United States, Department of Transportation, Federal Aviation Administration (Agency) and National Air Traffic Controllers Association (Union)

[ v61 p54 ]

61 FLRA No. 8

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

and

NATIONAL AIR
TRAFFIC CONTROLLERS
ASSOCIATION
(Union)

0-AR-3914

_____

DECISION

June 17, 2005

_____

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 Anne L. Draznin 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 sustained a grievance alleging that the Agency violated the parties' collective bargaining agreement when it changed the grievant's shift assignment.

      For the reasons set forth below, we dismiss the Agency's exception that the award excessively interferes with its right to determine internal security practices and deny the Agency's remaining exceptions that the award is contrary to law.

II.      Background and Arbitrator's Award

      The grievant is an Air Traffic Control Specialist who was temporarily, medically disqualified from performing air traffic control duties for six months. The grievant was permitted by the Agency to perform non-controller duties, which did not require full medical certification, during his disqualification period.

      The grievant was given three days' notice by the Agency that he would be working a different shift. The Union filed a grievance alleging that the Agency violated the parties' agreement when it changed the grievant's shift assignment. [n1]  The grievance was unresolved and submitted to arbitration. The parties stipulated the issues to be: "Was the Agency in violation of the [parties'] collective bargaining agreement when it changed the shift assignments of [the grievant]? If so, what shall the remedy be?" Award at 2.

      The Arbitrator examined Article 45 of the parties' agreement and found that it provides the Agency with the authority to assign duties and work to medically disqualified employees. [n2]  The Arbitrator also found that this authority is subject to limitations set forth in other provisions of the parties' agreement, such as Article 32, § 4. [n3]  See id. at 8. In this regard, the Arbitrator stated that although Article 45 allowed the Agency to determine that there was not sufficient non-controller work for the grievant to perform in his work unit during his shift and transfer him to a different work unit where non-controller work existed, the Agency did not make this determination. Instead, according to the Arbitrator, the Agency kept the grievant in the same work unit but changed his shift.

      The Arbitrator found that under Article 32, § 4 of the parties' agreement, the Agency must make "every reasonable effort" to find alternatives, as set forth in that provision, before requiring an employee to change shifts with less than seven days' notice. The Arbitrator found that the Agency did not claim to have considered these alternatives prior to reassigning the grievant's shift. The Arbitrator also determined that the Agency did not ask the grievant to voluntarily change shifts. Based on the [ v61 p55 ] foregoing, the Arbitrator concluded that the Agency violated Article 32 of the parties' agreement when it changed the grievant's shift.

      In addition, the Arbitrator stated that Article 32 provides employees the right to bid for shifts and assignment retention on a yearly basis by seniority. [n4]  According to the Arbitrator, this enables employees to choose shifts that include overtime and shift differential pay. The Arbitrator found no loss of seniority rank under Article 45 when an employee bids for shifts and assignment retention involving non-controller duties while the employee is medically disqualified from performing air traffic controller duties. The Arbitrator determined that the Agency's decision to change the grievant's shift in these circumstances resulted in lost overtime hours that were included in the grievant's regular shift assignments. Accordingly, the Arbitrator found that the Agency also violated the overtime avoidance provisions of Article 32, § 4 of the parties' agreement. [n5] 

      As a remedy, the Arbitrator ordered the Agency to pay the grievant all shift differentials or premium pay to which he would have been entitled during the period in dispute. [n6] 

III.     Positions of the Parties

A.      Agency's Exceptions

      The Agency asserts that the award excessively interferes with its rights to assign employees and assign work under § 7106(a)(2) of the Statute. In this regard, the Agency contends that the award prevents it from establishing the qualifications and skills needed for positions. The Agency also contends that the award precludes it from determining the particular duties that will be assigned, when work assignments will occur, and to whom duties will be assigned. Specifically, the Agency asserts that the award precludes it from assigning non-controller duties to a medically disqualified employee and requires the Agency to keep a medically disqualified employee on a shift where there are not sufficient non-controller duties to perform. In addition, the Agency contends that by requiring the Agency to allow the grievant to retain his shift assignment, the award restricts the Agency's ability to determine the medical qualifications of the Air Traffic Controller Specialist position. The Agency further maintains that the award obligates it to retain an employee on his or her shift based only on seniority.

      The Agency also argues that the award excessively interferes with its right to determine internal security practices under § 7106(a)(1) of the Statute. In this regard, the Agency asserts that the award requires it to retain a medically disqualified employee on a shift without regard to the employee's ability to perform the air traffic controller duties necessary to ensure that the Agency is providing safe and efficient air travel.

B.      Union's Opposition

      Citing § 2425.2 of the Authority's Regulations, the Union asserts that the Agency's exceptions are procedurally deficient because the Agency failed to provide a copy of the Arbitrator's award when submitting its exceptions. The Union also asserts that the Agency did not argue before the Arbitrator that restricting its ability to change the grievant's shift would excessively interfere [ v61 p56 ] with the Agency's right to determine its internal security practices.

      The Union further argues that the award does not infringe on management's rights to assign employees or assign work. In this regard, the Union asserts that the Agency's contention that the award interferes with its right to determine the medical qualifications of the grievant is misplaced. According to the Union, it is undisputed that the grievant is medically disqualified and the issue in this case concerns only whether the Agency violated the parties' agreement when it changed the grievant's shift. Finally, the Union, citing § 7106(b)(2) of the Statute, contends that Article 32 constitutes a procedure for changing an employee's shift.

IV.       Preliminary Issues

A.      The Authority will not dismiss the Agency's exceptions on the ground that it did not submit the Arbitrator's award.

      Section 2425.2 of the Authority's Regulations requires that an exception include a copy of the arbitrator's award. We reject the Union's claim that the Agency failed to provide a copy of the Arbitrator's award to the Authority. In this regard, the Agency did provide a copy of the Arbitrator's award to the Authority when it filed its exceptions, consistent with § 2425.2(d). To the extent that the Union's argument is based on a claim that the Agency failed to serve it with a copy of the award, the record demonstrates that the Union had access to, and made use of, the award in preparing its opposition. In this regard, the opposition contains several references to the Arbitrator's award. See Opposition at 5, 7, 8. Under these circumstances, we deny the Union's request that the Authority dismiss the Agency's exceptions. See AFGE, Local 2006, 52 FLRA 380, 384-85 (1996).

B.      The Agency's internal security exception is barred by § 2429.5 of the Authority's Regulations.

      Under § 2429.5 of the Authority's Regulations, the Authority will not consider issues that could have been, but were not, presented in the proceedings before the arbitrator. Consistent with the Union's assertion, there is no evidence in the award or the record that the Agency's argument regarding its internal security practices was presented to the Arbitrator. As the Agency raised its rights to assign employees and assign work before the Arbitrator, it could have raised its internal security argument. Therefore, we dismiss this exception. See SSA, Office of Hearings & Appeals, Falls Church, Va., 59 FLRA 507, 509-10 (2003).

V.      Analysis and Conclusions

      The Agency argues that the award excessively interferes with its rights to assign employees and assign work. 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.

      When resolving an exception alleging that an award violates management's rights under § 7106 of the Statute, the Authority first determines whether the award affects a management right under § 7106(a). See United States Small Bus. Admin., 55 FLRA 179, 184 (1999). If it does, then the Authority applies a two-prong test to determine if the award is deficient. See United States Dep't of the Treasury, Bureau of Engraving & Printing, Wash., D.C., 53 FLRA 146, 151-53 (1997) (BEP). If the award does not affect a management right, then the BEP analysis is not required. See United States Dep't of the Navy, Norfolk Naval Shipyard, Portsmouth, Va., 55 FLRA 1103, 1105 (1999). For the following reasons, we conclude that the award does not affect management's rights to assign employees and assign work under § 7106(a)(2) of the Statute, and that analysis of the award under BEP is not required.

      The rights to assign work and assign employees under § 7106(a)(2) of the Statute include the right to establish the qualifications and skills needed for positions and/or duties and to determine whether particular employees meet those qualifications and skills. See Laborers Int'l Union of N. America, ALF-CIO, Local 1276, 9 FLRA 703, 706 (1982). The right to assign work also includes the right to determine the particular duties to be assigned, when work assignments will occur, and to whom or what positions the duties will be assigned. See United States Food & Drug Admin., Detroit Dist., 59 FLRA 679, 682 (2004).

      The Agency contends that the award precludes it from assigning non-controller duties to a medically disqualified employee and requires it to keep a medically disqualified employee on a shift where there are not sufficient non-controller duties to perform. Contrary to the Agency's assertions, nothing in the award indicates that the Agency would be required to assign any duties other than non-controller duties to a medically disqualified [ v61 p57 ] employee. In this regard, the Arbitrator found only that the Agency was required to follow Article 32, § 4 of the parties' agreement when it changed the grievant's shift. As such, the award does not require the Agency to keep a medically disqualified employee on a shift where there are not sufficient non-controller duties to perform; the award merely requires the Agency to follow certain contract provisions when making shift changes.

      Moreover, the Agency's contention that the award restricts its ability to determine the medical qualifications of the Air Traffic Controller Specialist position is misplaced for two reasons. First, nothing in the award in any way affects the Agency's determination of the medical qualifications of the Air Traffic Controller Specialist position. In this regard, there is no dispute that the grievant was medically disqualified from performing air traffic controller duties during the period in question. Second, as explained above, nothing in the award requires the Agency to allow the grievant to retain his shift assignment.

      Finally, the Agency maintains that the award requires it to assign employees to shift assignments based only on seniority. However, the Agency has misconstrued the Arbitrator's finding regarding a medically disqualified employee's right to bid for shift and assignment retention based on seniority. In this regard, the Arbitrator determined only that a medically disqualified employee does not lose his or her seniority rank when bidding for shifts and assignment retention involving non-controller duties. The award does not, contrary to the Agency's assertion, require the Agency to assign employees to shifts involving duties that the employee is not qualified to perform based on seniority. Thus, the Agency's assertion provides no basis for finding that the award affects management's rights to assign employees and assign work.

      As the award does not affect management's rights to assign employees and assign work under § 7106(a)(2) of the Statute, we find that the award is not contrary to law as alleged.

VI.      Decision

      The Agency's internal security exception is dismissed. The Agency's remaining exceptions are denied.



Footnote # 1 for 61 FLRA No. 8 - Authority's Decision

   After working on the different shift for a short period of time, the grievant was permitted to return to his original shift for approximately one week. After that week, the Agency again placed the grievant on the different shift, where the grievant remained until a short time after the grievance was filed. According to the Union, there were 24 days that the grievant worked on the different shift in violation of the parties' agreement.


Footnote # 2 for 61 FLRA No. 8 - Authority's Decision

   Article 45 states, in pertinent part, that:

Section 1. At his/her request, an employee who is temporarily medically . . . unable to perform active air traffic control duties, shall be assigned other facility duties, to the extent such duties are available. If such duties are not available, the [Agency] may offer assignment of work at other air traffic facilities . . ., to the extent such duties are available.
. . . .
Section 3. Employees assigned duties under [§ 1] of . . . Article [45] shall continue to be considered as bargaining unit employees and shall be entitled to all provisions of [the parties'] agreement.

Award at 3.


Footnote # 3 for 61 FLRA No. 8 - Authority's Decision

   Article 32, § 4 provides, in pertinent part, that:

The . . . [Agency] agrees to make every reasonable effort to avoid . . . changes [to individual assignments] . . . . Changes with less than seven (7) days notice shall not be made for the purpose of avoiding payment of overtime . . . . [T]he [Agency] shall use the following alternatives to the extent feasible prior to making the change to an employee's posted shift assignment with less than seven (7) days notice.
a.      employees who have volunteered to change shifts;
b.      employees who have volunteered to earn credit hours;
c.      personnel on permanent assignments that are required to maintain currency;
d.      line supervisors;
e.      personnel on detail assignments;
f.      rescheduling of training.
In the event the above alternatives are found not to be feasible, the employee's posted shift assignment can be changed . . . .

Award at 2-3.


Footnote # 4 for 61 FLRA No. 8 - Authority's Decision

   Article 32, § 2 provides that:

Procedures for employees bidding and assignment to the basic watch schedule shall be negotiated by the Union and the Employer at the local level. Upon request of the Union, bidding and/or