United States, Department of Transportation, Federal Aviation Administration, Mike Monroney Aeronautical Center (Agency) and American Federation of Government Employees, Local 2282, AFL-CIO (Union)

[ v58 p462 ]

58 FLRA No. 112

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
MIKE MONRONEY AERONAUTICAL CENTER
(Agency)

and

AMERICAN FEDERATION
OF GOVERNMENT EMPLOYEES
LOCAL 2282, AFL-CIO
(Union)

0-AR-3572

_____

DECISION

April 11, 2003

_____

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 Ed W. Bankston 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. [n2] 

      The Arbitrator found that the Agency failed to pay two groups of computer specialists at the special pay rates to which they were entitled, and he sustained the grievance. For the following reasons, we deny the Agency's exceptions.

II.     Background and Arbitrator's Award

      When the Agency failed to pay two groups of computer specialists (the Civil Aeromedical Institute (CAMI) grievants and the Mike Monroney Aeronautical Center (MMAC) grievants, respectively) a government-wide special salary rate established by the Office of Personnel Management (OPM), a grievance was filed. The grievance was unresolved and was submitted to arbitration, where the Arbitrator framed the issue as: "Whether the grievants are entitled to the OPM special rates at issue? If so, what is the proper remedy?" Award at 4.

      The Arbitrator found that "Article 16 of the Agreement is controlling of the matter . . . ." Id. at 13. In this connection, the Arbitrator addressed Article 16, Section 1, which provides, in pertinent part, that: "The basic compensation system for bargaining unit employees shall be the FAA Core Compensation Plan. . . . [T]he employee compensation system shall remain status quo until such time as the implementation of the Core Compensation Plan is completed." Id. at 8-9. The Arbitrator determined that the parties had not implemented a Core Compensation Plan at any time relevant to the grievance. [n3] 

      In addition, the Arbitrator determined that Personnel Reform Implementation Bulletin 1 (PRIB 1) -- a regulation implementing the Agency's Performance Management System (PMS) -- provides that "[a]ll current systems and procedures remain in effect until superseded by a PRIB." Id. at 15. The Arbitrator determined that PRIB 1 had not been superseded by another PRIB.

      Accordingly, the Arbitrator addressed the issue of what constitutes the "status quo" under Article 16 and the "current systems and procedures" under PRIB 1. Based on evidence submitted by the Union, the Arbitrator found that the Agency has paid employees pursuant to OPM's General Schedule (GS) pay system "at least since January 15, 1985[,]" id. at 14, and he concluded that the GS pay system constituted the "status quo" under Article 16 and the "current systems and procedures" under PRIB 1, id. at 19. Determining that the preservation of the GS system "include[s] special rate applications" like the special rates at issue here, and that the Agency failed to pay the grievants at the special rates, the Arbitrator sustained the grievance and directed [ v58 p463 ] the Agency to reimburse the grievants appropriately. Id. at 21.

III.     Positions of the Parties

A.     Agency's Exceptions

      The Agency argues that the award is contrary to "Agency Regulation," specifically, the PMS. Exceptions at 5. In this connection, the Agency asserts that the Arbitrator erroneously found that "the GS pay system as it applied to [Agency] employees was also administered by OPM rather than the [Agency]." Id.

      In addition, the Agency argues that the award is contrary to § 347 of the Department of Transportation and Related Appropriations Act (the Appropriations Act) and § 225 of the Federal Aviation Reauthorization Act of 1996 (the Reauthorization Act). [n4]  According to the Agency, § 347 of the Appropriations Act precludes the Agency from continuing to operate under the pay provisions of title 5, and § 225 of the Reauthorization Act provides that the Administrator's discretion to set pay may not be limited by any source.

B.     Union's Opposition

      The Union argues that "Article 16 of the Agreement is controlling," and "[t]he Agency has not shown or even alleged that Article 16 violates any rule or regulation." Opposition at 4. The Union also argues that the Authority has already held, in United States Dep't of Transp., FAA, 56 FLRA 627 (2000) (FAA I), that the GS pay system applies to Agency employees. Finally, the Union asserts that although the Administrator is not bound to set pay at any particular level, the Administrator chose to continue paying employees in accordance with the GS pay system.

IV.     Analysis and Conclusions

      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.

      The Agency's exceptions concern § 347(b) of the Appropriations Act, § 225 of the Reauthorization Act, and the PMS.

      Initially, § 347(b) of the Appropriations Act (§ 347(b)) provided the FAA Administrator with discretion to institute a personnel management system in which "[t]he provisions of title 5, United States Code, shall not apply . . . ." Prof'l Airways Sys. Specialists, 56 FLRA 798, 800 (2000). The Appropriations Act was later amended to provide that "chapter 71, relating to labor-management relations," does apply to the FAA. [n5]  49 U.S.C. § 40122(g)(2)(C).

      Subsequently, the Reauthorization Act was enacted. [n6]  Section 225 of the Reauthorization Act (§ 225) provides that, with certain exceptions, the Administrator is authorized to "fix the compensation" of Agency employees. 49 U.S.C. § 106(l). In doing so, the Administrator shall not "be bound by any requirement to establish such compensation or benefits at particular levels," and "shall not engage in any type of bargaining, except to the extent provided for in [49 U.S.C. §] 40122(a)[.]" Id. In turn, 49 U.S.C. § 40122(a)(1) provides that "[i]n developing and making changes to the personnel management system, . . . the Administrator shall negotiate with the exclusive bargaining representatives of employees of the [Agency] certified under section 7111 of title 5 . . . ."

      The PMS established by the Agency provided that from April 1, 1996 until September 30, 1997, the personnel compensation and benefits of all FAA employees continued to be determined with the same "standards and procedures that were in effect on March 31, 1996," prior to the implementation of the PMS. FAA I, 56 FLRA at 628.

      The award resolved a grievance concerning two groups of grievants. Because one group (MMAC) is covered by a contract addressing employee pay, and another (CAMI) is not covered by such a contract, we address those two groups of grievants separately. See Opposition, Attachments 1 (MMAC agreement) and 2 (CAMI agreement).

A.     MMAC Grievants

      The portion of the award pertaining to the MMAC grievants is based on an enforcement of a contract provision (Article 16) directly addressing employee pay. [n7]  [ v58 p464 ] Although §§ 347(b) and 225 provide the FAA Administrator the discretion to implement a pay system that differs from the GS system, nothing in either section precludes the Administrator from entering into a collective bargaining agreement that provides for the GS system's application. The Agency does not argue, and there is no basis for concluding, that Article 16 is not the result of such negotiations. Accordingly, the Agency has not demonstrated that the award is contrary to § 347(b) or § 225.

      With regard to the Agency's claim that the award is contrary to the PMS, the Authority has held that an award is deficient if it is inconsistent with a "governing" agency regulation. NAGE, Local R4-45, 55 FLRA 789, 794 (1999). However, collective bargaining agreements, rather than agency-wide regulations, govern the disposition of matters to which they both apply. Id. It is undisputed that both Article 16 of the agreement and the cited Agency regulation (the PMS) apply to compensation of the MMAC grievants. Thus, Article 16 governs the dispute with regard to those grievants. The Agency does not claim that Article 16 is contrary to law or regulation and does not challenge the Arbitrator's interpretation of that Article. Thus, the Agency does not provide a basis for concluding that the award is deficient with regard to the MMAC grievants.

B.     CAMI Grievants

      As set forth above, § 347(b) provides the FAA Administrator with discretion to implement a PMS in which the GS pay system does not apply, and § 225 provides the Administrator with discretion to fix the compensation of the Agency's employees. Neither § 347(b) nor § 225 precludes the Administrator from adopting a PMS with pay provisions that are coterminous with the GS pay system.

      The Arbitrator found that the Administrator exercised this statutory discretion in a particular way -- specifically, by adopting the GS pay system, including special pay provisions. Although the Agency disagrees, it provides no basis for finding that the Arbitrator erred in making this finding. [n8]  Because nothing in § 347(b) or § 225 precludes the Administrator from exercising this statutory authority in the manner found by the Arbitrator, the Agency does not demonstrate that the portion of the award covering the CAMI employees is contrary to those statutory provisions.

      With regard to the PMS, that Agency regulation provided that from April 1, 1996 until September 30, 1997, the personnel compensation and benefits of all FAA employees continued to be determined with the same "standards and procedures that were in effect on March 31, 1996." FAA I, 56 FLRA at 628. The Arbitrator found that the Agency has paid employees pursuant to the GS pay system "at least since January 15, 1985." Award at 14. By finding that the Agency was required to pay the grievants under the GS pay system, the Arbitrator was enforcing the standards and procedures that were in effect on March 31, 1996 -- consistent with the express terms of the PMS. Further, although the Agency asserts that the Arbitrator erroneously found that OPM administers the FAA's pay system, the Arbitrator made no such finding. Thus, the Agency's assertion is misplaced.

      For the foregoing reasons, we deny the Agency's exceptions with regard to the portion of the award covering the CAMI grievants.

V.     Decision

      The Agency's exceptions are denied. [n9] 


Concurring opinion of Chairman Cabaniss:

      I write separately to express why I reach a different opinion here than my dissent in the FAA II decision. As noted in footnote 9 of the majority opinion, here the Arbitrator found a contractual entitlement by the MMAC grievants to the pay in question, and the Authority accords substantial deference to such arbitral interpretations of agreement provisions. Additionally, I note that a much better record was established in support of the conclusion that the Agency had adopted OPM's pay system. Those two considerations were not present in the FAA II decision and warrant the outcome reached here.



Footnote # 1 for 58 FLRA No. 112 - Authority's Decision

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


Footnote # 2 for 58 FLRA No. 112 - Authority's Decision

   The Union also filed a supplemental submission including a copy of the Authority's decision in United States Dep't of Transp., FAA, Wash., D.C., 58 FLRA 23 (2002) (Chairman Cabaniss dissenting). The Union did not request leave to file a supplemental submission under § 2429.26 of our Regulations. We find no circumstances warranting our consideration of the Union's supplemental submission in this case. See United States Dep't of the Interior, Bureau of Reclamation, Great Plains Region, 42 FLRA 902, 902 n.1 (1991). However, we note that the Authority applies its precedent, as appropriate, in resolving cases before it.


Footnote # 3 for 58 FLRA No. 112 - Authority's Decision

   The Arbitrator found, and there is no dispute, that "[t]he parties ha[d] agreed upon a Core Compensation Plan effective April 7,