National Air Traffic Controllers Association, AFL-CIO (Union) and United States, Department of Transportation, Federal Aviation Administration, Air Route Traffic Control Center, Olathe, Kansas (Agency)

[ v61 p336 ]

61 FLRA No. 61







September 30, 2005


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

I.      Statement of the Case

      These consolidated cases are before the Authority on negotiability appeals filed by the Union under § 7106(a)(2)(E) of the Federal Service Labor-Management Relations Statute (Statute) and concern the negotiability of three provisions of the parties' basic watch schedule agreements disapproved by the agency head after review under § 7114(c) of the Statute. [n1]  The Agency filed a statement of position and the Union filed a response. The Agency did not file a reply.

      For the following reasons, we find that the provisions are consistent with law and order the Agency to rescind its disapproval.

II.      Provisions  [n2] 

Provision 1 [0-NG-2797]
All Mid-shifts in the 2-2-1 schedules will be staffed with at least four FPL's.[ [n3] ]
Provision 2 [0-NG-2798]
The Trails Area Supervisors shall bid for days off prior to the beginning of bargaining unit employees (herein referred to as BUE's).
Provision 3 [0-NG-2799]
Supervisors shall complete bidding prior to bargaining unit bidding.

III.      Positions of the Parties

A.      Agency

1.      Provision 1

      The Agency contends that Provision 1 "excessively interferes" with management's right to assign work under § 7106(a)(2)(B) of the Statute. Agency's Statement of Position (Statement) at 6. According to the Agency, the provision would require management to assign four full performance level air traffic controllers to a 2-2-1 schedule even if there were not enough work for that number of controllers to perform. The Agency maintains that management must be free to "assign employees to perform work where and when they are needed." Id. If management is required to bargain over a change in the number of FPLs assigned to a shift every time a change in assignment is needed, the Agency asserts, that requirement would excessively interfere with its right to assign work.

      The Agency also contends that Provision 1 is inconsistent with Article 32, Section 1 of the parties' collective bargaining agreement. According to the Agency, that section requires the basic watch schedule to satisfy coverage needs and the provision requires staffing of a shift without regard to coverage requirements. [ v61 p337 ]

2.      Provisions 2 and 3

      The Agency contends that Provisions 2 and 3 are outside the duty to bargain because they concern the conditions of employment of supervisors. Specifically, the Agency maintains that the provisions determine when supervisors can bid for days off.

      The Agency also contends that the provisions affect management's right to assign work under § 7106(a)(2)(B). In particular, the Agency argues that the "watch schedule bidding process is an assignment of work." Statement at 4. According to the Agency, under the provisions, management would not be allowed to assign this work to unit employees until after it has been completed by supervisors. Correlatively, the Agency asserts that management would not be able to require unit employees to complete the task of bidding before assigning the task to supervisors.

B.      Union

      According to the Union, under Article 32 of the parties' national level collective bargaining agreement, "procedures for employees bidding, and assignment to, the basic watch schedule shall be negotiated by the Union and the Agency at the local level." Response at 2. The Union states that the provisions at issue in this case are the result of local agreements "regarding the procedures for administering the watch schedule for each of the areas," i.e., the Rivers Area, Trails Area, and Gateway Area. Id.

1.      Provision 1

      As to Provision 1, the Union states that the parties are not in dispute as to the meaning of the provision. Specifically, the Union maintains that it is undisputed that Provision 1 "would result in employees who are fully certified in all areas being assigned to the mid-shift." Id. at 3.

      The Union states that "[s]cheduling four fully certified air traffic controllers on the mid-shifts has been a longstanding practice for the parties." Id. at 5. The Union also states that the parties negotiated the provision, recognizing that management has the right to assign work, but also recognizing that management can elect to negotiate staffing matters. The Union maintains that the Agency has elected to negotiate the staffing pattern set forth in the provision and, because it is a permissive matter under § 7106(b)(1) of the Statute, the Agency cannot disapprove the provision on review under § 7114(c) of the Statute. In this regard, the Union cites ACT, Montana Air Chapter No. 29 v. FLRA, 22 F.3d 1150, 1154 (D.C. Cir. 1994) (Montana ACT).

      The Union disputes the Agency's claim that Provision 1 is inconsistent with Article 32 of the parties' agreement.

2.      Provisions 2 and 3

      The Union also states that the parties are not in dispute as to the meaning of Provisions 2 and 3. The Union explains that the provisions relate to the "year-long schedule bidding process" that exists at all Agency facilities. Response at 4. According to the Union, unit employees are required to submit their watch schedule bids by a certain date and the Agency establishes the time frame within which bidding by supervisors must be completed. The Union further explains that the provisions are intended to "allow bargaining unit employees to know which supervisors are scheduled for each shift prior to the completion of schedule bidding by bargaining unit employees." Id. The Union asserts that the provisions were negotiated pursuant to its right, under law and the parties' agreement, to bargain the procedures governing bidding for assignment to the basic watch schedule.

      As to the contention that the provisions are nonnegotiable because they implicate the conditions of employment of supervisors, the Union argues that proposals that principally relate to the conditions of employment of unit employees are not outside the duty to bargain because they have some impact on non-unit personnel. The Union asserts that "supervisors must participate in the bidding process regardless of whether or not these provisions are implemented." Id. at 10. According to the Union, the provisions establish procedures whose only effect is "to delay bargaining unit employee bidding on the watch schedule until after the non-bargaining unit employees had completed bidding." Id.

      The Union recognizes that management has the right to assign work, but maintains that the provisions constitute procedures under § 7106(b)(2) that merely delay management's ability to assign work to employees. According to the Union, procedures that delay the exercise of a management right are negotiable.

      The Union also contends that the provisions constitute appropriate arrangements within the meaning of § 7106(b)(3). According to the Union, the provisions are designed to address the adverse effect on employees of the "atmosphere that is created within a particular shift as a result of the exercise of supervisory authority." Id. at 12. In this regard, the Union references "anecdotal evidence" that employees find working with some supervisors more favorable than others. Id. The Union [ v61 p338 ] argues that the provisions are tailored to address concerns raised by the watch bidding process. The Union also states that the provisions would not affect employees' obligation to take direction from their supervisors while performing their work on a specific shift.

IV.      Analysis and Conclusions

A.      Provision 1

1.      Meaning of the Provision

      It is undisputed that Provision 1 requires management to assign four employees to the mid-shift. By its terms, therefore, the provision prescribes the numbers of employees who will be assigned to a particular tour of duty.

2.      The Provision is Consistent with Law

      The Agency claims that Provision 1 affects its right to assign work under § 7106(a)(2)(B) of the Statute. The Union does not dispute the Agency's claim that the provision affects that right and, accordingly, we find such an effect. See, e.g., Fraternal Order of Police, Lodge #1F, 57 FLRA 373, 384 (2001) (Lodge #1F) (citing AFGE, Council of GSA Locals, Council 236, 55 FLRA 449, 452 (1999). The Union does not claim that, notwithstanding its effect on management's right to assign work, the provision is consistent with law because it is a procedure under § 7106(b)(2) of the Statute or an appropriate arrangement under § 7106(b)(3). Consequently, we do not address § 7106(b)(2) and § 7106(b)(3) of the Statute.

      As to the Union's claim that Provision 1 constitutes a staffing matter under § 7106(b)(1), we note that longstanding Authority precedent establishes that the number of employees assigned to a tour of duty is a matter pertaining to the Agency's staffing patterns about which the Agency can elect to bargain under § 7106(b)(1) of the Statute. See, e.g., NAGE, Branch 11 et al., 57 FLRA 424, 426-27 (2001). Where an agency has agreed to such a staffing pattern, the agreed-upon provision is in accordance with law under § 7114(c) of the Statute and cannot be disapproved by the agency upon review pursuant to § 7114(c)(2). See, e.g., United States Dep't of Commerce, Patent and Trademark Office, 54 FLRA 360, 375 (1998) (PTO) ("[I]t is well-established that after parties have reached agreement on a provision encompassing a § 7106(b)(1) matter, the provision may not be disapproved during agency head review under § 7114(c) of the Statute because such provisions are not contrary to law.") (citing NAGE, Local R4-75, 24 FLRA 56, 62 (1986) (Local R4-75)). As noted above, it is undisputed that the Agency has agreed to Provision 1. Consequently, its disapproval of the provision is without legal effect. See AFGE, AFL-CIO, Local 3732, 39 FLRA 187, 211 (1991) (Local 3722) (agency is "without authority" under § 7114(c) to disapprove provisions based on an alleged conflict with § 7106(b)(1)).

      The Agency's claim that the provision nevertheless affects its right to assign work is unavailing. The Authority has held, in this regard, that

§ 7106(b) is an exception to § 7106(a) such that bargaining over matters encompassed by § 7106(b)(1) is permitted notwithstanding that such matters also affect rights under § 7106(a). This interpretation is consistent with relevant judicial precedent. See Montana ACT, 22 F.3d at 1155 ("§ 7106(b) is indisputably an exception to § 7106(a)"). Moreover, it is compelled by the plain wording of the Statute, which expressly makes § 7106(a) "subject to" § 7106(b) and provides that "nothing in" § 7106 prevents an agency from electing to bargain over matters encompassed by § 7106(b).

PTO, 54 FLRA at 374. See also United States Dep't of Transportation, FAA, 60 FLRA 159, 163-64 (2004) (Authority enforced arbitration award concerning provision prescribing minimum staffing level pursuant to § 7106(b)(1) notwithstanding exception based on management right under § 7106(a); United States Dep't of the Treasury, IRS, Wash., D.C., 56 FLRA 393, 395 (2000) (IRS) (agreement provisions relating to § 7106(b)(1) matters are enforceable notwithstanding affect on § 7106(a) rights).

      In short, because the Agency elected to bargain and agreed to Provision 1, a staffing matter under § 7106(b)(1), the provision is consistent with law, notwithstanding its effect on management's right to assign work under § 7106(a)(2)(B). Consequently, the provision cannot be disapproved under § 7114(c)(2) of the Statute. [n4]  [ v61 p339 ]

      Accordingly, we find that Provision 1 is consistent with law and will order the Agency to rescind its disapproval of the provision.

B.      Provisions 2 and 3

1.      Meaning of the Provisions

      It is undisputed that both supervisors and unit employees must bid for assignment to particular watch schedules. Provisions 2 and 3 require that supervisors complete the bidding process before unit employees undertake their bidding.

2.      The Provisions are Consistent with Law

      As to the Agency's claim that the provisions are inconsistent with law because they directly implicate the conditions of employment of supervisory personnel, the Authority has consistently held that such matters are permissive subjects of bargaining. See, e.g., AFGE, Local 3302, 52 FLRA 677, 680-83 (1996) (Local 3302); IAFF, Local F-61, 3 FLRA 438, 445 (1980). The Authority has also consistently held that contract provisions concerning permissive subjects of bargaining are not inherently contrary to law. See NAGE, Local R3-77, 59 FLRA 937, 941 (2004) (citing IRS, 56 FLRA at 395-96). Thus, if an agency agrees to a proposal directly implicating the conditions of employment of supervisors, the resulting contract provision cannot be disapproved pursuant to agency head review under § 7114(c)(2) of the Statute, unless it is otherwise contrary to law. See, e.g., AFGE, Local 1815, 53 FLRA 606, 622-23 (1997). See also United States Dep't of Defense, Defense Logistics Agency, Defense Distribution Ctr., New Cumberland, Penn., 55 FLRA 1303, 1306 (2000) (award enforcing provision directly implicating conditions of employment of supervisors upheld because it was not contrary to law). Consistent with this precedent, the Agency's argument does not demonstrate that the provisions are contrary to law.

      Turning to the Agency's claim under § 7106(a) of the Statute, it is uncontested that the provisions affect management's right to assign work. However, it is also uncontested that the provisions are procedures. In this regard, the Union argued in its Response to the Agency's Statement of Position that the provisions constituted procedures under § 7106(b)(2). The Agency did not file a reply contesting that claim. See § 2424.32(c)(ii)(2) (failure to respond to an assertion raised by the other party will, where appropriate, be deemed a concession to that assertion). See, e.g., NTEU, 60 FLRA 219, 222 (2004) (citing IFPTE, Local 96, 56 FLRA 1033, 1034-35 (2000)).

      Moreover, a determination that these provisions are procedural in nature is consistent with Authority precedent. See, e.g., NFFE, Local 2192, 59 FLRA 868, 870 (2004) (where union asserted proposal negotiable under § 7106(b)(2) and (3), but agency challenged only the § 7106(b)(3) claim Authority still made separate finding as to whether proposal was consistent with Authority § 7106(b)(2) precedent). Specifically, it is uncontested that the Agency has established the bidding process which is the subject of the provisions so that employees and supervisors may schedule their leave in an orderly manner. Employees take turns, based on seniority, in selecting periods of annual leave; and supervisors do the same, based on some criterion established by management. [n5]  Such a process is inherently procedural. See, e.g., Local R4-75, 24 FLRA at 56-57 (proposal requiring that conflicts in leave requests be resolved in a procedural sequence from most senior to least senior employee is negotiable under § 7106(b)(2)). See also AFGE, Local 1164, 54 FLRA 1327, 1344-46 (1998) (rotational sequence for assigning client interviews does not impermissibly affect right to assign work). In this case, the process involves a series of steps whereby leave schedules are determined based on seniority. See AFGE, AFL-CIO, Local 987, 35 FLRA 265, 270 (1990) ("where management establishes more than one shift during which the same work is performed and the employees have the required qualifications and skills to perform the duties, a proposal concerning which employees will be assigned to various shifts is negotiable" under § 7106(b)(2)). Provisions 2 and 3 merely rearrange the sequence of the steps involved in the procedure, putting the bidding order of supervisors before the bidding order of employees.

      Given that the sequence in which employees and supervisors bid on particular leave schedules is procedural within the meaning of § 7106(b)(2), even assuming that the bidding process itself constituted a work assignment, that would not, in and of itself, render the provisions outside the duty to bargain. The Authority has consistently held that proposals establishing procedures under § 7106(b)(2) are negotiable even if some action is required to implement the procedure. See, e.g., NTEU, 46 FLRA 696, 746 (1992); AFGE, AFL-CIO, Local 446, 43 FLRA 836, 844-46 (1991); NFFE, Local 2099, 35 FLRA 362, 368 (1990) (procedural proposals [ v61 p340 ] that are negotiable under § 7106(b)(2), and that require agency personnel to perform some task in the implementation of the procedure, are within the duty to bargain).

      We note that the provisions in no way delay the implementation of the Agency's work schedules. The bidding process takes place well before the work schedules take effect. At most, the provisions delay when employees would submit their bids regarding leave schedules. However, the fact that a proposal or provision may result in some delay in agency action pursuant to its management's rights under § 7106(a) does not in and of itself render the proposal or provision outside the duty to bargain. A proposal or provision that constitutes a procedure within the meaning of § 7106(b)(2) is negotiable notwithstanding the fact that it may involve some delay in the exercise of a management right. See NTEU, 47 FLRA 370, 384 (1993) (citing Dep't of Interior, Bu. of Land Management v. FLRA, 873 F.2d 1505 (D.C. Cir. 1989)).

      Based on the foregoing, we find that the provisions constitute procedures within the meaning of § 7106(b)(2). As such, it is not necessary to address the Union's claim that the provisions constitute appropriate arrangements within the meaning of § 7106(b)(3).

      Accordingly, we find that Provisions 2 and 3 are consistent with law.

V.      Order

      The Agency is ordered to rescind its disapproval of Provisions 1-3.

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

   In an order dated December 14, 2004, the Authority consolidated Case Nos. 0-NG-2797, 0-NG-2798, and 0-NG-2799 for further processing. See PASS, 61 FLRA 97, 97 n.2 (2005).

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

   The provisions have been renumbered for purposes of this decision. The parties agree that the provisions in dispute are as stated in the disapproved agreements. It should be noted that the petitions for review as to Provisions 2 and 3 contain alternative language. However, as the Agency does not challenge that language, it is not before us in either of the cases. See, e.g., ACT, Mad City and Badger State Chapters, 56 FLRA 863, 866 n.5 (2000) (as neither party addressed issue, it was not before the Authority).

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

   A "2-2-1 schedule" refers to a schedule made up of 2 evening shifts and 2 day shifts followed by a mid-shift. A mid-shift is a shift starting at 11 P.M. or midnight. Petition for Review at 4. The acronym "FPL" refers to full performance level controllers or controllers who are certified on all positions in a given area. Id.