Professional Airways, Systems Specialists (Union) and U.S. Department of Transportation, Federal Aviation Administration (Agency) and U.S. Department of Transportation, Federal Aviation Administration, Pittsburgh, Pennsylvania (Agency)

[ v56 p798 ]

56 FLRA No. 134

PROFESSIONAL AIRWAYS
SYSTEMS SPECIALISTS
(Union)

and

U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

0-NG-2493
0-NG-2531

and

U.S. DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
PITTSBURGH, PENNSYLVANIA
(Agency)

0-NG-2524

_____

DECISION AND ORDER ON
NEGOTIABILITY ISSUES

September 29, 2000

_____

Before the Authority: Donald S. Wasserman, Chairman and Dale Cabaniss, Member.

I.     Statement of the Case

      These cases are before the Authority on three petitions for review filed by the Union under section 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). The petitions concern similar proposals and by request of the parties have been consolidated in part for briefing. Accordingly, we have consolidated the cases for decision. 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, 55 FLRA 25 (1998).

      The proposals concern the distribution of work assignments by seniority, as well as the location at which certain work is performed. There is a bargaining obligation dispute (whether the subject matter of the proposals is "covered by" the parties' collective bargaining agreement) in NG2493 and NG2524, but not in NG2531, which concerns the negotiation of a new term agreement.

      For the reasons that follow, we find that, with the exception of the portion of the proposals concerning the location of certain work, the proposals are negotiable. We also find that, with the exception of section 5, the proposals are not "covered by" the parties' agreement.

II.     The Proposal

      The Union requests that the proposal in NG2531 be substituted for the proposals in NG2493 and 2524. See Union Response, NG2531 at 2. As the Agency does not object to this request, and is not prejudiced by it, we grant the Union's request. [n1] The proposal in NG2531 is set forth in full in Appendix A. The remaining disputed section of the proposal in NG2493 is set forth and addressed in section V. below.

      The proposal is entitled "Procedure For Reassignment Of Complexities." The parties agree that the term "complexity" refers to the work performed by employees when they inspect, or oversee the inspection of, aircraft. See Record of Post-Petition Conference, NG2524 at 2. Currently, individual office managers determine which employee is assigned the complexities that are the responsibility of that manager's office. The proposal, which creates a process for the assignment of complexities, is summarized as follows:

      Section 1 of the proposal provides that it will be applied whenever a complexity or an employee is assigned to, or removed from, an office and when a complexity "must be removed from the current holder for cause[.]"

      Section 2 explains the bidding process to redistribute the assignment of complexities in the circumstances set out in Section 1. The inspectors, in seniority order, would be afforded the right to select or decline complexities "provided the Agency has determined that the Inspector is qualified to perform the work associated with the complexity."

      Section 3 provides that, in the event that complexities remain unselected after the bidding process, "management shall make assignment of the remaining complexities in a fair and equitable manner."

      Section 5 provides that "training shall be made available" to any person "failing to hold the complexities required for the pay grade because of training" and that "one bid cycle will be completed prior to any personnel action such as a transfer or demotion." [ v56 p799 ]

III.     Positions of the Parties

A.     Agency

      The Agency disputes the Union's claim that its rights under section 7106 of the Statute were affected by passage of the Department of Transportation and Related Agencies Appropriation Act of 1996, Pub. L. No. 104-50, Title III, § 347, 109 Stat. 460 (1995), as amended by Pub. L. 104-122, 110 Stat. 876 (1996) (codified at 49 U.S.C. § 106 note) (FAA Act). The Agency asserts that the Statute "was preserved in toto by Congress." Statement of Position, NG2524 & 2531 at 3.

      The Agency argues that, by requiring assignments to be made based on seniority, the entire proposal conflicts with its right to assign work under section 7106(a)(2)(B) of the Statute. With respect to individual sections of the proposal, the Agency argues that the requirement in section 3 that assignments be made in a "fair and equitable manner" is inconsistent with its right to assign work. In addition, according to the Agency, the requirement in section 5 that an employee be trained in certain circumstances "is inconsistent with the Agency's right to determine training needs in connection with the assignment of work." Statement of Position, NG2493 at 7 (citations omitted).

      Finally, the Agency claims that several sections of the proposal concern matters that are "covered by" the parties' collective bargaining agreement and, as the petitions in NG2493 and 2524 arose from mid-term bargaining, those petitions should be dismissed. [n2] See Statement of Position, NG2493 at 2-3 (citing U.S. Department of Health and Human Services, Social Security Administration, Baltimore, Maryland, 47 FLRA 1004, 1018 (1993) (SSA)). In this regard, the Agency disputes the Union's claim that, in arguing that sections of the proposal are "covered by" the parties' agreement, the Agency is limited in both NG2493 and 2524 to Prong I of SSA by agreement between the parties (hereinafter the "covered by" agreement). [n3] The Agency asserts that the agreement does not apply in NG2493 because the parties' dispute in that case preceded it.

B.     Union

      The Union notes that management rights under section 7106(a)(2) of the Statute must be exercised "in accordance with applicable laws." Union Response, NG2493 at 8. The Union argues that, by virtue of the FAA Act, "the 'applicable laws' referenced in the Statute are no longer applicable" to the Agency. Id. Therefore, according to the Union, "there is no statutory impediment to expanding bargaining rights into areas described" in section 7106(a)(2) of the Statute. Id.

      The Union also asserts that the portion of the proposal requiring assignments based on seniority does not affect the Agency's right to assign work because "only inspectors deemed by management to be qualified" would be eligible for assignments. Id. at 10 (citation omitted). The Union states that the term "qualified" means "equally qualified," which, in turn, "refers to employees who are determined by management to be relatively equal in terms of their knowledge, skills, and abilities." Union Response, NG2524 and 2531 at 5.

      As for individual sections of the proposal, the Union argues that the requirement in section 3 that assignments be made in a "fair and equitable" manner does not affect the Agency's right to assign work because it is intended "only to require the agency to rely on merit factors required by applicable law, rule, or regulation" in making assignments. Union Response, NG2493 at 11 (citation omitted). The Union argues that the requirement in section 5 that employees be provided training is an appropriate arrangement under section 7106(b)(3) of the Statute. The Union asserts that the impact of section 5 on management's rights "is not excessive, and it will promote employee morale and a better trained workforce." Union Response, NG2524 & 2531 at 9. The Union notes that the Agency would retain the right to determine individual training needs and methods.

      In addition, the Union disputes the Agency's claim that portions of the proposal are covered by the parties' collective bargaining agreement, and requests a hearing to resolve the matter. The Union also asserts that, pursuant to the parties' "covered by" agreement, the Agency may rely only on Prong I of SSA in both NG2493 and NG2524. [ v56 p800 ]

IV.     Meaning of the Proposal

      There is no dispute over the proposal's meaning. [n4] In particular, the Agency does not respond to, or dispute, the Union's explanations that: (1) the proposal permits the Agency to determine whether employees are qualified for assignments, and (2) the term "qualified" in section 2(c) means "equally qualified," which "refers to employees who are determined by management to be relatively equal in term[s] of their knowledge, skills and abilities." [n5] Union Response, NG2524 & 2531 at 5. The Agency also does not respond to, or dispute, the Union's explanation that the reference in section 3 to "fair and equitable" only requires the Agency to "rely on merit factors required by applicable law, rule, or regulation." Union Response, NG2493 at 11.

V.     Analysis and Conclusion

A.     The FAA Act did not diminish the Agency's management rights under section 7106(a).

      The FAA Act granted the FAA Administrator discretion to institute a personnel system in which "[t]he provisions of title 5, United States Code, shall not apply . . . ." FAA Act, section 347(b). Thus, the Agency is not bound by many statutes that govern other federal agencies. However, the FAA Act, as amended, sets out several provisions of title 5 that continue to apply to the Agency, including the Statute. Id., section 347(b)(3) (specifying that "chapter 71, relating to labor-management relations" does apply).

      Section 7106(a)(2) sets out a variety of management rights and states that nothing in the Statute shall affect the authority of any management official to exercise these rights "in accordance with applicable law. . . ." In construing this phrase, the Authority held that "Congress intended to require management officials to exercise their enumerated rights in a manner that complies with law in its generic sense[.]" National Treasury Employees Union and U.S. Department of the Treasury, Internal Revenue Service, 42 FLRA 377, 389 (1991); rev'd. on other grounds, 996 F.2d 1246 (D.C. Cir. 1993). Thus, the "applicable law" proviso limits agency discretion to take actions pursuant to that section. See Department of Treasury, I.R.S. v. FLRA, 494 U.S. 922, 931 (1990) ("there are no `external limitations' on management rights, insofar as union powers under section 7106(a) are concerned, other than the limitations imposed by `applicable law.'") .

      The Union asserts that, by reducing the number of "applicable laws" encompassed by section 7106(a)(2), the FAA Act diminished the Agency's rights under that section. This argument ignores the role of applicable law with respect to management rights, which is to provide a limitation on those rights. To the extent that the FAA Act reduced the number of applicable laws, it reduced the number of limitations on management rights. Accordingly, we reject the Union's argument that the FAA Act diminished the Agency's rights. [n6] 

B.     The portion of the proposal requiring work assignments based on seniority does not affect management's right to assign work.

      The Agency's right to assign work under section 7106(a)(2)(B) encompasses the right to determine the particular employees to whom work will be assigned. See National Treasury Employees Union, Chapter 26 and Internal Revenue Service, Atlanta District, 22 FLRA 314, 324-25 (1986). That right also permits management to establish the necessary qualifications and skills for a position, and to assess whether employees possess the requisite qualification and skills. See American Federation of Government Employees, Local 1138, Council 214 and U.S. Department of the Air Force, Air Force Materiel Command, 645 Air Base Wing/CE, Wright-Patterson Air Force Base, Ohio, 51 FLRA 1725, 1730 (1996). Consistent with this, the Authority has long held that proposals that set forth a method or criteria for assignment, including seniority, do not affect the right to assign work where management has determined that employees are "equally qualified" for an assignment to a particular position. Id. See also Overseas Education Association, Inc. and Department of Defense Dependents Schools; 29 FLRA 734, 793 [ v56 p801 ] (1987), aff'd as to other matters, 872 F.2d 1032 (D.C. Cir. 1988) (per curium); 911 F.2d 743 (D.C. Cir. 1990) (en banc).

      The proposal requires the Agency to assign work based on seniority provided that, under section 2(c), the Agency has determined that the employees are qualified to perform the work. As set forth above, the Union explains, and the Agency does not dispute, that the proposal permits the Agency to determine employee qualifications and requires assignments based on seniority only to equally qualified employees. Accordingly, applying the Authority precedent set forth above, the portion of the proposal requiring assignments by seniority does not affect the Agency's right to assign work.

C.     The portion of the proposal requiring "fair and equitable" work assignments does not affect management's right to assign work.

      The Authority has held that proposals requiring an agency to make decisions on a "fair and equitable" basis affect management rights where they establish substantive criteria governing the exercise of those rights. See National Treasury Employees Union and U.S. Department of the Treasury, Customs Service, Washington, D.C., 46 FLRA 696, 708 (1992). However, where a proposed requirement for "fair and equitable" assignment merely requires an agency to make assignments "in a manner which is consistent with `merit factors required by applicable law, rule or regulation,'" the proposal does not affect management rights. See American Federation of Government Employees, Department of Education Council of AFGE Locals and Department of Education, 35 FLRA 56, 62-63 (1990) (Department of Education).

      The Union explains, and the Agency does not dispute, that the requirement in section 3 that assignments be made in a "fair and equitable" manner is "intended only to require the agency to rely on merit factors required by applicable law, rule, or regulation." Union Response, NG2493 at 11; see also December 27 Record at 3. As the proposal only requires the Agency to exercise its right to assign work in a manner consistent with law, it mirrors the proposal found within the duty to bargain in Department of Education. Applying that precedent, section 3 does not affect the Agency's right to assign work.

D.     Section 5 of the proposal constitutes an appropriate arrangement.

      Section 5 of the proposal addresses employees who have "insufficient work to support their pay grades" and provides, in part, that, "[i]f it is determined that the person(s) is failing to hold the complexities required for the pay grade because of training, that training shall be made available to the person and at least one bid cycle will be completed prior to any personnel action such as transfer or demotion."

      It is undisputed that proposals that require management to assign work-related training to employees affect management's right to assign work. See, e.g., National Association of Government Employees, Local R1-203 and U.S. Department of the Interior, U.S. Fish and Wildlife Service, Hadley, Massachusetts, 55 FLRA 1081, 1093 (1999) (Interior). Accordingly, section 5 affects management's right.

      The Union claims that section 5 is an appropriate arrangement under section 7106(b)(3) of the Statute. The test for determining whether a proposal is within the duty to bargain under section 7106(b)(3) is set out in National Association of Government Employees, Local R14-87 and Kansas Army National Guard, 21 FLRA 24 (1986) (KANG). Under that test, the Authority initially determines whether the proposal is intended to be an "arrangement" for employees adversely affected by the exercise of a management right. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Department of the Treasury, Office of the Chief Counsel, Internal Revenue Service v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). See also American Federation of Government Employees, Local 1900 and U.S. Department of the Army, Headquarters, Forces Command, Fort McPherson, Georgia, 51 FLRA 133, 141 (1995). The claimed arrangement also must be "tailored" to compensate or benefit employees suffering adverse effects attributable to the exercise of management´s right(s). See id.

      If the proposal is an arrangement that is sufficiently tailored, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with management's right(s). KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management rights. Id.

      Section 5 applies in situations where the Agency has determined that an employee is not performing sufficient [ v56 p802 ] higher-graded work because of a lack of training, and requires that training be provided prior to any personnel action, such as transfer or demotion. The failure to assign training constitutes the exercise of management's right to assign work. See Interior, 55 FLRA at 1093. Thus, the proposal seeks to mitigate adverse effects flowing from the exercise of management rights. In addition, the proposal applies only to employees who have been determined not to be performing sufficiently higher-graded work "because of training." As such, the proposal is sufficiently tailored. See id.

      In determining whether the proposal excessively interferes with the Agency's right to assign work, we find that the benefit afforded affected employees by the proposal is significant. In particular, employees subject to transfer or demotion would be offered training necessary to eliminate these adverse actions. On the other hand, the intrusion on management's right to assign work is not significant. In this regard, the proposal applies only to those employees whom the Agency has determined are performing at an improper level "because of training." Proposal, section 5. The proposal thus retains management discretion to determine that training be offered only to employees for whom it will be effective, and discretion to determine the type of training to offer.

      On balance, we conclude that the benefit to unit employees outweighs the effect on management's right. As such, we find that section 5 is an appropriate arrangement for adversely affected employees. [n7] 

VI.     The remaining portion of the proposal in NG2493 is outside the Agency's duty to bargain. [n8] 

A.     The Proposal

The Emery World Airlines (EWA) 14 CFR Part 121 Certificate will be transferred to the Cleveland FSDO from the San Jose FSDO.

B.     Positions of the Parties

1.     Agency

      The Agency asserts that the proposal affects its rights to determine its mission and organization, and to assign work, under section 7106(a) of the Statute. [n9] 

2.     Union

      The Union does not dispute that the proposal affects management's rights under section 7106(a) of the Statute. The Union asserts that the proposal is a "method and means of performing work" under section 7106(b)(1) of the Statute, because assigning the certificate to Cleveland is "a more efficient method and means of accomplishing the inspection work[.]" Union Response, NG2493 at 9.

C.     Meaning of the Proposal

      The parties agree that airlines subject to FAA oversight are certified by the Agency, and oversight for a certification is controlled by the Agency office where the certificate is located. The Agency announced that it intended to transfer the certificate of Emery World Airlines from San Jose to Cincinnati. Under the proposal, the Agency would be required to transfer the Emery certificate to Cleveland, instead.

D.     Analysis and Conclusions

      In National Association of Government Employees, Local R5-184 and U.S. Department of Veterans Affairs, Medical Center, Lexington, Kentucky, 51 FLRA 386 (1995) (VAMC, Lexington), the Authority set out the sequence of analysis it would follow in cases where a union does not dispute that a proposal affects management's rights under section 7106(a) of the Statute, but claims that the proposal is bargainable under section 7106(b)(1) of the Statute. Under that sequence, the Authority first examines the contention that a proposal is bargainable under section 7106(b)(1). If the matter concerns a subject set forth in section 7106(b)(1), then the Authority does not address section 7106(a) further, because subsection (b)(1) is an exception to subsection (a). As the Union does not dispute that the proposal affects the Agency's rights under section 7106(a), we address the Union's argument that the proposal is a [ v56 p803 ] "method and means of performing work" under section 7106(b)(1).

      There are two prongs to the Authority's current test used to determine whether a proposal concerns the methods and means of performing work. [n10] First, the proposal must concern a "method" or "means" as defined by the Authority. "Method" refers to "the way in which an agency performs its work." 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 813, 818 (1996). "Means" refers to "any instrumentality, including an agent, tool, device, measure, plan, or policy used by an agency for the accomplishment or furtherance of the performance of its work." Id. Second, it must be shown that: (1) there is a direct and integral relationship between the method or means the agency has chosen and the accomplishment of the agency's mission; and (2) the proposal would directly interfere with the mission-related purpose for which the method or means was adopted. See, e.g., Association of Civilian Technicians, Arizona Army Chapter 61 and U.S. Department of Defense, National Guard Bureau, Arizona National Guard, 48 FLRA 412, 420 (1993).

      Applying the first prong of the test, there is no basis to conclude that the proposal concerns the methods and means by which the Agency performs its work. Rather, the proposal concerns only the location at which work will be performed. The Authority has held that proposals that work be performed in one location rather than another do not concern the methods and means of performing work. See American Federation of Government Employees, Local 3529 and U.S. Department of Defense, Defense Contract Audit Agency, Central Region, Irving, Texas; 55 FLRA 830 (1999); National Federation of Federal Employees, Local 7 and U.S. Department of Agriculture, Office of Rural Development, Portland, Oregon, 53 FLRA 1435, 1438 (1998); see also American Federation of Government Employees, Local 1985 and U.S. Department of Veterans Affairs Medical Center, Dublin Georgia, 55 FLRA 1145, 1148 (1999) (citing General Services Administration and American Federation of Government Employees, Council of GSA Locals, Council 236, 54 FLRA 1582, 1590 (1998) (proposals concerning by whom work is performed do not relate to the way in which an agency performs work or the tools or devices that may be used)).

      The proposal that the Emery World Airlines certificate be held by the Agency in Cleveland relates only to the location at which this work will be performed, and in no way concerns the way in which the work will be performed, or with what tools and devices. Accordingly, applying the foregoing precedent, we conclude that the Union has not established that the proposal concerns a method and means of performing work under section 7106(b)(1) of the Statute. As the Union does not dispute the Agency's claim that the proposal affects management rights under section 7106(a), and makes no other argument that the proposal is within the duty to bargain, we dismiss the petition for review with respect to it.

VII.     The portions of the proposals in NG2493 and NG2531 that concern save pay and training are covered by the parties' agreement, but the portions of the proposals that concern seniority and work assignments are not covered by the agreement.

      Two types of disputes may be raised in negotiability proceedings: negotiability disputes and bargaining obligation disputes. 5 C.F.R. § 2424.2(a), (c). Negotiability disputes involve a disagreement between the parties "concerning the legality of a proposal . . . ." Id. Bargaining obligation disputes involve a disagreement concerning "whether . . . the parties are obligated to bargain over a proposal that otherwise may be negotiable." Id. An example of a bargaining obligation dispute is a claim by an agency that a "proposal concerns a matter that is covered by a collective bargaining agreement[.]" 5 C.F.R.§ 2424.2(a)(1).

      In addition to the negotiability disputes resolved above, the records in NG2493 and 2524 reveal bargaining obligation disputes. In particular, the Agency claims that the petitions in NG2493 and 2524 should be dismissed because they concern matters that are "covered by" various provisions in the parties' collective bargaining agreement, which the parties have extended beyond its stated expiration date. See note 2, supra. The Union disagrees that the disputed sections of the proposals are covered by the terms of the parties' agreement. In addition, as noted above, the parties disagree over whether their "covered by agreement" applies in NG2493 and whether, as a result, the Agency is limited to SSA Prong I in that case. [ v56 p804 ]

      We find no basis in the Statute for concluding that, in general, an expired agreement would excuse a party from bargaining. [n11] We note, in this connection, that contract provisions resulting from negotiations over mandatory subjects of bargaining continue in effect after the expiration of a contract. However, this continuation "has never been held to constitute a collective bargaining agreement." United States Immigration and Naturalization Service, United States Border Patrol, Del Rio, Texas, 51 FLRA 768, 773 (1996); aff'd sub nom. American Federation of Government Employees, National Border Patrol Council, Local 2366, AFL-CIO v. FLRA, 114 F.3d 1214 (D.C. Cir. 1997).

      In this case, however, the parties' agreement has not, in fact, expired. In particular, Article 86 of the agreement provides that, if negotiations are not complete by the expiration date, then the agreement continues "in full force and effect until a new Agreement is reached." See note 2, supra. There is no dispute that the agreement was not renegotiated prior to its expiration date. See Statement of Position, NG2524 & 2531 at 3; Union Response, NG2524 & 2531 at 11. Consistent with Article 86, the Union does not dispute the Agency's ability to raise "covered by" arguments based on the expired agreement and, in fact, reached agreement with the Agency on how "covered by" arguments would be made in connection with that agreement. See note 3, supra. This agreement evidences the parties' understanding that at least some "covered by" arguments could be made.

      With respect to the latter point, the Agency argues that the "covered by agreement" does not apply in NG2493 because the parties' dispute in that case predated the agreement. However, the "covered by agreement" is dated May 12, 1999, prior to the Agency's May 14, 1999, allegation of nonnegotiability in NG2493. As such, and as there is no wording in the "covered by agreement" supporting the Agency's argument, we reject it. Applying the "covered by agreement," we determine whether the proposal is covered by the parties' agreement under Prong I of SSA, which asks whether the disputed matter "is expressly contained in the collective bargaining agreement." SSA, 47 FLRA at 1018. Under Prong I, the Authority does not "require an exact congruence of language, but will find the requisite similarity if a reasonable reader would conclude that the provision settles the matter in dispute." Id. (citation omitted).

      Applying Prong I, we conclude that section 5 of the proposal is covered by Articles 28 and 44 of the parties' agreement. In this regard, section 5 provides, in the first sentence, that employees who are unable to sustain their pay grade because of insufficient work "will be declared excess with save pay or save grade for a minimum of two years." The proposal provides, in the second sentence, that employees who do not perform work necessary to sustain their grades because of a lack of training will be provided opportunities for such training. The record reveals that, in Article 44 of the parties' agreement, entitled "Grade and Pay Retention," the parties have agreed that save grade and save pay will be granted to employees "to the extent permissible under 5 U.S.C. 5361-5366[.]" Statement of Position, NG2493, Attachment 1 at 38. Similarly, in Article 28 of their agreement, entitled "Training," the parties have agreed to a comprehensive provision regarding the Agency's obligations to provide training to employees. Among other things, Article 28 provides that "[t]he Employer determines individual training needs and the methods by which that training will be accomplished." Id. at 28. Articles 28 and 44 establish that the parties bargained over and reached agreement concerning pay and grade retention as well as training for employees. As such, under Prong I of SSA, section 5 of the proposal is covered by the parties' agreement. See, e.g., Social Security Administration, Tucson District Office, Tucson, Arizona, 47 FLRA 1067 (1993) (agency not obligated to bargain over union proposal for work breaks because parties' agreement addressed and established work breaks for all employees).

      We reject the Agency's two remaining "covered by" arguments. In this regard, the Agency's first claim is that the portions of the proposal referencing and defining "seniority" as a criteria for assigning work are covered by Appendix III to the parties' agreement. That Appendix, which is entitled "Definitions," provides that "Service computation date (SCD) seniority shall be used unless otherwise specified." Statement of Position, NG2493, Attachment 1 at 71. It is clear, in this regard, that by its terms, the definition of seniority in Appendix III applies only "[a]s used in [the parties' term] [a]greement." Id. at 70. See also Agency Reply, NG2493 at 3 [ v56 p805 ] ("this provision was bargained for to be applied within the four corners of the collective bargaining agreement"). The proposal, if agreed upon, would apply outside the "four corners" of the parties' term agreement. Moreover, even if the proposal were to apply within the parameters of the parties' term agreement, the definition of "seniority" in Appendix III expressly permits the parties to "otherwise specif[y]" definitions. Statement of Position, NG2493, Attachment 1 at 71. The proposal would constitute such other specification. In these circumstances, the proposal is not covered by Appendix III to the agreement. See, e.g, U.S. Department of Energy, Western Area Power Administration, Golden, Colorado, 56 FLRA 9 (2000) (proposal to bargain over impact and implementation of reassignments not covered by provision in agreement concerning reassignments because agreement expressly permitted union to bargain over impact and implementation issues).

      The Agency's second claim is that the portion of the proposal describing the complexity bid sheet is covered by Article 12 of the parties' agreement. That provision, entitled "Position Descriptions," provides that employees will be provided accurate position descriptions and establishes a mechanism for the Union to request, and be notified of, changes in "standardized position descriptions." Statement of Position, NG2493, Attachment 1 at 16. Put simply, nothing in the proposal concerns employee position descriptions in general or standardized position descriptions in particular. Likewise, nothing in Article 12 indicates that it has any application to descriptions of work outside those in position descriptions. As such, the proposal is not covered by Article 12. See, e.g., Department of the Treasury, United States Customs Service, El Paso, Texas, 55 FLRA 43 (1998) (proposal concerning videotaping of employee interviews not covered by provision in agreement concerning audio tapes).

      Based on the foregoing, we conclude that, with the exception of section 5, the proposals in NG2493 and 2524 are not covered by the parties' term agreement. We dismiss the petitions as to section 5.

VIII.     Order

      The petition in NG2493 as to the portion of the proposal concerning the location at which the certificate for Emery World Airlines shall be maintained is dismissed. The petitions in NG2493 and 2524 as to section 5 are dismissed. The parties shall, upon request, bargain over the proposal in NG2531, and the remainder of the proposals in NG2493 and 2524.


Appendix

Section 1.     This procedure outlined in this Article shall govern the distribution of complexities and shall be followed when any of the following changes occur:

a.     a new complexity or work function is assigned to the office,
b.     an existing complexity or work function is removed from the office,
c.     a complexity or work function must be removed from the current holder for cause,
d.     a new bargaining unit employee comes into the office, or
e.     a bargaining unit employee leaves the office.

Section 2.     When changes, as described in Section 1 are necessary, the following procedure shall be used to redistribute the assignments of complexities.

a.     Bargaining unit members affected by a change in complexities shall be notified as soon as practicable of the proposed change in complexities. This notification shall include as much advance notice as possible regarding "potential" changes of complexities.
b.     Current Complexity Bid Sheets shall be assembled into a Complexity Bid Sheet Book along with a seniority roster. The Complexity Bid Book shall be made available for review by all affected Inspectors.
c.     The Inspector with the greatest seniority, as defined in the Article, that is affected by the proposed change of complexities shall have the first right to select or decline complexities, provided the Agency has determined that the Inspector is qualified to perform the work associated with the complexity. If the Agency determines that an Inspector is not qualified, the Agency, upon request, shall promptly inform the Inspector in writing of all the reasons for the Agency's determination that the Inspector is not qualified.
d.     The seniority roster referenced herein shall be used to control the order in which the Complexity Bid Book circulates through the affected employees and shall be used continuously until all selections are made.
e.     Complexity selection shall proceed as follows:
1)     The manager will provide the Inspectors affected by the proposed change in the complexity a current and complete Complexity Bid Sheet Book.
2)     The seniority roster will be used to control the order of the selection process until all complexity bids are completed. (When you get the bottom of the list and there are still unassigned complexities, go back to the top and go through the list again in the same order). [ v56 p806 ]
3)     The first (next) Inspector on the seniority roster shall select or decline the complexity using the Complexity Bid Sheet Book. Complexities shall be selected only from those complexities which are;
     (a) currently assigned to the selecting Inspector, or
     (b) currently unassigned.
4)     Upon making his/her selections, the Inspector shall sign one of two statements;
     (a) "I hereby certify that I want this complexity", or
     (b) "I hereby certify that I no longer want this complexity"
The remaining Complexity Bid Sheet will then be passed to the next Inspector on the list. This process will continue until all affected Inspectors have made their final selections.

Section 3.     In the event that complexities remain unselected, management shall make assignments of the remaining complexities in a fair and equitable manner. Management shall attempt not to assign more work than can be performed during an Inspector's normal duty hours. In the event an Inspector is assigned more work than hours available, the affected Inspector shall be so informed, in writing, by the Inspector's office manager. The Agency shall simultaneously send a copy of the notice to the applicable Regional Division Manager and PASS RBA.

Section 4.     The Regional Division Manager will be promptly notified in writing when there are more complexity hours than there are Inspectors to perform them. Likewise, if there are not enough complexities available to allow all Inspectors to maintain their current pay status or the current office staffing, the manager shall notify the Regional Division Manager in writing of the fact. The applicable PASS RBA simultaneously shall be given a copy of these notifications.

Section 5.     Persons with insufficient work to warrant their pay grade will be declared excess with save pay or save grade for a minimum of two years. If it is determined that the person(s) is failing to hold the complexities required for the pay grade because of training, that training shall be made available to the person and at least one bid cycle will be completed prior to any personnel action such as transfer or demotion.

Section 6.     For the purposes of this Article, seniority shall be based on an Inspector's time in the office, in the bargaining unit. In the event that more than one employee has the same amount of time in the office, Flight Standards seniority shall prevail.

Section 7.     The Complexity Bid Book is comprised of one or more complexity bid sheets. One Complexity Bid Sheet (see attached) shall be completed by the Office Manager in conjunction with the Office Representative for each complexity that is grade controlling. Complexity Bid Sheets shall contain the following:

1.     Name and description of complexity/work function:
Management, with the assistance of the Union, will identify each complexity. A complete description of the complexity, including the name of the complexity, shall be listed in the Complexity Bid Sheet. (Where practicable the description should refer to the current complexity guide and use the language contained therein.)
2.     Hours to be spent in this complexity/work function annually:
Management, with the assistance of the Union, will determine the amount of time, per fiscal year, each complexity/work function requires to complete. That number shall be annotated on the Complexity Bid Sheet.
3.     Minimum qualifications:
Management will determine the minimum qualifications required to perform the duties associated with the complexity. Those requirements shall be clearly annotated on the Complexity Bid Sheet.
4.     Name of assigned Inspector:
If an Inspector is currently assigned to the complexity, his/her name shall appear on the Complexity Bid Sheet.
5.     An annotation regarding the number of points of the complexity/work function.
6.     A signature line.
This should include a place for Inspectors to sign and date the Bid Sheet as well as a place for Inspectors to annotate his/her desire to either select or decline the complexity/work function.



Footnote # 1 for 56 FLRA No. 134

   As a result, arguments regarding wording that is no longer in dispute are not described. In addition, arguments are described with reference to the sections as numbered in NG2531.


Footnote # 2 for 56 FLRA No. 134

   The Agency states that the agreement expired on March 3, 1998, but was "extended" in accordance with Article 86, which provides, in pertinent part:

This Agreement is for five (5) years . . . . It shall automatically renew for a five (5) year period unless either Party gives written notice to the other . . . . If negotiations are not completed prior to the expiration date, this Agreement shall remain in full force and effect until a new Agreement is reached. . . .

Statement of Position, NG2493, Attachment 1 at 65.


Footnote # 3 for 56 FLRA No. 134

   The "covered by" agreement provides, in pertinent part:

The Parties agree that . . . the second and third prong of the FLRA's test will not be used as a claim by either Party in implementing changes.

Union Petition, NG2493, Attachment 1.


Footnote # 4 for 56 FLRA No. 134

   The meaning that the Authority adopts for the proposal, unless modified by the parties, would apply in other disputes, such as arbitration proceedings, where the construction of the proposal is at issue. See 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, Elementary and Secondary Schools, Laurel Bay, South Carolina, 51 FLRA 733, 741-42 (1996).


Footnote # 5 for 56 FLRA No. 134

   We note that this issue was discussed at a meeting conducted with the parties by the Authority and was identified as an issue "which may appropriately be addressed in the parties' briefs." Record of Post-Petition meeting (December 27, 1999) at 3. Nevertheless, the Agency did not address it.


Footnote # 6 for 56 FLRA No. 134

   In one respect, however, the Union is correct in arguing that the FAA Act eliminated limitations on bargaining. In particular, section 7103(a)(14) of the Statute excludes from the definition of conditions of employment "matters . . . specifically provided by law." To the extent that the Agency formerly could claim that matters were specifically provided for by law and, therefore, outside the duty to bargain, it may no longer do so as to those provisions of law from which it was exempted by the FAA Act.


Footnote # 7 for 56 FLRA No. 134

   We note, however, that with respect to petitions NG2493 and NG2524, we find below, at Section VI, that section 5 is covered by the parties' agreement and, thus, outside the duty to bargain for that reason.


Footnote # 8 for 56 FLRA No. 134

   The Union requested that this portion of the proposal, which can stand independently, be severed. See Union Response, NG2493 at 3. In effect, the Agency agreed with the request by asking the Authority to separately address the proposals in NG2524 and NG2531. In these circumstances, we grant the Union's request. See National Association of Government Employees, Local R1-203 and U.S. Department of the Interior, U.S. Fish and Wildlife Service, Hadley, Massachusetts, 55 FLRA 1081, 1081 n.4 (1999).


Footnote # 9 for 56 FLRA No. 134

   The Agency also asserts that a pending unfair labor practice proceeding has a direct impact on these proceedings. However, the Agency has not requested that the petition be dismissed on this ground, and our review of the record provides no basis for concluding that the Authority should dismiss the petition. See 5 C.F.R. 2424.30(a).


Footnote # 10 for 56 FLRA No. 134

   The Authority has noted that this test may not be appropriate where a union, rather than an agency, contends that a proposal concerns methods and means. See, e.g., National Federation of Federal Employees, Local 7 and U.S. Department of Agriculture, Office of Rural Development, Portland, Oregon, 53 FLRA 1435, 1438 n.3 (1998). As neither party has requested that we reconsider the test, we do not do so here. See id.


Footnote # 11 for 56 FLRA No. 134

   The Authority has previously suggested, but not decided, that the "covered by" doctrine does not apply to expired agreements. In particular, in U.S. Department of Justice, Immigration and Naturalization Service, W