United States, Department of Transportation, Federal Aviation Administration (Agency) and Professional Airway Systems Specialists (Union)

[ v60 p159 ]

60 FLRA No. 38

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

and

PROFESSIONAL AIRWAY
SYSTEMS SPECIALISTS
(Union)

0-AR-3810

_____

DECISION

August 23, 2004

_____

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

I.      Statement of the Case

      This matter is before the Authority on exceptions to an award of Arbitrator Sean J. Rogers 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.

      The Arbitrator found that the Agency violated the parties' collective bargaining agreement (CBA) when it allowed the minimum staffing level of technical employees employed in the Agency's regions and implementation centers to drop below 6,100 employees. For the reasons that follow, we deny the exceptions.

II.     Background and Arbitrator's Award

      The Union represents five bargaining units at the Agency. The largest unit consists of employees employed at the Agency's Airway Facilities (AF)--the unit involved in this grievance. As relevant herein, the parties' negotiated a "STAFFING AND EMPLOYMENT GUARANTEE" as part of their CBA. This provision, found at Appendix V to the agreement, provides that the Agency shall have "on board no fewer than 6,100 technical employees." [n1]  After receiving a staffing report from the Agency relating to the number of technical employees, the Union disputed which individuals should be counted as part of the guaranteed 6,100 technical employees. A grievance over which employees counted towards the guaranteed number was filed by the Union. The Agency denied the grievance and the matter was submitted to arbitration. The Arbitrator framed the issue as follows:

Whether the [Agency] violated the [CBA], at Appendix V, ¶ 1., Staffing and Employment Guarantee and if so, what should the remedy be?

Award at 5.

      Before the Arbitrator, the Union asserted that the 6,100 employees referenced in the CBA, Appendix V covers only technical employees in the pay categories 2101, 802, 856, and 332/334 who are located at the Agency's regions and implementation centers (Field technical employees). The Union further asserted that the parties' understanding is reflected in Appendix V, which states that the Agency must provide information on the staffing levels by "region" or "implementation center." The Agency asserted that it did not violate the CBA because technical employees located at operational control centers (OCC) and the Agency's headquarters (HQTs) are to be counted as well. Therefore, the staffing level of all on board technical employees did not fall below 6,100. The Agency argued that the contract language was "clear and unambiguous" on this point, and that there was never an agreement to exclude any category of employees from that total based on geographical [ v60 p160 ] location. Id. at 8. Moreover, the Agency asserted that it did not elect to bargain under § 7106(b)(1) of the Statute over the location of the employees who comprised the 6,100 minimum staffing level.

      The Arbitrator stated that since the grievance concerned a dispute over the interpretation and implementation of a contract provision, the burden was on the Union to prove that the Agency had failed to maintain the minimum staffing level for AF technical employees in violation of the CBA, Appendix V. He also stated that the evidence permitted him to determine the intent of the parties with respect to the CBA, Appendix V.

      The Arbitrator found that the language of the first sentence of Appendix V(a), standing alone, supported the Agency's claim that all technical employees in the pay categories 2101, 802, 856, 332, and 334 are to be counted towards the 6,100 minimum staffing level. However, the Arbitrator found that the "phrase establishing that the [Agency's] reports provided to [the Union] will show the total number of employees, `including their job series and region or implementation center' seems to narrow the provision's coverage . . . ." Id. at 12 [emphasis in original]. In that regard, the Arbitrator further stated that the language concerning the reports "appears to . . . support the limitation of the . . . 6,100 minimum staffing level to only field technical employees in the job categories identified in the first sentence. This interpretation would exclude the OCC/HQ technical employees and other employees, from the count of total `on board' employees." Id.

      The Arbitrator found that the "totality of evidence" supported the conclusion that the Agency reports were prepared in fulfillment of the Agency's obligations to keep the Union informed of staffing levels for the technical employees covered by the provisions of Appendix V. Id. at 14. The Arbitrator found that the reports "clearly display[ed] the technical employee staffing levels from October 2001 through February 2003 in a manner consistent with [the Union's] interpretation of the agreement." Id. According to the Arbitrator, the "reports total the number of field technical employees and exclude the number of OCC/HQ technical employees from that total . . . [and] identify this total as `Current-On-Board' . . . ." Id.

      The Arbitrator further found that the "clear format of the [Agency's] own reports to [the Union] render[ed] the [Agency's] assertion that the reports were prepared only to satisfy [the Union's] format request not credible." Id. Based on the above, the Arbitrator concluded that the parties intended to count only field technical employees toward the 6,100 minimum staffing level in Appendix V, and not those technical employees at operational control centers and Agency headquarters.

      Accordingly, based on the entire record, the Arbitrator found that the Union met its burden of proving that the Agency violated the parties' CBA, Appendix V when it allowed the minimum staffing level of technical employees in the regions and implementation centers to drop below 6,100. The Arbitrator therefore sustained the grievance.

      Concerning the remedy, the Agency argued before the Arbitrator that the Arbitrator did not have the authority to grant a remedy that would result in the expenditure of funds, which were not available. Citing Authority precedent, the Arbitrator stated that the Authority had "never found a monetary arbitration remedy to conflict with management's right to determine its budget under § 7106(a)(1) of the Statute." Id. at 16.

      The Agency next argued that an order to hire additional technical employees would be contrary to § 7106(a) of the Statute. The Arbitrator noted that the Statute provides that § 7106(a) is subject to § 7106(b), and under § 7106(b), the Agency "elected to negotiate the numbers of employees constituting the minimum staffing level of field technical employees." Id. Therefore, according to the Arbitrator, the Agency's exercise of its management rights under § 7106(a) is subject to the agreements it has reached with the Union under § 7106(b). However, the Arbitrator stated that he "need not and [did] not intend to craft an [a]ward that requires the exercise of, limits or abridges the [Agency's] management rights. The [Agency] is free to use any of the remedial powers which reside in its lawful exercise of management rights to comply with this [a]ward." Id.

      Accordingly, the arbitrator directed the Agency to "immediately take action consistent with law to raise the total number technical employees in the job categories 2101, 802, 856, 332 and 334 located in the regions and implementation centers to a minimum staffing level of 6,100 and maintain that level for the duration of its agreement with [the Union]." Id.

III.     Positions of the Parties

A.     Agency Exceptions

      The Agency claims that the Arbitrator erred by finding that it "elected to negotiate the numbers of [ v60 p161 ] employees constituting the minimum staffing level of field technical employees" at the regional offices and implementation centers "under [§] 7106(b)" of the Statute. Exceptions at 2 (emphasis in original). According to the Agency, the "staffing level was negotiated for the total number of technical employees, not the location where they were assigned." Id. at 2-3.

      The Agency also contends that the award "can only be valid if the Agency clearly and unmistakably elected to negotiate over the location of the 6,100 technical employees . . . ." Id. at 5. The Agency asserts that it did not elect to negotiate over that matter and Agency negotiators "credibly testified that they did not negotiate over the location of technical employees." Id. According to the Agency, the Arbitrator chose to ignore this testimony. The Agency also asserts that the Arbitrator erred by relying on evidence showing the actions of a management official subsequent to the implementation of the CBA, Appendix V. The Agency contends that the actions of this official "cannot be construed to be a waiver of management's [§] 7106(a) rights in the negotiations process . . . ." Id. The Agency contends that "[t]here can be no binding past practice on a permissive subject, absent an expressed written agreement." Id.

      The Agency asserts that given the Arbitrator's findings that the contract language was not clear and unambiguous, and that no conclusion [could] be drawn as to the intent of the parties in the bargaining process, "it is obvious that the [a]gency did not clearly and unmistakably enter into negotiations to bargain over an elective subject, i.e., the location/organization of technical employees." Id. at 6. The Agency contends that although it can elect to bargain away certain rights under § 7106(b)(1), the Arbitrator cannot do so for management.

      The Agency next asserts that "[w]hile electing to negotiate a 6,100 staffing level, the [A]gency retained its rights under [§] 7106(a) and (b) to determine [A]gency organization, i.e., where the 6100 technical employees would be assigned." Id. at 3. The Agency contends that "[t]he award is deficient because it excessively interferes with management's [§] 7106(a) right to assign employees within the organization[]" and is not an appropriate arrangement under § 7106(b). Id.

      The Agency asserts that the award precludes it from exercising a management right that was not raised in negotiations. According to the Agency, the "right to assign employees and determine the structure of the organization includes the right to determine where in the organization employees will be assigned." Id. The Agency contends that without this right, it faces severe restrictions on its ability to determine the manner in which its mission is accomplished. The Agency asserts that the Arbitrator excluded HQTs employees, who are stationed in the regions, who report to a HQTs' manager, and perform the same work as when they reported to regional management, from the total number of technical employees that would count towards the minimum.

      The Agency contends that the net effect of this requirement is to prohibit technical employees assigned to HQTs from performing the work they had been performing in the past, and perform now, regardless of their reporting relationship. The Agency asserts that in effect the award would require either additional regional employees to perform the work currently performed by HQTs technical employees, or a reorganization of the Agency to move HQTs technical employees back to the regions.

B.     Union Opposition

      The Union asserts that the Arbitrator properly found that the Agency violated the staffing agreement contained in the parties' CBA, Appendix V. Citing United States Dep't of the Treasury, Bureau of Engraving and Printing, Wash., D.C., 53 FLRA 146 (1997) (BEP) and United States Dep't of the Air Force, Seymour Johnson Air Force Base, N.C., 58 FLRA 22 (2002), the Union asserts that the award satisfies both prongs of the two-prong test for determining whether an award violates management's § 7106(a)(2) rights under the Statute.  [n2] 

      Applying the test, the Union first asserts that the staffing agreement was negotiated pursuant to § 7106(b)(1) of the Statute. Therefore, according to the Union, the Agency's exercise of its management rights under § 7106(a) is subject to the agreement it has reached with the Union under § 7106(b). The Union contends that, as found by the Arbitrator, the Agency elected to negotiate the numbers of employees constituting [ v60 p162 ] the minimum staffing level of Field technical employees--who are assigned to the Agency's regions and implementation centers--and, therefore, once the Agency agreed to the provisions concerning staffing, the provisions became enforceable. Therefore, according to the Union, the award satisfies prong I of the BEP test.

      The Union contends that the award satisfies prong II of the BEP test because the remedy directed by the Arbitrator reflects a reconstruction of what management would have done had it not violated the parties' CBA and is completely consistent with the Agency's obligation under the staffing agreement.

      The Union further contends that the Agency's excessive interference assertion is misplaced because the staffing agreement is not an arrangement under § 7106(b)(3) of the Statute, but a permissive subject of bargaining that the Agency negotiated. The Union asserts that even if it was an arrangement, the award would not violate management's rights because the award does not excessively interfere with such rights. According to the Union, the award does not prohibit technical employees assigned to the Agency's headquarters from being assigned to any region or implementation center and does not allocate employees within work facilities in the field.

      The Union also asserts that there is no basis to the Agency's assertion that the Agency did not waive its right to elect not to negotiate over the location/organization of technical employees. The Union contends that a component of the staffing agreement is the location of the technical employees. The Union also asserts that the Agency argued that the agreed upon locations included technical employees assigned to the field and HQTs, while the Union argued that the parties intended only field employees to be covered by the agreement. Thus, according to the Union, "there is no issue concerning whether the [p]arties bargained over the location of employees . . . . Rather, the scope of the [p]arties agreement over location was in dispute before the Arbitrator. Opposition at 14-15.

IV.     Analysis and Conclusions

A.     The Award Does not Fail to Draw Its Essence from the Parties' CBA

      In this case, the Agency is not disputing that it elected to bargain on the numbers and types of employees employed as set forth in the staffing provisions contained in Appendix V and agreed to the language contained therein. Rather, the Agency now disputes the Arbitrator's conclusion that the agreement under § 7106(b)(1) covers the location of the employees to be subject to the minimum staffing levels, i.e., just those technical employees in the regions and at the implementation centers. In that regard, the Agency argues that it did not negotiate under § 7106(b)(1) over the location of these employees, it negotiated only over the total number without regard to the employees' location. The Agency further asserts that it did not "clearly and unmistakably" waive its rights to not enter into this permissive provision.

      As relevant here, the Authority has found that the phrase "numbers, types, and grades of employees or positions assigned to any organizational subdivision, work project, or tour of duty" in § 7106(b)(1) applies to the establishment of agency staffing patterns, or the allocation of staff, for the purpose of an agency's organization and the accomplishment of its work. NAGE, Local R5-184, 52 FLRA 1024, 1030 (1997) (NAGE); see also NFFE, Local 2148, 53 FLRA 427, 432 (1997) (NFFE, Local 2148). The Authority has also held that a proposal concerns the "numbers" of employees within the meaning of § 7106(b)(1) "regardless of whether the proposal would increase, decrease or maintain the number that the [a]gency proposes to assign or has assigned." NAGE, 52 FLRA at 1034-35. Accordingly, we find that the provision presented in this case, which concern staffing patterns for certain Agency facilities, concerns a § 7106(b)(1) matter.

      The Authority has held that determining whether there has been a contractual election to bargain over matters covered under § 7106(b)(1) is a matter of contract interpretation. United States Dep't of the Treasury, IRS, Wash., D.C., 56 FLRA 393, 395 (2000) (IRS), reconsideration denied, 56 FLRA 935 (2000). Thus, although agencies are not obligated to bargain over subjects covered under § 7106(b)(1) once they agree to provisions concerning such subjects, those provisions are fully enforceable through grievance arbitration. See United States Dep't of Defense, American Forces Radio and Television, Broadcast Center, Riverside, Calif., 59 FLRA 759, 761 (2004) (Chairman Cabaniss concurring) and the cases cited therein (DOD). Accordingly, whether there has been bargaining and agreement on any matters covered under § 7106(b)(1) rests entirely on the arbitrator's construction of the agreement. Social Security Administration, Baltimore, Md., 55 FLRA 1063, 1068 (1999).

      In reviewing an arbitrator's interpretation of an agreement, the Authority applies the deferential standard [ v60 p163 ] of review that Federal courts use in reviewing arbitration awards in the private sector. See AFGE, Local 3369, 55 FLRA 1074, 1077 (1999). Under this standard, the Authority will find an award deficient as failing to draw its essence from a collective bargaining agreement when the appealing party establishes one of the following: (1) the award cannot in any rational way be derived from the agreement; (2) the award is so unfounded in reason and fact and so unconnected with the wording and purpose of the collective bargaining agreement as to manifest an infidelity to the obligation of the arbitrator; (3) the award does not represent a plausible interpretation of the agreement; or (4) the award evidences a manifest disregard of the agreement. See United States Dep't of Labor (OSHA), 34 FLRA 573, 575 (1990) (OSHA). The courts and the Authority defer to the arbitrator's interpretation "because it is the arbitrator's construction of the agreement for which the parties have bargained." OSHA, 34 FLRA at 576.

      Appendix V, ¶ 1.(a) of the CBA provides in relevant part that "[during fiscal year 2001, and thereafter during the remainder of the Agreement, the [Agency] shall have on board no fewer than 6,100 technical employees" in certain pay categories and that "[u]pon written request, the Agency agrees to provide the Union with a written staffing report showing the total number of technical employees on board, including their job series and region or implementation center." Award at 11. The Agency argues that in enforcing Appendix V, the Arbitrator erred by relying on certain evidence and by rejecting its argument that the staffing level was negotiated for the total number of technical employees and not the location where they were assigned. The Arbitrator's rejection of the Agency's argument was based on his interpretation and application of Appendix V, which included his consideration of the "language" of Appendix V, the parties' "bargaining history," and other extrinsic evidence to determine the "intent of the parties" in negotiating the Appendix. Id.

      The Agency has not shown that it was unfounded, implausible or irrational for the Arbitrator to find that the parties intended to count only field technical employees--employees in the regions and implementation centers--toward the 6,100 minimum staffing level, rather than the total number of technical employees as the Agency argued. As such the Arbitrator interpreted and enforced an agreement provision concerning staffing levels for certain unit employees.

      Accordingly, we find that the Agency has not established that the award fails to draw its essence from the parties' CBA, Appendix V. [n3] 

B.     The Award Is Not Contrary to Law, namely, § 7106(a)(1) and (2)(A) of the Statute

      The Agency asserts that the award excessively interferes with its rights to determine its organization and to assign employees under § 7106(a)(1) and (2)(A) of the Statute. In particular, the Agency asserts that the award would in effect require either additional regional employees to perform the work currently performed by HQTs technical employees, or a reorganization of the Agency to move HQTs technical employees back to the regions.

      The Authority reviews questions of law 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.

      Under the Authority's test for determining whether an award violates a management right, the Authority first considers whether the award affects a management right. See BEP, 53 FLRA 146. If it does, then the Authority, under prong 1 of the BEP test, will consider, as relevant here, whether the award provides a remedy for a violation of a contract provision that was negotiated under § 7106(b) of the Statute. See id. If the award provides such a remedy, then the Authority will determine, under prong 2, whether the award reconstructs what management would have done had it not violated the contract provision at issue. See id.

      In this case, "there is no issue" that the award "affects a management right" under § 7106(a) of the Statute. Opposition at 10 n.27. [n4]  Accordingly, the award must be evaluated under the BEP framework. [ v60 p164 ]

      Here, as discussed in Section IV.A. above, the Arbitrator interpreted the parties' CBA, Appendix V, Section 1 and found that the Agency elected to negotiate under § 7106(b)(1) of the Statute on the minimum staffing level of Field technical employees in the Agency's regions and implementation centers. As his award, the Arbitrator enforced Appendix V, Section 1 of the CBA and directed the Agency to maintain the minimum staffing level of 6,100 in the regions and implementation centers. See, e.g., Social Security Admin., Boston Region (Region 1), Lowell District Office, Lowell, Mass., 57 FLRA 264, 269-70 (2001) (Member Wasserman dissenting in part); IRS, 56 FLRA at 395 (§ 7106(b)(1) is an exception to § 7106(a) such that bargaining over matters encompassed by § 7106(b)(1) is permitted notwithstanding that such matters also affects rights under 7106(a) and are enforceable). As the Arbitrator was enforcing a provision negotiated under § 7106(b)(1) of the Statute, the award satisfies prong 1 of the BEP framework.

      Under prong 2 of the BEP analysis, the remedy awarded must reflect a reconstruction of what management would have done if management had not violated the contract provision, in particular, Appendix V. If the Agency had not violated the agreement, then the Agency would have maintained the minimum staffing level of 6,100 Field Technical employees in the regions and implementation centers. As the remedy directed by the Arbitrator reconstructs what the Agency would have done had it complied with Appendix V, which was negotiated under § 7106(b)(1) of the Statute, it satisfies prong 2 of the BEP framework. Accordingly, we find that the award does not violate management's rights under § 7106(a) of the Statute. [n5]  In reaching that conclusion, we note that the award neither requires additional regional employees to perform the work currently performed by HQTs technical employees, or a reorganization of the Agency to move HQTs technical employees back to the regions. Rather, the award leaves it to the Agency's discretion as to how to maintain the minimum staffing level of employees at its facilities.

V.     Decision

      The Agency's exceptions are denied.



Footnote # 1 for 60 FLRA No. 38 - Authority's Decision

   Appendix V, provides, in relevant part, as follows:

1. STAFFING AND EMPLOYMENT GUARANTEE
(a) During the remainder of fiscal year 2000, the FAA shall have on board no fewer than 6,000 employees in the pay categories, 2101, 802, 856, 332 and 334 ("technical employees"). During fiscal year 2001, and thereafter during the remainder of the Agreement, the FAA shall have on board no fewer than 6,100 technical employees. [The Union] agrees that this number of technical employees is fully adequate to maintain and certify the NAS, in light of modernization. Upon written request, the Agency agrees to provide the Union with a written staffing report showing the total number of technical employees on board, including their job series and region or implementation center. The remainder of bargaining unit staffing may not be reduced for the term of the Parties' agreement except for voluntary attrition or for reasons stated in paragraph 1(b).
(b) The impact of this agreement is to generally preclude reductions-in-force among bargaining unit employees. It effectively guarantees employment for the term of the Parties' national agreement for unit employees, except for termination based on conduct or performance, termination of probationers, or reductions required by Act of Congress.

Award at 2-3.


Footnote # 2 for 60 FLRA No. 38 - Authority's Decision

   With respect to this test, we note the Union's assertion that in determining whether an award enforcing a contract provision "impermissibly interferes with [a] management right," the Authority rejected the "abrogation test" and now applies an "excessive interference test" and that the Authority should "reconsider its decision and reapply the "abrogation test." Opposition at 10 n.26. Because there is no claim that the disputed contract provision constitutes an appropriate arrangement, we find that this case does not present an opportunity to revisit this test. Accordingly, we deny the Union's request.


Footnote # 3 for 60 FLRA No. 38 - Authority's Decision

   Chairman Cabaniss would concur with the result but not the analysis relied on therein. See DOD, 59 FLRA at 762. In that regard, Chairman Cabaniss would find the Agency's argument asserts an alleged improper waiver of its statutory right under § 7106(b)(1) of the Statute to not bargain over a permissive topic. However, in conducting a de novo review of this argument, Chairman Cabaniss would conclude that the Agency engaged in bargaining over a § 7106(b)(1) matter.


Footnote # 4 for 60 FLRA No. 38 - Authority's Decision

   Member Pope notes that as the Union concedes that the award affects managements rights, and as the Agency's exception is aimed at the award and could not, therefore, clearly have been raised below, there is no basis to bar the exception under § 2429.5 of the Authority's regulations. Member Pope also notes that the Union does not claim the exception is barred.


Footnote # 5 for 60 FLRA No. 38 - Authority's Decision

   Chairman Cabaniss would not reach the issue of whether the award violates management's rights under § 7106(a) of the Statute. In this regard, she notes that