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

[ v61 p341 ]

61 FLRA No. 62

NATIONAL AIR TRAFFIC
CONTROLLERS ASSOCIATION
(Union)

and

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

0-NG-2790

_____

DECISION AND ORDER
ON A NEGOTIABILITY ISSUE

September 30, 2005

_____

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

I.     Statement of the Case

      This case is before the Authority on a negotiability appeal filed by the Union under § 7105(a)(2)(E) of the Federal Service Labor-Management Relations Statute (the Statute), and concerns the negotiability of one proposal consisting of nine sections. The proposal addresses matters related to the Agency's implementation of technology designed to aid air traffic controllers in providing information about flight plans to managers, customers, airport authorities, and others. The Union filed a response to the Agency's statement of position (SOP) and the Agency filed a reply to the Union's response.

      For the following reasons, we find that Sections 1, 3, 4, 5, 6, and 7 of the proposal are outside the duty to bargain and that Sections 2 and 9 of the proposal are bargainable only at the election of the Agency.

II.      Proposal  [n2] 

This Agreement is made by and between the National Air Traffic Controllers Association (hereinafter "NATCA" or "the Union") and the Federal Aviation Administration (hereinafter "the FAA" or "the Agency"), collectively known as the "Parties." The Agreement represents the complete understanding of the parties at the national level concerning Airport Resource Management Tool ("ARMT").
Section 1. The parties agree that this Agreement only applies to facilities where the Agency has implemented ARMT prior to the signing of this agreement. Any implementation of ARMT at facilities that do not currently have ARMT shall be handled in accordance with Article 7 of the CBA [collective bargaining agreement].
Section 2. The Agency has determined that the purpose of ARMT is to reduce coordination between facilities, automate delays, and gauge airport performance.
Section 3. The Agency has determined that ARMT shall not be the initiating source of any controller performance and/or disciplinary action.
Section 4. The Agency has determined that ARMT is not a certified tool for separation purposes. ARMT data may be used to research the events associated with the occurrence of an operational error, operational deviation, technical violation, or other similar incidents only after such a determination has been made.
Section 5. All issues expressly delegated to the parties at the local level by this Agreement shall be negotiated and/or resolved in accordance with Article 7 of the CBA. Any issue not addressed in this Agreement shall be negotiated and/or resolved by the parties at the appropriate level in accordance with Article 7 of the CBA.
Section 6. The parties agree that for any facility where ARMT has been implemented, the parties at the local level shall meet to negotiate and/or resolve any outstanding issues in accordance with section  5 of this Agreement.
Section 7. The Agency has determined that ARMT is not a national program insomuch that it is not funded nationally. Should ARMT become a nationally funded program, the Agency shall notify the Union of the change at the national level in accordance with Article 7 of the CBA. [ v61 p342 ]
Section 8. This Agreement does not constitute a waiver of any right guaranteed by law, rule, regulation, or contract on behalf of either party.
Section 9. This Agreement may be reopened by either party in accordance with the provisions of Article 7 of the CBA.

III.      Meaning of the Proposal

      The Union submitted its proposal following the Agency's implementation of the Airport Resource Management Tool (ARMT) at some of the Agency's facilities. The ARMT technology is designed to aid air traffic controllers in providing information about flight plans to managers, customers, airport authorities, and others. Conference Report at 2. The Agency has not certified ARMT as a tool to monitor the distance between, or separation of, aircraft. In addition, the Agency has not determined to fund ARMT nationally. See id.

      The proposal is intended to "represent[] the complete understanding of the parties at the national level concerning [ARMT]." Petition for Review at 3. Section 1 states that: (1) the MOU applies only to facilities where the Agency has already implemented ARMT; and (2) any implementation of ARMT at other facilities would require the Agency to give the Union notice and an opportunity to bargain, pursuant to Article 7, "Mid-Term Bargaining[,]" of the parties' collective bargaining agreement (CBA). See id. at 4.

      The parties disagree about the operation of Sections 2 and 3. According to the Union, Section 2 explains the purpose of ARMT, but is not exhaustive and is not intended to limit the purposes for which the Agency may use ARMT. The Union further asserts that Section 3 precludes the Agency from relying on ARMT data to initiate performance and disciplinary actions. According to the Union, Section 3 does not limit the Agency's right to use data from ARMT after performance and disciplinary actions have already been initiated based on "other certified sources[.]" Union Response at 8.

      The Agency asserts that the Union's explanation as to the meaning of Sections 2 and 3 should not be adopted because it is inconsistent with the plain wording of the sections. See SOP at 2-3. In this connection, the Agency asserts that the plain wording of these sections is specifically designed to preclude the Agency from using ARMT to measure an employee's performance and/or to initiate performance-based disciplinary action. Id. at 3.

      As to Section 4, the term "separation purposes" means the amount of distance that must be maintained between aircrafts. See Conference Report at 2; SOP at 4. By its terms, Section 4 states that the Agency has determined that ARMT is not a certified tool for separation purposes, and that the Agency could use ARMT data to research the events associated with the occurrence of an operational error, operational deviation, technical violation, or other similar incidents only after such a determination has been made. See id. According to the Union, examples of "other similar incidents" would be runway incursions or aircrafts and trucks crossing paths. See Conference Report at 2. The Agency asserts that it "is still uncertain" as to the meaning attributed to this term. SOP at 4.

      Section 5 states that all issues expressly delegated to the parties at the local level by the MOU will be negotiated and/or resolved in accordance with Article 7 of the CBA, and that any issue that is not addressed in the MOU will be negotiated and/or resolved by the parties at the appropriate level in accordance with Article 7 of the CBA.

      Section 6 requires the parties to bargain at the local level, in accordance with Section 5, over any outstanding issues at facilities where ARMT has been implemented.

      Section 7 provides that, if the Agency decides to fund ARMT nationally, the Agency will provide the Union with notice and opportunity to bargain over such a change.

      Section 9 states that the MOU may be reopened by either party in accordance with Article 7 of the CBA.

IV.     Preliminary Matter

      In its petition for review, the Union stated that it did "not wish to sever the proposal." Petition for Review at 5. Subsequently, the Union stated that "[a]fter reviewing the [p]roposal, [it] now believes that a number of the sections of the proposal are severable." Union Response at 13. In this regard, the Union requests that the Authority sever the proposal and consider separately the following individual sections, or pairings of sections, of the proposal: Section 1; Sections 2 and 9; Sections 3 and 4; Sections 5 and 6; and Section 7. See id. at 13-14.

      The Union argues that Section 1, which "sets out the scope of the [p]roposal and what the Union is attempting to do[,] . . . can stand alone because it does not rely on other sections of the proposal." Id. at 13. [ v61 p343 ]

      Next, the Union argues that Section 2 can be severed from all of the other sections except Section 9. In this regard, the Union asserts that Section 2 "can stand with" Section 9 because Section 2 "merely puts in writing what purposes ARMT serves." Id. at 14. In this regard, the Union contends that, "[a]t the very least, [it] would be able to determine what functionality it has negotiated over and what new functionality might be subject to bargaining. If the Agency were to change the functionality, it can reopen the MOU under Section 9." Id. As for Section 9, the Union states that this section "is a sunset clause that sets out when the parties can reopen" the MOU, and that it "works with Section 2, as discussed above." Id.

      With respect to Sections 3 and 4, the Union asserts that they can be severed from the rest of the proposal insofar as they "work together to mitigate the impact that the non-certified ARMT data could have on employees." Id.

      As to Sections 5 and 6, the Union contends that they "operate together to set out what issues have been addressed at the national level and what issues should be addressed at the local level." Id. As such, the Union asserts that Sections 5 and 6 "cannot be severed from each other but can be severed from the rest of the proposal." Id.

      The Union argues that Section 7 can be severed because it can serve its function -- to clarify the Agency's responsibility if it funds and implements ARMT nationally -- "standing alone." Id.

      The Agency opposes the Union's request for severance, asserting that the proposal is not severable because the proposals are "interrelated in purpose and operation" and portions of the proposal cannot "stand independently from the rest of the proposal." Agency Reply at 1-2. In this regard, the Agency asserts that Sections 2-4 are "clearly interrelated in purpose and operation in that the Union is attempting to preclude the agency from using ARMT to initiate performance based actions/disciplinary actions." Id. at 2. Moreover, the Agency asserts that "it is the Union's intent to preclude the use of ARMT in the evaluation and investigation of an operational error, operational deviation, all of which can lead to a performance based removal and/or disciplinary action." Id.

      Generally, proposals will be severed if the request is supported with an explanation of how each severed portion of the proposal may stand alone and how it would operate. See 5 C.F.R. §§ 2424.22(c) and 2424.25(d).

      The Union has demonstrated that the individual sections, or pairings of sections, of the proposal for which severance has been requested can stand alone and operate independently. Accordingly, consistent with precedent, we grant the Union's request to sever, and consider together Sections 2 and 9, as well as Sections 3 and 4. See NFFE, Local 2192, 59 FLRA 868, 869-70 (2004) (Chairman Cabaniss dissenting on other grounds); Ass'n of Civilian Technicians, Tony Kempenich Mem'l Chapter 21, 56 FLRA 526, 529-30 (2000), petition for review denied sub nom. Ass'n of Civilian Technicians, Tony Kempenich Mem'l Chapter 21 v. FLRA, 269 F.3d 1119 (D.C. Cir. 2001). As the parties raise similar arguments with regard to Section 1, Sections 5 and 6, and Section 7, we consider them together.

V.     Section 1; Sections 5 and 6; and Section 7

A.      Positions of the Parties

1.      Agency

      With respect to Sections 1, Sections 5 and 6, and Section 7, the Agency asserts that there is a bargaining dispute within the meaning of § 2424.2(a) of the Authority's regulations because these sections are "covered by" Article 7 of the parties' CBA. See SOP at 5-7.

2.      Union

      The Union asserts that the "covered by" doctrine does not preclude bargaining over sections 1, 5, 6, and 7 because they "in no way" attempt "to expand the terms of Article 7 beyond what was negotiated at the collective bargaining table and do[] not address [any]thing that is expressly contained in the CBA." Union Response at 12.

B.      Analysis and Conclusions

      The Agency's only claim with regard to Sections 1, 5, 6, and 7 is that they are covered by Article 7 of the parties' agreement. This claim raises a bargaining obligation dispute, which is defined in § 2424.2(a) of the Authority's Regulations as "a disagreement between an exclusive representative and an agency concerning whether, in the specific circumstances involved in a particular case, the parties are obligated to bargain over a proposal that otherwise may be negotiable." [n3]  The Authority's Regulations further specify, in § 2424.2(d), that a negotiability dispute "that concerns [ v61 p344 ] only a bargaining obligation dispute may not be resolved [in a negotiability proceeding]."

      As the only issue raised by the Agency with regard to these sections of the proposal concerns a bargaining obligation dispute, we dismiss the petition for review as to Section 1, Sections 5 and 6, and Section 7. See Antilles Consol. Educ. Ass'n, 61 FLRA No. 60 (2005).

VI.     Sections 2 and 9

A.      Positions of the Parties

1.      Agency

      The Agency asserts that it has no duty to bargain over Section 2 because this section concerns the technology, methods, and means of performing work and is a permissive subject of bargaining over which the Agency has elected not to bargain. See SOP at 6.

      With respect to Section 9, the Agency asserts that there is a bargaining dispute within the meaning of § 2424.2(a) of the Authority's regulations because this section is "covered by" Article 7 of the parties' CBA. See id. at 7.

2.      Union

      The Union does not dispute the Agency's assertion that Proposal 2 concerns a permissive subject of bargaining and argues that "Section 2 attempts to put in writing what purposes the [ARMT] technology serves." Petition for Review at 4.

      The Union asserts that Section 9 is a "standard sunset clause, which is not expressly covered by Article 7" of the parties' agreement, and, as such, it is "fully negotiable." Union Response at 13.

B.      Analysis and Conclusions

      The Union does not dispute the Agency's assertion that Section 2 concerns a § 7106(b)(1) matter. Generally, § 7106(b)(1) matters are bargainable at the election of the agency. Here, the Agency asserts, and the Union does not dispute, that the Agency has elected not to bargain. Notwithstanding the Agency's election not to bargain, if the proposal constitutes a procedure under § 7106(b)(2) of the Statute or an appropriate arrangement under § 7106(b)(3) of the Statute, the Agency has an obligation to bargain over the proposal. As the Union has not alleged either that Section 2 constitutes either a procedure under § 7106(b)(2), or an appropriate arrangement under § 7106(b)(3), Section 2 is bargainable only at the election of the Agency.

      With regard to Section 9, as discussed above, we have granted the Union's request that Sections 2 and 9 be considered together. Accordingly, we address these sections as, essentially, one proposal. Where the Authority finds that a proposal concerns a § 7106(b)(1) matter, the Authority will not resolve an agency's "covered by" argument regarding that proposal because, regardless of whether the matter is "covered by" the parties' agreement, "there is no statutory obligation to bargain over it." Nat'l Ass'n of Agric. Employees, Branch 11, 57 FLRA 424, 427 (2001). As we have found that Section 2 concerns a § 7106(b)(1) matter, we find it unnecessary to resolve the Agency's "covered by" argument regarding Section 9.

      For the foregoing reasons, Sections 2 and 9 are bargainable only at the election of the Agency.

VII.     Sections 3 and 4

A.      Positions of the Parties

1.      Agency

      The Agency asserts that § 3 of the proposal is contrary to management's right to discipline and management's right to direct employees and assign work because it "prohibit[s] the Agency from taking any performance[-]based action and/or disciplinary action based solely on information derived from the ARMT." SOP at 7. According to the Agency, this section of the proposal is "an immunity provision." Id. (citing Prof'l Air Traffic Controllers Org., 5 FLRA 763, 768 (1981)), the Agency asserts that the Authority has previously held that such provisions interfere with management's right to discipline. The Agency also cites Portsmouth Fed. Employees Metal Trades Council, 34 FLRA 1150, 1157 (1990) (Portsmouth), for the proposition that the right to discipline encompasses the right to obtain and use evidence to support performance-based and/or disciplinary actions. See SOP at 7-8.

      The Agency further asserts that Section 3 does not constitute an appropriate arrangement under § 7106(b)(3) because the language of this section, as written, excessively interferes with management's right to discipline employees. In this regard, the Agency asserts that, under the proposal, it would be "precluded from acting at all when the only evidence of employee misconduct is data collected by ARMT." SOP at 8. Citing Authority precedent, the Agency asserts that proposals "that would restrict an [a]gency's use of various materials and documentation as evidence," excessively interfere with management's right to discipline. Id. (citing AFGE, AFL-CIO, Local 3732, 39 FLRA 187, 223-24 [ v61 p345 ] (1991); AFGE, AFL-CIO, Local 1931, 32 FLRA 1023, 1047-50 (1988)).

      The Agency asserts that Section 4 of the proposal is contrary to management's right to discipline because it "would restrict the Agency's use of [ARMT] data as evidence and limit the [A]gency's use of appropriate investigative techniques" to uncover conduct that could result in disciplinary action. SOP at 8. The Agency further asserts that this section of the proposal "imposes substantive limitations on the [A]gency's ability to conduct performance/disciplinary investigations and take performance and disciplinary action." Id. According to the Agency, proposals that restrict the evidence an agency may rely on to support a disciplinary action directly interfere with management's right to discipline. See id. at 9 (citing Int'l Ass'n of Machinists & Aerospace Workers, Lodge 39, 41 FLRA 1452, 1454 (1991) (IAM)). The Agency also asserts that this section interferes with management's right to assign work to employees and to direct employees' work.

2.      Union

      The Union "acknowledges" that Sections 3 and 4 "may interfere with a management right," but asserts that each of these sections is an appropriate arrangement. Union Response at 5. In this regard, the Union asserts that it made the proposal "in good faith using language from a regional MOU, . . . which passed agency head review." Id. at 6. See also Union Response, Attachment A. In this connection, the Union asserts that, "[s]ince this language has already been agreed to by the parties, and has passed agency head review, the [Authority] should defer to the Agency's prior position that the language was negotiable." Id.

      The Union explains that it is concerned that ARMT is not certified as a National Airspace System (NAS) tool and, as such, is not a reliable measure for whether an air traffic controller committed an operational error or operational deviation. See id. at 6-7. For this reason, the Union believes that ARMT "should not be the initiating source of any controller performance actions or discipline." Id. at 7. According to the Union, this section of the proposal "does not preclude management . . . from taking performance and discipline actions against an employee, if it is appropriate." Id. The Union asserts that the Agency can use "other certified sources [to] support ARMT's non-certified findings." Id. at 8. As such, the Union contends that this section of the provision is an appropriate arrangement and does not excessively interfere with management's rights.

      The Union asserts that Sections 3 and 4 of the proposal "are intended to serve as an arrangement where employees would [not] be improperly disciplined or negatively cited for poor performance based on unreliable non-certified ARMT data." Id. at 9. According to the Union, these sections of the proposal impose "a very light burden" for the Agency when balanced against the benefit to employees. Id. In this regard, the Union asserts that, under 5-1-5 of FAA Order 7210.56, managers are already required to conduct a full investigation, including reviewing data from certified equipment, such as DAT tapes, Radar Reply, and other sources. Further, the Union explains that the benefit to employees "is very minimal" insofar as employees will still receive performance actions or discipline if the manager conducts an investigation in accordance with 5-1-5 of FAA Order 7210.56. Id.

      The Union asserts that the Agency's reliance on PATCO and Portsmouth is "misplaced." Id. In this connection, the Union argues that, unlike in PATCO, Sections 3 and 4 of the proposal "in no way prevent[] the Agency from taking action against an employee[,]" but "merely limit[] the use of non-certified data as the primary basis for taking that action." Id. at 10. Similarly, the Union contends that the present case is distinguishable from Portsmouth because the proposal does not limit the Agency's ability to investigate or take action against employees. See id.

B.      Analysis and Conclusions

1.      Meaning

      The Union explains that Section 3 would require the Agency to abide by certain FAA regulations and orders. Further, the Union explains that Section 3 would also preclude the Agency from relying on ARMT data to initiate performance and disciplinary actions. The Agency asserts that the Authority should not adopt the Union's meaning of Section 3 because it is inconsistent with the plain wording of the section, which is "specifically designed to preclude the Agency from using ARMT to measure an employee's performance and/or to initiate performance based[] disciplinary action." SOP at 3.

      As set forth above, the parties in this case dispute the meaning of this section of the Union's proposal. When interpreting a disputed proposal, the Authority looks first to the proposal's wording and the union's statement of intent. If the union's explanation of the proposal's meaning comports with the wording, then that explanation is adopted for the purpose of construing what the proposal means and, based on that meaning, [ v61 p346 ] deciding whether the proposal is within the duty to bargain. See AFGE, Local 1900, 51 FLRA 133, 138-39 (1995).

      The Union explains that this section of the proposal would preclude the Agency from relying on ARMT data to initiate performance and disciplinary actions against employees. As the Union's explanation of the proposal comports with the plain working, we adopt it and will decide whether this section of the proposal is within the duty to bargain based on this meaning.

2.      Section 3 affects management's right to discipline under § 7106(a)(2)(A) of the Statute.

      The Union "acknowledges" that Section 3 "may interfere with a management right[.]" Union Response at 5. The Authority has found that proposals that prevent management from taking action based on certain types of information affect management's right to discipline. See, e.g., AFGE, Local 1345, 48 FLRA 168, 199 (1993) (Member Armendariz dissenting, in part and concurring, in part as to other matters). In addition, proposals that prevent management from using certain types of information in support of disciplinary action based on conduct or performance affect the right to discipline. See, e.g., AFGE, Local 1709, 56 FLRA 549, 552 (2000) (AFGE, Local 1709) (proposal precluding an agency from taking disciplinary action based on an employee's performance-related or non-performance related actions identified in an assessment under the agency's quality assurance program affects management's right to discipline); Patent Office Prof'l Ass'n, 47 FLRA 10, 63 (1993) (POPA) (provision preventing agency from taking disciplinary action because of a complaint from an unidentified source affects management's right to discipline ); AFGE, Local 3295, 44 FLRA 63, 69 (1992) (proposal precluding the agency from using certain information to affect performance ratings adversely and to support performance-based actions based on those ratings affects management's right to discipline).

      As Section 3 of the proposal prevents the Agency from relying on ARMT data to initiate discipline, we find that it affects management's right to discipline under § 7106(a)(2)(A) of the Statute.

3.      Section 3 does not constitute an appropriate arrangement under § 7106(b)(3) of the Statute.

      In determining whether a proposal is an appropriate arrangement, the Authority applies the standard set forth in NAGE, Local R14-87, 21 FLRA 24 (1986) (KANG). Under that test, the Authority initially determines whether a proposal is intended to be an arrangement for employees adversely affected by the exercise of a management right. See KANG, 21 FLRA at 31. An arrangement must seek to mitigate adverse effects "flowing from the exercise of a protected management right." United States Dep't of the Treasury, Office of the Chief Counsel, IRS v. FLRA, 960 F.2d 1068, 1073 (D.C. Cir. 1992). The alleged arrangement must also be sufficiently tailored to compensate or benefit employees suffering adverse effects attributable to the exercise of management's rights. See, e.g., NFFE, Local 2015, 53 FLRA 967, 973 (1997). If a proposal is determined to be an arrangement, then the Authority determines whether it is appropriate, or whether it is inappropriate because it excessively interferes with the relevant management right. See KANG, 21 FLRA at 31-33. In doing so, the Authority weighs the benefits afforded to employees under the arrangement against the intrusion on the exercise of management's rights. See id.

      Even assuming that the proposal constitutes an arrangement, we find that it is not appropriate because it excessively interferes with management's right to discipline. In this regard, Section 3 of the proposal absolutely precludes the Agency from initiating discipline when the only evidence of employee misconduct is ARMT data.

      The Union asserts that Section 3 is intended to serve as an arrangement whereby "employees would [not] be improperly disciplined or negatively cited for poor performance based on unreliable non-certified ARMT data." Union Response at 9. According to the Union, Section 3 would not preclude the Agency from taking performance-based discipline against employees because the Agency can rely on "other certified sources [to] support ARMT's non-certified findings." Id. at 8. Further, the Union asserts that the Agency would not be precluded from using ARMT data to support discipline based on certified data.

      Clearly, Section 3 would benefit employees by preventing the initiation of discipline based solely on non-certified data. However, Section 3 would burden the Agency by restricting its right to discipline employees when ARMT data is the only evidence of misconduct. Even though Section 3 would allow the Agency to use ARMT data to support a finding of wrongdoing initiated on the basis of certified data, this section nonetheless places an absolute restriction on the Agency's right to take disciplinary action based solely on ARMT data. As Section 3 would prohibit the Agency from taking any disciplinary action based solely on ARMT data, the Agency's right to discipline employees would be substantially impaired. [ v61 p347 ]

      In previous cases, the Authority has found that proposals or provisions that restrict or totally preclude the agency's use of certain information or evidence in disciplining employees excessively interfere with management's right to discipline. See, e.g., IAM, 41 FLRA at 1454-56 (proposal that restricts the prior offenses the agency may rely on to enforce its progressive disciplinary system excessively interferes with the right to discipline); AFGE, AFL-CIO, Local 1931, 32 FLRA 1023, 1047-50 (1988) (provisions that would preclude the agency's use of oral statements, unsigned reports, anonymous information, confidential statements, and similar information at any stage of the disciplinary process excessively interfere with management's right to discipline). Here, Section 3 of the proposal would allow the Agency to use ARMT data to support employee discipline that is initiated on the basis of certified data. However, this section totally precludes the Agency from taking disciplinary action where ARMT data is the only evidence of wrongdoing. Since the Agency is restricted from taking any disciplinary action based on ARMT data, this section places a severe restriction on the type of information the Agency can rely on in disciplining employees, effectively limiting the Agency's discretion to rely on any and all available evidence. As such, the proposal excessively interferes with management's right to discipline and is not an appropriate arrangement.

4.     Sections 3 and 4 are outside the duty to bargain.

      Having found that Section 3 is not an appropriate arrangement, we conclude that Section 3 of the proposal is outside the duty to bargain. [n4]  In view of this finding and having granted the Union's request to consider Sections 3 and 4 together, we also find that Section 4 is outside the duty to bargain. See, e.g., Prof'l Airways Sys. Specialists, Dist. No. 6, PASS/NMEBA, 54 FLRA 1130, 1131 (1998) (if any portion of a disputed proposal is outside the duty to bargain, the entire proposal falls outside the duty to bargain)).

VIII.      Order

      The petition for review is dismissed as to Sections 1, 3, 4, 5, 6, and 7 of the proposal. Sections 2 and 9 of the proposal are bargainable only at the election of the Agency.


Dissenting Opinion of Member Armendariz:

      For the reasons set forth below, I would not grant the Union's motion to sever the proposal. On the merits of the Union's petition, I would find that Section 3 of the proposal is outside the duty to bargain because it excessively interferes with management's right to discipline. In view of this finding, I would find that the entire proposal is outside the duty to bargain and would dismiss the petition for review. Accordingly, I dissent.

      The proposal, which is in the form of an agreement between the parties, states that the sections of the agreement represent "the complete understanding of the parties at the national level concerning Airport Resource Management Tool (`ARMT')." Petition for Review at 3. The Union did not request severance of the proposal in its petition for review and expressly stated that it was not seeking severance at the post-petition conference, but later modified its position and requested severance in its response to the Agency's statement of position.

      Specifically, the Union requests that the Authority consider Section 1 separately; Sections 2 and 9 together; Sections 3 and 4 together; Sections 5 and 6 together; and Section 7 separately. In support of its request, the Union argues that Section 1 "can stand alone because it does not rely on other sections of the proposal." Union Response at 13. Next, without elaboration, the Union argues that Section 2 can be severed from all of the other sections except Section 9 and that these sections can stand together because Section 2 "merely puts in writing what purposes ARMT serves." Id. at 14. Further, the Union asserts that Sections 3 and 4 are interrelated insofar as they "work together to mitigate the impact that the non-certified ARMT data could have on employees." Id. With regard to Sections 5 and 6, the Union asserts that these sections "operate together" to set out whether issues should be addressed at the national level or local level, and, as such, Sections 5 and 6 "cannot be severed from each other[,] but can be severed from the rest of the proposal." Id. Finally, the Union argues that Section 7 can be severed because it can serve its function -- to clarify the Agency's responsibility if it funds and implements ARMT nationally -- "standing alone." Id.

      The Authority's Regulations require the Union to "support its request with an explanation of how the severed portion(s) of the proposal . . . may stand alone, and how such severed portion(s) would operate." 5 C.F.R. § 2424.25(d) (emphasis added).

      While the Union asserts that the portions can stand alone, in support of its assertion the Union essentially [ v61 p348 ] describes the meaning or purpose of each section. It makes no attempt to explain how the portions could stand alone, or how the severed portions would operate. For example, although the Union states that Section 1 "does not rely on other sections of the proposal[,]" Section 1, by its terms, references "this Agreement" and its application to facilities where the ARMT has been implemented and to those where it has not been implemented. If Section 1 were severed from the remaining sections of the proposal, and it was the only section found negotiable, there would be no other sections, addressing specific aspects of the ARMT, that would go into effect. Likewise, with respect to Sections 2 and 9, they constitute, respectively, a statement of the purpose of ARMT and a reopener provision. If they were the only sections found negotiable, the practical effect would be to allow reopening of a purpose statement. In my view, it is apparent that these sections, which the Union wishes to sever, would not, as a practical matter, be able to stand alone nor would they operate in any sensible way. As such, I would find that the request for severance fails to comply with the Authority's regulatory requirements and would deny it on that basis. See, e.g., Ass'n of Civilian Technicians, Wichita Air Capitol Chapter, 58 FLRA 483, 484 (2003), petition for review granted on other grounds sub nom. Ass'n of Civilian Air Technicians, Wichita Air Capitol Chapter v. FLRA, 360 F.3d 195 (D.C. Cir. 2004) (a severance request must be accompanied by an explanation as to how each of the proposed severed proposals would operate). Accordingly, I would "address the proposal[] as an integrated whole." Prof'l Airways Sys. Specialists, 59 FLRA 25, 27 n.4 (2003).

      In addition, I believe the prefatory language of the proposal evidences the Union's intent that the proposal be considered as a whole. As noted above, the Union's proposal states that "[t]he Agreement represents the complete understanding of the parties at the national level concerning Airport Resource Management Toll (ARMT)." Petition for Review at 3. If, in fact, the Union intended for the Agreement to constitute a complete document addressing its concerns regarding the implementation of the ARMT technology, it stands to reason that the Agreement as a whole is what the Union intended to negotiate. Accordingly, in agreement with the Agency, I would find that the proposals are "interrelated in purpose and operation" and cannot "stand independently from the rest of the proposal." Agency Reply at 1-2.

      In considering the merits of the Union's petition, I would find that Section 3 excessively interferes with management's right to discipline for the reasons set forth in the majority opinion. Having denied the request for severance and having found Section 3 outside the duty to bargain, I would find, consistent with Authority precedent, that the entire proposal is non-negotiable. See, e.g., Ass'n of Civilian Technicians, N.Y. State Council, 56 FLRA 444, 449 (2000), reconsideration denied, 56 FLRA 868 (2000) (citing Prof'l Airways Sys. Specialists, Dist. No. 6, PASS/NMEBA, 54 FLRA 1130, 1131 (1998) (if any portion of a disputed proposal is outside the duty to bargain, the entire proposal falls outside the duty to bargain)).



Footnote # 1 for 61 FLRA No. 62 - Authority's Decision

   The dissenting opinion of Member Armendariz is set forth at the end of this decision.


Footnote # 2 for 61 FLRA No. 62 - Authority's Decision

   The underlined portion of the proposal (Section 8) is not in dispute. See Record of Post-Petition Conference (Conference Report) at 1. Accordingly, it will not be addressed.