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

[ v61 p658 ]

61 FLRA No. 132

NATIONAL AIR TRAFFIC
CONTROLLERS ASSOCIATION
(Union)

and

UNITED STATES
DEPARTMENT OF TRANSPORTATION
FEDERAL AVIATION ADMINISTRATION
(Agency)

0-NG-2868

_____

DECISION AND ORDER
ON NEGOTIABILITY ISSUES

August 17, 2006

_____

Before the Authority: Dale Cabaniss, Chairman and
Carol Waller Pope, Member

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. The Agency filed a statement of position to which the Union did not file a response.

      For the reasons set forth below, we find that the all four sections of the proposal are outside the duty to bargain.

II.     Proposal and Meaning

      The following proposal was offered during term negotiations and concerns "runway incursions," which involve situations where an airplane on the ground does not maintain the required separation between itself and other airplanes, people, vehicles, or objects:

Section 1. Prevention of runway incursions is a top priority of the Parties. In addition to providing for a safer airspace system, the reduction of runway incursions reduces the number and severity of proposed personnel actions against bargaining unit employees, and reduces the monetary impact on employees participating in a `pay for performance' pay system.
Section 2. The Parties shall establish a Runway Incursion Work Group (RIWG). This work [ v61 p659 ] group shall consist of equal numbers selected by each respective Party. The scope of the workgroup shall be defined in writing and communicated to each member prior to the commencement of business. The extent to which the individual Parties are empowered to reach agreement in specific areas shall be determined in writing by the respective Parties. Any agreements reached within the RIWG shall be reduced to writing and shall be binding on the Parties.
Section 3. The Union representative(s) shall be allowed to participate in the activities of the RIWG in a duty status. If requested by the representative and operation requirements permit, the Agency shall change his/her days off to allow participation in a duty status for these purposes. When a Union representative is unable to be released to participate in a meeting, the meeting shall be rescheduled to the extent practicable, to ensure Union participation.
Section 4. Nothing in the Article shall be construed as a waiver of any Union or Agency right.

      There is no dispute as to the meaning of the proposal. In this regard, Section 1 of the proposal is a statement that the prevention of runway incursions is a priority of the parties for safety reasons and because such events may lead to adverse actions against employees. Section 2 provides for the creation of a RIWG with equal numbers of members selected by and representing the Agency and Union. As explained at the post-petition conference, the scope of decision-making permitted the RIWG would be established by a separate agreement negotiated by the parties and communicated to the RIWG. Record of Post-Petition Conference at 2. Further, each party would separately define, in writing, the authority its representatives have to bind the party without approval from Union or Agency officials. Id.

      Section 3 of the proposal states that Union representatives on the RIWG would be permitted to participate on normal duty time, rather than official time or personal, non-work time, and provides for the adjustment of employee days off and meeting times so that participation will occur during duty time, rather than time off. Section 4 provides that the proposal will not be construed as a waiver of either party's rights. Specifically, the parties agree that Section 4 means that the Agency would retain its management rights under § 7106(a) and (b)(1) of the Statute and the Union would retain the right to engage in impact and implementation bargaining. The parties state that the RIWG would have the right to propose that the Agency adopt new technology to decrease runway incursions, but could not require the Agency to do so. Record of Post-Petition Conference at 3.

III.     Positions of the Parties

A.      Agency

      The Agency argues that Section 1 is a Union statement that "does not alter or modify conditions of employment." Agency Statement of Position (SOP) at 2. The Agency further asserts that the section affects its rights to discipline employees and to assign work under § 7106(a)(2)(B) of the Statute, and concerns the methods and means of performing work under § 7106(b)(1) of the Statute. The Agency also claims that Section 1 "is not an appropriate arrangement" because it is a "Union requested proclamation that deals with employee's performance or lack thereof, which could result in discipline and/or monetary consequences." Id. at 2. Further, the Agency argues that it has no obligation to bargain over Section 1 because the parties have tentatively agreed to Article 48 of the their new term agreement, which "covers the subject of establishing work-groups." Id. at 3. According to the Agency, under the ground rules agreed to by the parties, a matter tentatively agreed to cannot be reopened absent the consent of both parties, and the Agency does not so consent.

      The Agency asserts that Section 2 of the proposal affects its rights to determine its mission and to hire, assign, direct, layoff and retain employees under § 7106(a) of the Statute, and concerns the methods and means of performing work under § 7106(b)(1) of the Statute. The Agency also argues that, in mandating the "creation of a Union initiated work group that management does not wish to create[,]" Section 2 seeks to assign work to employees, in violation of § 7106(a)(2)(B) of the Statute. SOP at 7. Further, the Agency claims that, because agreements reached within the RIWG will be binding on the Agency, the work group "interject[s] itself into management's deliberative decision-making process." SOP at 8. The Agency also asserts that the proposal is not an appropriate arrangement under § 7106(b)(3) of the Statute.

      The Agency argues that Section 3 is inconsistent with the same management rights as Section 2. Further, the Agency claims that this section is inconsistent with § 7131 of the Statute because it mandates that negotiations be conducted on duty time rather than official time. The Agency claims that this is a "fraudulent attempt to circumvent" reporting requirements for official time mandated by the Office of Personnel Management. SOP at 11. The Agency does not make an argument that Section 4 is not negotiable.

      In response to the Union's request that Section 1 be severed from the rest of the proposal, the Agency argues that all four sections are so interrelated that they cannot stand alone. The Agency notes that the Union [ v61 p660 ] states that the Section 1 will "work in concert" with additional agreements, and argues that this implies that the sections of the proposal are interdependent and cannot operate alone. Id. at 14.

B.      Union

      As noted above, the Union did not file a response to the Agency's statement of position. The Union also did not make any arguments regarding the negotiability of the proposal in its petition. The Union requested in its petition that Section 1 be severed from the rest of the proposal. In this regard, the Union asserts that, if severed, Section 1 would establish a mutual goal for the parties that would work in concert with other agreements.

IV.      Preliminary Matter

      Under § 2424.25(d) of the Authority's Regulations, a union "must support its [severance] request with an explanation of how the severed portion(s) of the proposal . . . may stand alone, and how such severed portion(s) would operate." If the severance request meets the Authority's regulatory requirements, then the Authority severs the proposal and rules on the negotiability of its separate components. NFFE, Local 2192, 59 FLRA 868, 868 (2004).

      Section 1 establishes a goal of reducing runway incursions and outlines the goal's ramifications. By its plain wording, nothing in Section 1 depends on Sections 2, 3, or 4 for its operation. While the Agency argues that all four sections are dependent on each other, it does not explain why this is so. In Nat'l Air Traffic Controllers Ass'n., 61 FLRA 341, 343 (2005) (NATCA), the Authority severed, over the agency's objection, a portion of a proposal that set out the purpose of a particular technological change. The instant case involves the same parties, similar arguments, and a similar general goal. As in NATCA, we find that the proposal should be severed as requested.

V.      Discussion

A.      Section 1

      As set forth above, the Union made no arguments regarding the negotiability of the proposal in its petition. Moreover, the Union did not file a response to the Agency's statement of position and, thus, does not dispute the Agency's assertions that Section 1 is outside the duty to bargain based on management rights to discipline employees and assign work. Where a union offers no argument or authority that a proposal does not affect management rights and does not make any argument that the proposal constitutes an exception to management rights, the Authority will find that the proposal is outside the duty to bargain. See NAGE, Local R1-109, 56 FLRA 1043, 1044, 1045 (2001); see also NATCA, 61 FLRA at 344 (agency not obligated to bargain where it claimed that the proposal concerned matters under § 7106(b)(1) of the Statute and the union neither disputed this assertion nor argued that the proposal fell within an exception to management rights). Applying this precedent here, we find that Section 1 is outside the duty to bargain. [n1] 

B.      Sections 2, 3, and 4

      As with Section 1, the Union makes no argument in response to the Agency's arguments that Section 2 is outside the duty to bargain based on management's rights to determine its mission; to hire, assign, direct, layoff and retain employees; and to assign work. In particular, the Agency asserts, and the Union does not dispute, that the proposed work group would "interject itself into management's deliberative decision-making process." SOP at 8; see NFFE, Local 1482, 44 FLRA 637, 675 (1992) (committees that interfere with an agency's deliberative process are outside the duty to bargain). In these circumstances, we find that Section 2 is outside the duty to bargain. [n2] 

VI.      Order

      Both portions of the Union's severed proposal are outside the Agency's duty to bargain.



Footnote # 1 for 61 FLRA No. 132 - Authority's Decision

   In light of this conclusion, it is not necessary to address the Agency's arguments that Section 1 does not alter conditions of employment, that the section is covered by Article 48 of the parties' tentative term agreement, or that the proposal concerns the methods and means of performing work under 7106(b)(1) of the Statute. See Int'l Fed'n of Prof'l & Technical Eng'rs, Local 3, 57 FLRA 699, 700 (2002) (where a proposal was outside the duty to bargain o