United States Department of Transportation, Federal Aviation Administration, Washington, D.C. (Agency) and Professional Airways Systems Specialists (Union)

[ v58 p23 ]

58 FLRA No. 8

UNITED STATES
DEPARTMENT OFTRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
WASHINGTON, D.C.
(Agency)

and

PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS
(Union)

0-AR-3457

_____

DECISION

September 6, 2002

_____

Before the Authority: Dale Cabaniss, Chairman, and
Carol Waller Pope and Tony Armendariz, Members [n1] 

I.     Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Suzanne R. Butler filed by the Agency under § 7122(a) of the Federal Service Labor-Management Relations Statute (the Statute) and part 2425 of the Authority's Regulations. The Union filed an opposition to the Agency's exceptions. For the reasons that follow, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      49 U.S.C. § 106(l) authorizes the Agency to establish the compensation levels of its employees. In setting these compensation levels, the Agency may negotiate with the exclusive representatives of its employees only as provided for in 49 U.S.C. § 40122(a) and (g). [n2]  Furthermore, under 49 U.S.C. § 40122(g)(1), the Agency, in consultation with its employees, must develop a personnel management system (PMS) for the Agency's employees. Some, but not all, of the provisions of title 5 apply to that new PMS. 49 U.S.C. § 40122(g)(2). The Statute continues to apply to the Agency's employees. 49 U.S.C. § 40122(g)(2)(C).

      Pursuant to these provisions, the Agency issued the PMS, effective April 1, 1996. To implement the PMS, the Agency issued a series of Personnel Reform Implementation Bulletins (PRIB's). PRIB #1, which the Agency also issued on April 1, 1996, states: "All current systems and procedures remain in effect until superseded by a PRIB." 49 U.S.C. § 40122(a)(1), which was enacted following the issuance of the PMS and PRIB #1, requires the Agency to negotiate with the exclusive representatives of its employees in making changes to the PMS. The Agency has not subsequently issued any additional PRIBs concerning basic rates of pay.

      On November 3, 2000, the Office of Personnel Management (OPM) announced the establishment of a government-wide special salary rate for Computer Specialists, effective January 1, 2001. The Union subsequently informed the Agency that it believed that the Computer Specialists in the Flight Standards Branch (Computer Specialists), who are represented by the Union, were entitled to that special rate. The Agency, however, determined that it was not required to implement the special rate, arguing that it was no longer subject to OPM's rules.

      The Union subsequently filed a grievance over the Agency's refusal to grant the Computer Specialists the special rate. After the parties could not resolve the matter, it was submitted to arbitration.

      As relevant here, the Arbitrator ruled that the Agency was required to grant the special rate to the Computer Specialists. [n3]  In this regard, the Arbitrator found that the Agency, by adopting the PMS and PRIB #1, had elected to temporarily adopt the entire general schedule (GS) pay system as an interim pay system until the Agency modified that system by means of later PRIB's and/or collective bargaining agreements. Because the parties did not subsequently agree on a collective bargaining agreement covering the compensation of the employees at issue and because the Agency did not subsequently issue a PRIB concerning special rates, the Arbitrator ruled that the entire GS pay system still applied to the employees at issue. Accordingly, she found that the Agency was required to grant the Computer Specialists the special rate announced by OPM on November 3, 2000.

      Moreover, the Arbitrator ruled that the Agency's failure to grant the Computer Specialists the special rate violated Article 69, Section 1 of the parties' agreement, [ v58 p24 ] which requires the Agency to provide notice to the Union of proposed changes in working conditions. [n4]  The Arbitrator found, in this regard, that the Agency's refusal to grant the special rate to the Computer Specialists constituted a change in its prior adoption of the GS pay system and that the Agency failed to provide the Union with notice and an opportunity to bargain over the Agency's decision not to adopt the special rate.

      To remedy these violations, the Arbitrator granted the Computer Specialists backpay, retroactive to the effective date of the special rate. She also directed the Agency to cease and desist from making changes in conditions of employment without first providing notice and an opportunity to bargain to the Union.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency asserts that the award is contrary to various provisions of title 49 of the United States Code. [n5]  The Agency maintains that 49 U.S.C. § 106(l), which was enacted following the promulgation of PRIB #1, clearly states that the Agency was not required to automatically grant the Computer Specialists the special rate. The Agency further asserts that that provision "supersedes any effect of PRIB #1 . . . to bind the [Agency] to future changes in levels of compensation." Exceptions at 6. Additionally, the Agency argues that it was under no duty to automatically grant its employees pay raises after July 1, 1999. [n6] 

      Moreover, the Agency claims that 49 U.S.C. § 40122(a)(1) permits it to negotiate with the Union only when making changes to the PMS. Therefore, the Agency argues that the award is contrary to that provision as it requires the Agency to negotiate with the Union when it chooses not to adopt new OPM regulations.

      The Agency also asserts that the Arbitrator's interpretation of PRIB #1 is contrary to the terms of that regulation. The Agency argues that its interpretation ofPRIB #1 is entitled to deference because the Authority normally defers to an agency's interpretation of its own regulation and because the Agency has consistently interpreted PRIB #1. The Agency maintains that PRIB #1 requires the Agency to follow only those aspects of title 5 and OPM's regulations that were in place at the time of the issuance of PRIB #1. Therefore, the Agency argues that the award is contrary to PRIB #1 because it requires the Agency to apply an OPM regulation promulgated after the issuance of PRIB #1.

      Finally, the Agency claims that the award is based on a nonfact because, contrary to the findings of the Arbitrator, PRIB #1 does not state that the GS pay system and all future OPM issuances cover the Agency's employees. Moreover, the Agency contests the Arbitrator's finding that the Agency chose to adopt the GS pay system as an interim pay system and that the Agency may change its adoption of that system only through a later PRIB or through collective bargaining.

B.     Union's Opposition

      The Union argues that the award is not contrary to 49 U.S.C. § 106(l) because it is consistent with the plain wording of the relevant statutory provisions. According to the Union, 49 U.S.C. § 40122(e) is not applicable to this matter because, in this instance, the Agency was not attempting to cut employee compensation.

      The Union also argues that the award is not contrary to PRIB #1. In this regard, it maintains that the Agency's current interpretation of PRIB #1 is not entitled to deference because the Agency has not consistently adhered to the position articulated in this case. In support of this position, the Union cites to the Agency's history of inconsistency in its interpretation of PRIB #1, as laid out in United States Dep't of Transportation, FAA, 56 FLRA 627, 630 (2000) (FAA II).

      Finally, the Union argues that the nonfacts cited by the Agency are not actually facts, but, instead, are conclusions and interpretations of the Arbitrator based on her evaluation of the evidence. Therefore, the Union maintains that this exception should be denied. [ v58 p25 ]

IV.     Analysis and Conclusions

A.     The award is not contrary to law

      The Authority reviews questions of law raised by exceptions to an arbitrator's award de novo. See NTEU, Chapter 24, 50 FLRA 330, 332 (1995), (citing United States Customs Serv. v. FLRA, 43 F.3d 682, 686-87 (D.C. Cir. 1994)). In applying a standard of de novo review, the Authority determines whether the arbitrator's legal conclusions are consistent with the applicable standard of law. See NFFE, Local 1437, 53 FLRA 1703, 1710 (1998). In making that determination, the Authority defers to the arbitrator's underlying factual findings. See id.

      We reject the Agency's argument that the award is contrary to 49 U.S.C. § 106(l). Nothing in the language of that provision prohibits the Agency from granting the appropriate employees the special rate. Instead, it merely authorizes the Agency to set the compensation levels of its employees.

      Moreover, the Agency has not demonstrated that Congress intended 49 U.S.C. § 106(l) to supersede PRIB #1. In this regard, 49 U.S.C. § 40122(a)(1), which was enacted simultaneously with 49 U.S.C. § 106(l), requires the Agency to negotiate with the exclusive representatives of its employees when making changes to the PMS. Clearly, then, Congress intended that the PMS, and regulations enacted pursuant thereto, would survive the enactment of 49 U.S.C. § 106(l). Therefore, the Agency was required to abide by the requirements contained within the PMS and PRIB #1.

      The Agency also has not demonstrated that the award is contrary to 49 U.S.C. § 40122(e). That provision, does not prohibit the Agency from granting its employees government-wide pay raises after July 1, 1999. It merely assures that the basic wages of the Agency's employees will not be adversely affected by the enactment of 49 U.S.C. § 40122.

      The Agency further asserts that the award is contrary to 49 U.S.C. § 40122(a)(1) because it requires the Agency to bargain with the Union when it chooses not to adopt new OPM regulations. However, the Agency does not dispute the Arbitrator's finding that the Agency's failure to adopt the special rate constituted a change in PRIB #1, which is a part of the PMS. Therefore, we reject the Agency's argument.

B.     The award is not contrary to Agency regulations

      Section 7122(a)(1) of the Statute provides that an arbitration award will be found deficient if it conflicts with any law, rule, or regulation. For purposes of § 7122(a)(1), the term "regulation" includes governing agency regulations. See NFFE, Local 2030, 53 FLRA 1136, 1141 (1998) (citation omitted). As the Agency's exception challenges the award's consistency with PRIB #1 -- an Agency regulation -- we review the question of law raised by the exception de novo. See AFGE, Local 1203, 55 FLRA 528, 530 (1999).

      The Authority follows the practice of the Federal courts and generally affords deference to an agency's interpretation of its own regulation, giving the interpretation "controlling weight unless it is plainly erroneous or inconsistent with the regulation." United States Dep't of Transportation, FAA, 55 FLRA 797, 802 (1999) (citation omitted) (FAA I). However, the Authority has declined to defer to an agency's interpretation of its own regulation where, among other things, the agency has, "in at least some instances, . . . acted in a manner that is inconsistent with" its current interpretation of the regulation. United States Dep't of Justice, Fed. Bureau of Prisons, Med. Facility for Fed. Prisons, 51 FLRA 1126, 1137 (1996) (Bureau of Prisons). This is consistent with the practice of Federal courts, which accord "considerably less deference" to an agency's interpretation of a relevant provision that conflicts with the agency's prior interpretation of that provision. INS v. Cardoza-Fonseca, 480 U.S. 421, 446 n.30 (1987). Further, the Authority has recognized that "[c]ourts have sometimes declined to defer at all to agency counsel's litigative positions." Bureau of Prisons, 51 FLRA at 1136.

      The Authority previously refused to defer to the same interpretation of the Agency's regulations urged by the Agency here. In particular, in FAA II, 56 FLRA at 630, the Authority found that the interpretation was inconsistent with prior Agency interpretations, including that offered in another Authority case. [n7]  Id. (citing FAA I, 55 FLRA at 799), where Agency maintained that the PMS incorporated title 5 pay standards, including OPM regulations, and that "the Agency clearly intended for those OPM regulations to remain binding until otherwise changed"). The Authority found that, in addition to the fact that the Agency's interpretations were not consistent, there was no indication that the Agency's [ v58 p26 ] position in FAA II represented the view of the Agency head rather than a litigation position. [n8]  56 FLRA at 630. In this case, the Agency's interpretation of its regulations is consistent with that offered in FAA II. Nevertheless, it remains inconsistent with prior interpretations and, despite the Authority's discussion of the issue in FAA II, the Agency neither asserts nor makes any attempt to establish that its interpretation reflects the views of the Agency head. [n9]  Accordingly, we do not defer to the interpretation proffered by the Agency here.

      The Arbitrator interpreted PRIB #1 as adopting the entire GS pay system until the Agency adopts a different pay system. This interpretation is consistent with the terms of the regulation, which keeps "current systems and procedures" in effect until modified by a subsequent PRIB. Further, this interpretation supports the Arbitrator's determination that, by refusing to pay the Computer Specialists at the special rate, the Agency changed the PMS. Accordingly, we reject the Agency's argument to the contrary.

      For the foregoing reasons, the Agency has not demonstrated that the award is inconsistent with PRIB #1.

C.     The award is not based on a nonfact

      To establish that an award is based on a nonfact, the appealing party must show that a central fact underlying the award is clearly erroneous, but for which the arbitrator would have reached a different result. See United States Dep't of the Air Force, Lowry Air Force Base, Denver, Co., 48 FLRA 589, 593 (1993). An arbitrator's interpretation of applicable law cannot be challenged as nonfact. See United States Dep't of the Navy, Philadelphia Naval Shipyard, 39 FLRA 590, 605 (1991).

      The Agency challenges several of the findings of the Arbitrator. However, the Agency's exceptions challenge the Arbitrator's interpretation of various statutes and regulations. Therefore, this exception provides no basis for review. See id.

V.     Decision

      The Agency's exceptions are denied.


APPENDIX

49 U.S.C. § 106(l) provides, in pertinent part:

(1)     Officers and Employees.-- Except as provided in subsections (a) and (g) of section 40122, the Administrator is authorized, in the performance of the functions of the Administrator, to appoint, transfer, and fix the compensation of such officers and employees, including attorneys, as may be necessary to carry out the functions of the Administrator and the Administration. In fixing compensation and benefits of officers and employees, the Administrator shall not engage in any type of bargaining, except to the extent provided for in section 40122(a), nor shall the Administrator be bound by any requirement to establish such compensation or benefits at particular levels.                                   

49 U.S.C. § 40122 provides, in pertinent part:

(a)     In general.--
(1)     Consultation and negotiation.-- In developing and making changes to the personnel management system initially implemented by the Administrator of the Federal Aviation Administration on April 1, 1996, the Administrator shall negotiate with the exclusive bargaining representatives of employees of the Administration certified under section 7111 of title 5 and consult with other employees of the Administration.
. . . .
(e)     Employee Protections.-- Until July 1, 1999, basic wages (including locality pay) and operational differential pay provided employees of the Administration shall not be involuntarily adversely affected by reason of the enactment of this section, except for unacceptable performance or by reason of a reduction in force or reorganization or by agreement between the Administration and the affected employees' exclusive bargaining representative.
. . . . [ v58 p27 ]
(g)     Personnel management system.--
(1)     In general.-- In consultation with the employees of the Administration and such non-governmental experts in personnel management systems as he may employ, and notwithstanding the provisions of title 5 and other Federal personnel laws, the Administrator shall develop and implement, not later than January 1, 1996, a personnel management system for the Administration that addresses the unique demands of the agency's workforce. Such a new system shall, at a minimum, provide for greater flexibility in the hiring, training, compensation and location of personnel.
(2)     Applicability of title 5.-- The provisions of title 5 shall not apply to the new personnel management system developed and implemented pursuant to paragraph (1), with the exception of--
(A)     section 2302(b), relating to whistleblower protection, including the provisions for investigation and enforcement as provided in chapter 12 of title 5;
(B)     sections 3308-3320, relating to veterans' preference;
(C)     chapter 71, relating to labor-management relations;
(D)     section 7204, relating to antidiscrimination;
(E)     chapter 73, relating to suitability, security, and conduct;
(F)     chapter 81, relating to compensation for work injury;
(G)     chapters 83-85, 87, and 89, relating to retirement, unemployment compensation, and insurance coverage; and
(H)     sections 1204, 1211-1218, 1221, and 7701-7703, relating to the Merit Systems Protection Board.
. . . .

Dissenting Opinion of Chairman Cabaniss:

      I dissent only as to the issue whether the award is contrary to agency regulation. In FAA I, 55 FLRA 797, the Authority overturned an arbitration award when the arbitrator there declined to defer to FAA's interpretation of the same agency regulations at issue here. That agency interpretation, to which the Authority granted deference, established that the definition of the title 5 compensation and benefits standards FAA incorporated into its PMS had to be "in accordance with the standards and procedures that were in effect on March 31, 1996." Id. at 801.

      In FAA II, 56 FLRA 627, FAA attempted to argue that the same PMS did not apply to statutory standards. In declining to uphold FAA's proffered interpretation of its own regulation, the Authority expressly referenced the earlier interpretation of the PMS set out in 55 FLRA 797, which found that it did apply to statutory standards. Id. at 630.

      In the present case, FAA has made the same argument as in FAA I, i.e., that the PMS incorporates only those title 5 pay standards and procedures that were in effect on March 31, 1996, and does not automatically incorporate new title 5 changes, as found by the Arbitrator. Exceptions at 8. I do not know why the Agency asserted a different view in FAA II, but I would not find that an agency is forever precluded from again receiving deference to its interpretation of one of its regulations where, such as here, it returns to its original interpretation that has already once been accorded deference by the Authority.

      Because, based on this record, I would find that the Agency's regulations do not automatically incorporate changes in title 5 subsequent to March 31, 1996, I would set aside the award as being contrary to those regulations.



Footnote # 1 for 58 FLRA No. 8 - Authority's Decision

   Chairman Cabaniss' dissenting opinion is set forth at the end of this decision.


Footnote # 2 for 58 FLRA No. 8 - Authority's Decision

   Relevant sections of title 49, United States Code, are set forth in the Appendix.


Footnote # 3 for 58 FLRA No. 8 - Authority's Decision

   The Arbitrator also found that the grievance was arbitrable. As the Agency does not contest that ruling, it will not be addressed further.


Footnote # 4 for 58 FLRA No. 8 - Autho