1 "dictates that supervisors be placed on the operational watch schedule, meaning that they will be required to perform aircraft separation and control duties on dates when an insufficient number of bargaining unit employees is available for such duties because of the granting of annual leave requests." Id. The Agency contends that Proposal 3 requires that the union "jointly determine with management officials whether supervisors assigned to operational positions (i.e., the watch schedule) will be placed on 'administrative details,' in order to perform their normally assigned [supervisory] duties." Id. The Agency claims that because the proposals concern the conditions of employment of supervisors, the proposals are outside the duty to bargain. [n5] 

      In addition, the Agency asserts that the proposals affect management's right to assign work under section 7106(a)(2)(B) of the Statute. Finally, the Agency argues that the proposals are not within the duty to bargain under section 7106(b)(3) of the Statute. [ v56 p290 ]

B.     Union

      According to the Union, in negotiating the MOU, the Agency exercised discretion usually reserved to management and thereby tied supervisory conditions of employment and the assignment of work to unit employees' conditions of employment. The Union contends that the Agency's change in the conditions prescribed by the MOU and existing past practice requires bargaining over the substance of that change and not impact and implementation bargaining. The Union argues that the matters at issue are negotiable and that the proposals, rather than seeking compliance with the MOU, are an attempt to maintain the status quo pending negotiations with management over the problems resulting from the decreased number of supervisors. The Union asserts that, in this respect, the case is distinguishable from Mare Island. The Union claims that the issues in the case are too complicated for resolution on a case-by-case basis in the grievance procedure and that the negotiability appeal addresses "the broader question of [n]egotiability itself[.]" Response at 5.

      The Union claims that the proposals do not change the conditions of employment of nonunit personnel "to any measurable degree." Id. The Union argues that, as a result, "any case law dealing with 'new' proposals by a union that [r]egulate the conditions of employment of non-unit personnel are irrelevant." Id. at 6. Specifically, the Union distinguishes Cherry Point and OPM by arguing that where, as in this case, management has exercised its discretion to attach supervisory conditions of employment to the conditions of employment of unit employees, the Union "should be allowed to execute its full bargaining obligation[.]" Id.

      The Union also claims that the proposals do not affect management's right to assign work under section 7106(a)(2)(B). The Union disputes the Agency's claim that the proposal excessively interferes with management's right to assign work. Rather, according to the Union, the proposals were intended to "initiate good faith bargaining in accordance with [section] 7106(b)(3) using the previously successful negotiations and agreement as a foundation for further discussions." Id. Finally, the Union states that the MOU was bargained based on section 7106(b)(1). The Union also notes section 7106(b)(2) and (3). The Union asserts that each of these sections "allow for our request for negotiability to be granted." Id. at 8.

V.     Meaning of the Proposals

      The parties are not in dispute as to the factual context of this case. Specifically, the parties agree that: (1) the MOU provides for supervisors to be included among available personnel for purposes of determining whether a minimum staffing level exists to cover operational duties so as to grant a unit employee's leave request; (2) by past practice, supervisors are included on the advance leave schedule in order to determine their availability to perform operational duties; (3) the Agency decided not to continue listing supervisors' leave on the advance schedule because the number of supervisors had been reduced and, as a result, there were fewer supervisors available to cover supervisory and administrative duties.

      In interpreting a disputed proposal, the Authority looks to its plain wording and any union statement of intent. Where a union's explanation of a proposal comports with the proposal's plain wording, the Authority adopts that explanation for the purpose of construing what the proposal means and, based on that meaning, deciding whether the proposal is within the duty to bargain. See, e.g., National Education Association, Overseas Education Association, Laurel Bay Teachers Association and U.S. Department of Defense, Department of Defense Domestic Schools, Laurel Bay Dependents Schools, Laurel Bay, Elementary and Secondary Schools, South Carolina, 51 FLRA 733, 741-42 (1996).

      By its terms, Proposal 1 provides that, consistent with the MOU, the parties will work out arrangements for a reduced number of supervisors and place them on the advanced leave schedule as efficiently as possible. Proposal 3 provides that the parties will explore the possibility of placing supervisors on administrative detail when they are able so as to permit them to perform non-operational duties. The Union explains that the proposals are intended to maintain the existing leave process while negotiating adjustments to that process to address the effect of the reduced number of supervisors. Because the Union's explanation of the proposals comports with the plain wording of those proposals, we adopt the Union's explanation for purposes of this decision.

      Based on the plain wording of the proposals and the Union's stated intent, it is clear that the proposals would require the Agency to continue the existing leave process as set forth in the MOU while negotiating on the assignment of supervisors to operational and non-operational, i.e., supervisory and administrative, duties. [ v56 p291 ]

VI.     Analysis and Conclusions

A.     The Proposals are Properly before the Authority for a Negotiability Determination.

      Under section 7117 of the Statute and section 2424.1 of the Authority's Regulations, the Authority will consider a petition for review of a negotiability issue where the parties disagree over whether a proposed matter conflicts with law, rule, or regulation. See, e.g., National Federation of Federal Employees, Local 2119 and U.S. Department of the Army, Rock Island Arsenal, Rock Island, Illinois, 49 FLRA 151, 153 (1994). In this case, the Agency alleges that the proposals at issue are outside of the duty to bargain because they implicate the conditions of employment of supervisors and affect management's right to assign work under section 7106(a)(2)(B) of the Statute. Where, as here, the conditions governing review of a negotiability appeal have been met, the Authority is required to determine whether the proposals are within the duty to bargain under the Statute. Id.

      This case is distinguishable from Mare Island, 32 FLRA 380, relied on by the Agency. The proposal at issue in that case required the agency to comply with a provision of the parties' collective bargaining agreement. It also did not include, as do the proposals in this case, a requirement that adjustments to the terms of the existing agreement be negotiated. The requirement for negotiation distinguishes the proposal in this case from the proposal in Mare Island.

      Consequently, we find that the proposals are properly before us for a negotiability determination.

B.     The Proposals Directly Implicate the Conditions of Employment of Nonunit Personnel and are Outside the Duty to Bargain

      Under Authority and judicial precedent, proposals that directly implicate the conditions of employment of supervisors are outside the duty to bargain. See, e.g., International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 830, 835 (1996), citing Cherry Point and OPM. However, matters pertaining to supervisors' conditions of employment are permissive subjects of bargaining, although any agreement thereon must otherwise be consistent with the Statute. See American Federation of Government Employees, Local 3302 and U.S. Department of Health and Human Services, Social Security Administration, 52 FLRA 677, 682 (1996).

      The proposals in this case require the Agency to bargain over the work assignments of supervisory personnel and, thus, directly implicate the conditions of employment of those personnel. Unless there is some other basis for finding the proposals to be within the duty to bargain, under section 2424.10 of the Authority's Regulations, the petition for review will be dismissed. Marine Corps Air Station, 54 FLRA at 1136.

      In this regard, the Union argues that the Agency is obligated to bargain over its decision to remove the supervisors from the advance leave schedule because it had agreed to provisions governing the work assignments of supervisors in the MOU. For the following reasons, we reject the argument.

      In Allied Chemical & Alkali Workers of America, Local Union No. 1 v. Pittsburgh Plate Glass Company, Chemical Division, 404 U.S. 157 (1971) (Pittsburgh Plate Glass), the Supreme Court considered the effect of an employer's prior agreement to a contract provision, that constituted a permissive subject of bargaining, on the employer's duty to bargain under section 8(d) of the National Labor Relations Act (the Act). The Court held that "[b]y once bargaining and agreeing on a permissive subject, the parties, naturally, do not make the subject a mandatory topic of future bargaining." 404 U.S. at 187.

      The Authority has not considered the issue addressed by the Court in Pittsburgh Plate Glass. However, the Statute's description of the duty to bargain parallels the definition of the duty to bargain in section 8(d) of the Act. See Army and Air Force Exchange Service and International Association of Machinists and Aerospace Workers, Local Lodge No. 2333, 52 FLRA 290, 304 (1996). The Authority has held that "[w]here there are comparable provisions under the Statute and the [Act], decisions of the National Labor Relations Board . . . and the courts interpreting the [Act] have a 'high degree of relevance' to similar circumstances under the Statute." U.S. Geological Survey and Caribbean District Office, San Juan, Puerto Rico, 50 FLRA 548, 550 (1995), quoting U.S. Department of the Interior, Bureau of Indian Affairs, Navajo Area Office, Gallup, New Mexico, 45 FLRA 646, 652 (1982). Because the circumstances of this case are similar to those of Pittsburgh Plate Glass, and because the duty to bargain under the Statute parallels the duty to bargain under the Act, we adopt the rationale of the Court in that case with respect to the duty to bargain over permissive subjects.

      Applying that rationale here, the fact that the Agency agreed to the MOU does not mean that it is obligated to bargain over adjustments to provisions of the MOU relating to work assignments of supervisors, a [ v56 p292 ] permissive subject of bargaining. [n6]  Cf. American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 135 (1995) (fact that an agency agreed to a proposal in a previous contract does not make a nonnegotiable matter negotiable). The proposals at issue in this case concern supervisory conditions of employment and, as stated above, the Agency has no obligation to bargain over that matter under the Statute.

      Because the proposals are outside the duty to bargain, it is unnecessary to address the remaining arguments asserted in this case. See, e.g., Marine Corps Air Station, 54 FLRA at 1136; International Federation of Professional and Technical Engineers, Local 49 and U.S. Department of the Army, Army Corps of Engineers, South Pacific Division, San Francisco, California, 52 FLRA 830, 837-38 (1996) (South Pacific Division). In particular, it is not necessary to reach the Union's arguments regarding section 7106(a)(2)(B) and section 7106(b)(1). See South Pacific Division, 52 FLRA at 837.

      Consequently, we find that the proposals are outside the duty to bargain and, consistent with section 2424.10 of the Authority's Regulations, we dismiss the petition for review. See, e.g., Marine Corps Air Station, 54 FLRA at 1136; South Pacific Division, 52 FLRA at 837.

VII.     Order

      The petition for review is dismissed.



Footnote # 1 for 56 FLRA No. 40

   The petition for review in this case was filed before the Authority's revised negotiability regulations took effect.


Footnote # 2 for 56 FLRA No. 40

   The Agency contends that Proposal 2 has no meaning apart from Proposals 1 and 3 and that it is not, therefore, alleging that Proposal 2 is nonnegotiable. Statement of Position at 3, n.1. Proposal 2 will not be considered further in this decision. See, e.g., American Federation of Government Employees, Local 2031 and U.S. Department of Veterans Affairs, Medical Center, Cincinnati, Ohio, 56 FLRA 32, 32 n.3 (2000) (agency did not address proposal and Authority did not consider it in decision).


Footnote # 3 for 56 FLRA No. 40

   The MOU provides that it may be reopened for purposes of modification at the request of either party.


Footnote # 4 for 56 FLRA No. 40

   The Agency cites International Federation of Professional and Technical Engineers, Local 11 and Mare Island Naval Shipyard, Vallejo, California, 32 FLRA 380, 383 (1988) (Mare Island).


Footnote # 5 for 56 FLRA No. 40

   The Agency cites U.S. Department of the Navy, Naval Aviation Depot, Cherry Point, North Carolina v. FLRA, 952 F.2d 1434 (D.C. Cir. 1992) (Cherry Point) and American Federation of Government Employees, Local 32 and U.S. Office of Personnel Management, Washington, D.C., 51 FLRA 491 (1995), aff'd sub nom. American Federation of Government Employees v. FLRA, 110 F.3d 810 (D.C. Cir. 1997) (OPM).


Footnote # 6 for 56 FLRA No. 40

   The Supreme Court also stated, however, that the union's remedy in these circumstances is through enforcement of the parties' agreement regarding the permissive subject matter. See Pittsburgh Plate Glass, 404 U.S. at 188 ("The remedy for a unilateral mid- term modification to a permissive term lies in an action for breach of contract[.]" We found above, see Section IV.A. of this decision, that this case does not concern a misfiled grievance seeking to enforce the parties' MOU. Consequently, our decision herein that the proposals are outside the duty to bargain does not constitute a ruling on the enforceability of that MOU. Issues that arise in connection with the enforcement of such a provision may very well be different from those that arise in a negotiability appeal concerning that same provision. In this regard, contract provisions that directly implicate the conditions of employment of supervisors are enforceable provided the provisions are otherwise consistent with law and regulation. See U.S. Department of Defense, Defense Logistics Agency, Defense Distribution Center, New Cumberland, Pennsylvania and American Federation of Government Employees, Local 2004, 55 FLRA 1303, 1305-06 (2000). Moreover, management's rights arguments in an arbitration context are evaluated under the framework articulat