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

[ v61 p97 ]

61 FLRA No. 19

PROFESSIONAL AIRWAYS SYSTEMS
SPECIALISTS
(Union)

and

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

0-NG-2801
0-NG-2802

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

July 13, 2005

_____

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

I.     Statement of the Case

      These consolidated cases are before the Authority on negotiability appeals filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute). [n2]  Each case concerns the negotiability of two proposals that would incorporate the same training provisions from the parties' collective bargaining agreement into a mid-term memorandum of agreement. The Agency filed a statement of position and the Union filed a response.

      For the reasons set forth below, we find that the proposals are outside the duty to bargain.

II.     NG-2801 Proposal 1 and NG-2802 Proposal 1  [n3] 

NG-2801 Proposal 1
Training to support the ARSR-4 Transmitter Corrosion Modification shall be deployed in accordance with PASS/FAA AF Collective Bargaining Agreement (CBA), Articles 27, 28, 30 and FAA Order 3000.10B in conjunction with 3000.10B Memorandum of Agreement signed 9/18/02. PASS will be provided any and all associated training material for review no less than 30 days prior to fielding.
NG-2802 Proposal 1
Training to support National Airspace System (NAS) modernization and Enhanced Back-Up Surveillance System (EBUS) shall be deployed in accordance with PASS/FAA AF Collective Bargaining Agreement (CBA), Articles, 27, 28, 30 and FAA Order 3000.10B in conjunction with 3000.10B Memorandum of Agreement signed 9/18/02.

A.      Meaning of the Proposals

      The parties agree that the proposals mean that if the Agency decides to provide training for the ARSR-4 Transmitter Corrosion Modification or for the NAS modernization and EBUS, then the Agency will provide such training in accordance with the provisions of the collective bargaining agreement and the memorandum of agreement identified in the proposals. See Record of Post-Petition Conference at 2, 3. The parties also agree that the Agency only disputes the inclusion of Article 28, § 1(a) and § 1(b) of the parties' collective bargaining agreement (hereinafter § 1(a) and § 1(b)) in the proposals. [n4] 

B.      Positions of the Parties

1.      Agency

      The Agency contends that, by referencing §§ 1(a) and (b), the proposals require the Agency to comply with those provisions and, thereby, affect its rights to assign employees and to assign work. See Agency's Statement of Position at 5. In this regard, the Agency asserts that § 1(a) establishes the qualifications necessary for an employee to be assigned as a certified on-the-job training (OJT) instructor. See id. The Agency also asserts that § 1(b) prevents the Agency from assigning an employee to conduct formal OJT unless the employee qualifies as a certified OJT instructor. See id. The Agency further asserts that the proposals do not constitute negotiable procedures or appropriate arrangements under §§ 7106(b)(2) and (3) of the Statute. See id. at 6. [ v61 p98 ]

2.     Union

      As an initial matter, the Union requests that the Authority not consider the Agency's claim regarding § 1(b) because the Agency did not make this claim in its allegation of nonnegotiability. See Union's Response at 1. On the merits of the Agency's claims, the Union disputes that the proposals affect the Agency's rights to assign employees and work. In this connection, the Union asserts that the proposals merely require that, for employees to be compensated for conducting OJT on the technology identified in the proposals, the training must be conducted consistent with §§ 1(a) and (b). Specifically, to be compensated, an employee must be a certified instructor and provide formal OJT. See id. at 8, 9. According to the Union, the proposals, by referencing §§ 1(a) and (b), do not affect management's rights to assign employees or work because the Agency is permitted to assign OJT duties to any employee, including uncertified employees, and retains full authority to determine whether training provided to employees is formal training, in accordance with the parties' agreement, or less than formal training. See id.

      The Union also contends that "Article 28, Section 1(a) and (b), which were incorporated by reference in the Union's proposal, are negotiable because [ ] they constitute an appropriate arrangement within the meaning of Section 7106(b)(3)[.]" Id. at 9. In addition, the Union contends that the parties are authorized to bargain over compensation pursuant to 49 U.S.C. § 106(l). [n5]  See id.

C.     Preliminary Issue

      The Union requests that the Authority not consider the Agency's claim regarding § 1(b). See Union's Response at 1. In this regard, the Union contends that, at the post-petition conference, the Agency improperly "expand[ed] the scope" of its allegation of nonnegotiability by adding to its initial assertion concerning § 1(a) the claim that the proposals violated its management rights by referencing § 1(b). Id. However, it is well-established that neither the Statute nor the Authority's Regulations require that an allegation of nonnegotiability be made with any particular degree of specificity, see, e.g., AFGE, Local 1985, 55 FLRA 1145 (1999), and that an agency is first required to specifically support its allegation of nonnegotiability in its statement of position. See 5 C.F.R. § 2424.24(a) and (c); see also AFGE, Local 2452, 45 FLRA 1213, 1214 (1992). As the Agency was not required to set forth all of its arguments in its allegation of nonnegotiability, we reject the Union's request that the Authority not consider the Agency's claims regarding § 1(b).

D.     Analysis and Conclusions

1.     The proposals affect management's rights to assign employees and assign work.

      The Agency asserts that the proposals affect its rights to assign employees and work. The right to assign employees concerns the right to assign employees to positions. See AFGE, AFL-CIO, 2 FLRA 604, 613 (1980). The right to assign work concerns the assignment of duties and includes the right to determine the particular duties and work to be assigned to employees [ v61 p99 ] or positions and the particular employees to whom, or positions to which, the work will be assigned. See NTEU, 3 FLRA 769 (1980). The Authority has long held that the rights to assign employees and assign work include the right to establish the qualifications and skills needed for positions and/or duties and to judge whether particular employees meet those qualifications and skills. See AFGE, Local 3935, 59 FLRA 481, 482 (2003). In this regard, an agency may require that employees possess specific knowledge, skills, and abilities needed to do the work of a position, as well as job-related individual characteristics such as judgment and reliability. See AFGE, Local 1138, Council 214, 51 FLRA 1725, 1728-29 (1996). The Authority has also held that proposals requiring management to assign training to employees affect management's right to assign work. See, e.g., Prof'l Airways Sys. Specialists, 56 FLRA 798, 801 (2000); NAGE, Local R1-203, 55 FLRA 1081, 1083 (1999).

      Here, the proposals expressly state that if the Agency decides to provide certain types of training, the training "shall be deployed" in accordance with Article 28. Post-Petition Conference Report at 2. As such, the proposals operate to require the Agency to assign only those training instructors meeting the Article 28 requirements to conduct OJT on the programs identified in the proposals. As the proposals require the Agency to assign the prescribed training only to those employees who are certified instructors and as the proposals prevent the Agency from assigning the OJT duties to employees who do not meet the requirements of Article 28, we find that the proposals affect management's rights to assign employees and assign work. See, e.g., NFFE, Local 2192, 59 FLRA 868, 870 (2004) (Chairman Cabaniss dissenting on other grounds).

2.     The proposals do not constitute appropriate arrangements.

      The Union claims that the proposals constitute appropriate arrangements under § 7106(b)(3). In resolving this claim, under the analysis set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG), the Authority must first determine whether the proposals are intended as arrangements for employees adversely affected by the exercise of management's rights. To establish that a proposal is an arrangement, a union must identify the effects or reasonably foreseeable effects on employees that flow from management's rights and how those effects are adverse. See id. at 31. The claimed arrangement must also be sufficiently tailored to compensate employees suffering adverse effects attributable to the exercise of management's rights. See AFGE, Nat'l Council of Field Labor Locals, 58 FLRA 616, 617-18 (2003). In determining whether the arrangements are appropriate, the Authority weighs the benefits afforded to employees under the arrangements against the burdens on the exercise of management's rights. See KANG, 21 FLRA at 31-32.

      Assuming for the purposes of this decision that the proposals constitute arrangements, the Authority must determine whether the arrangements are appropriate. According to the Union, by incorporating §§ 1(a) and (b), the proposals are designed to "address the adverse consequences of having unqualified OJT instructors and to benefit employees receiving [OJT]." Union's Response at 8. However, there is no basis on which to find that employees providing the training specified in the proposals would be unqualified to provide such training. In our view, the proposals would burden the Agency by limiting its ability to assign OJT. On balance, we conclude that the burden on the Agency outweighs any possible benefit to the employees. In this regard, the proposals would completely preclude the Agency from assigning employees not meeting the Article 28 requirements to conduct OJT. Accordingly, we conclude that the proposals excessively interfere with management's right to assign work and, therefore, do not constitute appropriate arrangements under § 7106(b)(3).

3.     The proposals are not within the duty to bargain pursuant to 49 U.S.C. § 106(l).

      The Union claims that "Article 28, Sections 1(a) and (b)" are within the duty to bargain because the parties are authorized to bargain over pay and compensation matters under 49 U.S.C. § 106(l). Union's Response at 9. The Union is correct in asserting that 49 U.S.C. § 106(l) and a related provision, 49 U.S.C. § 40122(a), authorize the parties to bargain over compensation matters. However, the Union's arguments with respect to Article 28 are unavailing. The parties have already bargained over -- and reached agreement with respect to -- compensation for certified OJT instructors in Article 28. The proposals at issue here do not concern compensation matters, but rather concern the assignment of OJT duties to employees. Accordingly, the Union's claim based on 49 U.S.C. § 106(l) does not establish that the proposals are within the duty to bargain. [ v61 p100 ]

III.     NG-2801 Proposal 2 and NG-2802 Proposal 2  [n6] 

NG-2801 Proposal 2
Training to support the ARSR-4 Transmitter Corrosion Modification shall be deployed in accordance with PASS/FAA AF Collective Bargaining Agreement (CBA), Articles 27, 29, 30 and FAA Order 3000.10B in conjunction with 3000.10B Memorandum of Agreement signed 9/18/02. PASS will be provided any and all associated training material for review no less than 30 days prior to fielding.
NG-2802 Proposal 2
Training to support National Airspace System (NAS) modernization and Enhanced Back-up Surveillance System (EBUS) shall be deployed in accordance with PASS/FAA AF Collective Bargaining Agreement (CBA), Articles 27, 29, 30 and FAA Order 3000.10B in conjunction with 3000.10B Memorandum of Agreement signed 9/18/02.

A.      Meaning of the Proposals

      The parties agree that the proposals mean that if the Agency decides to provide training for the ARSR-4 Transmitter Corrosion Modification or for the NAS modernization and EBUS, then the Agency will provide such training in accordance with the provisions of the agreements identified in the proposal. See Record of Post-Petition Conference at 3. The parties also agree that the Agency only disputes the inclusion of Article 29, § 9 of the parties' agreement (hereinafter § 9), which precludes the Agency from canceling an employee's approved leave of five days or more to accommodate attendance at a technical training course unless the employee agrees. [n7]  See id.

B.      Positions of the Parties

1.      Agency

      The Agency claims that § 9 prevents the Agency from canceling an employee's leave of five days or more without the employee's approval. See Agency's Statement of Position at 7. Accordingly, the Agency contends that, by referencing this existing provision of the parties' agreement, the proposals would require the Agency to comply with that provision and, thereby, affect its right to assign work. The Agency further contends that the proposals do not constitute negotiable procedures or appropriate arrangements under §§ 7106(b)(2) and (3) of the Statute. See id. at 8.

2.      Union

      The Union disputes that the proposals affect the Agency's right to assign work. In this regard, the Union claims that, by referencing § 9, the proposals prevent the Agency from canceling an employee's previously approved annual leave of more than five days to attend training, but do not prevent canceling leave to perform duties in an "operational environment" or to perform a "core function." Union's Response at 9, 10. The Union also asserts that the proposals constitute appropriate arrangements for the adverse effects on bargaining unit employees resulting from the Agency's "inability to manage the training program" and its "resources." See id. at 10.

     C.     Analysis and Conclusions

1.      The proposals affect management's right to assign work under § 7106(a)(2)(B) of the Statute.

      The Authority has found that the right to assign work includes the right to assign employees to attend job-related training. See AFGE, Local 1345, 48 FLRA 168, 185 (1993) (Member Armendariz concurring and dissenting on other grounds). In addition, it is well-established that the right to assign work includes the right to determine when work will be performed. See, e.g., NAGE, SEIU, AFL-CIO, 40 FLRA 657, 670 (1991). Consequently, proposals that restrict an agency's right to determine when annual leave may be used affect management's right to assign work. See NFFE, Local 405, 42 FLRA 1112, 1126 (1991). In particular, the Authority has previously determined that proposals that restrict an agency's right to rescind previously approved annual leave requests affect management's right to assign work. See AFGE, Local 1513, 41 FLRA 589, 600 (1991). [ v61 p101 ]

      As acknowledged by the Union, the proposals reference and require the Agency to comply with § 9, which prevents the Agency from canceling an employee's leave to attend a training course without the employee's approval. As such, the proposals involve the Agency's assignment of job-related training and establish limitations on the Agency's right to rescind previously approved leave to attend such training. Therefore, we find that the proposals affect management's right to assign work under § 7106(a)(2)(B) of the Statute. See NTEU, 45 FLRA 696, 722 (1992) (NTEU).

2.      The proposals do not constitute appropriate arrangements under § 7106(b)(3) of the Statute.

      We use the KANG analysis set forth above to analyze the Union's claim that the proposals constitute appropriate arrangements under § 7106(b)(3) of the Statute.

      Assuming for the purposes of this decision that the proposals constitute arrangements, the Authority must determine whether the arrangements are appropriate. In doing so, we weigh the benefits afforded to employees under the arrangements against the burdens on the exercise of management's rights. See KANG, 21 FLRA FLRA at 31-32. In this regard, the Authority previously reviewed a proposal prohibiting an agency from changing approved leave unless the employee's absence would disrupt the agency's workload. See NTEU, 45 FLRA at 724. The Authority determined that the proposal burdened the agency by restricting its ability to determine when particular employees would be available to perform work and benefited employees by permitting them a greater degree of control over use of their annual leave. See id. On balance, the Authority concluded that the proposal was not an appropriate arrangement because the burden on the agency's right to assign work outweighed the benefits afforded to employees. See id. at 724-725.

      The proposals here limit the Agency's right to rescind previously approved leave in a manner similar to the proposal in NTEU. In this connection, although the proposals benefit employees by providing them with a greater degree of control over use of their annual leave, they burden the Agency by restricting its ability to determine when particular employees would be available to perform work assignments. Accordingly, on balance, and consistent with NTEU, we find that the burden the proposals place on the Agency's right to assign work outweighs the benefits afforded to employees. See NTEU, 45 FLRA at 723-25. Therefore, we conclude that the proposals excessively interfere with management's right to assign work and, thus, are not negotiable appropriate arrangements under § 7106(b)(3) of the Statute.

IV.     Order

      The proposals are outside the duty to bargain.


File 1: Authority's Decision in 61 FLRA No. 19
File 2: Opinion of Member Pope


Footnote # 1 for 61 FLRA No. 19 - Authority's Decision

   Member Pope's opinion, dissenting in part, is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 19 - Authority's Decision

   In an order dated December 14, 2004, the Authority consolidated NG-2801 and NG-2802 for further processing.


Footnote # 3 for 61 FLRA No. 19 - Authority's Decision

   The wording of the proposals is as modified at the Post-Petition Conference. See Record of Post-Petition Conference at 2, 3.


Footnote # 4 for 61 FLRA No. 19 - Authority's Decision

   Article 28, §§ 1(a) and (b) of the parties' collective bargaining agreement state:

Certified OJT instructors will be compensated for administering formal and documented OJT only when adhering to the provisions and guidelines identified below:
a.     Certified instructors are defined as those who have/are:
     1.     Completed OJT Techniques (course #10527 or it's equivalent).
     2.     Certified on the relevant system/subsystem/service.
     3.     Recommended by 1st level supervisor.
     4.     Designated in writing by 2nd level supervisor or higher level manager.
b.     OJT instruction shall be considered formal only when:
     1.     Administered by a certified OJT instructor.
     2.     An OJT plan has been developed and approved by the 2nd level supervisor or higher level manager.
     3.     Conducted in preparation for a performance exam and subsequent facility/service certification.
     4.     Performing hands-on OJT on commissioned or to be commissioned facilities, systems, or equipment.

Footnote # 5 for 61 FLRA No. 19 - Authority's Decision

   49 U.S.C. § 106(l) states, in relevant part:

[T]he Administrator is authorized . . . to . . . fix the compensation of such officers and employees . . . 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(a) provides that the Administrator shall negotiate with the exclusive bargaining representatives of employees of the Administration certified under § 7111 of title 5 and consult with other employees of the Administration.


Footnote # 6 for 61 FLRA No. 19 - Authority's Decision

   The wording of the proposals is as modified during the Post-Petition Conference. See Record of Post-Petition Conference at 2, 3


Footnote # 7 for 61 FLRA No. 19 - Authority's Decision

   Article 29, Section 9 of the parties' agreement provides that "[a]nnual leave of five (5) days or more which has been approved and scheduled in advance shall not be canceled to accommodate attendance at a training course unless the employee agrees to cancel the leave.